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A Different Take on Justice Souter:
In his post below, my co-blogger Todd Zywicki writes:
In the end, I don't think that anyone would champion Souter as a anything other than a mediocre Justice. It is hard to measure how "good" a Justice is--one could imagine many different criteria: smarts, influence, coalition-building skills, etc. No matter what criteria one uses, however, doesn't it seem to be the consensus that Souter is certainly near the bottom, if not at the bottom, of the current Court? Perhaps this is an unusually talented Court. But still, Souter is by any measure a weak link on the Court most would think.
  I disagree.

  When I was a law clerk, five years ago, I ended up being very impressed by Justice Souter. Of all the liberal-leaning Justices, Souter became by far my favorite. True, he is not a great writer: His opinions don't "sing." And I often disagreed with his approach. At the same time, I ended up being very impressed with his intelligence and integrity during the Term. He's a sharp judge, and his words are 100% his own. Plus, I thought his oral argument questions were (and still are) among the very best. When it's a case I know inside-and-out,the chances are that Justice Souter will ask the most piercing question that gets to the very heart of the matter. He's not a flashy guy, and the outsider can't see the process that leads to his decisions. But at least based on my experience, I thought he was an impressive Justice.

  UPDATE: I should also add, in response to the point about Souter being an "accident of history," that I think most Justices are accidents of history. Once in a while someone ends up on the Court who has a plausible claim of really deserving it; think Holmes or Cardozo, both towering figures in the law before being nominated. But I think it's much more common for the pick to be someone relatively obscure.

  ANOTHER UPDATE: While I'm disagreeing with Todd, let me also take on his comment about Janet Reno:
Reno, by contrast, was a real menace and her elevation by accident of history was, I think, by most accounts a disaster. Her utter lack of qualifications and temperament for the job left her completely dependent on the Clintons' patronage so she feared above all being fired and returned to obscurity.
  Again, I disagree. I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually. My sense of her was that she was independent and did her best to be principled, and she did what she thought was right even if she knew it would be politically controversial. If course, you can agree or disagree with her individual decisions as AG: My own views were mixed. But as someone at DOJ at the time, I thought she did what she thought was correct.

  Finally, I can't disagree strongly enough with Todd's claim that Reno was "completely dependent on the Clintons' patronage." My sense at the time was that Reno didn't like the Clintons and the Clintons hated Reno. Reno's best guarantee of job security was her independence: Her independence made it politically difficult for Clinton to fire her.

Related Posts (on one page):

  1. A Different Take on Justice Souter:
  2. Justice Souter and Accidents of History:
rosetta's stones:
Clearly by personality, Souter is an introvert. But that doesn't mean he's blind to the outside world, and introverts often tend to manage their information intake and interactions in an efficient and productive manner, and the "piercing questions" Kerr points to seem to indicate this trait in action.

Picture Joe Biden on the SC, an extrovert in action. How do you think those opinions are gonna read? Could this guy's ADD even permit him to sit down and write an opinion?

Souter probably does have the right sorta temperament for a judge, imo.
5.4.2009 6:27pm
Steve P. (mail):
It's always nice to give praise and show respect for those you disagree with politically. Very classy.
5.4.2009 6:28pm
just a country lawyer:
"one could imagine many different criteria: smarts..."

i'm sorry, but to say Souter is at or near the bottom of the court in terms of 'smarts' is just plain ignorant.
5.4.2009 6:36pm
continuedfromtop:

"one could imagine many different criteria: smarts..."

i'm sorry, but to say Souter is at or near the bottom of the court in terms of 'smarts' is just plain ignorant.


irony alert
5.4.2009 6:42pm
levisbaby:
Orin - stop interjecting reasonable, fact-based opinions into this discussion!
5.4.2009 7:01pm
beamish:
So, Orin, while we're evaluating people, what do you think of Zywicki's intellect and character?
5.4.2009 7:08pm
keypusher64 (mail):
A former member of our law firm who had clerked on the Court said pretty much the same about Souter that you did, Professor Kerr. The ex-clerk really admired Souter's intellect and his hard work.
5.4.2009 7:08pm
ray_g:
In both these posts about "accidents of history", I think some are making the false connection of "bad decisions or decisions I disagree with" = incompetence. For instance, I dispise Janet Reno, in fact I think she was pure evil in how she used the 'child abuse' cry to climb the political ladder and to justify what happend at Waco. But I doubt that she was incompetent.
5.4.2009 7:22pm
DangerMouse:
Again, I disagree. I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually. My sense of her was that she was independent and did her best to be principled, and she did what she thought was right even if she knew it would be politically controversial.


Wow. Just, wow. I think that speaks for itself.
5.4.2009 7:29pm
DiversityHire:
What an interesting contrast in posts. Zywicki's is nasty and absolute enough that I instinctively disagree with everything he says. Kerr's reminds me that Justices and Attorneys General are human beings. One thing that's always impressed me about Souter is that he doesn't relish "…the weight of the Supreme Court robe", not that he couldn't or doesn't carry that weight but just that he might shrug it off at any moment. Like he has. That's impressive in itself. Plus he seems just a bit eccentric :)
5.4.2009 7:38pm
Anynonyno:
Zywicki = pwned.
5.4.2009 7:43pm
zuch (mail) (www):
DangerMouse:
Wow. Just, wow. I think that speaks for itself.
Yes, perhaps it does. Or maybe it doesn't. But I suspect that it says something that is not consistent with the voices in your head. So do you think you could explain what it was that you heard, and then perhaps provide some substance to back up your surprise here?

Cheers,
5.4.2009 7:44pm
A. Zarkov (mail):
"I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually."

