How do we thank Justice David Souter for his service?
"The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."
-- David Souter, after being sworn in as a Supreme Court justice in 1990
"'I have written the following reply,' Souter said dryly [in response to Chief Justice Roberts], as if preparing to read a dissent. A ripple of laughter went through the courtroom. 'You quoted the poet, and I will, too, in words that set out the ideal of the life engaged, "where love and need are one,"' Souter read. 'That phrase accounts for the finest moments of my life on this court, as we have agreed or contended with each other over those things that matter to decent people in a civil society.'"
-- Dana Milbank's Washington Post account of retiring Justice Souter's response to Chief Justice John Roberts' reading of a letter to Souter from his eight current colleagues as well as his longtime former colleague, retired Justice Sandra Day O'Connor -- and the justice's parting words
In his Washington Post piece Milbank went on to write:
Because of Souter's quiet ways (he uttered all of 200 words in his farewell yesterday), it's easy to forget how different the country would be today if this unmarried recluse from the North hadn't decamped long ago to join the court's liberal wing. Had he remained the conservative that President George H.W. Bush thought he was getting when he nominated Souter in 1990, there's every possibility that abortion would be illegal in the United States today, that the Ten Commandments would be displayed throughout schools and courthouses, and that the law of the land on any number of issues -- guns, terrorism, race -- would be different.
Before yesterday's session began, William Suter, the clerk of the Supreme Court, stood in the chamber in his tails and vest, giving a talk to a group of visitors. "Politics is over here," Suter said, holding up one fist. "Law is over here," he said, holding his other fist apart. Would that it were so. Everybody who has heard of Bush v. Gore knows that the justices have at times been as political as their counterparts across the street in the Capitol.
But Souter refused to play his assigned partisan role in the court's battles -- and he defied the conservatives one final time yesterday. As the five other Reagan and Bush appointees formed a majority to say that New Haven, Conn., discriminated against white firefighters, Souter joined the two Clinton appointees and John Paul Stevens in a dissent accusing the majority of a "confounding" opinion that "misconceives one of our nation's principal civil rights laws."
It's been a busy day, and a contention-filled one, and so it's been left till now to say good-bye to a real American hero. A hero of mine anyway. A man who came almost literally out of nowhere. Had anyone besides New Hampshire home-state colleague then-Sen. Warren Rudman heard of Souter when Rudman recommended him to President George H.W. Bush to replace one of the great justices in the Court's history, retiring 84-year-old William J. Brennan? (The two NH pols went back a ways. In 1971 then-state Attorney General Rudman had picked Souter, an assistant AG, to be deputy attorney general.)
Naturally we all assumed the worst. Wikipedia reminds us:
The nine senators voting against Souter included Ted Kennedy and John Kerry from Souter's neighboring state of Massachusetts. These senators, along with seven others, painted Souter as a right-winger in the mold of Robert Bork. They based their claim on Souter's friendships with many conservative politicians in New Hampshire. Their allegations failed to influence the other 90 senators. The press called him the "stealth justice" and reported that his professional record provoked little real controversy and provided very little "paper trail." President Bush saw this lack of a paper trail as a positive for Souter, because one of President Reagan's nominees, Bork, had recently been rejected by the Senate partially because of the availability of his extensive written opinions on issues. Bush claimed that he did not know Souter's stances on abortion, affirmative action, or other issues. The National Organization for Women opposed Souter's nomination and held a rally outside the hearings to oppose his selection. The then-president of NOW, Molly Yard, testified that Souter would "end... freedom for women in this country." Souter was also opposed by the NAACP, which urged its 500,000 members to write letters to their senators asking for Souter's defeat. Despite this opposition, Souter won an easy confirmation compared to those of later Republican appointees.
Souter spoke of his admiration for the conservative Justice John Marshall Harlan II of the Warren court, as well as for liberal Justice William Brennan of the same court, during his confirmation hearings. The Wall Street Journal described the events leading up to the appointment of the "liberal jurist" in a 2000 editorial, saying Rudman in his "Yankee Republican liberalism" took "pride in recounting how he sold Mr. Souter to gullible White House chief of staff John Sununu as a confirmable conservative. Then they both sold the judge to President Bush, who wanted above all else to avoid a confirmation battle." Rudman wrote in his memoir that he had "suspected all along" that Souter would not "overturn activist liberal precedents." Sununu later said that he had "a lot of disappointment" about Souter's positions on the court and would have preferred him to be more similar to Justice Antonin Scalia.
Well, I've learned a lot about Senator Rudman that I didn't know at the time. It was a great, history-making recommendation he made, and for 19 years we've been beyond fortunate to have this quiet, unassuming man serving on our highest court. It's generally reported that he became increasingly unhappy with the poinsonous partisan divide in Washington, which of course has become pretty hard to escape on the Supreme Court, and it's hard not to honor his feeling that he's had enough, just as it's hard not to honor his wish not to cling to his seat, but to retire still in relative good health to go back home to enjoy his retirement years.
Boy, will he be missed.