# Souter to retire- let the speculation begin! **URL:** \ **Category:** Great Debates\ **Created:** [May 1, 2009, 2:41am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924 "2009-05-01T02:41:26Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 2, 2009, 4:33pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/101 "2009-05-02T16:33:29Z")
> [@Rand\_Rover](#): > > IMHO it’s worth nothing. Really? Having young non-white people see that someone like them is on the highest court in the land is meaningless? You don’t think it’ll help them stay in school and work hard? > [@Rand Rover](#): > > IMHO yes. Wait, seriously? A president should not nominate someone who agrees with his general political philosophy? You should let every president in at least the last century know that, if not all of them. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [May 2, 2009, 4:40pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/102 "2009-05-02T16:40:53Z")
> [@Rand\_Rover](#): > > IMHO yes. > Obama should appoint the best person for the job regardless of that person’s race or gender. There is no such thing. There is a huge pool of qualified people with pluses and minuses. You will have a hard time getting a consensus on who is the best. Politics is an important factor. Picking a woman or a race does not mean he or she is not qualified or even less qualified. That sounds like Sessions arguments in the senate. Every one Bush brought up was the single best qualified fit in the country, Even Meyers. ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 4:44pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/103 "2009-05-02T16:44:31Z")
> [@Captain\_Carrot](#): > > Really? Having young non-white people see that someone like them is on the highest court in the land is meaningless? You don’t think it’ll help them stay in school and work hard? 1. We have a black president. When will these types of arguments end? 2. Adding another black Justice would cause black Americans to be over-represented on the Court. So, to the extent you want representation of America’s racial diversity on the Court, you should not want another black Justice. 3. It would not be possible for all young non-white people to look at nine Justices and “see someone like them”–the US is more diverse than can be represented by nine people (well, unless you can find some Justices that are Thai-Czech-Korean-Zanzibarian-Americans). 4. To the extent that young non-white people want to see Justices on the Court that look like them, their preference is illegitimate and should not be pandered to. They should realize that Obama should pick a Justice based on the content of their character and not on the color of their skin. ---
**Author:** ![gaffa](https://avatars.discourse-cdn.com/v4/letter/g/e68b1a/32.png) [@gaffa](https://boards.straightdope.com/u/gaffa)\ **Post date:** [May 2, 2009, 4:55pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/104 "2009-05-02T16:55:15Z")
> [@MrDibble](#): > > Personally, while his nom is filibuster-proof, I think Obama should go with someone he’s worked with before, and who is sure to make conservatives’ heads explode. > > Lawrence Lessig, anyone? I laughed out loud at that one. But he would be a very effective appointment, as he would cause Scalia’s head to explode, so Obama would get a twofer. Then he could also appoint Jonathan Turley. ---
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [May 2, 2009, 4:55pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/105 "2009-05-02T16:55:26Z")
> [@Richard\_Parker](#): > > I also want to get this off my chest, even though it is not entirely relevant to SCOTUS appointments: I find this absolutist view of even benign race-based decisionmaking as evil discrimination to be thoroughly ahistorical. In less than a generation a significant proportion of white Americans somehow went from “discriminatory racism is OK” to “government must be race blind,” skipping over any thought of remedial race-conscious actions. Would you have told voters in Alabama in the 1970s not to worry about electing black candidates? Within many of our lifetimes, racial divides meant that white people could not be expected to adequately represent the interests of racial minorities. Short of waiting for the slow erosion of societal prejudices and for social integration to dissolve race as a meaningful characteristic for political purposes, the way to remedy this problem was to deliberately push for and provide descriptive representation. > > I appreciate the problems associated with even benign decisions made on the basis of race: it is stigmatizing, it entrenches divisions, and it can provide cover for not-so-benign decisions including discrimination against white people. I think that’s all true. But there are other interests to balance against those problems. To pick one small example, consider section 2 of the Voting Rights Act. It calls for maximized minority representation in Congress. Now, maybe you’re one of those people who thinks black people were totally well-represented in Alabama before the Voting Rights Act. If so, that’s a whole 'nother debate. But if not, then you have to concede that benign race-based decisionmaking made real black political empowerment possible. Without the VRA, the composition of Congress