Heather Gerkin has a very interesting article on TAP Online about David Souter’s voting rights jurisprudence:

Consider his take on majority-minority districting, a practice about which the Court has been fighting since before Souter joined the Court. The Court’s conservatives generally see majority-minority districts as handouts, akin to affirmative action and business set-asides. The Court’s liberals generally view majority-minority districts as unfortunate necessities, a race-conscious strategy for integrating legislatures when voters won’t.

Souter sees majority-minority districts for what they are – a necessary part of the dynamic by which outsiders find their way to political integration. Majority-minority districts are designed to reduce the salience of race in politics, contrary to the conservative view. But they do so not by producing legislatures that appeal to some aesthetic ideal of diversity but by pulling racial minorities into the political system and giving them a stake in it. In a case on race and redistricting, Souter argued that majority-minority districts were no different from the Polish and Lithuanian wards that once dominated Chicago or the Irish and Italian wards of Boston. In his words, these districts “allowed ethnically identified voters and their preferred candidates to enter the mainstream of American politics,” eventually reducing the salience of ethnic identity as these communities gained political muscle and began to think of themselves as part of the system, not outside of it.

All sounds true to me. Let me also take this opportunity to recommend Gerken’s book The Democracy Index.

Beyond all that, however, I wouldn’t be me unless I pointed out that you could basically make the whole majority-minority district problem go away by having multiple-member constituencies. Instead of being divided into congressional districts, some of which were made funny-shaped so as to ensure that some African-American candidates get elected, states like Mississippi and Alabama could operate as single districts that elect members of congress (four for Mississippi and seven for Alabama) by proportional representation. Under the circumstances, some of the members elected would be bound to be African-American, but nobody could complain about any funny business with the line-drawing.

You can tell a lot about the conservative movement’s seriousness in complaining about the need for color blind policies by how they treated Lani Guinier for making this argument. Instead of welcoming an elegant solution to the problem, they branded her a “quota queen” and stop her confirmation.

I think it’s obvious that an Obama judicial appointment is going to be a great fundraising opportunity for conservative groups even though the votes clearly aren’t there for a real Jüdgerdämmerung. But this would be fun:

Early front-runners for the bogeyman nod have cropped up: Darling mentioned Yale University Law School Dean Harold Koh, whom he called “very extreme.” Sekulow specifically called out 2nd Circuit Appeals Court Judge Sonia Sotomayor, an early favorite for the nod, as “to the left of David Souter.”

“This is not my ideal situation,” said Kay Daly, president of the Coalition for a Fair Judiciary. “Obama could conceivably put a justice onto the bench that literally would make Souter look like [Associate Justice Antonin] Scalia.”

If Obama knows someone who can literally make Souter look like Scalia, then I think Republicans better be careful before opposing the person in question. Maybe he or she can also turn Mitch McConnell into a toad or turn lead into gold. Watch out! Meanwhile, David Souter was appointed by George H.W. Bush so would it really be so crazy if Obama appointed someone who’s somewhat to Souter’s left? But ideology aside, I want the magician-justice!

Thinking more carefully about what I wrote last night it is worth emphasizing that neither David Souter nor any of the other current Supreme Court justices is really a liberal in the sense of a Thurgood Marshall or a William Douglas. Neither Souter nor Ginsburg nor Breyer nor Stevens shows any real indication in exploring the social and economic justice issues implicated in the constitution’s guarantees of equality.

Consequently, one way in which the court could conceivably change as a result of Souter retiring would be his replacement by someone further left. That wouldn’t change any outcomes in the short-run. But it could be part of a longer-term project of rebuilding that branch of judicial thinking. That said, Marshall-style robust judicial liberalism is something that many progressives no longer believe in and I don’t see any indication in Obama’s record of statements or personal associations that this is something he’d be interested in doing if he had the chance.

Beyond that, it’s worth emphasizing what a macabre spectacle the life tenure on the SCOTUS is. When you hear about a candidate for the gig, you need to first go look up his or her age. Then when you hear that Elena Kagan is younger than Sonia Sotomayor you need to consider that Hispanic life expectancy is generally longer than for non-Hispanic whites. Quick—to the actuarial tables! This kind of decision-making process is unseemly and leads to unsound decision-making. It would make much more sense for Justices to serve a single fixed term of pretty long duration (12-18 years, say) followed by a decent pension.

The replacement of David Souter counts as a noteworthy issue where Arlen Specter’s decision to switch parties really will make a difference. Over the course of his career, Specter has shown a total lack of principles on judicial nominations. He was an important part of the campaign to spike the nomination of Robert Bork back in the 1980s. But he was the key persecutor of Anita Hill during the Clarence Thomas nominations. During the Clinton years, he hewed a moderate line, then during the Bush years he gave key moderate cover to hard-right nominees.

If we were talking about Arlen Specter, guy who’s trying to fend off a primary challenge from Pat Toomey, you could be sure that he’d vociferously oppose anyone Barack Obama nominated. But as Arlen Specter, guy who’s hoping to avoid a tough primary challenge from the left, he ought to be easy to count on as a supporter. The overall impact of the Specter flip should be pretty modest but I bet this is one of the times it will flip a vote and that, in turn, will help flip the narrative around the whole thing.