I remember Janet Reno's comments to the press when asked why the FBI made a full assault on the Branch Davidian ranch at Mount Carmel near Waco Texas. She said the FBI was "tired." In view of the subsequent events, that seems like a pretty lame excuse. I don't see why they just didn't wait them out. What was the rush?

Over the years I've seen interviews with Reno and I have never heard her respond to a challenging question in any kind of forthright manner. She always weasels, and frankly I really don't like weasels. I'm sorry Orin. Normally I respect your analysis a lot. But in this case I have to differ.
5.4.2009 7:46pm
DiverDan (mail):
While I disagree with nearly every opinion Souter has written, I almost never get the feeling that his opinion is a results-driven piece of rationalization, as is almost always the case with Breyer's opinions. Also, I have to admire a man self-confident enough to voluntarily step away from the Court on his own terms, someone who is not so completely self-defined by his high-status position that it becomes all of what he is. If only William O. Douglas had had the self-confidence to step away before senile dementia took over, our case law in so many areas might be radically different (and I do mean that as a good thing).
5.4.2009 7:51pm
OrinKerr:
A. Zarkov,

No need to apologize: I am merely telling you what I experienced, and you are free to factor that in or not as you prefer.
5.4.2009 7:54pm
John P. Lawyer (mail):
I do have one question - if Souter's opinions are 100% his own words, why do they never sound alike?
5.4.2009 7:54pm
U.Va. Grad:
John P. Lawyer: because he has a fantastically large vocabulary, of course. ;)
5.4.2009 7:56pm
OrinKerr:
I do have one question - if Souter's opinions are 100% his own words, why do they never sound alike?


Interesting, I have never heard that about Souter's opinions. Can you explain why you think they never sound alike?
5.4.2009 7:57pm
AndrewK (mail):
I can see Hillary hating Reno, but not Bill. The turf wars between Hillary and the female members of the Clinton cabinet are well-documented.
5.4.2009 8:01pm
SP:
Your post seemed plausible, then you went and praised Reno.
5.4.2009 8:04pm
BlackX (mail):
As somewhat mentioned previously, I think of one word when I think of Janet Reno: Waco.

I'm not sure what that says about the rest of her legacy but much of that horrible debacle, no matter how deluded the victims may have been, lays squarely on her (square) shoulders.
5.4.2009 8:04pm
E. Robinson (mail):
I've heard a few people comment on Souter's "integrity" and "character" and I wonder what exactly that means? Any help on this?
5.4.2009 8:20pm
rosetta's stones:
Unlike Souter, Reno managed to place herself in the public eye, and negatively so.

The picture of that officer, in full paramilitary garb, drawing down an automatic weapon in a FL citizen's home, followed by her whiny bleatings... that image will stick forever. Certain issues will roil us... see Schiavo... but it takes a certain type of immaturity to bring on such abrupt police action by force of the federal government.

Perhaps we can grant her the Waco mistake... as the Treasury Department ramrodded the initial investigation and raid, and made a hash of it (although that didn't stop her from issuing an apologia for Treasury, about how they were "outgunned", rather than that they shouldn'ta been going in like the 82nd airborne. How about: "They shoulda sent one young lawyer with a summons", General?). She was handed a horrible situation, but she then presided over the worst possible outcome, didn't she?

Unlike Souter, I believe her temperament just wasn't suited to her position.
5.4.2009 8:24pm
Fub:
Orin Kerr wrote:
[of Souter]But at least based on my experience, I thought he was an impressive Justice.
I'm not a legal scholar, but I think he was, and is, impressive.
[of Reno] My sense of her was that she was independent and did her best to be principled, and she did what she thought was right even if she knew it would be politically controversial. If course, you can agree or disagree with her individual decisions as AG: My own views were mixed. But as someone at DOJ at the time, I thought she did what she thought was correct.

Finally, I can't disagree strongly enough with Todd's claim that Reno was "completely dependent on the Clintons' patronage." My sense at the time was that Reno didn't like the Clintons and the Clintons hated Reno. Reno's best guarantee of job security was her independence: Her independence made it politically difficult for Clinton to fire her.
I won't question those two facts: that she thought she was correct, and her independence made it politically difficult to fire her. I can agree that she was "impressive", but not in the way I think you mean.

Those two facts made her all the more dangerous. Making mountains of collateral damage to innocents out of the molehill of arresting Koresh at Waco is at best abysmal judgment. Making mountains of intentional damage to innocents out of thin air with "satanic ritual abuse" prosecutions is worse than bad judgment. If she really believed her evidence, she was too gullible to field a robo-call offering free carpet cleaning. If she didn't really believe her evidence, she was simply evil.
5.4.2009 8:28pm
A. Zarkov (mail):
OrinKerr:

"... I am merely telling you what I experienced, and you are free to factor that in or not as you prefer."


Fair enough. Your direct experience is certainly more informed than mine, and I trust your judgment as well.
5.4.2009 8:41pm
Splunge:
I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually.

In related news, I think my Dad is pretty much the greatest dad ever. Also, I'm guessing Janet Reno, who owes her job to Clinton, thinks highly of Clinton.

What a strange set of coincidences, huh?
5.4.2009 8:45pm
Terrivus:
I've heard a few people comment on Souter's "integrity" and "character" and I wonder what exactly that means? Any help on this?

I'll bite. One of my best friends clerked on the Court for a conservative Justice. According to him, Souter was the Justice who did more of his own work than any other Justice, who routinely worked on weekends, who was consistently the most prepared for oral argument, who didn't ever mail it in on certain cases, and who gladly offered to write opinions in the most horribly complex/uninteresting cases. Throughout it all, he was unfailingly friendly to the clerks and staff and never copped an attitude with anyone -- even though he was, by all accounts, extremely brilliant and would have had every right to have pulled rank every now and then.