and the political history of the last thirty years would be quite different. If you want government to be race blind, you want to scrap most of the VRA and hope that times have changed enough that we no longer need it. > > That doesn’t mean that race-based decisions are appropriate today, thirty years after the Edmund Pettis Bridge. But it does mean that the question should be an empirical one of whether this kind of ham-handed, remedial decisionmaking is no longer necessary. Are there still such things as black or hispanic interests? And must these interests be represented by people of the same characteristics? These are the real questions of legitimate debate. At a minimum, I think it is an issue that must be approached more carefully and thoughtfully than instantly rejecting considerations of race as if deciding to appoint a Hispanic Justice because she is Hispanic were the equivalent of appointing a White Justice because he is White. There may come a time when that is true, and we may even be there now, but it isn’t true as a matter of timeless principle. > > I don’t say all of this because I’m particularly interested in debating the topic. I know what your views and the views of many of this board’s members are. You reject the coherence of the concept of racial interests. You would have told voters in Alabama in the 1970s not to worry about electing black candidates. We’ll just go round-and-round. But since you brought it up, I just wanted to express my disagreement with this approach and leave it there. [underlining mine] Not all race-based decision making is created equal. Generally, the constitution demands colorblindness in everything unless there is a compelling state interest, and the race-based policy is narrowly tailored to fit that interest.[sup]1[/sup] In practical terms, almost no race-based decisions will pass this strict scrutiny; for the statute at issue, this test is “strict in theory, but fatal in fact.”[sup]2[/sup] However, the constitution carves out an exception where this analysis will not apply, and that is access to the franchise.[sup]3[/sup] Congress used this exception to create the Voting Rights Act.[sup]4[/sup] The exception is based on the fact that the Civil War Amendments – especially the fifteenth – contemplate access to the vote unfettered by racial considerations, and those amendments all include clauses giving congress the “power to enforce” by means of “appropriate legislation.” So in a nutshell, **Richard Parker** , you chose as your example of benign race-based decision-making, the only area where everyone[sup]5[/sup] has already agreed it is acceptable. Using race to choose your employees, or your customers, or your Supreme Court justices does not have the same constitutional sanction[sup]6[/sup] as helping minorities get representation. [sup]1[/sup] _See generally_ Carolene Products n. 4 _et seq._. [sup]2[/sup] Fullilove v. Klutznick, 448 U.S. 448 (1980). [sup]3[/sup] _See_ South Carolina v. Katzenbach, 383 U.S. 301 (1966). [sup]4[/sup] 42 USC § 1973. [sup]5[/sup] Well, not everyone. _See_ Shaw v. Reno, 509 U.S. 630 (1993). [sup]6[/sup] Yes, I’m aware that your argument is more of a policy one than a legal one. But I have my voting and civil rights final on Wednesday and I’m practicing all I can. Sue me. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 2, 2009, 6:08pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/106 "2009-05-02T18:08:56Z")
**Randy Seltzer** , I disagree that political representation is the only context in which the Constitution allows benign race-based decisions. Though even if it were, it would seem to be particularly relevant to the question of whether minority representation on the court were a legitimate concern. _Bakke_ would be another excellent example of constitutional race-based decisionmaking. There are others. Your citation of _Shaw_ is particularly appropriate to my point. In _Shaw_, O’Connor walks a careful line between declaring that congressional districting must be race-blind and allowing the sort of Consociationalism that _Gingles_ and section 2 of the VRA seem to inevitably lead to. It is exactly that careful line that I think we should be walking as a society. Not to enable your procrastination from exams, but you should check this out if you haven’t already: [http://www.redistrictinggame.org/](http://www.redistrictinggame.org/) > [@DSeid](#): > > Well of course there is that those of us who are not lawyers have no expertise to judge how otherwise qualified a particular candidate is or is not. But there is also the fact that “identity politics” - including how someone is classified on the political spectrum - is a large, maybe the largest, part of what kind of opposition is mounted against a choice, what kind of capital it costs Obama to get a selection in, and what kind of capital it earns him as well. . . . That’s politics that the rest of us can understand. I agree. This is a much better and more charitable version of the thought I was expressing. > [@Bricker](#): > > You are an amazingly astute observer and analyst, and one of the best posters on this board. > > And since I disagree with so many of your views, that’s a bitter pill. 🙂 Thank you. Praise from those who disagree is always more meaningful. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 2, 2009, 6:17pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/107 "2009-05-02T18:17:19Z")
> [@Rand\_Rover](#): > > While your post was rather :rolleyes: both in its substance and posture (“I want to say my piece but am not interested in a debate on the subject”), your wish is granted and I won’t respond. I missed this before. I appreciate your willingness to accede to my request. But I’m not trying to prevent your response. I’m just acknowledging that I don’t think debate will be very productive and I am not really interested in a long back-and-forth. By all means, let loose with your devastating deconstruction of my position. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 2, 2009, 6:24pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/108 "2009-05-02T18:24:06Z")
> [@Rand\_Rover](#): > > 1. Adding another black Justice would cause black Americans to be over-represented on the Court. So, to the extent you want representation of America’s racial diversity on the Court, you should not want another black Justice. Adding another white man would make white men (even MORE) over-represented on the Court. So you should not want another white man appointed. ---
**Author:** ![Randy\_Seltzer](https://avatars.discourse-cdn.com/v4/letter/r/ee7513/32.png) [@Randy\_Seltzer](https://boards.straightdope.com/u/Randy_Seltzer)\ **Post date:** [May 2, 2009, 6:27pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/109 "2009-05-02T18:27:39Z")
> [@Richard\_Parker](#): > > **Randy Seltzer** , I disagree that political representation is the only context in which the Constitution allows benign race-based decisions. Though even if it were, it would seem to be particularly relevant to the question of whether minority representation on the court were a legitimate concern. _Bakke_ would be another excellent example of constitutional race-based decisionmaking. There are others. > > Your citation of _Shaw_ is particularly appropriate to my point. In _Shaw_, O’Connor walks a careful line between declaring that congressional districting must be race-blind and allowing the sort of Consociationalism that _Gingles_ and section 2 of the VRA seem to inevitably lead to. It is exactly that careful line that I think we should be walking as a society. > > Not to enable your procrastination from exams, but you should check this out if you haven’t already: [http://www.redistrictinggame.org/](http://www.redistrictinggame.org/) But in _Bakke_, the court did apply strict scrutiny (or at least purported to), but found that the narrow circumstances of that case, actually, miraculously, passed the test. And the court went to great lengths to point out that the race-based decisions in that case weren’t truly race based, but “diversity-based” with race being one component of diversity. The point: strict scrutiny applies to all race-based laws - thus killing 99% of them - with the exception of voting rights laws. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [May 2, 2009, 7:09pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/110 "2009-05-02T19:09:23Z")
[Interesting article from the Times here about career experience and the high court.](http://www.nytimes.com/2009/05/02/us/02assess.html?hp) As I said earlier I don’t really expect Obama to break with recent history on the judicial experience point, but this story makes a fairly good case that he should do so. > [@](#): > > Until recently, Supreme Court justices were often former legislators, governors, cabinet members, law professors and practicing lawyers. Justice Souter, who surprised his conservative patrons with his generally liberal votes, bears some of the blame for the emergence of what scholars call the norm of prior judicial experience. […] > > The current court is the first to be made up entirely of former federal appeals court judges. And only a few of those appeals courts at that: seven of the justices served on what might be called the court of appeals for the Acela circuit, in Boston, Philadelphia and Washington. (The exceptions are Justices John Paul Stevens, who served in Chicago, and Anthony M. Kennedy, who served in California.) ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 7:10pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/111 "2009-05-02T19:10:06Z")
> [@spoke-](#): > > Adding another white man would make white men (even MORE) over-represented on the Court. **So you should not want another white man appointed**. I am not concerned about the racial or gender make-up of the Court. They could all be Asian FTM transsexuals for all I care. I said above that he should not want another black justice because he IS concerned about the racial and gender make-up of the court. ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 7:12pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/112 "2009-05-02T19:12:11Z")
> [@Richard\_Parker](#): > > I missed this before. I appreciate your willingness to accede to my request. But I’m not trying to prevent your response. I’m just acknowledging that I don’t think debate will be very productive and I am not really interested in a long back-and-forth. By all means, let loose with your devastating deconstruction of my position. Your “position” was just vacillating and hand-wringing. It would be like deconstructing a bowl of pudding. I have better things to do with my time. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [May 2, 2009, 7:39pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/113 "2009-05-02T19:39:49Z")
