Bye Bye, Justice Souter

Liberal Supreme Court Justice David Souter is retiring. On social issues, this makes little difference: whoever replaces him will satisfy liberal litmus tests, like supporting racial preferences and partial-birth abortion the way Souter did.

But on economics, where Souter was more moderate, it will matter a lot: Souter was willing to occasionally overturn excessive punitive damage awards, and overturn state regulations that were preempted by federal law (like in Watters v. Wachovia (2007), where I filed a brief on behalf of economists and law professors). Some of his potential replacements, like Judge Sonia Sotomayor and especially Deval Patrick, will be less likely to do that.

Business will miss Souter, even though social conservatives won’t. Obama is more likely to nominate a justice hostile to taxpayers, business, and property owners, since he has expressed regret that the Supreme Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth” during the Warren Court.

Souter’s colleagues will probably miss the unassuming Souter, who did not (unlike some past justices, such as William O. Douglas) lord it over other people. He once lived in a waterfront apartment building in Washington, D.C.’s Southwest quarter right near my wife. We would sometimes see Souter quietly doing his own laundry. Unlike many limousine liberals, who live in wealthy, lily-white, gated communities (even as they advocate forced busing of working-class students between predominantly-black schools and predominantly-white schools), Souter chose to live in a middle-class, racially-mixed community.

A potential replacement for Justice Souter is Massachusetts Governor Deval Patrick, a vociferous advocate of censorship and racial quotas who helped spawn the mortgage crisis while serving in the Justice Department.

Another candidate for Souter’s seat is “Second Circuit judge Sonia Sotomayor,” who also avidly supports racial quotas. Sotomayor’s “shenanigans in trying to bury the firefighters’ claims in Ricci v. DeStefano triggered an extraordinary dissent by fellow Clinton appointee José Cabranes (and the Supreme Court’s pending review of the ruling).”

Yet another is the tax-and-spend former governor of Michigan, Jennifer Granholm, a big fan of racial preferences (forbidden by her state’s constitution) who helped drive her state’s economy into the ditch.

Two other candidates also are mentioned who may not be wacky enough to be considered by Obama, even though they both satisfy liberal litmus tests on abortion, affirmative action, and gay rights, and are both women (the conventional wisdom is that Obama will pick a woman, perhaps a Hispanic woman, as the next Supreme Court justice). Those two candidates are Seventh Circuit judge Diane Wood and Ninth Circuit judge Kim Wardlaw, a Hispanic. Neither of these two judges is unusually anti-business, or unusually prone to the “redistribution of wealth” Obama has applauded.

CNN’s political ticker also lists the veteran moderate Judge Jose Cabranes. I don’t think Obama is in any mood to pick a moderate male judge, even a well-respected Hispanic like Cabranes who is well-liked by his home-state Democratic senators, Dodd and Lieberman, and who would easily sail through the Senate. Cabranes may be pro-choice, pro-gay rights, and pro-voting-rights, but he is also anti-crime and pro-free-speech. And he was unwilling to use judicial shenanigans to bury the reverse-discrimination claim in the Ricci case, as Judge Sotomayor did (although it’s worth noting that even the Obama Justice Department reluctantly agreed with Cabranes in that case, urging the Supreme Court to remand the case back down to the lower courts for a proper reconsideration, rather than totally avoiding the issues raised by the aggrieved white employees).