My friend went into his Term thinking that Souter was not only the "betrayer," but was also as odd as a three-dollar bill. He came out of saying that Souter was the Justice he respected the most of any of them.
5.4.2009 8:54pm
Anderson (mail):
drawing down an automatic weapon in a FL citizen's home

Funny thing: when you disregard a federal judge's orders, you find out that those orders are not merely the judge's whimsical velleties, but are actually backed up by force. Even if you are a citizen of Florida.

And when loudmouths talk about armed resistance to any attempt by the courts to enforce their orders, well, sometimes the enforcers take that talk seriously, and arm accordingly.
5.4.2009 8:56pm
frankcross (mail):
I'm inclined to agree with Orin on Souter and disagree on Reno. But I and presumably the other commenters are outsiders. Orin has much better knowledge as an insider with direct experience. While splunge would like to transfer that into an implication of bias, his is probably a common response among those with less knowledge.
5.4.2009 9:01pm
rosetta's stones:

Funny thing: when you disregard a federal judge's orders, you find out that those orders are not merely the judge's whimsical velleties, but are actually backed up by force.


Yes, at times, and at times not. But some, like Reno, seem to consistently emphasize the "force" part of this equation, and rather abruptly so in the situation in Florida. It's a temperamental failing... when you're a hammer, every problem is a nail. Good governance requires more maturity than that. She was just a poor choice, is all.
5.4.2009 9:25pm
wolfefan (mail):
Thank you, Orin. Your post speaks volumes about your approach to people, and the type of online community you seek to create (as does your greatly appreciated moderation of your threads.)
5.4.2009 9:27pm
Anderson (mail):
It's a temperamental failing... when you're a hammer, every problem is a nail.

I might credit that argument re: Waco. But re: Elian Gonzalez, it seemed pretty evident that a Cuban-American faction was using him for publicity, and was sparing no effort to sound obnoxious and dangerous.

Had Reno sent a couple of plainclothes Feebs to pick the boy up, and they'd been gunned down by Elian's self-appointed protectors, I suppose we would hear how the weak-kneed Reno got the agents killed through her timidity.
5.4.2009 9:29pm
rosetta's stones:
No need to speculate or hypothesize, Anderson. Reno signed the order, and the paramilitaries kicked down the door. That's what happened, it was abrupt, and not keeping with good governmental practice.

Those tactics didn't work so well in Waco, as you mention. And heck, I'm giving her more relief on that than you are.

Temperament and maturity are vital in these positions. She just didn't have them, and it showed in the crucible. And the more I read here, the more I think Souter had them in spades.
5.4.2009 9:39pm
Sarcastro (www):
Yay, a Reno bashing thread! Nevar Forget!
5.4.2009 9:57pm
Anderson (mail):
Well, if the argument is that Souter was a better justice than Reno an AG, I'll concede that one happily.

Wikipedia is not a great source on controversial topics, but this is what I find:

Attorney General Janet Reno ordered the return of Elián to his father and set a deadline of April 13, 2000, but the Miami relatives defied the order. Negotiations continued for several days as the house was surrounded by protesters as well as police. The relatives insisted on guarantees that they could live with the child for several months and retain custody, and that Elián would not be returned to Cuba. Negotiations carried on throughout the night, but Reno stated that the relatives rejected all workable solutions. A Florida family court judge revoked Lázaro's temporary custody, clearing the way for Elián to be returned to his father's custody. On April 20, Reno made the decision to remove Elián González from the house and instructed law enforcement officials to determine the best time to obtain the boy. After being informed of the decision, Marisleysis said to a Justice Department community relations officer, "You think we just have cameras in the house? If people try to come in, they could be hurt."

In the pre-dawn hours of April 22, pursuant to an order issued by a federal magistrate, eight SWAT-equipped agents of the Border Patrol's BORTAC unit as part of an operation in which more than 130 INS personnel took part approached the house; they knocked, and identified themselves. When no one responded from within, they entered the house. Pepper-spray and mace were employed against those outside the house who attempted to interfere. Nonetheless, a stool, rocks, and bottles were thrown at the agents.


I wonder when the Florida judge issued his ruling?
5.4.2009 10:01pm
Quixotic77 (mail):
Children died because of Reno's inability to think clearly.
5.4.2009 10:03pm
Sarcastro (www):
At first I wished I had Quixotic77's ability to see alternate realities, to see the path not taken. But then I realized that the paralysis of bitter regrets would be multiplied a thousandfold by the certainty of what could have been.

Weep and pray for Quixotic77, everyone, and be thankful you are not so cursed.
5.4.2009 10:07pm
RowerinVa (mail):
Anderson: well said.

No discussion of Reno's tenure would be complete, however, without mentioning that it was on Reno's watch that the FBI was forced to follow rules against information sharing with the CIA and Defense Department and State Department, even in the counter-terror and espionage fields, that contributed to the failure to detect and stop 9/11. Recall that Reno maintained these rules even after various Clinton-era terror strikes made clear that the threat from terrorism was real, and was killing large numbers of Americans (WTC 1993, Khobar Towers 1996, USS Cole 2000). She made other errors that may or may not have been excusable but this hamstrung-FBI-rule error was so large, so damaging, and so difficult to comprehend -- even without the benefit of 9/11 hindsight -- that it must be the first thing discussed.
5.4.2009 10:32pm
Bruce:
I thought it was conventional wisdom that Bill Clinton would've liked nothing more than to fire Reno, but couldn't. I'm curious what Todd has in mind when he suggests Reno was afraid to buck the Clinton party line.
5.4.2009 10:43pm
drunkdriver:
Finally, I can't disagree strongly enough with Todd's claim that Reno was "completely dependent on the Clintons' patronage." My sense at the time was that Reno didn't like the Clintons and the Clintons hated Reno. Reno's best guarantee of job security was her independence: Her independence made it politically difficult for Clinton to fire her.

