Souter's retirement: don't worry

A quick note about the news late last night that Justice David Souter is stepping down...

> He's been a reliable and utterly unremarkable member of the "liberal wing" of the Court. On the issues that matter most to prolifers and conservatives, he's been no help at all. So his replacement cannot make that any worse.

> In theory, President Obama could pick someone less of a cipher, and that could, perhaps, be a plus for the pro-abortion side, but it's hard to see how. The swing vote is Justice Kennedy, who seems to gravitate to other, brighter lights on the Court, but also tends to seek "balance." It's hard to see how a new pick makes any real change.

> All the angst from prolifers is that, oh no, we've lost our chance! Not really. It means we have to wait a bit longer for that seat to open up, and that's just as well, because what hope do we realistically have of anyone good taking it? Why assume the president elected in 2012 is going to be any good? It just doesn't matter for the time being. (On the other hand, losing one of our good justices would matter.)

> A lot of thinking on this is what a friend calls "trick play" thinking: we can trick our way into getting what we want. So, for example, we can get the President and the Senate to overturn Roe--by approving nominees--when they manifestly won't do it legislatively...which, contrary to what most think, can be done--but it's hard, hence the preference for the trick play. Well, guess what: it hasn't worked. I think if we stopped going for the trick play, and actually did the hard work on the legislative front, we'd make more, real progress. Prolifers have good support in Congress, not enough, but better than is realized, and when we mobilize prolife opinion and bring it to bear on Congress, we can make a real difference, particularly in gumming up the works enough to stop bad legislation.

> So I think this is not something to worry about; but there are opportunities. Prolifers will be very interested, and this will have the good effect of helping mobilize more of our folks to take an interest in these matters. That's good. Also, there will be a tug-of-war between those around the President who want someone more "mainstream" vs. the "true believers." Fine, whichever way that turns out, it's good. Either we get someone who votes better; or we get someone who makes no actual difference, yet serves to illustrate vividly the problem. Win-win.

> The downside is that Justice Souter, being minimally effective and a non-spokesman for his side, might be replaced by someone who actually is a litttle more interesting and useful. But that's a very marginal matter. The prolife cause has Scalia who even his worst critics concede is brilliant and eloquent--and we still haven't prevailed. In the end, it's who has the votes. They already have this vote, so maybe they'll get a marginally more interesting person to cast it.

> The real benefit of this I've saved to describe last: this will consume time and energy on the part of the White House and the Senate for several months. That's very good. The time and energy spent on this, the next few months, is time and energy not spent on other things, that actually could make things worse in the here-and-now. If it means action on other stuff gets delayed a few months, that could really be very useful in the long run.