“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

"In Kagan, it seems to me we have reached a new level of utter blankness."

Says Andrew Sullivan:

Her entire career has been about never taking a stand on anything of any substance - free coffee for students! - while networking in a way to neutralize any conceivable opposition. And she is walking back from her earlier demands for more clarity and transparency in Senate confirmation hearings. Josh notes that liberals are worried about an Obama Souter.

Souter was the old level of utter blankness.

I just don't believe that Obama is that prone to risk.

That should mean that Obama secretly knows what she's about and is hiding it from us. But that wouldn't make Kagan an "Obama Souter." Souter was appointed by a President — George H.W. Bush — who thought he was getting something quite different. Here's a New York Times article from the time of the Souter nomination (before his ascension to the Supreme Court):

John H. Sununu, the White House chief of staff, said today that he had assured President Bush that David H. Souter would uphold conservative values on the Supreme Court.... 

''I was looking for someone who would be a strict constructionist, consistent with basic conservative attitudes, and that's what I got,'' the chief of staff said in an interview. ''I was able to tell the President that I was sure he would do the same thing when he encountered Federal questions....

The chief of staff's comments were designed to advance the overall White House strategy of seeking to convince conservatives that Judge Souter was their kind of man, who could be trusted to vote ''right'' on the big issues, without getting him involved in fierce debates about abortion or flag burning or other contentious specifics.

In being unusually candid about the details in the selection process, Mr. Sununu was carrying out his role as Mr. Bush's primary liaison to the right wing of the Republican Party and to the ideological groups that support Mr. Bush but are nervous about the commitment to their issues.

Back to Sullivan:

I predict that if confirmed, [Elena Kagan is] much more likely to surprise on the left than on the right...

That would be Souterific.

If Justice Stevens retires, won't Obama need to appoint a Protestant?

I know people have trouble looking at the issue of religious diversity on the Supreme Court. I raised this question when Justice Souter stepped down, and Obama's nomination put a 6th Catholic on the Court.

Here I am on a May, 4, 2009 Bloggingheads with Emily Bazelon, raising the question question of religious diveristy in the wake of the Souter retirement. (This recorded on May, 4, 2009 , before Obama had nominated Sotormayor.)



Now, Justice Stevens is the only Justice who was raised in the Protestant tradition. The other 2 Justices are Jewish. I anticipate that there will be little discussion of this, but I find it hard to believe that Obama will not see the lack of diversity as a problem and choose a Protestant.

Justice Souter has kept a lifelong diary, and he's donated it to the New Hampshire Historical Society.

We'll be able to read it... in 50 years.

I don't know if I can live that long. I'm going to try. In the meantime, please imagine some Souter diary items.

Senator Grassley: Sotomayor "doesn't have a clear role of what the Supreme Court is."

Doesn't have a clear role of what the Supreme Court is?

He can't talk right, but he has a vote, and he's voting against Sonia Sotomayor.

Grassley said his vote in part is based on second thoughts he has had about Souter, confirmed in 1990.

"I can say my vote for him is probably the only vote for 11 or 12 Supreme Court justices that has come back to haunt me from time to time," Grassley said. "I think Judge Sotomayor's very lukewarm answer that she gave me left me with the same pit in my stomach I had as a result of my vote for Souter."

Pit in my stomach? Oh, good lord, he really can't talk right. From Common Errors in English:

Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.

So, Sotomayor either does or does not make judicial decisions emanating from empathy and Wise Latina experience, and Grassley feels his decisions in his stomach and when they feel like the part of a fruit that he shouldn't have eaten — or when he's haunted — he votes no.

Does anybody have a clear role about anything anymore?

That strip search was unreasonable — and unconstitutional — but it was not unreasonable for the school authorities not to know that.

Said the Supreme Court today in Safford Unified School District v. April Redding:

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Justice David Souter wrote in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."...

The court also ruled the officials cannot be held liable in a lawsuit for the search. Different judges around the nation have come to different conclusions about immunity for school officials in strip searches, which leads the Supreme Court to "counsel doubt that we were sufficiently clear in the prior statement of law," Souter said.

School officials enjoy immunity from lawsuits for damages when the case law isn't clear enough that they should have known what they were doing is unconstitutional. Presumably, this case makes it clear now, and school officials can't be looking for drugs in a girl's panties unless they've got more information about the power and the quantity of the drugs and some reason to think the drugs are in the panties — more information than the accusation from another student that the girl had given her drugs.

Justices John Paul Stevens and Ruth Bader Ginsburg disagreed with the part about immunity, and Justice Thomas, standing alone, disagreed that the search was unconstitutional:

"It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place she thought no one would look," Thomas said.

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

Thomas leads the pack in deference to school authorities. Remember Morse v. Frederick, the "Bong Hits for Jesus" case? There, dealing with free speech rights, he wrote:

In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules....