You were inside the DOJ; I was simply a member of the public. But I remember also STRONGLY sharing that impression: if there was a way they could have fired her, they damn well would have done it, because they hated her guts. But once Starr got rolling, they couldn't do it. They would rather SAY that Starr (and Reno) were abusing their "power," in order to cynically play for sympathy, than actually act upon that supposition by firing them for abusing their power.
5.4.2009 11:50pm
Ben S. (mail):
To be fair, I read Todd's post as not necessarily offering his own appraisal of Souter, but rather a portrayal of public perception of the Justice. One may well infer the former from the latter, but such is not a necessary reading of his comments.

I think there is a certain truth to what Todd says, but I blame a lack of regard for Souter on two factors: One, his introverted personality which largely prevented him from becoming the recognizable figure that Scalia or Ginsburg are.

Second, as has been repeatedly noted, his writing often left much to be desired. It is difficult to think of many of his opinions that really standout in my mind. I will say, though, that among the liberals, I too, found him to be less results-oriented than others.
5.4.2009 11:51pm
drunkdriver:
By the way: Had Souter played out as hoped by Bush I, and been a reliable conservative vote, and voted 80+% with Scalia instead of Ginsburg, what is the likelihood that:

1) we'd see laudatory coverage in the NYTimes relishing his role as independent New Englander
2) we'd see a portrayal of him as a "Scalia clone/understudy"
3) some attempt would be made by news outlets to connect his judicial writings and decisions, with his strange personal life.

Just wondering.
5.4.2009 11:53pm
John P. Lawyer (mail):
Orin,
Compare, for example, his scholarly dissent in Morrison with his majority opinion in Twombly. If you look at his opinions within any term, it's my impression that they very frequently do not read as if they were written by the same hand; they have no unique voice. (Unlike, for example, Breyer's, Roberts's and Scalia's, Posner's or Kozinski's).
5.5.2009 12:50am
anderes:
Why didn't Souter go for 20 years? Not that he had to, it just seems like it would have been a more round number than 19.

I've thought that Souter's shortcoming as a justice was that he doesn't have an overlying judicial philosohy - like how Scalia is credited with "originalism." At least not an overriding judicial philosophy that I am aware of. But, maybe it requires more intelligence to not create a philosophy and then fit a case into it. Instead, he follows a legal analysis with caselaw as his guide, and other approaches and info as appropriate.
5.5.2009 12:50am
anderes:
John P. Lawyer,

Maybe he didn't have a "voice" b/c he never approached all the cases with a single overriding philosophy. He approached each case on its own terms, and did what he needed to address that particular case. He didn't carry an axe to grind from case to case.
5.5.2009 12:52am
David Welker (www):
This is one thing I really appreciate about Orin Kerr. Even though he is a conservative and I am a liberal, I think that Mr. Kerr is unfailingly fair in his evaluations (in contrast to Mr. Zywicki and other some other bloggers here). As such, he has much more credibility with me. If Orin Kerr were to say that such and such liberal was really a "hack" or had some other issue, I would take it much more seriously than if Todd Zywicki said it, who I would suspect of partisanship.

Obviously, this is an "information shortcut" rather than an exercise in pure logic. But, where time is a limited resource, I think it makes sense. Anyway, keep up the good work Mr. Kerr. People do in fact notice and appreciate your even-handedness.
5.5.2009 1:00am
ABAR (mail):
On Reno, I have to agree with Zywicki. Ranking her among recent AG's (excluding Holder who hasn't been in long enough to rate), I'd say she's probably the fourth worst and the fourth least independent of the last four.
5.5.2009 1:09am
Suzy (mail):
Thanks for this much needed counterpoint. I thought Prof. Zywicki's post was in very poor taste and totally inaccurate, so I'm pleased that it doesn't simply stand there as the opinion of the bloggers here in general.
5.5.2009 1:13am
Sarcastro (www):
Just as there can be no light without shadow, there can be no Kerr without Zywicki!
5.5.2009 1:25am
zuch (mail) (www):
BlackX:
As somewhat mentioned previously, I think of one word when I think of Janet Reno: Waco.
Which was started by Bush I. Reno inherited it. I really have to wonder about the people that find it such a travesty that force was used (and not even snipers, but just APCs with tear gas) against a group that had shot federal agents and then holed up for months refusing to come out. Ohhh ... right, nevermind, they were ATF jack-booted thugs, and not real agents. Which makes it excusable if not honourable to shoot such agents and then expect to just be left alone....
I'm not sure what that says about the rest of her legacy but much of that horrible debacle, no matter how deluded the victims may have been, lays squarely on her (square) shoulders.
"[S]quare"? What's with that OT ad hominem?

FWIW, I firmly believe that Reno thought that the cult could be flushed with tear gas with little danger to life. If she wanted to kill everyone, that would have been easy to arrange. I think she just wanted an end to it ... as would any law enforcement officer after months of siege (and hostages).

Cheers,
5.5.2009 1:34am
zuch (mail) (www):
rosetta's stones:
The picture of that officer, in full paramilitary garb, drawing down an automatic weapon in a FL citizen's home, followed by her whiny bleatings... that image will stick forever.
No one got hurt. Good thing. Why wouldn't you want the officers to wear proper garb in such a situation? Hate to say it, but the courts got it right in that case, and the Miami Cubans were just nutzo (sorry if that's redundant). The boy should have been returned to his father ... rather that to nutzo distant relatives that were related to the boy through the father's side. If they had some state in the custody of the boy, it derived through their relationship with the father ... in which case it's hard to argue that the father's interest must give way to that.

