Horizon, Host: Ted Simons

May 7, 2009


Host: Ted Simons

Retiring Justice David Souter


  • U.S. Supreme Court Justice David Souter is retiring this summer at the end of the Court’s current term. ASU law professor Paul Bender talks about Justice Souter’s impact on the nation’s high court and about President Obama’s opportunity to nominate someone to replace him.
Guests:
  • Paul Bender - ASU law professor


View Transcript
Ted Simons:
Good evening welcome to "Horizon." I'm Ted Simons. Last week U.S. Supreme Court justice David Souter announced he'll retire at the end of the court's term this summer. Back in our state, 17 people have applied to fill a seat on the Arizona Supreme Court being vacated by retiring Ruth McGregor. Earlier I spoke with A.S.U. law professor Paul Bender about both of those stories. Paul Bender, thank you for joining us on "Horizon."

Paul Bender:
Good to be here.

Ted Simons:
Let's start with David Souter. He decides to step down. Are you surprised?

Paul Bender:
No. Because I heard for years that he was not happy living in Washington. He's never been happy living in Washington. So it didn't surprise me, although I think it's sort of strange. It's a great job, and for somebody to voluntarily leave that job at the height of their powers, when they're doing it so well, is -- he really doesn't like Washington. He really likes New Hampshire.

Ted Simons:
What kind of legacy will he leave?

Paul Bender:
That's interesting. I have thought of him almost since the beginning of the time he's been on the court, and when I was actively arguing cases there every month, as the best judge on the court at oral argument. And probably the best judge on the court overall. Another argument he would always, always ask the core question. He would have his finger on the question you did not want to ask -- have asked if you were going to lose. And he would zero right in and he would ask it in a nonaggressive way, just in a straight way, and he really wanted -- some people ask questions because they want to say something or show off, or make a joke, even sometimes. He asked questions because he really was interested, and he wasn't trying to push you around or embarrass you. That's exactly the right kind of temperament for a judge. The ironic thing is that people who judge that way don't tend to leave legacies, because legacies get left by ground-breaking decisions. And he might perhaps write a groundbreaking decision, but he's not there for that. He's written some terrific opinions.

Ted Simons:
Talk about how he has changed if he did, I'm assuming he did a little bit idea logically in his years on the courts.

Paul Bender:
Not to my knowledge. I was asked to look at his opinions by one of these special interests, as they call them, when he was nominated, to see whether they wanted to oppose him. And they had his opinions on the New Hampshire Supreme Court. I don't know if he's written anything on the first circuit. He was there briefly. And I read a bunch of his medical-related opinions, because they were interested in abortions. And I said, do you not -- you do not want to oppose this man. This man is as straightforward as you're going to get, and he's going to listen to your arguments. You are not going to have a problem with him. And they didn't. I was -- I don't think he's probably changed. I think he's always been what he is, which is straight down the middle, no preconceived ideologies, he wants it to be right, he's got a great feel for history. He's temperament is very even. He's a lot like Obama in a way in his calmness, and his directness.

Ted Simons:
Yet there's apparently in reading up on him, a quirkiness, maybe close to an -- a few eccentricities, but it sounds as though he rides his bike a lot around D.C., it sounds like people look at him as being that New Englander guy.

Paul Bender:
He's a bit of a loner, he's not part of the Washington social scene, he lives in an apartment near the court, shops in a local grocery store. He's not part of the rest of the testimony scene. I don't know if that contributes to the -- to his ableness to the job, but he really -- he takes this very seriously as a lawyer, as a judge. That's what his job is to do. And I think he's done it really well.

Ted Simons:
He leaves. The president now has his first Supreme Court nomination. Is he going to go a particular direction? What are you seeing?

Paul Bender:
Well, he'll go in the same direction I think that he's gone in a lot of his other appointments. He'll look for somebody very competent, very well qualified. He's said he wants judges with empathy, which means an ability to understand things from another person's point of view. And I think he means that. And I think he should mean that. Because judges have to do that. You have to -- you must think if you're a judge how what you're deciding affects people that. Doesn't mean if it hurts people it's bad, but you've got to know what its effect is on people, because laws are about effect as well as everything else. He'll look for somebody who is very well qualified, and who has the same kind of approach as he does. And I think as Souter does. It's a legal problem, which is straight head-on; don't go in with preconceived ideologies.

Ted Simons:
Does that suggest more after legal scholar as opposed to a more political figure?

Paul Bender:
Maybe. But I don't know what exactly what you mean by political figure. Someone who has run for office?

Ted Simons:
A Hillary Clinton, someone along those lines?

