As we prepare to pay scant attention to another confirmation hearing for a nominee to the Supreme Court of the United States, consider:
When David Souter was nominated to the court by President Bush (the first one…the good one) in 1990 he was little known in political circles outside of New Hampshire, but he had been a judge in trial and appellate courts in that state. His nomination was opposed by NOW, the NAACP, and senators Ted Kennedy and John Kerry (among others) because they feared he was a right-wing ideologue. By the time he retired in 2009—actually, long before that—conservatives blasted him for being a liberal, which many conservatives define as “one who does not believe as I do.”
David Souter’s judicial philosophy didn’t change in those years but the way we look at politics did; he left the court the same principled, thoughtful man who joined it a generation before. So it’s worth considering what he had to say to Harvard graduates last month about the law and the role of judges in the American legal system.
The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.
Slate’s Dahlia Lithwick notes that some cheered what they saw as Souter’s disagreement with the judicial theories of some of his former court colleagues, but she finds what I think is a more valuable avenue to explore:
He wasn’t just using the opportunity to debunk what he called the "fair-reading model" of constitutional interpretation (which is quite different, although related, to the originalist approach). And he wasn’t just using the speech to argue for evolving moral standards in judging, although he did that, too. It seems to me that Souter’s decision to avoid all the hot-button words signals a much bigger project: He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.
Souter makes the point that the Constitution’s words are not always plain and clear, and are not without internal contradiction, and so the requirements for being a judge (particularly an appellate judge, a Supreme Court justice) go beyond high scores in reading comprehension. He’s telling us, as Lithwick puts it, that we must recognize “ in Justice Oliver Wendell Holmes’ formulation, that ‘certainty generally is illusion and repose is not our destiny.’ He is telling us to stop dreaming of oracular judges with perfect answers to simple constitutional questions. He is telling us, in other words, to grow up.”
We shall see what Elena Kagan chooses to share about her philosophy of judging and the law. Doug Kendall and Jim Ryan (no relation) hope that Kagan treats us as grown ups, and
…would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.
They make a point on this issue that many overlook: it’s not just the original Constitution that justices must consider:
The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since. This view is absurd…
Recognizing that both sides have been creative in their interpretation of the Constitution over the years, Kendall and Ryan urge Kagan (and everyone left of the political right) not to forego a fight with the right over fear of being branded hypocritical, but to defend the Constitution:
To be sure, the Constitution, properly interpreted, will not provide support for all liberal causes and nothing but liberal causes. But it doesn’t provide support solely for right-wing fantasies, either, and Obama’s nominees to the court should make that clear. The peddling of a selectively edited Constitution as patriotic and principled should be shown for what it is: a disgrace to our real Constitution.