Which of the Republican candidates for the presidency is most likely to get "Soutered?" To nominate for the Supreme Court, not an originalist, but in fact the opposite. Those vulnerable to being Soutered lack an ear for or an interest in the inner ideology that all lower court judges keep carefully tucked away until they arrive on the Supreme Court of the United States where it is allowed to take full flight. It is hard work to get SCOTUS nominees right. Even when a president cares about the Court and the Constitution's interpretation by the nine deeply, he can still be flummoxed by the process. If he isn't passionate about it going in, it won't spring up in the course of his busy life in the Oval Office.
The first President Bush narrowed a field of Supreme Court candidates to Judge Edith Jones and then New Hampshire Supreme Court Justice David Souter. Though a good man and a sound conservative, George H.W. Bush picked the inscrutable Souter, and the ill-effects of this single decision linger on and on. Justice Souter is a man of the left, and a solid vote for the anti-originalists on the Court.
Not that this error was unique to "41." President Reagan elevated Justice O'Connor and Justice Kennedy, and though neither is a liberal, neither is an originalist in the mold of the old or new Chief, or Justice Scalia, Thomas or Alito. Unless a president has a passion for the Court's direction and an ear for the often convoluted statements of judges, or at very least extremely talented and experienced advisors whom he trusts who do have such skills, he will get Soutered. If a SCOTUS nominee is just a political decision designed to win a vote here or confer a favor there, the odds of getting Soutered increase immeasurably.
Senator McCain lacks the ear. He lacks the passion for the Court's future. His love of the approval of the Beltway elites almost guarantees a "consensus" choice for the Supreme Court if he is the one making it. And how hard could he fight for even a modestly controversial nominee? Senator McCain worked to save the right of a minority of the Senate to block any nominee --how could he ever argue against the power he deserted his party to preserve?
Looking forward to the next presidency, we see that Justice Stevens is 87, Justice Ginsburg 74, Justices Kennedy and Scalia 71, Justice Breyer 69 and Justice Souter 68. Perhaps all will be sitting in January 2013. Perhaps all will be retired. Voters who care about the Supreme Court ought to assume that the next president will have an impact on the future course of the Supreme Court greater than any president in modern times.
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