'Home Run' Justice: High Court Member's Church-State Batting Average Was out of This World, Says Americans United

By Boston, Rob | Church & State, June 2009 | Go to article overview

'Home Run' Justice: High Court Member's Church-State Batting Average Was out of This World, Says Americans United


Boston, Rob, Church & State


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When President George H.W. Bush tapped an unknown New Hampshire federal appeals court judge for a seat on the Supreme Court in July of 1990, some conservatives were nervous.

David H. Souter had been sitting on the 1st U.S. Circuit Court of Appeals for just a few months and had a very slim record. But there was no reason to worry, insisted White House Chief of Staff John Sununu.

"This is a home run," Sununu, a fellow New Hampshire resident, assured the wary right wing. "And the ball is still ascending. In fact, it's just about to leave Earth orbit."

The ball may have left Earth orbit, but it definitely ended up in a place that did not please the far right.

Souter was duly confirmed and almost immediately aligned himself with the court's more liberal faction. Studious and thoughtful, the justice became known, among other things, for his strong intellectual defense of church-state separation.

After serving nearly 19 years on the high court, Souter announced last month that he plans to retire and return to his family farm in New Hampshire. The intensely private, 69-year-old justice was reportedly unhappy living in Washington and eager to get back to his rural roots.

The announcement was something of a surprise. Although rumors had circulated about a possible Souter departure, most speculation had centered on Justice John Paul Stevens, now 89 years old, and Ruth Bader Ginsburg, who recently survived a bout with pancreatic cancer.

The move gives President Barack Obama his first opportunity to name a Supreme Court justice. With so much at stake, observers expect an intense confirmation process this summer. If all goes as planned, the new justice will be seated by the time the court reconvenes on Oct. 5 after its summer recess.

The media and the blogosphere have been abuzz with speculation about possible Sourer replacements. For his part, Obama has so far remained tight-lipped. Reacting to Souter's announcement, Obama praised the jurist's "integrity, equanimity and compassion" and added some thoughts about the type of justice he will seek.

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"I will seek someone who understands that justice isn't about some abstract legal theory or footnotes in a case book," Obama said. "It is also about how our laws affect the daily realities of peoples' lives--whether they can make a living, care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."

Americans United is urging the president to make sure that the new justice respects the separation of church and state.

"Justice Sourer had a keen appreciation for the church-state wall and understood how that protective barrier assures religious liberty," said Barry W. Lynn, Americans United executive director. "We expect his successor to share those views."

Sourer, who kept out of the media limelight, never gave public interviews explaining his views on church-state separation. Yet his appreciation for that principle was evident in his legal writings. Whether in the majority or the dissent, Souter was a steadfast champion of Thomas Jefferson's church-state wall.

The first test of Souter's church-state views came in 1992, when the high court heard arguments in a case from Rhode Island challenging school-sponsored graduation prayers. The court at that time had a conservative majority, and many church-state separation advocates braced themselves for a loss.

But the decision in Lee v. Weisman was a surprise. By a slender 5-4 vote, the court struck down the official prayers and affirmed the school prayer rulings of the early 1960s.

The lead opinion was drafted by Justice Anthony M. Kennedy, but Souter wrote separately to explain his views. …

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