Souter On Constitutional Interpretation And The Kagan Hearings

By Big Tent Democrat, Section Supreme Court
Posted on Sat Jun 05, 2010 at 09:38:09 AM EST
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In a NYTimes Editorual published today:

Two recent moments have brought to mind Chief Justice John Roberts’s simplistic description of a Supreme Court justice as an umpire who confines himself to calling balls and strikes. The first was the reminder in Detroit on Wednesday night that umpires are highly fallible, and their calls subjective, even when something as important as Armando Galarraga’s nearly perfect game is at stake.

The other was former Justice David Souter’s brilliant demolition of the umpire metaphor in his commencement address at Harvard last week. It is hard to imagine a better preparation for the confirmation hearings of Elena Kagan later this month.

[More...]

[. . .,] The senators who will soon decide Ms. Kagan’s nomination to the court should read Justice Souter on life experience in a changing world, and his appreciation of complexity. But more important, we hope the speech emboldens Ms. Kagan to speak her heart before the Senate in a way she has never done in public, which perhaps was Justice Souter’s intention. As the speech showed, rigid neutrality is not only disingenuous, it is a hindrance to proper decision-making. Certainty is an illusion, he said, quoting Oliver Wendell Holmes, and simplicity “devalues our aspirations.”

(Emphasis supplied.) My previous posts on Justice Souter's Harvard address are here and here.

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Souter On Constitutional Interpretation And The Kagan Hearings | 3 comments (3 topical)

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I would be surprised if (5.00 / 1) (#1)
by Maryb2004 on Sat Jun 05, 2010 at 10:11:06 AM EST

Kagan strayed from the script. But the Souter speech will hopefully give some of the senators an opening to educate the public.

After all, what are senate hearings really? An opportunity for the senators to pontificate. Maybe they'll pontificate in a useful way this time.

She certainly spoke her mind in her (none / 0) (#2)
by oculus on Sat Jun 05, 2010 at 10:36:17 AM EST

memos as Justice Marshall's law clerk. Of course, that was then and this is now.

: Ah, the innocence of youth! (5.00 / 2) (#3)
by jbindc on Sat Jun 05, 2010 at 10:41:35 AM EST

We do this with politicians too. I am more suspicious of people who don't change their minds or their views (even if a little) from the time they are 22 to the time they are 50. That tells me they are narrow minded and not open to living in reality, where as Souter nicely points out, there sometimes aren't easy answers to constitutional questions.
I hope Kagan still has most of those views (of course, I would also imagine being a law clerk in the same political mind as the judge, it's also more about writing what position the judge wants and espouses, rather than what is necessarily her personal interpretation of the law).