I quite agree. I think the tribute to Brennan was extraordinary -- and likely made some Republican members of the Senate Judiciary Committee nervous. My only point was a narrow one -- that I don't think that tribute was a statement that Brennan was the Justice he MOST admired or would most emulate. -------Original Message------- From: Larry Sager <[EMAIL PROTECTED]> Sent: 06/02/03 11:36 AM To: [EMAIL PROTECTED] Subject: Re: Souter and Harlan
> Steve WermielI think you are all correct, both in that Harlan was invoked as one of Souter's most admired role models, and that Souter has since looked explicitly and implicitly to Harlan's legacy for direction.
But Souter's tribute to Brennan, in the context of his appointment not only to succeed Brennan, but in a sense to replace Bork, was extraordinary, and even in 1990 could not be taken to be merely good manners.
--Larry Sager
At 08:30 AM 6/2/2003 -0400, you wrote:
My recollection (I was on the Judiciary Committee staff at the time) is that Souter praised Justice Brennan (whom he was succeeding), as Larry indicates, and that he said the Justice he most admired and whose approach is own most resembled was Justice Harlan, as David recalls. One quote I have in some old notes is "As I have explained, basically my approach to it [talking here about the liberty clause] is the approach of Mr. Justice Harlan." I recall a great deal of discussion of Harlan's opinions throughout the hearings, on the surmise that understanding how Harlan approached a problem would help one anticipate how Justice Souter might approach it.
>>> [EMAIL PROTECTED] 06/02/03 12:29AM >>>
This is what Justice Souter said about Jusice Brennan in the course of his confirmation hearings:
Justice Brennan is going to be remembered as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have. No one following Justice Brennan, absolutely no one, could possibly say a word to put himself in the league with Justice Brennan. All you can do is say what perhaps once Justice Brennan said, "I will do the best I can."
I wrote about this in a postscript to a a review of Robert Bork. "Back to Bork", NYRB October 25, 1990. The postscript contains some other statements of Souter as well, statements that were pretty clear harbingers of who Souter was.
--Larry Sager
At 03:40 PM 6/1/2003 -0400, you wrote:
I seem to recall that during his confirmation hearings Justice Souter said he most admired the second Justice Harlan. Can anyone confirm that? Has Souter ever expressed his admiration for Harlan since thaen?***********************************************
Professor David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste
blog: http://bernstein.blogspot.com
My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, will
be published in October
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