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Bush v. Gore: Enough to Make a Grown Justice Cry?

David Souter cry weep sob David H Souter David Hackett Souter DHS Above the Law blog.jpgAnother day, another controversy involving New Yorker scribe Jeffrey Toobin and his eagerly anticipated book, The Nine: Inside the Secret World of the Supreme Court (to be published on September 18).

Yesterday we wrote about Toobin weighing in on who deserved the blame for Harriet Miers. Today we bring you a new drama (first noted earlier this week by Jeff Dufour and Patrick Gavin, over at Yeas & Nays).

We begin with a juicy excerpt from Toobin's book, concerning Justice Souter's reaction to Bush v. Gore:

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

More discussion, including JT's juicy revelation about Justice Souter, after the jump.

The social butterflies described in that paragraph sound a lot like Justice Stephen Breyer and Justice Ruth Bader Ginsburg. With their charming spouses -- Joanna Breyer, daughter of an English Lord, and Marty Ginsburg, a warm and witty tax lawyer -- they are fixtures on the Georgetown party scene. (Justice Stevens spends more time in Florida, so he's not as much of a party animal.)

Oh sorry, where were we? Oh yes, Justice Souter, as described by Jeff Toobin:

Toughened, or coarsened, by the their worldly lives, the other dissenters could shrug and move on [from Bush v. Gore], but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter though he might not be able to serve with them anymore.

(Of course, one might wonder whether a justice who would leave the bench over a single case might be the "crudely partisan" one -- especially when colleagues of similar political views were willing to solider on.)

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

We get teary eyed over some pretty odd things -- a documentary on spelling bees caused us to shed some wet tears -- but Bush v. Gore? Are Article II, Section 1, and 3 U.S.C. § 5, really that moving?

(Then again, that David Souter is an odd duck.)

Some are skeptical of Toobin's claim of a crying Souter. From the New Hampshire Union Leader:

Souter's close friend, former New Hampshire Sen. Warren Rudman, calls that assertion in a new book by a well-known legal expert "absolutely false."...

"That's absolutely false," an obviously irritated Rudman told the New Hampshire Union Leader yesterday. "It's one of the great works of fiction - that book should win the Pulitzer Prize for fiction."

Ouch. But keep in mind that Toobin -- a staff writer for the New Yorker, a legal analyst for CNN, the author of several critically acclaimed (and bestselling) books, a former Harvard Law Review editor, and a former AUSA -- is an extremely well-respected journalist and legal analyst.

Rudman said that "no one" knows more about how Souter felt about the decision - and how Souter felt in its aftermath - than he does.

"It's no secret that (Souter) wasn't pleased, but to say he was weeping and crying is well - I won't use the word in the newspaper," said Rudman.

Come now, Senator Rudman. How can you be 100 percent certain that not a single tear welled up in one of Justice Souter's eyes over Bush v. Gore? Sure, you're a close friend. But do you spend every minute of every day with DHS? Are you the wife that he never had?

So we're with Toobin on this one; we believe his account. Here's how he responded to Warren Rudman (from the WSJ Law Blog):

Toobin emailed the Law Blog a response to Rudman’s remarks. “I admire Senator Rudman a great deal,” he said, “and I trust that when he reads ‘The Nine’ in its entirety, he will find the portrait of his friend Justice Souter nuanced and accurate.”

We'll conclude with this paragraph from the Union-Leader:

While the book reportedly alleges that "a handful of close friends" urged Souter not to resign, Rudman said the author "never talked to me. You'd think he would have called me.

Well, Warren, maybe you're not as close to Justice Souter as you thought.

Book says Souter mulled resignation after Bush v. Gore [Yeas & Nays via How Appealing]
Did Souter cry over 2000 recount vote? [New Hampshire Union Leader]
Did Bush v. Gore Make Justice Souter Weep? [WSJ Law Blog]


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Comments

Back to biting from WSJ again. Things are back to normal.

Either way, what a cry baby.

