Justice Souter and Accidents of History:

What do I say about Justice Souter (I'm sure you were on the edge of your seats)? I have little to say about Justice Souter, actually. But since Souter is now departing from the scene I bless you with a little pet theory of mine.

Every once in awhile, through pure accident of history, an individual rises to a position of fame and responsibility in American society for which he has no business rising and for which he or she simply lacked the experience and mental fortitude to cope. In my lifetime, I can think of three such people: Dan Quayle, Janet Reno, and David Souter. There may be others--feel free to nominate your own.

Quayle, Reno, and Souter were all pure accidents of history. Reno, as the third-choice Attorney General because of Bill Clinton's determination to choose a woman. Quayle, well for whatever reason, presumably because Bush wanted a "Jack Kemp-type" but not Jack Kemp, or whatever. And Souter, because as Jan Crawford Greenburg reports, there was no Plan B when Ken Starr got shot down internally.

Having said that, both Quayle and Souter seemed to do a competent job once they got into office. But then again, how would one tell if a VP were incompetent--except, of course, other than creating a public panic over riding the subway. Quayle's was sort of a benign incompetence.

In Souter's case, it is my opinion that Souter's unpreparedness for the job manifested it in his inability to carry the weight of the Supreme Court robe. He never really seemed to have any coherent idea of what the judge's proper role was. Bill Stuntz had a great essay on Powell and O'Connor that I think applies to Souter as well (the link to the original article is broken, but Orin excerpted the key paragraphs here). In that sense, he was similar to Sandra Day O'Connor, a potential "accident of history" contender as well because of Reagan's campaign promise. In my opinion, she too was one of the more mediocre Justice of recent times.

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.

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.

What does this say? Not much, I reckon, other than I hope that whoever Obama picks to fill Souter's seat, it will be someone chosen by design and not a panicked elevation by accident of history.

While I have your attention, I'd like to point you to Tom Smith's witty take, "I would like to like Justice Souter". I don't discern any disagreement from Tom about Souter's essential mediocrity.

Related Posts (on one page):

  1. A Different Take on Justice Souter:
  2. Justice Souter and Accidents of History:
Comments

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:
Comments