Paul Bender:
I don't think that would be out of bounds for him to pick a political figure. And maybe with a political figure there's more chance of somebody having some preconceived notions about things. And he would look for somebody that would be on the less preconceived scale of that. I think the court really needs some diversity. Not only another woman, which it needs, and more minorities, and some more geographical diversity, but they're all federal appellate judges now. They've all been federal appellate judges. They're professional judges. And if you look back at the history of the court, you will see that some of the great figures on the court were not that. Earl Warren, never been a judge, maybe he was a local judge. He was a governor, a politician. Hugo Black was a senator; Felix Frankfurter, Douglas was a professor and administrator. Brandice was a private lawyer in private practice. You could go on and on. And I think the court needs people like that. There's a special perspective that judges tend to fall into when they look at things, and it's not always wrong. But it's not always the only way to look at things.

Ted Simons:
That being said, any names you can throw out that come to mind that would be the betting favorites?

Paul Bender:
You've seen names in the paper. He knows people in Chicago who are very, very good. There's a woman at the University -- she's now in the seventh circuit, Diane Wood, who is very well qualified. And a very good judge. There's a guy who had taught at Chicago, Sunstein. There are -- I think he'll look for a woman. There's a woman in the second circuit who is Puerto Rican, who is a good judge. I'm sure he's got at least five or 10 people are very well qualified to pick from.

Ted Simons:
Real quickly, some local folks are thinking that perhaps a Janet Napolitano, if not now, but in the future, might be Supreme Court material. What do you think about that?

Paul Bender:
Well, yeah, that's certainly possible. People have gone from jobs like that to the Supreme Court, especially somebody like Janet, who is superbly qualified in terms of her experience. She's had elected office as governor, she was U.S. attorney here, she was attorney general here. So she's been in both the state and the federal system. She was with an excellent law firm here. A really good young lawyer there. So she is amply qualified, and she's now in a job -- I don't think you would think -- he would think too seriously about her, because he needs her where she is. And also she would probably draw more opposition than some of the other people. But there ought to be more people like that on the court. We haven't had people -- people with real life experience who have done things in the world who have done things in politics, who have run for elective office. I think that's an important ingredient to have on the court.

Ted Simons:
Here in Arizona, governor brewer has a vacancy now on the Arizona Supreme Court. Real quickly here, describe the process. It seems like there's a bunch of names, then it goes down, then she picks three?

Paul Bender:
Yes. We have a merit selection system. Excellent merit selection system, which has really produced an excellent judiciary, one of the best state judiciaries in the country. There's a merit selection committee composed of people selected by the governor, and people select the by the bar, and they're not selected for this particular thing, they're on the committee for a long term. And people apply, and they winnow those down, and they interview people. And they have to send at least three names to the governor, and no more than two can be from the same political party. So they're not going to be three Republicans, there has to be one non-Republican sent there, or one non-democrat. And the governor must pick from one of those three people. The governor may not say, give me more names. If the governor does not pick one of those three, the chief justice picks from those people.

Ted Simons:
Interesting. Now, the governor has said she's not all that crazy about the merit selection system. She'd kind of like what to do what the president is doing, nominate someone of her own choosing and let the Senate go ahead and figure out if they're worthy or not. You say that's not necessarily a good idea?

Paul Bender:
It's not a bad idea. But I think ours is a better idea.

Ted Simons:
Because?

Paul Bender:
Because it's a merit selection system. You look around at the Arizona judiciary, and you will see people who would not be judges in an elective system, young lawyers, who are really good, who decide they want to become judges can get picked as judges under a merit selective system and work their way up to the Supreme Court. That's almost impossible to do just on your merits in either an elected system or political system. The president is not going to pick somebody just because they're really good. They're going to pick somebody for political reasons. They might also be really good. We hope they are. But in this merit selection system, that has nothing to do with it. The governor may want to pick somebody for political reasons. But the committee doesn't have to send them people like that. The committee can send them the three best qualified people that they see. And they've done that generally. We have a terrific Supreme Court as a result.

Ted Simons:
As a hunch, who are you seeing? Again, front-runners?

Paul Bender:
I don't know any of these people well enough. There's a lot of judges there. Are 17 names, I think, and I think 12 of them are judges. That's no surprise. And so the odds are that one of them would get it, but that's not necessarily true. And of the judges, I think there are five superior court judges and seven courts of appeals. The most likely kind of person is a court of appeals judge, but that's not inevitable at all.

Ted Simons:
Real quickly, is the president up for a fight, a confirmation fight no matter who he chooses?

Paul Bender:
I don't think so. I hope not. He's going to choose somebody who is very well qualified. The democrats have enough votes to pass the person. I would think that the Republicans would have better things to do with their time than that.

Ted Simons:
All right. Paul thanks for joining us.

Paul Bender:
Nice to be here.

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