1. How could Lat not write about this (even if it did appear in the WSJ before)?

2. Jeff Dufour and Patrick Gavin of the Examiner had this days before the WSJ (but aren't credited in the WSJ piece).

I hope it's true. It would show that at least one person on the Court takes the responsibilities of that role seriously.

Not surprising that a representative of the mommy party was so emotionally involved that he cried.

9:46--Souter was nominated by George H.W. Bush, moron.

I expected the "juicy revelation" about Justice Souter to be something else.

9:43,

If I didn't know better, I would think you were suggesting that copying is more acceptable when the person you are copying also copied the story from someone else.

The issue is being on the leading edge and not picking up sloppy seconds (or thirds). It's kind of like when CNN makes the Jena 6 a leading story three weeks after everybody else reported it. Yeah, it's great but just a little tardy.

I am a Republican, and looking back on it now makes me want to cry.

I'm with 10:02 - how can you not want to cry based on what became of it?

And also, if you give a damn about the rule of law in this country, it's a terrible decision just on the merits.

9:52 -- where in 9:46's comment (with which I happen to agree) is there any reference to which party or President Souter supports or was nominated by? I think it's a fair observation about the decline in our checks and balances system.

what a wimp

10:05--I was referring to 9:46(2). My bad. I also agree with 9:46(1).

My point was just that, by definition, only one source is ever the "first" one to report a story.

If ATL isn't current enough for your tastes, go elsewhere. In this day and age, there are countless outlets for news and gossip.

I bet Scott from WUSL never cries, unless his wife forgets to clean his tidy-whities.

This talk of resignation is pure crap. In 2000 the Court had 4 Libs, 3.5 Conservatives, and 1.5 swing voters (Kennedy was too consistently conservative to be a true swing). Why would a staunch member of the Court's liberal wing resign and give a republican president the opportunity to shift the Court to the right. (Yes Clinton was still technically president but there was no way a republican senate would have confirmed his nominee before Bush's inauguration).

Did someone say first? First!!

I can only imagine the effect the cognitive dissonance must have had on poor little Souter.

Imagine .... the son of the man that he owes his appointment on SCOTUS to is involved in a case where he is on the right side of the law, but poor Souter gol darnit just doesn't want him to be President, so he has to go against not only the family that he owes his job to, but also the letter and spirit of the law to vote with his new-found partisan buddies on the court.

It would bring anyone to tears.

The fact that Justice Souter has not called me to be his law clerk makes me want to cry.

A) This was on Drudge like 2 weeks ago, so if we're going to bitch about first instance of Lat's re-posting, blah blah blah, get your facts straight.

B) The fact that Souter felt this strongly about the judiciary's normative goals and how Bush v Gore completely abdicated them humanizes him (although that Kelo decision completely ruins it in the long run). If CJ Taney had wept in the years after Dred Scott maybe he wouldn't be remembered as the d-bag he is now (and yes I am equating Bush v Gore with Dred Scott).

C) Word is that Souter and Stevens' clerks would walk the other way from O'Connor in the hallway for weeks after Bush v Gore. Any truth to this?

D) 10:09 (2) - nice! But then again I bet Souter would cry if he had to go to a Tier 2 like WUSL.

I'm pleased as punch to know that there still are two women on the court!

Even more annoying than the idiots who complain about the "first" comments are those idiots who complain that Lat was not the first to break the story or got a story from another source a day later. Who cares??? This site is not cnn, go somewhere else for ground breaking news, come here to take a short break from doc review!

Of course, back on the ranch even our women weren't such total pansies. Ms. Souter wouldn't have lasted 10 minutes at the Lazy B.

"Word is that Souter and Stevens' clerks would walk the other way from O'Connor in the hallway for weeks after Bush v Gore."

Who cares? Certainly not Justice O'Conner.

"(and yes I am equating Bush v Gore with Dred Scott)"

Two questions. What are you smoking? Where can I get some?

Maybe two more questions for 10:39. Have you read Dred Scott? Have you read Bush v. Gore and the Florida SCt's decision? And if the answer to both of those is yes - I'll go back to 10:49's questions.

Lat sez: (Of course, one might wonder whether a justice who would leave the bench over a single case might be the "crudely partisan" one -- especially when colleagues of similar political views were willing to solider on.)

