Replacing Souter

Sorry not to have posted; I haven’t been well the last couple of days. Had a horrible cold over the weekend, but it’s better now. I haven’t had to take anything for it since I got up this morning (knock on wood). Kind of wrung out, though.

In keeping with my usual policy of keeping some plates spinning on the blog at all times, though, I should at least have thrown out a “talk amongst yourselves” topic on the pending departure of Justice David Souter.

So here goes, belatedly.

As I may have pointed out before, last year was for me a real departure — a presidential election in which I liked BOTH candidates. I had always liked McCain, and then the more I saw of Barack Obama, the more I liked him, too. While neither of them would fully qualify as Energy Party material, each of them was the closest thing to an Unparty champion that his respective party was ever likely to produce.

So it was that I said a number of times last year that for once, we had a win-win proposition.

It was only at the very end that I started to get alarmed about Obama. The third debate between him and McCain was a watershed moment for me, and caused my mind to be undivided in advocating that we endorse McCain. There were two issues that were deciding factors, two positions taken by Obama that actually alarmed me. Those were his positions on free trade and judicial selection.

The thing that his position on these two points had in common was that they were so doctrinaire. On these issues he was not the paradigm-busting Unpartisan, but a cliche-spouting defender of liberal orthodoxy. I could digress about the Colombian free trade agreement here, but that’s not our topic today.

Roe v. Wade has so successfully (and tragically) polarized our politics that people who disagree with me about it can’t hear me when I say this, but I’ll say it again anyway: My problem with Obama on this point was not that he disagreed with me on abortion. Lots of people I’ve supported over the years, some quite enthusiastically, have disagreed with me on abortion. Joe Lieberman, for instance (you know, the guy who should have been on McCain’s ticket).

My problem was that on this subject, Obama seems to make no allowance for people who disagree with him — unlike McCain. Sen. Obama was, quite pointedly, NOT one of the Gang of 14. Nor had he demonstrated any willingness to support judicial nominees who failed his litmus test. To recap, here’s the difference I saw between him and McCain on this point:

Much harder to overlook is the hard fact that despite his opposition to Roe, John McCain voted to confirm two Clinton nominees, Justices  Stephen Breyer and Ruth Bader Ginsburg. Why? “Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences.” Senators should respect the president’s prerogative to the point that they should refuse to confirm only those nominees who are obviously unqualified. “This is a very important issue we’re talking about,” he added. Sen. Obama has had two opportunities in his brief Senate career to confirm highly qualified nominees — Samuel Alito and John Roberts — and voted against both. Yes, confirmation is different from nomination, but I would rather have someone who has demonstrated McCain’s relative freedom from ideology doing the nominating.

Then there was his odd way of talking past the very good federalist argument that McCain offered against Roe:

Perhaps worst of all, Sen. Obama was dismissive and misleading regarding the proper roles of the states with regard to the federal government, and the political branches with regard to the judiciary. Regarding Roe, Sen. McCain said, “I thought it was a bad decision…. I think that… should rest in the hands of the states. I’m a federalist.” He was saying abortion law should be returned to state legislatures, where we make most of our laws, rather than having it in a special, hands-off category.
In answering, Mr. Obama shocked me in two ways, saying “I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.”
If a right to privacy exists, it is at best inferred from the Constitution. The author of the “right,” Justice William O. Douglas, found it in “penumbras” and “emanations.” And yet Sen. Obama equated it to the very first rights that the Framers chose to set out in black and white, and subject to ratification. That a Harvard-trained attorney would do that may not boggle your mind, but it surely does mine.
Then there’s that bit about not subjecting such a hallowed “right” to “state referendum,” or “popular vote.” Sen. McCain had suggested nothing of the kind. In a representative democracy, such questions are properly decided neither by plebiscite nor by judicial fiat, but by the representatives elected by the people to make the laws under which we will live.

This was the first time I had noticed Obama doing anything that smacked of intellectual dishonesty.  But I don’t think he was being dishonest; I think he has actually talked himself into believing what he said, which in a way is worse.

After the election, my good feelings about Obama returned. He confirmed many of the best impressions I had formed of him during the campaign. I began to hope, audaciously. And I was very pleased by his pragmatism on national security matters — something that I had hoped for, even though many who voted for him had hoped for something else. In particular, I have appreciated his cool self-assurance as the nation goes through the economic wringer — it helps.