> [@gonzomax](#): > > Every one Bush brought up was the single best qualified fit in the country, Even Meyers. What was the argument for her? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 2, 2009, 8:42pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/114 "2009-05-02T20:42:35Z")
> [@Rand\_Rover](#): > > I am not concerned about the racial or gender make-up of the Court. Funny. You sure seem to be. ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 8:51pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/115 "2009-05-02T20:51:45Z")
> [@spoke-](#): > > Funny. You sure seem to be. Only to those who interpret the lack of a desire for diversity in its own righrt as racism. As I said upthread, I think that the next Justice should be the best person for the job no matter the person’s race or gender. Therefore, I’m concerned only about the process that selecrts the next Justice and not the race or gender of the person selected. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 2, 2009, 9:15pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/116 "2009-05-02T21:15:24Z")
> [@Rand\_Rover](#): > > 1. We have a black president. When will these types of arguments end? What are you talking about? > [@Rand Rover](#): > > 1. It would not be possible for all young non-white people to look at nine Justices and “see someone like them”–the US is more diverse than can be represented by nine people (well, unless you can find some Justices that are Thai-Czech-Korean-Zanzibarian-Americans). I didn’t say all. > [@Rand Rover](#): > > 1. To the extent that young non-white people want to see Justices on the Court that look like them, their preference is illegitimate and should not be pandered to. Pandering? Illegitimate? Do you have any idea what those words mean? > [@Rand Rover](#): > > They should realize that Obama should pick a Justice based on the content of their character and not on the color of their skin. I have every confidence that he will. However, he will also be aware of the empowering effect a non-white-male on the Court will have for minorities in this country. Oh, wait, I forgot, their opinions are ‘illegitimate’. :rolleyes: ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 9:24pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/117 "2009-05-02T21:24:48Z")
I didn’t say the the opinions of non-whites is illegitimate. I said that the desire to have a non-white justice is llegitimate (by which I mean ignorable, not worthy of respect). ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 2, 2009, 9:58pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/118 "2009-05-02T21:58:11Z")
Why? Why should my friends see that despite Obama’s election, if you’re not a white male, good luck getting anywhere near the top levels of government? Why shouldn’t he have an eye on remedying that while still choosing one of the people in the top tier? (I say one of them, and not the best, because nobody will be the best objectively. Everyone has strengths and weaknesses, and focuses on different areas of the law that they feel are most important.) ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 11:18pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/119 "2009-05-02T23:18:25Z")
If the next Justice is a white male and your friends take that to mean “despite Obama’s election, if you’re not a white maile, good luck getting anywhere near the top levels of government,” then your friends are idiots, their opinions on this subject are illegitimate, and they should not be pandered to. Likewise, if the next Justice is a racial minority and a white male takes that to mean “you have to be a minority to get ahead in government these days, Obama should have nominated a white male to balance things out since a black man won the presidential election,” then that guy is an idiot, his opinion on this subject is illegitimate, and he should not be pandered to. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 3, 2009, 5:43am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/120 "2009-05-03T05:43:22Z")
> [@Rand\_Rover](#): > > I didn’t say the the opinions of non-whites is illegitimate. I said that the desire to have a non-white justice is legitimate (by which I mean ignorable, not worthy of respect). Nothing illegitimate at all, so long as it is a reasonable desire. Of course a citizen of any minority persuasion is likely to prefer one of his number to be advanced, simply from a natural desire to be represented and/or judged by someone who shares some perspective with oneself. Or, in my case, a desire for diversity reflects a wish for a larger commonality, a more encompassing sense of “us”. Neither are “illegitimate”. It only becomes illegitimate when it outweighs more important factors like intelligence, temperment, and expertise. Principle is important, of course, but not nearly so important as reasonable application of principle. [Previous page](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924.md?page=5) [Next page](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924.md?page=7)