My Souter Remembrance

As we hear news of Supreme Court Justice David Souter's expected retirement, I am reminded of those days in 1990 when I covered his nomination by President George H.W. Bush. I found Souter to be a remarkably evenhanded and surprisingly moderate judicial pick in an era when conservatives thought they ruled the roost.

Sure enough, Souter proved to be something of a liberal justice, at least in the context of the rightward leaning court. To his credit, he made no effort to "court" conservatives when seeking Senate confirmation.

You could see Souter's leftward bent coming in his 1990 Senate hearing. In particular, I recall his clever and witty responses during a testy back-and-forth with Iowa Republican Charles Grassley, who became quite frustrated with Souter's refusal to toe the conservative line. Souter simply would not provide assurances that he would narrowly interpret individual rights under the Constitution.

"As your testimony hit me on Friday, it seemed to me more the terminology likely to come from a judicial activist," Grassley said, inviting the nominee to "rephrase it in favor of something better."

Souter smiled and said, "I think you're giving me a hint, Senator."

The former New Hampshire judge offered no solace to Grassley; instead he further defended the power of courts to define unwritten rights. He cited the example of Brown vs. Board of Education, the 1954 ruling that outlawed racially segregated schools.

"If you simply read the text of the Constitution and somebody said, 'Where does it refer to school desegregation?' - of course you would not have found anything," Souter said. "But I think that clearly implicit in the text of the Constitution itself was the proper basis for the court's exercise of its jurisdiction."

Grassley then asked Souter to name any case in the court's history where "improper rights were created." The nominee mentioned none.

"Well then, let me see if I can help you where you might think the court improperly acted," Grassley said. He cited rulings during the tenure of Chief Justice Earl Warren, despised by conservatives for provoking decisions during the 1960s that aggressively expanded the rights of criminal suspects.

Souter did not agree that the Warren Court rulings went too far, describing them as a "pragmatic implementation" of the Bill of Rights.

Further aggravating conservatives, Souter praised the Warren Court rulings for teaching law enforcement officers how to protect the rights of suspects.

"We have learned to live with those rulings and we live with them pretty well today," Souter said.

One of Souter's statements during his Senate grilling has always stuck with me. Pressed for his views on individual rights, Souter offered a gem of wisdom that struck me as a delightful distillation of what our country is all about: "I'd rather have a right to do something than a right to stop someone else."

In tribute to this fine Justice, let's repeat that line in larger text:

"I'd rather have a right to do something than a right to stop someone else."

Craig blogs daily at craigcrawford.com on CQ Politics.

Comments

[handyallen1]

he will be missed

[bluebird47]

Craig, thanks for sharing your memories with us. Unfortunately I wasn't as plugged into politics then as I am now. David Souter will be missed. I wish him the best of luck and health in his retirement.

[bugsbonzai]

The Supreme Court will continue to be a bad joke until there is public understanding and knowledge of just how despicable and sleazy some of the people on the court are. The way to do this is through a C-Span like airing of the proceedings. There's absolutely ZERO legitimate justification for the Supreme Court to be shrouded in shadows and secrecy. They are the SUPREME court; there's no need to keep things under wraps to avoid biasing appeals or jury pools. Until the public is made aware of just how nasty, bumbling, idiotic and bizarre some of these justices are, nothing will change. The argument of protection of the justices is moot; they are public figures, accepted a public service position, and are paid by public funds. Thus, in accepting the position, they are willingly becoming a public figure, and just as it's fine to see the Congressmen on C-Span, so too should Americans be able to see what they're paying for.

[nostradavid]

Thanks for the memories, Craig.
I think this timing proves that David is that much smarter than everyone else on the court.
He can forget Washington, and have a great life back home.

[Deparis]

Scalia would rather kick the bucket on the court than retiring and let a Democratic President pick his replacement. Just like the last Chief Justice did. Why couldn't Justice O'Connor wait for a couple more years before retiring? I continue to struggle with finding an answer to this question.

Anyway Justice Souter is a fine man and an impressive Jurist. You just have to read his opinions whether he dissents or concurs. I wish him a good retirement and a happy long life.

[SmallChange]

Justice O'Connor retired from the bench, for the most part, due to the extenuating medical problems her husband was having with Alzheimer disease.

[schatsie]

And she just happened to do it while Bush was President....Alzhiemer's doesn't happen in a day and it does require institutionalization...

[carljr]

A great post that reminds us all that one good man can make a difference in the face of seemingly impossible odds.

[ProudLiberalDemocrat]

Justice Souter is a consumate jurist. His temperment will be missed.

As to Justice Scalia, he may just have to wait until a Republican is back in the WH before he retires. But he often discusses poor monetary remuneration and I wonder if he 'goes for the gold' before he's too old.....

[Mainer36]

Let's hope.

[BMBTHC]

Why couldn't Scalia retire?

[WeWon]

Thanks very much for this post. I knew very little aout this man and you have done a fine job educating me.