Liberal Supreme Court Justice David Souter is retiring. On social issues, this makes little difference: whoever replaces him will satisfy liberal litmus tests, like supporting racial preferences and partial-birth abortion the way Souter did.
But on economics, where Souter was more moderate, it will matter a lot: Souter was willing to occasionally overturn excessive punitive damage awards, and block state regulations that were preempted by federal law (like in Watters v. Wachovia (2007), where I filed a brief on behalf of economists and law professors). Some of his potential replacements, like Judge Sonia Sotomayor and especially Deval Patrick, will be less likely to do that.
Business will miss Souter, even though social conservatives won’t. Obama is more likely to nominate a justice hostile to taxpayers, businesses, and property owners, since he has expressed regret that the Supreme Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth” during the Warren Court.
Souter’s colleagues will probably miss the unassuming Souter, who did not (unlike some past justices, such as William O. Douglas) lord it over other people. He once lived in a waterfront apartment building in Washington, D.C.’s Southwest quarter right near my wife. We would sometimes see Souter quietly doing his own laundry. Unlike many limousine liberals, who live in wealthy, lily-white, gated communities (even as they advocate forced busing of working-class students between predominantly-black schools and predominantly-white schools), Souter chose to live in a middle-class, racially-mixed community.
A potential replacement for Justice Souter is Massachusetts Governor Deval Patrick, a vociferous advocate of censorship and racial quotas who helped spawn the mortgage crisis while serving in the Justice Department.
Another candidate for Souter’s seat is “Second Circuit judge Sonia Sotomayor,” who also avidly supports racial quotas. Sotomayor’s “shenanigans in trying to bury the firefighters’ claims in Ricci v. DeStefano triggered an extraordinary dissent by fellow Clinton appointee José Cabranes (and the Supreme Court’s pending review of the ruling).”
Yet another is the tax-and-spend former governor of Michigan, Jennifer Granholm, a big fan of racial preferences (forbidden by her state’s constitution) who helped drive her state’s economy into the ditch.
Two other candidates also are mentioned who may not be wacky enough to be considered by Obama, even though they both satisfy liberal litmus tests on abortion, affirmative action, and gay rights, and are both women (the conventional wisdom is that Obama will pick a woman, perhaps a Hispanic woman, as the next Supreme Court justice). Those two candidates are Seventh Circuit judge Diane Wood and Ninth Circuit judge Kim Wardlaw, a Hispanic. Neither of these two judges is unusually anti-business, or unusually prone to the “redistribution of wealth” Obama has applauded.
CNN’s political ticker also lists the veteran moderate Judge Jose Cabranes. I don’t think Obama is in any mood to pick a moderate male judge, even a well-respected Hispanic like Cabranes who is well-liked by his home-state Democratic senators, Dodd and Lieberman, and who would easily sail through the Senate. Cabranes may be pro-choice, pro-gay rights, and pro-voting-rights, but he is also anti-crime and pro-free-speech. And he was unwilling to use judicial shenanigans to bury the reverse-discrimination claim in the Ricci case, as Judge Sotomayor did (although it’s worth noting that even the Obama Justice Department reluctantly agreed with Cabranes in that case, urging the Supreme Court to remand the case back down to the lower courts for a proper reconsideration, rather than totally avoiding the issues raised by the aggrieved white employees).
Comments
A traditional American Indian should replace Supreme Court Justice Souter.
My peoples are the only true Americans. We Indians have more than earned a right to be fairly represented here in America yet our representation as a peoples is virtually zero.
We traditional American Indians are highly pragmatic, very impartial and our decisions are designed to benefit all, not just some. We do not allow personal feelings nor culture to enter into our decision making process.
We are well noted for being firm but fair.
However, Obama has already stated he will nominate a person who is empathetic which signals he will select a person who will make decisions based upon personal feelings. This will be a person who will work at rewriting our Constitution rather than defending our Constitution.
Obama will nominate a person who will politicize our Supreme Court, a person who will be a left liberal activist. This will, inherently, disenfranchise about half of our American population. This will further Obama's agenda of having conservative America declared "persona non grata".
A traditional American Indian justice will have no interest in playing politics rather will only be interested in fair and impartial justice for all Americans.
