As Ronald Reagan’s vice president, George Herbert Walker Bush had witnessed the vile attack on Reagan’s most qualified Supreme Court nominee, Robert Bork, at the hands of the senior liberal from Massachusetts, Ted Kennedy. The hysterical Kennedy and his senate cohorts were able to take Bork’s long history of written opinions and twist them into something they weren’t. So in 1990, when it came time for President George H. W. Bush to nominate his first Associate Justice to the United States Supreme Court, he was looking for a jurist with a short paper trail.
Bush’s chief of staff at the time was John Sununu, former governor of the state of New Hampshire. As governor, Sununu had appointed David Souter to the New Hampshire Supreme Court in 1983. As Bush’s chief of staff, Sununu convinced Bush that Souter would be a reliable, temperate, conservative judge to nominate to the First Circuit Court of Appeals. A few months later, when Associate Justice William Brennan announced his intention to retire, Sununu persuaded Bush to elevate Souter to the U.S. Supreme Court, assuring the president that Souter would be a “home run” for conservatism.
David Souter went on to become one of the biggest disappointments of either man’s career.
Souter had fooled everyone. At his confirmation hearings, he had espoused the concepts of original intent, just as Bork had done, thereby convincing everyone that he was, in fact, a strict constructionist. The usual suspects on the Left came out of the woodwork to denounce him. Molly Yard, then president of the radical National Organization for Women (NOW), railed against Souter’s nomination, saying that would “end freedom for women in this country.” The NAACP urged its half million members to write their senators and demand that they reject Souter’s nomination.
But in the end, the senate vote was 90-9, with Ted Kennedy and John Kerry among the handful of primarily liberal senators who opposed the nomination — mainly because they believed that Souter was too conservative.
His first two years on the Court were not really an alarming harbinger of things to come. In fact, during his first year, Souter voted with Antonin Scalia 85 percent of the time. As the 1990s progressed, however, Souter found himself aligned first with moderates Anthony Kennedy and Sandra Day O’Connor, and finally with the Court’s liberal wing, consisting of John Paul Stevens, Stephen Breyer and Ruth Bader Ginsberg.
The two landmark cases that seemed to indicate a shift in Souter’s judicial reasoning came in 1992. Planned Parenthood v. Casey forced the Court to consider restrictions on Roe v. Wade, while Lee v. Weisman dealt with the issue of prayer at a high school graduation ceremony. Souter’s votes in these two cases disappointed conservatives. He upheld the right to abortion and voted against the right to prayer.
Within the last few years, it has become increasingly clear that David Souter is a liberal. He voted against the right of the state of Nebraska to ban the gruesome practice of partial birth abortion in Carhart v. Stenberg. He voted to uphold the right to homosexual sodomy in Lawrence v. Texas. And in one of the most radical property rights cases in the history of the country, David Souter voted with the majority in Kelo v. New London, Connecticut, wherein the right of eminent domain was extended to include the seizing of one private owner’s property in order to hand it over to another private owner who would develop it and thereby pay more property taxes on it.
Now, after nineteen years on the United States Supreme Court, David Souter has chosen to retire at a time when the most liberal president in history will appoint his replacement. May Barack Hussein Obama be as disappointed in his nominee as George Herbert Walker Bush has been in David Souter.