Souter's Tears

In his 2007 book about the Supreme Court, "The Nine," Jeffery Toobin wrote about David Souter's reaction to the decision that gave George W. Bush the presidency:

"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 thought he might not be able to serve with them anymore.

"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."

Souter's resignation now as a healthy 69-year-old man, after Obama's first hundred days, gives weight to Toobin's assertion, which raised doubts at the time, and underscores President Obama's declaration yesterday:

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives.”

Souter couldn’t have said it better, but he actually did, soon after his swearing-in in 1990:

"The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."

The confirmation of a successor will almost certainly be an occasion for venting by Republicans in disarray and liberal Obama supporters unhappy over his failure to be ideologically correct on every issue, but Souter's tears, real or not, may be the best metaphor for what's at stake.