America will not have a traditional American Indian Supreme Court Justice; we are already persona non grata, much to the loss of our nation.
Okpulot Taha
Choctaw Nation
Okpulot Taha's idea of appointing a traditional American Indian as Supreme Court justice is interesting.
Obama claims that "empathy" for the underprivileged, "diversity of experience" and having a previously unrepresented background is what matters. At the same time, he claims to prize "bipartisanship" (even though his budget, which the Congressional Budget Office says would lead to unprecedented deficits and double the debt created by Bush's baseline, passed after being trimmed slightly by Democrats, without a single Republican vote).
If these are indeed the most important criteria, then it would be logical for Obama to nominate Ben Nighthorse Campbell, an Indian Chief who served in the Senate for 12 years.
Campbell spent much of his childhood in poverty or in orphanages, unlike many of the potential Obama nominees, who grew up in prosperous liberal households.
And was a Republican for most of his time in the Senate (having switched from the Democratic to the Republican Party during his first term in the Senate).
While he doesn't practice law (except for Indian law), neither a law degree nor a history of practicing law is a required qualification for a Supreme Court justice, and he couldn't possibly flout the law as much as some of the judges frequently suggested as Obama nominees, such as Deval Patrick, whose Justice Department lawsuits were so baseless they led to judicial sanctions, and Sonia Sotomayor, who judicially rewrites laws to achieve liberal goals in her court rulings.
SB writes, "Okpulot Taha's idea of appointing a traditional American Indian as Supreme Court justice is interesting."
"Traditional" is a critical key term.
Carol Jean Vigil, a Pueblo Indian, was the first of our peoples to be a general jurisdiction judge and state judge. She was elected a judge in 1998 in the state of New Mexico which is not too many years back. Sadly, she has passed away.
Judge Vigil is noted for two notions. She is honored for "doing what is right" and is significantly noted for protecting children.
She is respected for being a fair and impartial judge deciding cases based upon law rather than legislate law from her bench.
SB adds to reader interest, "Campbell spent much of his childhood in poverty or in orphanages, unlike many of the potential Obama nominees, who grew up in prosperous liberal households."
Yes. This is why "traditional" is so critical. Nighthorse well knows of our long and old tradition of giving "survival" the utmost attention. Almost all of our traditions, teachings and lore are based upon survival in the wild.
As almost all readers know my ancestors led good lives out in the wild. Life was challenging, harsh at times, but life was good and very rewarding.
Today, this wildness is gone but our lessons and learnings carry on. Our philosophy is one of always being practical and always working hard to ensure survival of a tribe. We avoid excess and self-indulgence along with avoiding shame of being spoiled and lazy. We believe leading a life of hard honest work is the right path in life. Above all, we greatly value our independence, especially individual independence. Average Americans know this as personal freedom.
Independence, freedom, this is what led my ancestors to fight back during the genocide; we could not enslaved.
Those _traditional_ values form the basis for how our lifestyles and choices in life.
Nighthorse would bring to our Supreme Court notions of simplicity and compassion because he knows of and has survived so many of the problems which plague my peoples. Nighthorse would introduce a pragmatic viewpoint.
However, Nighthorse is aging. He is a bit too old now for politics or for being a justice. Mine is not to discount his abilities rather is to acknowledge his years are numbered which will limit how much he can accomplish. My view on his age is typical American Indian pragmatism.
What I would like is for a chief of one of our tribes, a traditional Indian chief to be nominated and seated in our Supreme Court. My preference would be a chief, woman or man, who does not have a law background rather a background which is American Indian traditional, a background of both working for and leading his peoples.
A chief like this would prove to be very practical, down-to-earth along with being firm but fair. This chief would provide opinion for what America needs, not what America wishes.
An analogy is an American Indian would give an opinion we should only kill one buffalo to feed our tribe and to make use of every bit of this buffalo from bones to hide, rather than slaughter a herd simply to fatten up lazy spoiled people.
Traditional American Indians will only hunt what is needed to survive rather than hunt what an ego demands.
Hans Bader and his well written article has inspired me to write and send hundreds of letters to Capitol Hill and the White House, asserting this is the right time for a traditional American Indian to serve on our Supreme Court.
Okpulot Taha
Choctaw Nation
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