My fellow Bench Memorandists Ed Whelan and Wendy Long are worried that Justice David Souter could be replaced with someone “even worse” (says Ed), someone who is “a hard-left judicial activist” (says Wendy).
I can think of one or two areas of constitutional law where I have agreed with David Souter, but for the most part he has been a disaster. On the hot-button issues of abortion, assisted suicide, gay rights, the death penalty, and the place of religion in the public square, Souter has been just as wrong as anyone Obama could name from the worst list Ed and Wendy could come up with. A more visible “hard-left” justice, with more of a penchant to give speeches, to sound off, to tangle in public with Justices Scalia and Thomas, would fulfill the dreams of liberal law professors to have a hero, but would probably change the course of the Court very little from what its trajectory would be if Souter stayed another 20 years. In short, I think a Court with Souter staying would be no less likely to do all the bad things on Ed’s list than a Court with Souter replaced by an Obama appointee.
But I think it’s high time for some reciprocity from our friends in the Democratic party. I think they owe us a Souter in reverse. That is, President Obama should nominate someone who is a virtual unknown, a cipher with no paper trail but a reputation as a “moderate” in Democratic party ranks, capable of assuring liberal senators that he has no problem with judicial lawmaking as an abstract proposition, but who turns out within the first term or two on the Court to have been a closet originalist, devoted to judicial restraint, and who “grows into office” as a stalwart ally of Scalia, Thomas, Roberts, and Alito.
Since they’re all male Catholics from the East, I suggest President Obama find a woman from the West who is Jewish or Protestant, but otherwise fits the description above. Please send me the names of your nominees, and I’ll make sure they get to the White House.