Just one more case of the RW cheering on lawless elements in society. That's a road to disaster....

Cheers,
5.5.2009 1:40am
Leo Marvin (mail):
A. Zarkov:

"I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually."

I'm happy to hear that. I wanted her to succeed, but like so many others here, I found her ineffectual and offputting. (She struck me as being about as far in over her head as Alberto Gonzalez, though not as seemingly ethically challenged.) Since your impression is better founded than anything I based my own on, I'm left to assume that, partisan hatred aside, Reno's reputation suffered mainly from an awkward, un-telegenic persona.
5.5.2009 1:46am
Leo Marvin (mail):
And further to Orin's rebuttal of Todd's suggestion that Reno survived only through the Clintons' patronage, wasn't it Reno who expanded Ken Starr's authority from Whitewater to Monicagate?
5.5.2009 1:49am
Malvolio:
Had Reno sent a couple of plainclothes Feebs to pick the boy up, and they'd been gunned down by Elian's self-appointed protectors, I suppose we would hear how the weak-kneed Reno got the agents killed through her timidity.
That lines of argument proves rather too much.

Say, for example, Reno had sent a tank to crush the home where Elian was staying (uh, not that any sane person would use armored vehicles against a building with children inside). Would you accept the argument begining "Had Reno sent the Hostage Rescue Team to pick the boy up..."

Of course, why the DOJ felt the need to intervene in a custody dispute I don't understand. I'm sure that only a few thousand votes or so were switched to the Republican side in the election that occurred later in 2000, and those couldn't have mattered much.
5.5.2009 1:50am
Ricardo (mail):
Say, for example, Reno had sent a tank to crush the home where Elian was staying...

Do you really suppose that never before or since have federal agents stormed a house with guns drawn where children are present?

Of course, why the DOJ felt the need to intervene in a custody dispute I don't understand.

Because it involves federal law, perhaps? Had Elian been Mexican instead of Cuban, this wouldn't be subject to any kind of controversy at all.
5.5.2009 2:31am
Ohio Scrivener (mail):

True, he is not a great writer: His opinions don't "sing."


And that's the problem. For those who don't know Souter personally (no small majority), the best measure of his skill as a justice is in his writing, and to a lesser extent, the opinions which garnered his support (sadly, Kelo v. City of New London and Kennedy v. Louisiana among them). That said, I agree, Souter "is not a great writer" -- but disagree that this defect should be swept aside in favor of his penchant for asking "piercing questions."
5.5.2009 3:06am
ShelbyC:

Do you really suppose that never before or since have federal agents stormed a house with guns drawn where children are present?


But there was no evidence of criminal activity. All they were doing was going to pick a kid up.
5.5.2009 5:12am
Brett Bellmore:

I don't see why they just didn't wait them out. What was the rush?


I might be able to clear that up: A few days before the end, the Michigan militia hatched a plan to bring the standoff to a peaceful conclusion, by massing nearby, and walking into the compound in an unarmed column, with cameras rolling, daring the feds to shoot unarmed people on live TV. (I got an invite, but thought they'd take that dare.) They would then take detailed photographic records of the place, so as to prevent the sort of crime scene manipulation the feds pulled off at Ruby Ridge, and escort the Davidians to the nearest hospital for treatment.

I believe the feds got wind of this, and decided they had to put an end to the standoff before it happened, no matter the cost.


And further to Orin's rebuttal of Todd's suggestion that Reno survived only through the Clintons' patronage, wasn't it Reno who expanded Ken Starr's authority from Whitewater to Monicagate?


IIRC, Starr's jurisdiction was expanded by the court, (I think at his request.) because at some point Reno simply stopped complying with the independent counsel law, and refused to appoint any more counsels as new scandals broke. In fact, it was widely suspected that this refusal to continue enforcing that law was part of what Reno owed her job security to. Louis Freeh certainly thought she was stonewalling for the President.
5.5.2009 6:40am
Anderson (mail):
But, maybe it requires more intelligence to not create a philosophy and then fit a case into it.

Here's a Souter quote I appended to the Zywicki thread.

"We can't have a single philosophy. The most dangerous thing in the world is to have a judicial philosophy. And the reason is there's no one philosophical system, at least in my experience, for the interpretation of statutes--and God knows, for the American Constitution--that is going to be able to work regardless of all circumstances. * * *

"Take the recently popular view (in my judgment a legitimate view subject to limitations) that the Constitution must be read with some reference to original meaning. As long as you don't engage in crude psychological fallacies about what you're getting at by original meaning, I think there is enormous value in that philosophy. But one has to be willing to admit there are circumstances, there are questions, for which there are simply no materials that would shed any light on original understanding. And if you committed your entire sense of legitimacy to the notion that the answer has got to come from this original understanding ... you will find some way to put (that philosophy) into practice, whether you have legitimate premises for it or not."

... Re: "singing opinions," I would submit as a general rule that practicing lawyers find an opinion useful and clear, in inverse proportion to its rhetorical heights.
5.5.2009 7:59am
Snaphappy:
How ironic that Todd's "criticism" of Justice Souter as mediocre is itself so mediocre:

" I don't think that anyone would champion Souter as a anything other than a mediocre Justice."

"doesn't it seem to be the consensus that Souter is certainly near the bottom"

"Souter is by any measure a weak link on the Court most would think."

