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Replacing Souter

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When President George H.W. Bush plucked David H. Souter from obscurity to replace retiring Supreme Court Justice William J. Brennan in 1990, conservatives hoped -- and liberals feared -- that he would move the court rightward. Less partisan observers wondered if Souter, a former New Hampshire Supreme Court justice who had served only briefly on a federal appeals court, was equal to the court’s intellectual challenges.

The last concern was dispelled by Souter’s erudite testimony in his confirmation hearing before the Senate Judiciary Committee. It took not very much longer for the so-called stealth nominee to establish himself as a fitting successor to Brennan, despite the differences between the gregarious New Jerseyan who enthusiastically pushed constitutional law in new directions and the ascetic New Englander who favored a more cautious approach. That was the appropriate theme of much of the reaction to Souter’s announcement Friday that he will retire at the relatively young age of 69, after 18 years on the bench.

Unlike Brennan, Souter isn’t associated with majority opinions in transformative cases. Even in Planned Parenthood vs. Casey, the 1992 case that enraged abortion opponents by preserving the “essential holding” of the court’s 1973 ruling in Roe vs. Wade, the opinion was as much a paean to precedent as it was a defense of a woman’s right to abortion. Still, like Brennan, Souter consistently has supported the rights of women, minorities (including gays) and criminal defendants as well as the separation of church and state and freedom from overweening executive power. His finest hour may have been his opinion in the 2004 case of Hamdi vs. Rumsfeld, in which the court held that a U.S. citizen detained by the Bush administration as a suspected terrorist had a right to challenge his confinement.

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To this day, Souter’s detractors argue that he was beguiled by liberal colleagues and law clerks into betraying his former conservatism. Souter offered a far more convincing explanation when he told his law clerks: “I never had to think about these things until I came to Washington.”

On Friday, President Obama reiterated his view that Supreme Court justices should possess not just legal acumen but empathy for ordinary people. That leaves ample room for Obama to weigh other considerations as well, including gender and ethnic diversity. It’s especially encouraging that the president seems to be looking beyond the fraternity of federal judges for candidates with experience in the real world, from which landmark cases arise and in which they must be enforced. Regardless of his or her resume, we hope the next justice shares Souter’s open-mindedness and moral imagination.

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