Justice Souter on judging

Judging is a really hard and truly human exercise. Judges definitely are not umpires, according to Justice Souter. Here are his remarks at the Harvard commencement. Here are his closing remarks:

So, it is tempting to dismiss the critical rhetoric of lawmaking and activism as simply a rejection of too many of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.
But I have come to understand that he was right, and by the same token I understand that I differ from the critics I’ve described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.
That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

Dahlia Lithwick has an interesting take on the speech here:

It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.

They write letters

(Okay, so we stole the title from our brother blogger, South Florida Lawyer). While everyone is talking about Ricci and Madoff, the story that interests me is Justice Souter's last day on the bench. Here's the letter from the Chief Justice, signed by all of the Justices, wishing Souter well. And here's Souter's response, which starts "Your generous letter touched me more than I can say..." Lots of love!

The post below about Ma'am or Judge/Your Honor has gotten quite a bit of response. While we're on the topic of what works in court, Justice Scalia explains what peeves him here and here, including when lawyers say that a hypo is different than the facts of the actual case. Scalia: "I know it's not this case, you idiot."

On using italics: "If you’re constantly italicizing words, it sort of reads like a high school girl’s diary."

On using latin words: "Oh, God. It’s a Latin word that means connection. Say 'connection.’ You make it sound scientific."

And on being likable: "No judge likes to give a case to a mean-spirited person. I’ll do it if the law requires it."

Justice Souter retiring at the end of the Term

WOW!! Big news!!

Here's ScotusBlog:

Justice David H. Souter has decided to retire when the Supreme Court completes its current Term in early summer, the NBC-TV network reported Thursday night. The 69-year-old jurist, who is completing his 19th year on the Court, has passed word of his plans to others, and the White House has been told, according to the network’s account. Other news organizations also were reporting that Souter has made his decision not to continue serving.
By leaving office this summer, Souter will be giving President Obama time to select and seek Senate approval of the new Chief Executive’s first appointee to the Nation’s highest court before the Court returns for a new Term on Oct. 5. That process could be slowed, however, if the President chooses a nominee who would stir such opposition among conservatives that Senate action could be slowed. With Democrats in control of the Senate, however, Obama’s choice almost certainly would win approval.
Even if the President were to pick a decidedly liberal new Justice, it would not bring a strong shift in the current Court’s direction, since four conservatives along with their sometime ally, Justice Anthony M. Kennedy, tend to control outcomes on many key issues.

Well, now we can start our who will replace Souter sweepstakes. Any chance it's someone from the 11th or our District? We've had prospects before... In fact, the very first post on this blog urged then-President Bush to appoint a Floridian to the Supreme Court. So, who are our best prospects?