Most of Todd's criticism is based on what he believes most people think, except that one need not look very far to discover that most people do not think that Souter was mediocre.
5.5.2009 8:43am
NaG (mail):
Justice Souter's opinions easily hold their own against the opinions of his bretheren, whether you agree with him or not. I frankly think it's impressive that we have a Supreme Court where every single member brings a lot to the table, even though the appointment process is so fraught with politics and ideological bean-counting.
5.5.2009 8:48am
wolfefan (mail):
Hi ABAR -

Reno was less independent than, say, Alberto Gonzales? Really? I suspect the Clintons would certainly disagree. Zywicki must have gotten all his news from WND back then to wriet what he did....
5.5.2009 8:54am
Anderson (mail):
Most of Todd's criticism is based on what he believes most people think

Who was it, Pauline Kael, who didn't know anyone who voted for Nixon?

I suspect we've mainly learned something about Prof. Zywicki's associates.
5.5.2009 10:08am
rosetta's stones:

Anderson:
A Florida family court judge revoked Lázaro's temporary custody, clearing the way for Elián to be returned to his father's custody. On April 20, Reno made the decision to remove Elián González from the house and instructed law enforcement officials to determine the best time to obtain the boy.


This is what makes Reno's decision intemperate, Anderson:


On April 19, the 11th Circuit Court of Appeals in Atlanta ruled that Elián must stay in the U.S. until the Miami Gonzálezes could appeal for an asylum hearing in May.


Reno did a little judge shopping, found what she wanted to find, and ordered up the paramilitaries to kick down some doors. That's not good governance. That's an immature simpleton, acting out on the public stage. We deserve better than this, as the outcomes can be disastrous and even deadly.

But no matter what, such actions are simply wrong, and she exhibited such judgment more than a few times. I'll leave you lawyers to debate the satanic litigation, and "The Wall", but they inform my opinion on this, even if I don't keep up with them... where's there's smoke... .

No more Renos, please.
5.5.2009 10:10am
Edmund Unneland (mail):
Well, as a native New Yorker, I remember being convinced (and impressed) by New Jersey v New York. I also remember smiling at the sentence beginning with "The noble grantor...."
5.5.2009 10:17am
Matthew K:

ShelbyC:

But there was no evidence of criminal activity. All they were doing was going to pick a kid up.

It's really not worth getting involved in this kind of thread on this particular message board but, as cited above:
"After being informed of the decision, Marisleysis said to a Justice Department community relations officer, "You think we just have cameras in the house? If people try to come in, they could be hurt.""

At which point i say "fuck them." If you promise armed resistance then you don't get to bitch about a broken door. As it was, the agents did knock and ID themselves, more than happens in some drug busts. They were met with ineffective unarmed resistance, and the National Review got a scare-mongering cover photo.
5.5.2009 11:14am
Oren:

But there was no evidence of criminal activity. All they were doing was going to pick a kid up.

The FL judge ordered the family to give up the child immediately, making them guilty of criminal contempt (at the least).
5.5.2009 11:14am
Oren:


"After being informed of the decision, Marisleysis said to a Justice Department community relations officer, "You think we just have cameras in the house? If people try to come in, they could be hurt.""

That statement could be whipped up into a crime too, come to think of it.
5.5.2009 11:15am
Skyler (mail) (www):
I don't think anyone doubts that Justice Souter is intelligent. Of course he is. So is my two year old daughter. That doesn't mean that my daughter would be a good supreme court justice. Not yet anyway.

Souter is at the bottom because he has had no impact on the court except to follow others.

As for Reno, she might also be smart, but she is very thoroughly evil. If she really did what she thought to be correct, then she is even more morally vacant than I would have thought. What kind of person thinks it's appropriate to incinerate people after beseiging them in their church? What kind of person orders snipers to kill a woman holding a child in her arms? What kind of person breaks into a family's home to snatch a child away while court proceedings are still pending to determine the status of the child?

Reno showed that she doesn't care about people's rights, or the legal process, or just being a decent human being. That you defend her simply because you think she's smart is the most awful form of stereotype of academics.
5.5.2009 11:21am
John Doe (mail):
From a Florida newspaper, on Reno's history of poor judgment:


"... In 'The Child Terror,' the PBS documentary series 'Frontline' reports that when Reno was the state attorney in Miami, her overly aggressive child-abuse prosecutions might have resulted in some grotesque miscarriages of justice.

Reno's noble intentions aren't questioned, just her approach. In the heated climate following a monstrous case of child molestation by a South Dade couple, Reno launched a jihad against alleged child abusers. In its tenacity and tunnel vision it was reminiscent of Sen. Joseph McCarthy's communist witch hunts ...

The Child Terror' concentrates on two cases, which amounted to inquisitions, to show how the system can be manipulated against the accused ...

The Child Terror' concludes on a chilling note. Her reputation as a take-no-prisoners prosecutor was instrumental in Reno being designated attorney general, 'Frontline' says. One of her first decisions in Washington was to use any means necessary to protect another group of children--in Waco, Texas."

5.5.2009 11:58am
zippypinhead:
I served under AG Reno for two years when I was at DOJ, and I found her to be pretty impressive, actually. My sense of her was that she was independent and did her best to be principled, and she did what she thought was right even if she knew it would be politically controversial. If course, you can agree or disagree with her individual decisions as AG: My own views were mixed. But as someone at DOJ at the time, I thought she did what she thought was correct.
I agree with Professor Kerr, and I served as a line prosecutor in DOJ under Reno for a lot longer than two years (including on a few high-profile matters on which the A.G. directly made the key decisions). And I'm reasonably sure the vast majority of my then-colleagues would also agree with Professor Kerr. On a day-to-day basis A.G. Reno did a good job managing the Department's business. Significantly, she also understood the difficulties faced by her prosecutors, and made sure they knew she supported them (unlike, for example, the little guy from Texas and his inexperienced political-hack hench-persons who infested the fifth floor of DOJ HQ more recently).