But now David Souter is retiring, and my qualms from the last weeks of the campaign have returned somewhat.

I take heart from this: Souter himself is the George H.W. Bush appointee whom the right grew to hate, crying “No more Souters!” Wouldn’t it be great if Obama appointed someone who is just as serious and studious a jurist, but one whom the left will later castigate as a disappointment?

I think it would be great, anyway. Although I disagree with Souter about Roe, I love the fact that he defied the expectations of the partisans on both sides. I’d love to see another nominee do that. Maybe if that happened often enough, the warring interest groups would go away and leave presidents free to appoint the best justices, regardless of litmus tests. That would be great.

12 thoughts on “Replacing Souter

  1. doug_ross

    This is what baffles me about the Unparty shtick. How could you be happy with Obama or McCain when the first 100 days of a McCain presidency would bare little resemblance to the first 100 days of the Obama presidency?

    McCain used the “I’m a federalist” dodge just as he did with the issue of the Confederate flag. It’s the political way to say “I’m opposed to abortion but don’t want to alienate some liberals”.

    Unleashing a complete state-by-state approach to abortion would be a nightmare. It would multiply the number of legal cases related to abortion by 50 and then multiply that by the number of legal challenges related to women crossing state lines to get abortions. Roe V. Wade is ugly. It’s a compromise. It doesn’t address the real societal issue of why we have so many unwanted pregnancies. But it is better than trying to enforce the unenforceable in 50 different ways.

  2. Lee Muller

    Barack Obama, who claims to be a Constitutional scholar, exhibits no understanding of the Constitution. That may be because he has said that he does not respect the Constitution, and would appoint judges who would not be bound by the Constitution nor by prior decisions.

    Obama wants radicals like himself, who will make law from the bench when he cannot get legislation passed, and to let unConstitutional legislation be enforced.

    Obama also operates by edict, without legal authority. We see that in his manhandling the banks, GM, Chrysler, and the investors and bondholders. Lawsuits are coming to challenge his despotic rule, and he needs corrupt judges to shield him.

  3. Brad Warthen

    Doug reveals the naked truth — that the Obama administration “bares no resemblance” to a theoretical McCain administration…

    Sorry; I couldn’t resist.

    And Doug, I don’t think taking the Federalist route is a cop-out. I actually think it’s the right way to go. But you accurately raise the problem with it: Major political battles in all 50 states. The real cop-out for me is that Roe enabled me to ignore abortion my whole career. Since the states had no say, and my job (at newspapers in Tennessee, Kansas and since 1987, SC) was mainly to deal with state politics, I didn’t have to step into that horrible mess. Abortion politics was reduced to presidential politics — and only a piece of the puzzle with presidential (although for the interest groups on both sides, it is THE issue, it should not be).

    If I got my way and Roe were overturned, abortion would be an issue in every legislative and governor’s race, which would be extremely unpleasant. But I still think that’s the proper place for it. The idea of it (or the broader concept of privacy) being a “right” on a par with those explicitly enumerated in the first 10 Amendments remains absurd.

    And Doug, are you saying you LIKE Roe? I thought you were with Ron Paul on that.

  4. Brad Warthen

    And Doug, why can’t two guys be really different, in terms of the policies they’d pursue, and still be good guys you’d trust in the job?

    On the life-and-death stuff — national security — Obama has shown (much to the chagrin of some of his most ardent followers) that he’s going to pursue sensible, pragmatic policies in Iraq and Afghanistan. Yes, I’d rather have McCain as commander in chief, but I don’t think Obama’s going to screw it up.

    And I’d rather have McCain filling the court position — but I said that. And herein lies the important difference between them on this point: McCain will vote for Obama’s nominee, if he or she is a competent jurist. We could not have counted on a Sen. Obama to do that, because this is one of those two areas — trade is the other — where he surrenders his thought processes to party orthodoxies. The thing I like about Obama is that if you get him away from these areas, he shows more capacity to think for himself — which is an important UnParty principle. McCain, of course, always thinks for himself.