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools.... If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

Diane Wood?

That's what Intrade says.

"The farewells depicting David Souter don’t do him justice."

That's the teaser on the front page of the NYT website, and I really thought I was clicking over to an article about the mark Justice Souter has made on legal doctrine — some specifics about the cases and the modes and methodologies of constitutional intepretation. But no, it was only about how the man loves to hike in New Hampshire. And then there was the gratuitous swipe at Rush Limbaugh:

“David Souter’s a girl,” said Rush Limbaugh in 2006. “Everyone knows that. What’s the big deal? I’m talking about attitudinally here, folks.”

O.K., a show of hands: Who’s the bigger man: the prescription-drug abuser with the cigar stuffed in his mouth, or the buff older gentleman puffing his way up one of the more strenuous climbs in New England?

(Did Rush really say that? Yeah.)

"When I write, I still am writing for Justice Souter."

Souter's clerks. That quote is from lawprof Heather Gerken.

Meir Feder, one of Souter's first clerks, is a partner in Jones Day's New York office. The Souter takeaway that Feder has internalized is "how hard he worked to get every case right." Feder added, "When he looked at a case, the prior law dictated the reasoning forward from the precedents, not backward from what he felt was the appropriate result."

Of course, that's what they all say, but it's important to believe that's what you're supposed to do and to keep trying.

An openly gay Justice to replace Souter?

Dahlia Lithwick talks about all those females who are or seem to be lesbians.

This struck me:

Sonia Sotomayor, the Bronx judge at the top of most shortlists, was briefly married in college and never had children. In his woefully under-reported "The Case Against Sotomayor," the New Republic's Jeffrey Rosen quotes an anonymous source alleging that she is a "bully" and "not all that smart." Also included in this damning portrait: "Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family—working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier [sic] of a Harry Potter movie."

Do you think Justice Scalia, with his devoted wife and abundant extended family, takes his clerks to see Harry Potter? Or even La Traviata? A woman who surrounds herself with young, paid employees late into the night has a faint air of scandal and desperation about her or, at the very least, of being something short of a fully realized woman.

Wow. It never occurred to me to think that way. I just thought it was really nice that she socialized with the clerks. But okay. Maybe it does look desperate.

(This all reminds me of the way, back when Souter was nominated, Senator Orrin Hatch said he would have been more comfortable with a family man.)

"Deciphering Obama’s Supreme Court 'empathy' remark..."

"... Does the next justice have to be a woman?... The sex offender case that may trip up a frontrunner ... Ann to Obama: Appoint a strong liberal!... Is Obama trying to wriggle out of closing Gitmo?... Emily announces Double X, a women’s site that’s for men, too."

It's the new Bloggingheads, with me and Slate's Emily Bazelon.

"Fill Souter's shoes with a genial persuader."

Op-ed title.

Makes me wonder: Were they suede shoes?

Don't step on my blue persuader shoes.

Jeffrey Rosen makes the case against Sonia Sotomayor.

The name we've heard bandied about the most may not be the best choice to replace David Souter:

She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.)

It fascinates me that practically no one dares to say too many Catholics. (Click that link, dammit.) If we're ever going to talk about group representation and diversity, we need to talk about the overrepresentation of Catholics. Catholics are 22% of the U.S. population. 6 is 66.6666% of 9.

On the other hand, we really can't suddenly start noticing all the Catholics just when a Hispanic name comes up for the first time. Who can estimate the destructive power of the resultant diversity vortex?

Back to Rosen:

Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Not that smart. That's what I hear in that passage. The classic putdown. (Click that link, dammit.)

Who are these unnamed former clerks? What brilliant star might they want to clear the path for?

The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

(Interesting parenthetical. The extent of Rosen's knowledge of Sotomayor's involvement is not known by me.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

Can you put a little more glue on that not-smart-enough label?

Would you have picked David Souter? Would Obama?

"He wore the same gray suit year after year. He worked long hours, including weekends, and ate lunch at his desk.... He collected old books and revered precedents in the law. He would not watch television or use a computer. He avoided Washington parties. Instead, in the evenings, he jogged several miles near his small apartment. His summers were spent hiking in the White Mountains of New Hampshire."

Some group of 9 individuals will say what the law is for us all. What sort of individuals do you want? Assume fine intellectual credentials and solid relevant experience. Aside from that, what sort of individual characteristics make you want to give a man or woman this immense responsibility?

Here's what Obama said after David Souter revealed his intention to leave the Supreme Court:

Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda.

He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion -- the hallmark of not just being a good judge, but of being a good person.

Feverish... that is the out-of-place word that tells us something about Obama. Souter sounds utterly cool — if anything, too cold to trust with the grand decisions of life and liberty submitted to the Court.

