After Souter

Supreme Court nomination hearings are fascinating looks at how the judiciary (often the most important force in our lives) is shaped. And the hearings for whomever President Obama selects to replace David Souter should even be fun, since they won't really matter. Souter is a liberal justice, and Obama will try to replace him with a liberal justice. In the long run this might count for something, since the liberal wing will get younger but the conservative one won't, but it would leave the current makeup of the court -- a 4-4  liberal-conservative split, with Anthony Kennedy the tiebreaker -- intact.

Notice I said try to replace Souter with a liberal justice. Justices are often a disappointment to the presidents who chose them, Souter being a good example. He didn't turn out exactly as expected:

David Hackett Souter had only been on a federal appeals court bench for a few months when he was tapped to replace liberal lion William Brennan, a choice many Republicans hoped would move the high court rightward and reshape American law.

"I think that is good news for all of us who are committed to the Constitution of the United States," said President Bush. "He'll be a superb justice for the Supreme Court."

Just for yucks, I went back and read what I wrote when Souter appeared before Congress in 1990. It was interesting:

I formed two impressions from the hearings:
    * Souter comes closer to my own constitutional views than anybody I've ever heard. The Constitution can't be interpreted as if its only meaning is the intent that was understood by a handful of people 200 years ago. But neither can it be stretched to cover every privilege a particular justice thinks should be a "protected right." We must start, Souter says, not with original intent but with "original principle." And to that we add how the principle has been understood and applied - how legislatures have used it, courts have interpreted it, people have lived it. This approach gives us neither the unyielding rigidity of strict constructionism nor the haphazard whims of "judicial activism." What results is a slowly evolving body of constitutional law.
    * He scares me to death. The "moderate" view of constitutional law can be exercised with caution, or it can be used to justify all kinds of judicial mischief. In some of his answers - his remarks about local authorities not doing what they're supposed to and judges stepping in to fill a vacuum - he sounded entirely too eager to start using his power.

Yikes. Proof, I guess, of the fact that someone appearing to think like you does not guarantee he will behave like you would. No wonder presidents are so often fooled by their nominees. Not only is there the chance a justice will change his or her thinking as actual cases start piling up, but what the nominee actually thinks can be hard to determine. After Robert Bork got savaged for his philosophy (often distorted or outright lied about), nomination hearings have become  a song and dance in which the nominee does everything possible to not actually say anything substantive.

This is especially likely when the questioning is not exactly hostile. Obama's nominee is likely to get the same friendly questioning from majority Senate Democrats as John Roberts got from majority Republicans. And Democrats will be able to do anything they want, so there isn't much point for Republicans to be nasty. Like I said, this one doesn't matter much.

All that considered, maybe this could be the nomination in which senators of both parties just use the process as an exercise in exploring constitutional issues and where that document stands in governing American lives and politics these days. But that's probably a futile hope. Back when Clarence Thomas was before the Senate, I wrote the only thing that should matter was his understanding of the law and how faithful he would be to the Constitution. But senators didn't seem all that interested in that particular issue. In fact, they've never demonstrated much interest at all in the Constitution.