Which is saying…another David Souter-like appointment.
At Bench Memos, Matthew Franck
gives learned voice to something I mused about last night after hearing
that Souter is stepping down from the Court. Why is it always a one-way
drift when a president names a new justice with confidence in his or
her adherence to applying the Constitution in its original intent…..and
that justice turns liberal?
I think they owe us a Souter in reverse. That is,
President Obama should nominate someone who is a virtual unknown, a
cipher with no paper trail but a reputation as a “moderate” in
Democratic party ranks, capable of assuring liberal senators that he
has no problem with judicial lawmaking as an abstract proposition, but
who turns out within the first term or two on the Court to have been a
closet originalist, devoted to judicial restraint, and who “grows into
office” as a stalwart ally of Scalia, Thomas, Roberts, and Alito.
Yes, that would be a reverse Souter all the way.
At least Franck doesn’t think Souter’s leaving will do much more
damage to the fabric of society than a “visible, hard-left liberal”
justice who may replace him. Which shows how far a justice can drift
from the original intent of the president who appointed him.