September 27, 2013
Imagine if this appointee turned out to be a reliably conservative Supreme Court justice. Seems like a pretty unrealistic scenario, doesn’t it?
In the current sharply divided political environment, the possibility of a president appointing a justice of an opposing ideology seems remote. Even a nominee who kept his or her views shrouded would have been sufficiently vetted by the president’s administration such that no one would be surprised later on.
Historically, however, it was not unusual for a Supreme Court nominee to become a far different justice than the appointing president expected.
Throughout the history of the Court, presidents have been surprised and disappointed in the voting records of their nominees, with the most notable recent example being William Brennan, who was appointed by President Dwight Eisenhower with the expectation that Brennan’s ideology on the Court would be Catholic and conservative. Instead, Brennan has become known as one of the most liberal justices in history.
Interestingly, the justice nominated to replace Brennan, Justice David Souter, is another instance of a judicial nominee sharply diverging from the ideology of the president who appointed him – and the last instance, at that.
On September 27, 1990, the Senate Judiciary Committee voted to endorse Souter for a seat on the U.S. Supreme Court.
The hearings leading up to that endorsement, however, found then-Senator Joseph Biden heaping praises on Souter for his “willingness…to be… open and expansive in your response relative to your philosophy and to your methodology.”
Much to the seeming frustration of Republican Senator Charles E. Grassley, Souter refused to name “an occasion where the Court improperly created rights.”
Furthermore, Souter further alarmed conservatives by stating that Congress’s failure to carry out its obligations under the Fourteenth Amendment creates a ”vacuum” in which the Court has a responsibility to act. In addition, Souter explicitly disavowed that he had any leanings toward originalism.
So how did this ostensibly unabashed liberal jurist find his way before the Senate Judiciary Committee as Republican President George H.W. Bush’s Supreme Court nominee – one who then-White House chief of staff John H. Sununu, boasted to conservatives to be a “home run?”
Firstly, Souter lacked a significant paper trail that would have indicated his having any ideological leanings. For instance, despite the fact that Souter served as an associate justice on the New Hampshire Supreme Court for seven years and several months on the First Circuit Court of Appeals, Souter failed to manifest any overarching ideology – conservative or liberal.
Playing a much larger part, however, were the recommendations by then-Senator Warren Rudman, a Republican from Souter’s home state of New Hampshire.
Rudman was (and continued to be until Rudman’s death in November 2012) a close friend of Souter’s, the pair having worked together in the New Hampshire Attorney General’s Office in the 1970s.
It was Rudman who was responsible for pushing Souter for nomination to Sununu, who then convinced President Bush himself that Souter was a reliable conservative who would sail through the nomination process – something which greatly appealed to Bush since the Republican White House was still stinging from the painful failed nomination of Robert Bork three years earlier (under President Ronald Reagan).
For the first year of his tenure on the Court, Souter flew largely under the radar, failing to take any broad ideological positions in his decisions.
That changed in 1992’s Casey v. Planned Parenthood, which greatly disappointed conservatives hoping to see Roe v. Wade overturned. In the landmark Casey ruling, Souter joined with Justices Kennedy and O’Connor to save constitutional abortion rights from destruction.
Since Casey, Souter has been labeled as a fairly reliable liberal; when he retired in 2009, he was known for being a reliable part of the Court’s liberal wing.
Souter, nevertheless, did not necessarily consider his judicial opinions driven by liberalism. Instead, Souter was a scholarly jurist with a deep respect for the judiciary, its independence, and the legal opinions that it produced. Souter believed in the slow, methodical evolution of legal doctrine. This philosophy only happened to often place him in the same ideological camp as his liberal colleagues.
In fact, Souter seemed to be repulsed by ideology on the bench. For example, Supreme Court commentator Jeffrey Toobin described Souter’s reaction to the 2000 Bush v. Gore ruling in his 2007 book The Nine:
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.
Ironically, it was Souter’s failure to adhere to the political ideology expected of him that led to a dramatic shift in the nomination process.
When President George W. Bush was considering candidates for the Supreme Court, there was considerable resistance by conservative groups against any candidates whose ideological views were not known to be clearly conservative. This attitude played a large part in the derailment of the nomination of Harriet Miers (with Republican Senator Sam Brownback explicitly stating that he was concerned that Miers was going to “be a Souter-type candidate”).
Thus it is no coincidence that Justice Souter was the last Supreme Court justice whose actions defied the expectations of the appointing president: it was because of Souter that presidents in the future were far more careful about the political allegiances of their Supreme Court nominees.
The sad irony here is that Souter would have strongly opposed increasingly partisan Supreme Court justices stringently loyal to a political ideology – but it was his actions on the Supreme Court that all but ensured that outcome.