The Stealth Justice
By JEFFREY ROSEN
May 2, 2009
Op-Ed Contributor
Washington
AS soon as Justice David Souter announced his intention to retire from the Supreme Court, he was greeted with praise from the left and derision from the right.
When he was nominated for the court by George H. W. Bush in 1990, Judge Souter was sold as a confirmable stealth candidate who would prove to be a reliable conservative; instead, he soon emerged as an unapologetic liberal. The conservative legal movement took from his appointment a simple lesson: “No more Souters.” And George W. Bush applied this lesson with a vengeance in his Supreme Court appointments, rejecting stealth candidates in favor of movement conservatives — John Roberts and Samuel Alito — who proved from the beginning to be far more ideologically reliable.
Liberals are understandably grateful to Justice Souter for being an unexpected ally, but they should acknowledge that the conservatives were right about the dangers of stealth candidates. An impressive human being and a dedicated judge, Justice Souter was, in fact, less influential on the court than a candidate with a more extensive (and visible) record might have been.
In choosing a successor to Justice Souter, President Obama, who seems to have done his best to do the opposite of what President George W. Bush would have done in the same circumstances, should now emulate his predecessor. He should appoint not the most experienced or demographically appealing candidate, but the one whose views and intellectual ability are clearest, and whose judicial philosophy and temperament suggest the greatest potential for liberal leadership on and off the court.
David Souter had so many judicial virtues that it may seem peevish to question his legacy. He was an unapologetically 18th-century character who was unswayed by the usual blandishments of fame or status in Washington. (“Have you read Proust?” he asked me during an unsuccessful clerkship interview years ago, and then wistfully said he wished he could take a year off to teach a college seminar on Proust and Henry Adams.)
His complaints about the capital eventually became tiresome, but they were a sign of his balanced and mature personality. Rather than craving the job as a source of status, he was able to walk away from it in favor of mountain climbing in New Hampshire. He was also willing to walk away from his liberal allies when he thought the law required it, as illustrated by his 2001 opinion in the Atwater case upholding the arrest of a soccer mom who was driving without a seatbelt.
But although Justice Souter’s dedication and integrity were beyond reproach, his hermetically sealed approach to the job limited his influence on the court and outside of it. He had trouble communicating his ideas, constrained as he was by an ornate, archaic and sometimes convoluted writing style. (He preferred “enquiry” to “inquiry,” for example, and when a clerk gave him a fluidly written draft, he would joke, “time for me to put some lead in it.”)
And while he was the justice who first proposed the abortion compromise in Planned Parenthood v. Casey in 1992 (which upheld Roe v. Wade), he otherwise showed little instinct for building coalitions or persuading his colleagues on the court. When his attempt at a negotiated compromise in Bush v. Gore was rejected at the last minute by Justice Anthony Kennedy, Justice Souter took the rejection personally, unlike more political and strategically minded colleagues.
What’s more, Justice Souter’s case-by-case approach — his hero was the moderate conservative traditionalist John Marshall Harlan — prevented him from developing a judicial vision that could serve as a rallying cry for legal liberalism. This is in marked contrast to his contemporaries on the court: Justice Stephen Breyer, who has articulated a vision of liberal pragmatism that combines empirical analysis with deference to politics, and Justice Ruth Bader Ginsburg, who has used incrementalist means to defend inspiring liberal ends from gender equality to civil liberties.
With a nearly filibuster-proof Senate, Mr. Obama may not feel as much pressure to appoint a stealth candidate as George H. W. Bush did. But he will feel the same pressure to satisfy his base without inflaming the opposition. (He will also feel pressures of demographics and identity politics that the elder Mr. Bush could not have imagined.) Given the president’s instincts for moderation and conciliation, it’s easy to imagine him being tempted to follow the Souter model, selecting a candidate whose judicial philosophy is opaque or uncertain.
This would be a mistake. Mr. Obama shouldn’t focus on the most ideologically liberal candidate: all the contenders mentioned in early news reports are good, reliable liberals. Nor should he necessarily look to judicial experience as a guide: after all, Justice Souter had been a state court judge for 12 years.
Instead, Mr. Obama’s focus should be on the candidate with the clearest and most galvanizing judicial philosophy, the greatest intellectual ability and the temperament that makes it most likely she (and the first nominee should be a she) can both challenge and persuade her conservative colleagues and ultimately transform the court.
Jeffrey Rosen, a law professor at George Washington University, is at work on a biography of Louis Brandeis.