Souter’s Replacement

Justice Souter has been a perfectly decent justice, but of course no one can really say anything he has written or accomplished in nearly 20 years on the court. As has been noted by others, this is probably due to his being appointed as a closet conservative who turned out to be more of a closet liberal. So who should Obama appoint as his replacement? Many of the intelligentsia are pushing for people similar to those Bill Clinton appointed, reliable incrementalist moderate liberals who can be relied upon to vote as expected on the major issues that determine confirmation. Similarly, this post in the New Republic argues against a "liberal Scalia." This post is totally wrong, however. The need for a liberal Scalia type if for a new theorist to take the terms of legal debates away from the conservatives. For many years now, conservatives have pushed the debate by claiming that activist judges were distorting the original meaning of the constitution. This is and cannot be the correct meaning of the constitution, but liberals have ceded the intellectual debate and have been attempting to hold onto the advances of the Warren Court while conceding that they might not have the proper constitutional foundation. We need new liberal justices who can perform the intellectual heavy lifting that Scalia has been doing for years. The specific nature of Scalia's personality, however, his being a total ass, should not be copied.