Monday, May 4, 2009

Boo Radley Abandons the Bench

It's back to Walden Pond for David Souter. But can anyone say he'll be missed? How can you miss an apparition? How can you miss a phantom?

Souter was hyped at confirmation as an Abe Lincoln-like figure, but he actually seems to have more in common with Boo Radley. At least Abe Lincoln went to the theater (much to his eventual regret). Souter wouldn't fly on an airplane. He didn't give interviews or use a personal computer. He ate his apples core and all. He never unpacked after relocating to Washington. The only time he made news was by getting mugged. If Obama values continuity in a replacement, perhaps he should pick J.D. Salinger.

Souter's judicial legacy is just as illusive. He made as lasting a mark as a jurist as his hush puppies made padding up the court's marble steps for 20 years -- none, as far as I can tell. Little will change if the president picks a "liberal" replacement, since George Bush Sr. got sold a bill of goods with the "conservative" Souter. His bona fides were touted by Warren Rudman. That should have been a red flag.

Souter consistently voted with the activist faction -- including on the outrageous Kelo ruling, which had property rights activists back in New Hampshire trying to seize his farm through eminent domain, so they could convert it into a Bed and Breakfast (and make a point about the monster that decision unleashed). The effort failed, unfortunately, so Souter has a home to return to.

He did resemble "honest Abe" in at least one respect: he recognized virtually no limits to the expansion of federal power, at the expense of the states. But that, too, made him unexceptional on the Supreme Court and among most colleagues on the federal bench.

Justice Souter, we hardly knew ye. Yet somehow, we aren't racked with regrets.

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