The key thing Obama has told us about what he wants in a Supreme Court Justice is empathy:

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Obama — like many lawprofs — believes (or purports to believe) that emotion and engagement with real life is integral to constitutional interpretation. This is different (or certainly purports to be different) from deciding cases according to one's sympathies. But even understood that way, Obama's favorite qualification would obviously have excluded the bookish, reclusive Souter.

That word "empathy" stoked the Sunday talk shows:

“What does that mean? Usually that’s a code word for an activist judge,” Sen. Orrin Hatch (R-Utah) said on ABC’s “This Week.”...

“I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that’s a concern,” former Republican Party Chairman Ed Gillespie said on NBC’s “Meet the Press.”

“What I hear in President Obama’s statement is that he wants the justices of the court to try to understand the real world we live in and the impact of some of these decisions. Apply the law, but do it in a sensible fashion,” Sen. Dick Durbin (D-Ill.) said on “Fox News Sunday.”...

Obama’s comments Friday about judges needing to identify “with people’s hopes and struggles” and the reaction to those remarks seemed to cast the early debate in a way that is likely to favor Democrats — especially at a time of economic distress, when Wall Street and big corporations are widely regarded by many as a greater threat than the rulings of federal judges.

In fact, the anti-establishment attitude that powered Obama’s campaign remains strong enough that there is serious discussion of putting a nonjudge, or even a nonlawyer, on the court, which presently consists entirely of former federal appeals court judges.

“I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge,” Sen. Pat Leahy (D-Vt.), the chairman of the Judiciary Committee, said on ABC.

And who was more monk-like than David Souter?

It's funny. For years, I've heard conservatives cry "No more Souters!" But now, I'm hearing the Democrats say that too. All due respect will be paid to the retiring Justice, but he isn't what they want.

And frankly, he isn't what they should want. The Court needs a forthright liberal. And Obama is perfectly entitled to pick such an individual. Of course, this person will — as Obama said — be dedicated to the rule of law, honor constitutional tradition, and respect the integrity of the judicial process and the appropriate limits of the judicial role. But he or she will do all of this in the liberal mode. I hope to see a fine Justice who will show us how this is done.

"With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily."

"But the Republicans could bleed him some politically if he made an exceptionally controversial pick such as Sonia Sotomayor, a federal appeals court judge based in New York."

Stuart Taylor Jr. has 12 random thoughts on replacing David Souter. Read the whole thing.

"Among jurists with whom I have served, Justice David H. Souter is the very best."

"His level of preparation for the cases we consider is astonishing. He works so hard at getting it right. He is a genuinely caring man and a model of civility. Never have I heard him utter a harsh or unkind word. I count it my great good fortune to have known him as a working colleague and dear friend."

The Justices of the Supreme Court give their tributes to Souter. I've quoted Ruth Bader Ginsburg's because it's the nicest. To say he's the very best is daringly disrespectful of all the other judges. And all that business about caring and civility and kindness makes you want to be a better person, doesn't it?

David Souter is leaving the Supreme Court!

"Two friends of Justice Souter, 69, said Thursday night that he had often spoken privately of his intentions to be the court's first retirement if Mr. Obama won the election last fall. He has told friends that he looked forward to returning to his native New Hampshire while he was still able to enjoy climbing mountains and other outdoor activities."

Let the fun begin. I expect President Obama to put a strong liberal in the seat, and I think there should be a strong liberal on the Court.

Justice David Souter describes the Supreme Court term as "sort of annual intellectual lobotomy."

That slipped out along with some lofty comments about how people need to read more and how he's forced to do his serious reading in the summers between Court terms.

That makes some people, like Tony Mauro, the author of the linked article, wonder about rumors that he may be leaving the Court:

If he thinks of his work on the Court, even sarcastically, as a nine-month-long, brain-evacuating experience, it is easier to see why he would want to leave it behind -- if nothing else, to catch up on his reading.

Others I'm sure would put that more harshly: If you don't appreciate the great work of the Supreme Court, get the hell out.

Me, I would speculate that he's fine with the Supreme Court work and he was just being funny — and effusive about the value of serious literature.

ADDED: On reflection, I think the problem he's talking about is something I experience as a law professor. I love the work, but it requires me to devote most of my reading time to judicial opinions and lawprof articles and books. This kind of reading is useful raw material for doing what one loves to do, but it isn't enriching on a deep enough level.

My main problem with Souter is that he is one of the judges who writes the long tedious opinions that I have to chew my way through. May I suggest that if he wants more of a challenge during the Court's term that he devote himself to writing better sentences? Just on the Strunk and White level, could you please edit the hell out of those damned things?

If you don't like what reading that stuff does to your brain, why do you do what you do to my brain? If the Term for you is a lobotomy, consider that you are also the lobotomist!