  5. Brad Warthen

    I forgot to finish a thought above. When I said, “And Doug, why can’t two guys be really different, in terms of the policies they’d pursue, and still be good guys you’d trust in the job?” I meant to add that you have to remember that I don’t subscribe to the either-or paradigm, the one that holds “either you agree completely with this person or this party on everything, or you agree with THAT person or party on everything.”

    I’m more likely to pick items from columns A and B, plus C, D and E.

  6. doug_ross


    My view on Roe v. Wade is that I don’t think about it. It’s a waste of time. There are people now who will go to their graves having spent their entire adult life literally fighting on either side of the issue with nothing tangible to show for it. Abortions will happen whether there is a law in place or not. It also falls into the “asked and answered” category for me. America has decided it wants legalized abortion with some fairly specific parameters. All the questions about if, when, how, where, etc. doesn’t matter as much to me as seeing a society deal with the “why” aspect of abortion. If a woman does not want to get pregnant (except in the case of rape and incest) there is a pretty simple and absolutely effective way to prevent it. Abstinence. There are other methods that are effective in the high 90% range…

    Rape and incest should be automatic “get out of jail free” cards for women faced with that situation with no “bigger picture” ideologues making policy that could destroy the lives of both the mother and child. But there has to be some push from society to make abortion an extremely unattractive option — and at the same time make the booming unwed motherhood situation equally unattractive (like by not parading your unwed teenage daughter on the Republican National Convention stage).

  7. doug_ross

    As for McCain/Obama, the response to the economic situation would have been the number one priority for McCain. Do you think his approach would have been anything close to Obama’s massive spending initiatives? Not likely.

    If Obama is wrong on that one, none of the other stuff will matter.

  8. Brad Warthen

    Yeah, but I don’t know that he’s wrong. The actual stimulus bill that got through Congress is problematic, and I worry that it might not spend the right amounts in the right areas, and do it quickly enough. But as unappealing as deficit spending is — I liked it when Clinton and company were working on eliminating such — this seems like a moment to go Keynesian.

    It’s kind of like what fighter jocks call bailing out of a jet: “committing suicide to keep from getting killed.” You don’t WANT to pull that lever and get blasted out of the cockpit, but sometimes ya just gotta. Even Chuck Yeager had to do it once or twice.

    And don’t try to tell me the situation isn’t dire enough. I got laid off, remember? So I’m the wrong guy to tell that to.

  9. Lee Muller

    The so-called “stimulus bill” has nothing to do with stimulating the economy.
    It is a garbage truck load of all the bad, special-interest spending bills which Democrats had failed to pass in the last 15 years. Nancy Pelosi rolled them all into one bill before Barack Obama had even been certified by the Electoral College.

    This wasteful spending, most of which does not occur until 8 months into Obama’s administration, cannot possibly help the economy. Most of it will have an immediate negative effect, and all of it will have a long-term negative effect due to the tax bill coming due, or inflation from printing fiat currency.

    The decrease in the price of oil, and road fuels, due to drops in demand, had more effect, leaving more than $1 trillion cash in the pockets of businesses and individuals. That had the most immediate and complete effect of dampening the crash in the mortgage markets which was bringing down the rest of the economy.

  10. doug_ross


    I ask this in all seriousness — where would you advise someone to invest his money in the coming Obama economy?

  11. Lee Muller

    Outside the US is the safest place.

    The last time we had these same dolts, from Paul Volker on down, playing with the economy (not running it), the dollar fell like a rock. An investment then in anything denominated in Swiss Francs, earning 0 percent, still appreciated against the dollar at 10 to 20% a year.

    Now, with the Euro, there are fewer options.

    As the stock market gets battered by the next round of bank failures at the regional and state level, there will be a lot of oversold good stocks which will bounce 50 to 100%, just like this current bear market rally.

    If you are not in real estate, stay out. It will get a lot cheaper most places. The Democrats have no plan to fix it. Obama and Geithner are just stalling.

  12. Calhoun

    Thank you for your column here, Brad. It is a critical point that President Obama, supposedly a law professor, appears to be either clueless or reckless in regard to the Constitution. He says he believes there is a right to privacy in the Constitution because that’s what he wants to believe. He can’t point to anything actually in the Constitution that says that. So relies on Douglas’ “penumbras” argument, which any serious scholar knows was just plain fantasy. I found your column very intellectually honest. Like you, I hope the Democrats accidentally find their Souter.

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