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Souter to Retire?

So say the news reports. On one hand, you could say it doesn’t matter that much. Justice Souter is a down-the-line un-originalist, pro-activist judge to whom no great legal opinions or insights can be attributed. (He will likely be best remembered for his weepy reaction to the result in Bush v. Gore.) His replacement will certainly be equally unconcerned with the text and/or meaning of Constitutional language. He or she will speak in glowing terms of the “living Constitution” and the ever-evolving standards of justice that only nine lifetime appointees can divine. And “fairness” and “compassion” will be real important too, because of course it matters not what the text of statutes or the Constitution mean but how much the justice cares. (How do we measure that, by the way?)

But on the other hand, it matters quite a bit. An energetic, articulate and bright advocate of that brand of judicial thought will shape the Court’s opinions and potentially draw in the ever-wavering Justice Kennedy. And of course a young justice who remains on the Court for decades to come can at some point become the decisive vote.

So be prepared to hear Democrats now extol the president’s prerogative to nominate whomever he pleases. Wait for the speeches that ideology is really off bounds. And of course, buckle up your seat belt for the fastest confirmation process ever. No need to study or research, no reason to wait. Hurry up, hurry up! That’ll be the shout.

But what we won’t have is Senator Joe Biden endlessly pontificating on the Senate Judiciary Committee. He won’t have that dumb grin or the questions that leave no time for answers. We won’t have the unintentionally hilarious pomposity. Well, let’s be glad for small favors.


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