What a gratuitous bit of partisan sniping. Don't you think it would be prudent to keep that crap down a bit now that your party has run this country into the ground in an unwinnable war while running up the deficit, cruising for bathroom sex, taking bribes, and paying hookers to diaper you?

Crying over losing a political battle...exactly why whiney pinko liberals have no place in any position of power.

10:53, isn't your comment a "gratuitous bit of partisan sniping"? This is Lat's blog, and certainly should not be castigated for adding his own commentary. Indeed, I think that's why most of us read his blog. Also, look at your party's approval ratings in Congress. Lower than the President's. Weren't they supposed to fix all the "problems" by now?

The people who equate Dred Scot with Bush v. Gore are the same people who get giddy over seeing US soldiers die in Iraq simply because it makes Bush look bad.

It's an unhealthy obsession, people.

I guess it falls under the same logic as the "Bush is a simple-minded moron who by the way pulled the wool over the eyes over the entire world and misled the country into war, and has fixed two elections and is watching what I check out at the library and plans to steal the next election as well AHHH"

"i am equating dred scott with bush v. gore"

Yes, please continue to equate the 2 and make similar comments. It will save the rest of the world the time they would have wasted taking seriously anything you have to say.

10:53, a few other things...the Dems have had a hand in dragging this country down while driving off of bridges, getting kicked off the Intel Committee, cheating in law school, flying Congressional Pages out of the country to have sex with them, Clinton's sexcapades in the Oval Office, etc. My point is that both parties are guilty of character flaws and have done their fair share in dragging this country down, so your complaint just adds to the deafening cacophony of meaningless, feebleminded partisan rhetoric.

In retrospect, Justice Souter's reaction was prescient. Now, the whole country is crying because George Bush is such an idiot, having screwed us over by bankrupting our treasury, waging class jihad against middle Americans and the poor, and curtailing our civil liberties while giving aid and comfort to terrorists by waging destructively stupid wars. Souter, in all his genius clairvoyance, forsaw the destruction Bush would engender upon this great nation and was moved to tears. Now the whole country is crying over the fact that we have been stuck with this village idiot and his criminal cronies for eight years. Long live Justice Souter, #1 male judicial superhottie (suck on that, Kozinski).

It was a travesty, and who can have any respect for the court now?

Everyone acts shocked that the Bush admin disregards the law (torture, habeas, etc). Why should anyone be shocked when they used the constitution as a door mat to the white house.

All 4 should have retired on the spot and damned the majority for the crime they committed.

American partisanship is so destructive at the moment...almost indulgent.

"Of course, one might wonder whether a justice who would leave the bench over a single case might be the "crudely partisan" one -- especially when colleagues of similar political views were willing to solider on."

This is a truly idiotic statement. A true partisan soldiers on -- only someone who cares about the integrity of the law would be so crushed by a lawless decision as to want to quit.

It was a travesty, and who can have any respect for the court now?

Everyone acts shocked that the Bush admin disregards the law (torture, habeas, etc). Why should anyone be shocked when they used the constitution as a door mat to the white house.

All 4 should have retired on the spot and damned the majority for the crime they committed.
==================

Right Fucking On!

-- only someone who cares about the integrity of the law would be so crushed by a lawless decision as to want to quit.
----------------------

Couldn't be more correct.

What a pussy! The only time I've ever cried in my adult life is when I got slapped by one of my fellow SAs. She and her friends (also SAs) beat the shit out of me. What a fat bitch! It would make a great ATL story, I'll have to email Lat with the details.

Souter was NOT a SA. He just happened to be at the bar with some friends.

LEARN HOW TO READ, MORONS!!!

He is, admittedly a whiny (if not fat) bitch.

9:52:

I know who nominated Souter. That does not change Souter's Dem beliefs and actions. Republican presidents have a history of nominating justices who do not meet their ideological standards. Just look up Eisenhower's quote about his two biggest mistake.

