• Marc Johnson

Should Judges Think?


souter

We are soon to witness the latest chapter in the by now completely predictable theatre that passes for a U.S. Senate confirmation hearing for a new justice for the Supreme Court of the United States.

In a remarkable speech recently at the Harvard commencement, retired Justice David Souter provided the most thoughtful guidebook for how we ought to consider the business of judging that I have seen in a long time. All the participants in the coming production – Elena Kagen, the nominee, the Senators who will pass judgement on her qualifications, and the media who will cover the drama – should take a few minutes and read Souter’s speech.

This was not your typical “wear sunscreen” commencement speech and may well have left the Harvard crowd thinking that they had to endure the final boring lecture. But, in truth, Souter offered up a classy essay on how judges can – if they can – think about their jobs and the Constitution. One analyst called it a speech for the books that rivals some of the legal thinking of the great Oliver Wendell Holmes.

After noting the obvious that the Constitution contains many general statements about values that are by necessity somewhat vague, Souter said: “the explicit terms of the Constitution, in other words, can create a conflict of approve values, and the explicit terms of the Constitution do not resolve that conflict when it arises.”

The former New Hampshire attorney general then said, “a choice may have to be made not because language is vague but because the Constitution embodies the desire of the American people, to have it both ways…”

Souter was, in his kindly, scholarly way, slipping a knife into the “original intent” notion of how the Constitution must be read and applied.

Long-time Supreme Court watcher, Linda Greenhouse wrote on the Times on-line that Souter carefully did not mention Justice Antonin Scalia during his Harvard talk, but that he must surely have had the outspoken Scalia in mind when he said the modern world requires a flexible Constitution that assesses the words in the document but also considers the contemporary facts of society.

If Senators Pat Leahy or Orrin Hatch want to do the country a favor when they have judge-to-be Kagen in their confirmation sights soon, they would do well to ask her if she’s read Souter’s speech and, more importantly, what she makes of his legal thinking.

Even better, here’s hoping the Senators read the speech. It would be good preparation for judging a judge. Questions based on Souter’s speech would be a decided improvement above and beyond the usual fare served up during the typical confirmation theatre. I won’t be holding my breath, but I have a notion that Souter has said some important things with real lasting value to this incredibly important debate.

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