WASHINGTON (CNN) — David who? was the initial reaction of Americans to a little-known judge from New Hampshire named in 1990 to sit on the nation’s highest court. Even the nominee didn’t know what to think when President George H.W. Bush called him with the news, telling supporters, “I was in a state of virtual shock.”
Conservatives say Supreme Court Justice David Souter, nominated by a Republican, was a dissapointment.
Now, more than 18 years later, Souter plans to retire after the current term recesses in June, a source close to Souter told CNN.
David Hackett Souter had only been on a federal appeals court bench for a few months when he was tapped to replace liberal lion William Brennan, a choice many Republicans hoped would move the high court rightward and reshape American law.
“I think that is good news for all of us who are committed to the Constitution of the United States,” said Bush. “He’ll be a superb justice for the Supreme Court.”
In reality, Souter was in many ways a typical, old-fashioned Yankee Republican — a moderate with an independent, even quirky streak. Whether he became more liberal in his views after joining the Supreme Court, as many conservatives believe, may depend on your politics.
“Justice Souter will never escape the label of having been an enormous disappointment, a traitor to the right,” said Thomas Goldstein, a Washington appellate attorney and founder of Scotusblog.com. “It instead created the opportunity to entrench a series of more liberal rulings. So he became the right’s greatest failure and we will forever hear the mantra ‘No More Souters’ from conservatives.”
Colleagues dismiss suggestions that liberal colleagues on the bench helped move Souter to the left.
“I find that incredibly unbelievable,” said Rebecca Tushnet, a former Souter law clerk and professor at Georgetown Law Center. “He was faced with different issues on the Supreme Court than he was as a state official. A Supreme Court justice requires you to make different decisions, ones that aren’t always consistent with your politics. And remember the Republican Party of Nixon is a different party than the one we have today, and we have a number of judges who came out of that earlier Republican Party who may not be in line with the priorities of people in power in Republican circles today.”
The stealth candidate
Souter had a long career in public service. He was New Hampshire’s attorney general and a trial judge who later sat on the state’s supreme court.
Senate confirmation hearings to the high court were a breeze, because his federal experience was brief and his public stance on hot-button issues like abortion remained fuzzy.
“I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me,” he told senators. “I will listen to both sides of that case. I have not made up my mind.”
That didn’t stop women’s rights groups from sounding the alarm. At rallies during his confirmation, abortion rights activists held up signs opposing Souter and chanted, “This is nobody’s body but mine.”
Similar concern came from movement conservatives. “At the time, he was called the ‘stealth candidate,’ ” said Douglas Kmiec, a law professor at Pepperdine University who worked on high court nominations in the Reagan and Bush administrations. “So it was tabula rasa when he showed up at the bench and it was a surprise thereafter.”
One of the first “surprises” came in 1992 when the Supreme Court reaffirmed the fundamental right to abortion in “Planned Parenthood v. Casey.” Souter was part of a three-justice coalition that ultimately decided the case. In doing so, the “no undue burden” legal test was established when states were considering limiting a woman’s access to abortion.
“What was clear to me was that he hadn’t decided that case before he heard it” at oral arguments, recalled Peter Rubin, one of Souter’s law clerks that term. “The law for him, unlike many of his conservative colleagues, was not an abstract set of rules totally divorced from its effect in the real world. It wasn’t just an intellectual puzzle for him.”
One puzzle for Souter was technology. He famously told Congress he would allow cameras in his courtroom only “over my dead body.”