Yes, Souters Replacement Can Be Worse

For national security matters, the bad news was that David Souter never met an ACLU argument he didn’t like or an executive branch view he couldn’t brush off. The good news: unlike, say, Justice Stevens, Souter could never generate a new or powerful argument, or a clearly stated principle of law.

Thus the risk in Souter’s resignation. It isn’t that the replacement will add a new, lock-step member to the Court’s liberal faction on national security matters. Been there, done that -- thank you, Dick Thornburgh and John Sununu. The risk instead is that his replacement will be an intellectual innovator on security issues, a decent writer who imports the new and often quite radical thinking of the self-styled “human rights” advocates opposed to robust national security powers.

Perhaps, for example, a Harold Koh – a citizen of the post-sovereign world where security threats are always overstated and American power is subject to limits found in the floating cross-border conversations of a thousand faculty lounges, foundation offices, and international bar associations. A more European world where, as our Attorney General and President are fond of promising, we must abandon the morally fraught acts that have always been integral to the nation’s defense and have our “higher values” determine the scope of lawful powers available to the Commander-in-Chief.

How have we gotten to a spot where a choice of Supreme Court justice can affect the nation’s security? Once upon a time, our federal courts left matters of foreign and military policy to the President and Congress. This was true for jurists of the left and the right. Democrats who ascended to the bench in the post-War period crafted many of the most important doctrines that kept the courts free from these disputes. But that consensus gave way to the great erosion of judicial humility in matters of policy, to the increasingly partisan disputes over the scope of newly imagined rights, and to the creeping internationalism that finds rights first among foreigners who would attack us rather than those here who would be attacked.

This suggests a possible silver lining in the resignation. It’s possible, just possible, that Souter’s replacement will be a throwback in this respect – to a time where even the most robustly liberal justice on domestic issues paused before opining on national security matters, and paused further before overturning the considered view of the President. There are candidates for appointment with executive branch experience or a sense of history or peril who might fit this description. But they are a distinct minority, and we should prepare for a braver, newer world where judges rather than generals or diplomats increasingly determine what best protects the nation.