David Souter is a travesty on the Court. I cannot wait for the day when a Republican president gets to pick his replacement. George Herbert Walker Bush blundered very badly and handed the liberals a golden goose. I will never forgive the elder Bush.

God bless America.

"-- only someone who cares about the integrity of the law would be so crushed by a lawless decision as to want to quit."
----------------------

I'll third that.

I can't decide if this post is intentionally dishonest (3 times that I can count) or just dashed off snarky-like.

Scalia cries all the time.

Oh wait - those are just droplets of sweat.

Wait, so Warren Rudman a former REPUBLICAN senator denies that Souter was upset by a decision in which teh right wing partisan hacks on teh court appinted Bus.

Wow. Who would have thought a former REPUBLICAN senator would have taken that position.

Next you'll be telling me that Tom Delay and Jack Abramoff were only interested in improving the lives of thopse child workers in the Marrianas islands.

Thankfully, Fred Thompson will be next President of the United States and will reliably appoint conservatives to the court system. Justices Stevens, Souter, Ginsberg and Breyer can't get hit by a bus soon enough.

Republicans love taking partisan shots and then crying like little bitches when someone hits back. As opposed to argue the merits of an issue, they simply attack the messenger as a pussy or a pinko or a fag, etc. Grow some nuts you dumb ass fucks and argue why bush v. gore was right instead of attacking those who think it was wrong. One would think that you want to murder/imprison anyone (and probably that person’s family) who disagrees with you (fuck strict constructionism and the first amendment - let alone Christ and the bible). If you believe so much in this war and this president, why don't you quit your fucking jobs and join the military like real men. Oh wait, you are all cowards who sit and other people do their dirty work.

Thank Christ for Bush v. Gore. I'll take a mildly screwed-up war any day over watching this country degenerate into Euro-style socialism.

Where the hell are the men of America? Sobbing after the court (correctly) reverses a laughable decision from the Florida SC? Pathetic.

BTW, Souter is a horrible human being. He supports complete abdication of the bounds of the Commerce Clause to be left to Congress. He rocognized the 'danger' the Commerce Clause posed to expanding the federal government's power in Lopez, and he was shot down there too. All you idiots who believe this man has high respect for the limitations imposed in the U.S. Constitution should remove your heads from your colons.

Watching that idiot Bush cry on 9/11 was bad enough. Imagine if Gore had to deal with it. The world would be a much better place if Cheney was President instead.

10:09 said: "I bet Scott from WUSL never cries, unless his wife forgets to clean his tidy-whities."

Tidy-whities? What a moron. It's tighty not tidy. What on earth have you been thinking. Tidy-whities, that's classic. Epic fail.

3:55 should serve in Iraq instead of posting. Put your ass on the line instead of preaching to us you ignorant asshole.

4:49, I'd like to think that I'm a bit more old school in my left wing views (note: not liberal views). I have no respect for your decision to join the military, especially not if you signed up to go to fight terrorists or Ay-rabs or whatever in Eye-raq.

I'd respect you if you served in WWII, but I doubt you did. I might also think you're okay if you went to Afghanistan or Bosnia, but that's about it.

Outside of a handful of points in history, the military (and the average American's support for it) has been more of a negative facet of American life than anything else.

4:49 and 3:32 are pussies, I'd like to think that I'm a bit more old school in my left wing views (note: not liberal views). I have no respect for your decision to join the military, especially not if you signed up to go to fight terrorists or Ay-rabs or whatever in Eye-raq.

I'd respect you if you served in WWII, but I doubt you did. I might also think you're okay if you went to Afghanistan or Bosnia, but that's about it.

Outside of a handful of points in history, the military (and the average American's support for it) has been more of a negative facet of American life than anything else.

9:13 is a coward. If you still believe so much you should have re-enlisted instead of leaving your brothers behind. You got out while the getting was good. The truth is you don't believe. You are a chicken hawk.

If you believed so much you would go back and kick some ass. You would be fighting them there so we don't need to fight them here. You would be leading us to victory because the insurgency is in its last throws.

So why aren't you still there buddy? Are you an Ameri-Can or an Ameri-Can't? It sounds like you are an Ameri-Can't.