Reno's biggest failing? She was insufficiently attuned to the political subtleties of Washington D.C. She persisted in doing what she believed was right from a pure law enforcement standpoint, when a more politically astute player might have compromised their position. And as a result, the political long-knives and their fellow-travelers in some parts of the media had a field day at her expense.
5.5.2009 1:20pm
rosetta's stones:

One of her first decisions in Washington was to use any means necessary to protect another group of children--in Waco, Texas."


I don't disagree with zip's or Kerr's assessment of her administrative talents or intelligence, but immaturity and intemperance don't have to manifest everywhere, just somewhere, to be a valid criticism. And playing the victim card doesn't cut it. If she swam against the grain, she victimized herself, if that's what she's claiming. She did appear to be tone deaf, for sure.

As I'm psychoanalyzing SC judges, I might as well do likewise with AG's. Reno's immaturity and intemperance seemed to be rooted in a fixation with "the children", in several of these high-profile cases discussed here. What's up with that?

And why in some of these cases did the children face death, or meet it? I can think of any number of different courses available in these cases, which might have avoided risks both physical and litigative, but always chosen was the most animated. It was more than just a manipulation of the law, it was plain weird. No more Renos.
5.5.2009 2:20pm
zuch (mail) (www):
Skyler:
What kind of person orders snipers to kill a woman holding a child in her arms?
<*SHEESH*> Give it a rest, willya? That was Bush I's administration, long before Reno was anywhere near DoJ. And then there's the question of whether your allegation here has any basis in fact....

Cheers,
5.5.2009 3:57pm
zuch (mail) (www):
Brett Bellmore
A few days before the end, the Michigan militia hatched a plan to bring the standoff to a peaceful conclusion, by massing nearby, and walking into the compound in an unarmed column, with cameras rolling, daring the feds to shoot unarmed people on live TV. (I got an invite, but thought they'd take that dare.) They would then take detailed photographic records of the place, so as to prevent the sort of crime scene manipulation the feds pulled off at Ruby Ridge, and escort the Davidians to the nearest hospital for treatment.

I believe the feds got wind of this, and decided they had to put an end to the standoff before it happened, no matter the cost.
The absolute last thing DoJ would have wanted was for a horde of "Michigan Militia" (you know, Timothy McVeigh's kinfolk, albeit that was in the future) to go marching in there.

Once again, I'd like one honest person on the right to put forth just one other example of a hostage/siege situations where the gummint waited even one month before wading in to arrest those responsible for killing federal agents.

It may well be that in hindsight, we can say that another course might have worked better, but -- all things considered -- the gummint acted with remarkable forbearance and concern for human life. and I'd be willing to bet that a fair number of those that decry Reno's actions would think that the Afghanis and Pakis that routinely get blown up by being in close proximity to (alleged or suspected) al Qaeda deserve every bit of their explosive disassembly....

Cheers,
5.5.2009 4:12pm
Connie:
Skyler--why does the right wing insist on tagging Clinton's adminstration with Ruby Ridge?
5.5.2009 4:30pm
Leo Marvin (mail):
Connie:

Skyler--why does the right wing insist on tagging Clinton's adminstration with Ruby Ridge?

Because there are two realities, factual and ideological, and in the ideological reality of those who blame Ruby Ridge on Clinton, it's too perfect an example of Democratic tyranny not to have happened under Clinton. If some glitch in the Matrix happens to have dropped it into the wrong factual reality, that's a mistake for philosophers to ponder, not those whose mission is to save America by demonizing Americans.
5.5.2009 5:02pm
Connecticut Lawyer (mail):
Very interesting post, Prof. Kerr.

You are correct about most justices winding upon the bench as "accidents of history" rather than as the deserved elevation of towering legal minds. If the best were put on the bench, we would have had Justice Learned Hand, Justice Henry Friendly, Justice Edward Weinfeld, and Justice Posner.
5.5.2009 5:29pm
zippypinhead:
Skyler--why does the right wing insist on tagging Clinton's adminstration with Ruby Ridge?
Not "the right wing," just uninformed fringe conspiracy theorists who either find facts to be an inconvenient and unnecessary bother, or are too lazy to look up the fact that Vicki Weaver was shot on August 22, 1992. Yup, she was shot 2 1/2 months before the 1992 election, and 5 months before Clinton's inauguration. William Barr was the A.G. But the mantra "Janet Reno was to blame" has been repeated so often that it's assumed the status of enduring urban legend.

FWIW, on another of the enduring urban legends repeated above -- Janet Reno wasn't confirmed as A.G. until March 11, 1993 - nearly two weeks after the initial ATF raid on the Branch Dividian compound in Waco, and well after the FBI had taken control of the standoff and negotiations. Yes, she approved the tear gas attack on April 19, after she received a recommendation to use non-lethal CS to force the Branch Davidians out of the compound by FBI Director Judge William Sessions. But some of the conspiracy-sphere has Reno also authorizing the initial ATF raid, even though she wasn't A.G. and at the time ATF was an agency of the Treasury Department, not DOJ.

But why bother with the facts when you can spin a really "compelling" web of allegations without them?
5.5.2009 5:33pm
rosetta's stones:
zip,

The kids died on Reno's watch, and during actions she commissioned, as mentioned.
5.5.2009 5:43pm
zippypinhead:
Oh, please, Rosetta. The kids died after numerous FBI attempts to negotiate their release, and after Koresh made it clear that no one else would be allowed to leave the compound. And after the FBI got intel that Koresh was contemplating a mass Jonestown-style suicide. So the FBI looked at the available options and recommended that Reno approve a non-lethal teargas attack to force them out. She did so. The CS gas plan failed tragically, in large part because some of the Branch Davidians deliberately started fires in the building, and even shot some of their own who weren't content to wait around in the bunker until they suffocated from carbon monoxide poisoning.

