The Magazine

A Souter They Should've Spurned

Whoever Bush names, the left will pitch a fit.

Jul 25, 2005, Vol. 10, No. 42 • By DAVID SKINNER
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IT'S THE SUMMER OF THE second year of the Bush administration, trouble is brewing in Iraq and a seat has come open on the Supreme Court. I'm talking about 1990, of course. But the similarities are suggestive, and one lesson to be taken from that year is that a Republican president can nominate an actual liberal for the High Court and the left will still go nuts.

The National Organization for Women, People for the American Way, and the NAACP all screamed like cuckoo birds when President George H.W. Bush nominated David Souter, a little known New Hampshire state supreme court justice. But as we can easily see in retrospect, Souter was the ultimate "stealth candidate," his great attraction being that not even his backers knew what he really believed. Souter seemed to have practiced law almost in secret. This lack of a paper trail helped turn the discussion to his also nonexistent private life.

"This is a man who has never been married, never had children," noted one widely quoted observer, a prominent lawyer who, reported R.W. Apple Jr. in the New York Times, "asked not to be identified because he practices from time to time before the Court." The lawyer continued: "This is a man who has spent only a minimum of time in the public sector, who lives in a village of 2,000 people, almost all of whom are white, far from the crises of crime and drugs, in a state that is notorious for its social and political quirkiness. Is he really equipped to deal with great national questions?"

This statement was quoted and alluded to so often that Souter soon became pegged as the Curious Bachelor from New England. Harvard law professor Duncan Kennedy commented at the time: "It would be a delicious and amusing twist in the play between liberals and conservatives, if the liberals started proclaiming that only a married man with 2.3 children living in a suburb was qualified for office."

But the left did not stop there. Calling Souter "at best, very weird"--as NPR's Nina Totenberg did--was only the beginning. Feminists were particularly agitated. "Almost Neanderthal" is how Molly Yard, then-president of the National Organization for Women, described Souter, whose "constitutional views are based on the 'original intent' of the Framers 200 years ago, when blacks were slaves and women were property of their husbands." (So that's what strict constructionism means!) "David Souter would be the fifth vote" for outlawing abortion, said Eleanor Smeal of the Fund for the Feminist Majority. "We find him a devastating threat."

The rest of the liberal establishment was close behind. "What record Souter has compiled on constitutional questions is both sparse and disturbing," said Arthur Kropp, then-president of People for the American Way, whose current president Ralph Neas, then of the Leadership Conference on Civil Rights, questioned Souter's "commitment to constitutional guarantees of individual rights and liberties. . . . " The NAACP was "troubled," while the Alliance for Justice was scouring the courthouses of New Hampshire looking for dirt.

Of course, not all liberals were out to get Souter. The American Bar Association did give him its highest rating. But most were with the New York Times editorial page, which called the ABA's granting Souter a perfect rating "ludicrous."

One pro-choice observer, however, did correctly foresee that Souter posed no threat to legalized abortion. Her name was Marjorie Judith Vincent--aka Miss America 1991. According to a lighthearted Washington Post account of her coronation, Vincent "declared herself plainly on the side of a woman's right to choose an abortion, and said Justice Souter's record did not trouble her in that regard."

But the conventional wisdom was that Souter would, as William H. Freivogel put it in a St. Louis Post-Dispatch article, "provide the decisive fifth vote for a broad counterrevolution in constitutional law overturning decisions on abortion, affirmative action, and criminal procedure."

This assessment was, of course, wrong on every count. The Bushies may have indeed wanted a counterrevolutionary. Bush chief of staff John Sununu, the former governor of New Hampshire, promised Souter would "be a home run for conservatives." And as they were promoting Souter for the High Court, the administration was also, in a brief for Rust v. Sullivan, urging the Court to overturn a "wrongly decided" Roe v. Wade. But when Roe v. Wade was finally revisited, in Planned Parenthood v. Casey in 1992, the stealth candidate finally deactivated his cloaking shield: Souter (with fellow Republican appointees Sandra Day O'Connor and Anthony Kennedy) wrote the lead decision for a 6-3 majority to uphold and broaden the abortion right.

On criminal procedure, civil liberties, and affirmative action, Souter turned out, as well, to be a stalwart liberal, a loyal servant to the groups that had mocked and despised him. The lesson is clear: Even if the current President Bush were to nominate another liberal, you probably would never know it from all the screaming going on. All the more reason, then, for him to name a serious, non-stealthy judicial conservative.

David Skinner is an assistant managing editor at The Weekly Standard.