Kent Bush: Direction of Supreme Court won't likely change
The resignation of U.S. Supreme Court Justice David Souter brings an end to the tenure of the biggest surprise and disappointment current conservatives have had to endure.
Some say Souter became increasingly liberal in his thinking and voting after joining the court.
Some say George H.W. Bush didn't get his facts straight before selecting him.
Either way, Souter has been reliably liberal on a court where 5-4 decisions are the rule, not the exception. Had the original President Bush not swung and missed on this nomination, many precedents would have gone a different direction.
I don't think Souter is a conservative who just happens to vote with liberals when he is wearing black robes.
If Souter wanted to redeem his name among conservatives, he could have retired last year and allowed the second President Bush to appoint a voting conservative to the bench.
Instead, he waited only 100 days after a liberal president was elected to leave the highest court in the land.
Not only did he vote like a liberal, he retired like one.
The only good news for conservatives who would like to challenge some of those controversial 5-4 decisions is that President Barack Obama won't likely have a chance to replace a conservative on the court with a more liberal justice.
Many believe Obama will appoint three members to the court in his first term.
Only two were discussed during the election. Souter surprised many court watchers. After all, at 69 he is a spring chicken on the court - five justices are older.
However, Ruth Bader Ginsburg, 76, is battling pancreatic cancer - a disease that can ravage its victims. Her retirement from the bench could follow Souter's closely.
The other spot Obama will likely have the opportunity to fill will be that of John Paul Stevens. Stevens is 89 years old.
He is also a liberal voice on the court who was appointed by a conservative president.
When Gerald Ford allowed his Attorney General to select the person he would nominate to the court, he picked Stevens. While he was far more liberal than Ford would have liked, Democrats held a 60-seat majority in the Senate at the time. So Stevens may have been one of the few Ford appointees who could have been approved.
There has been and will be a lot of speculation on how this first vacancy will be filled. Obama is a constitutional scholar but he is anything but a strict constructionist.
He talks about knowledge and respect for the constitution for potential candidates. However, he also wants a person on the court with "empathy" for those affected by issues faced by the court.
"If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court," Obama said during the campaign.
That is a sticky wicket.
On one hand, the court is the guardian of the constitution. In the 78th Federalist Paper, Alexander Hamilton said, "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute."
But many recent rulings are hard to weigh purely in the light of the constitution and precedent.
Alexander Hamilton and John Madison had little to say on law regarding Internet usage and file sharing.
Even Justice Souter had little knowledge of most current technology. He rarely if ever even used a computer, preferring instead to write his opinions for the court longhand. We need the wisdom and life experience of elder statesmen like Souter and Stevens, but is it too much to ask that they remain acquainted with current cultural trends?
Obama won't likely change the direction on the court, but he will bring a younger crop of Justices to the bench who update the knowledge in the positions and allow the liberal voices on the bench to be heard for another generation.
With current vetting processes, it is unlikely that he will make the "mistake" of appointing a closet conservative to the bench.
If he chooses wisely, the road should be paved through the Senate, since his party holds a filibuster proof majority that should easily be able to confirm almost any candidate.