The announcement by US Supreme Court Associate Justice David Hackett Souter that he would
retire at the end of the present session (June 2009) came as a complete surprise to the nation. He was mugged while jogging in DC at 9 PM a few years ago and he
reportedly once told friends that he “had the world’s best job in the world’s worst city.” So presumably, at the tender age of 69, he wants to enjoy some of his years, while he is able, back in his beloved New Hampshire.
Now President Obama has the awesome task of nominating a new Justice.
We know that this appointment will be politicized to excruciating detail. What tiny things are in the nominee’s background will be blown up out of all proportion to delay confirmation – and to show that the conservative right feels that it is still relevant after elections said that they are not. Due diligence on the nominee must show that all the usual traits that are decried. And he/she must – please – not owe taxes, or have hired an illegal to clean house!
The usual suspects will no doubt be considered: existing judges at the circuit court level; lawyers who have served in government (probably to Democratic presidents – which really means only Bill Clinton at this stage); someone who can survive for more than thirty years on the court and really make a mark; someone at least as moderate as Souter, to keep the balance of the court, saving the real congressional battle for when one of the conservative justices retires, or dies.
But look at who is in the Supreme Court today, their religion, and the law schools from which they graduated:
Roberts: Harvard: Catholic
Breyer: Harvard: Jewish
Ginsburg: Columbia: Jewish
Thomas: Yale: Catholic
Kennedy: Harvard: Catholic
Alito: Yale: Catholic
Scalia: Harvard: Catholic
Stevens: Northwestern: Protestant
Yes, five out of the remaining justices, including the Chief Justice, are Catholic, and two are Jewish (Souter is, reportedly, Episcopalian).
We don’t know whether the Catholic justices are in full communion with The Church, and their respective bishops are unlikely to comment, but that balance would seem to bolster any challenge to a woman’s right to choose – should such a case reach the court – or to marriage between gay couples.
But what all these eight justices lack is experience in the real world. None of them has worked outside the law (as a profession, not as a criminal!) and their decisions cannot possibly be understood by them in terms of the effect they have on normal people.
Worse, in my opinion, is that none of these justices has any technology smarts. You cannot say that of the president: Mr. Blackberry dude. In fact, if you look at Obama’s background of a law degree (Harvard and Chicago); lecturer in constitutional law; community organizer; birth in a marriage that US law once condemned; general humility; marriage to a woman who came from the poor south of Chicago; and a campaign that won because of the Internet...well, you have to realize that Obama himself is a person who should have been on the Supreme Court, and that we would all benefit from someone very much in that same real-world background and mold.
The court needs at least one more woman’s perspective, and probably another three or four such perspectives: Is there a female equivalent of Obama out there somewhere?
In the years to come, technology is increasingly going to become a topic of legal dispute in terms of how it is used, how it is misused, who owns what, and what derived from what. We desperately need a Justice in the Supreme Court who understands technology, and all the implications of both science and technology.
The court does not need someone who has no cell phone, no answering machine, and no television. In those respects, Associate Justice David Hackett Souter, is right to hang up his gown – for he has none of the above. He may be a nice guy, but he is a judicial Luddite…