In 20/20 hindsight, could something else have been done that might have limited the loss of life? Maybe, maybe not. But the recommendation to use non-lethal force was part of a menu of options developed and vetted through the FBI chain of command, including not only the supervisors on the scene and the negotiators, but also the agency's profilers, and the management chain up to the Director's office. The recommendation was then vetted by staff in the A.G.'s office, and the White House was briefed. Reno made the decision to authorize the recommended plan. This isn't close to the definition of "immaturity and intemperance" that you posit. It's the way the most important operational decisions are typically made in Official Washington. In her first month on the job, Reno inherited an untenable situation, and made a judgment call to follow the professionals' consensus recommendation. And then took responsibility when the plan went bad.

Incidentally, the courts found for the Government in the subsequent civil suits brought by the surviving Branch Davidians. The District Court found, and the Court of Appeals affirmed, that the Federal Government was not negligent in using tear gas to attempt to end the standoff.

But all you amateur armchair psychologists and pundits know better. Yeah, fer sher...
5.5.2009 6:57pm
rosetta's stones:

This isn't close to the definition of "immaturity and intemperance" that you posit.


Oh, I mostly agree with your characterization of what happened at Waco, zip, but that's not the sole basis upon which I come to an opinion about Reno's intemperance and immaturity... and Waco does serve to amplify her misjudgments in those other cases.

Unfortunately, as you mention, those of us observing these behaviors include armchair psychologists, pundits and coroners. The kids died, and others' lives were put at risk, and foolish litigation was pursued, and in a consistent pattern of behavior, remember? I find it honorable, your loyalty, but I also say... no more Renos, please. We deserve better than that.
5.5.2009 8:20pm
Skyler (mail) (www):
Okay, I remembered Ruby Ridge's date incorrectly. It doesn't change the conclusion that Reno was a thug.

And I have no problem being critical of either Bush, it's just that we were talking about Reno, not Bush.

There were thousands of ways to handle the siege of the church in Waco, but Reno decided to use the same tactics that Bush used against Noriega in Panama. They did everything possible to ratchet up the nerves of those church members, who did nothing illegal and lawfully defended themselves against assaulting BATF thugs. They knew that these were church members with extreme views and they purposefully did everything they could to exploit that paranoia.

But the real point is the assertion by Orin that being smart is the important part of having public authority.
5.5.2009 11:40pm
zuch (mail) (www):
Skyler:
Skyler (mail) (www):
Okay, I remembered Ruby Ridge's date incorrectly. It doesn't change the conclusion that Reno was a thug.
Translated from RW-Speak into English: "My facts are wrong but not my conclusions...."

Cheers,
5.6.2009 12:30am
Leo Marvin (mail):

They did everything possible to ratchet up the nerves of those church members, who did nothing illegal and lawfully defended themselves against assaulting BATF thugs.

Lawfully defended themselves? I can understand sympathizing with the Branch Davidians, but calling what they did "lawful" passes strange.
5.6.2009 3:18am
Skyler (mail) (www):
Zuch, when only one of several facts supporting the same conclusion is erroneous, the conclusion is still valid.

Leo, the agents did not announce, they used excessive force, they were acting unlawfully. If I recall correctly, even the warrant they had was defective. The church members regularly received visits from government representatives and openly walked about the town on a regular basis. The church members had every right to defend themselves. The agents that got killed were lawfully killed and deserved it. The Clinton administration was intent on making an example of peaceful church members who supported themselves through the lawful practice of selling arms.

The investigation afterwards was a complete white wash and that is clear to anyone who has looked into the matter even slightly.
5.6.2009 10:26am
zippypinhead:
...the agents did not announce, they used excessive force, they were acting unlawfully. If I recall correctly, even the warrant they had was defective.
Skyler, it was nice you confessed error in an earlier comment on the facts (if not the conclusion) regarding Janet Reno and Ruby Ridge, but... Oops, you did it again... with Waco.

To repeat: Janet Reno wasn't confirmed as A.G. until March 11, 1993 - nearly two weeks after the initial ATF raid on the Branch Dividian compound in Waco. Reno had nothing to do with the ATF warrant execution you complain about (and couldn't have even if she'd been in office that day -- ATF was a DEPARTMENT OF THE TREASURY agency at the time). And the FBI's "Noriega" tactics you complain about in another comment were also planned and implemented before she came in.

But hey, lets' not let the facts get in the way of a good argument, eh?

Frankly, the biggest management lesson I draw from the Branch Davidian tragedy is that Reno/Waco had a something important in common with Kennedy/Bay of Pigs, and Obama/TARP -- the moral of the story being newbies in high office who rely on what went before sometimes end up owning a problem they didn't create (tho the honorable ones nevertheless take responsibility, rather than say "not my deficit" or words to that effect).
5.6.2009 5:37pm
zuch (mail) (www):
Skyler:
Zuch, when only one of several facts supporting the same conclusion is erroneous, the conclusion is still valid.
I (and others) have challenged your other "facts" as well. One might begin to suspect that you "fix facts around the policy"....
The agents that got killed were lawfully killed and deserved it.
Killing federal agents is neither prudent nor legal policy. In fact, it is a more serious crime than simple murder. You may disagree as to both branches of my analysis here, but as to the first, I commend you to your justly deserved Darwin Award, and as to the second, your opinion is at variance with the law as it stands and you should strive to change that if you think otherwise. And a FYI: "[D]eserv[ing] it is not a relevant legal consideration.

Cheers,
5.6.2009 10:22pm

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