By Benjamin Cole
The elevation of David Hackett Souter to serve as the 105th justice of the United States Supreme Court was, to borrow a phrase from Eliot, the whimper that ended the world for conservatives.
Confirmed by a 90-9 vote, the Granite State jurist was promised to conservatives as a “home run” by then-White House Chief of Staff John Sununu. But, once handed the bat of American justice, he turned out to be a rather wild fly ball hit to far left field.
Dubbed “the stealth justice” by the New York Times, Souter routinely sided with his colleagues on the court who have preferred a course charted not by the fixed constellation of America’s Constitution, but rather the expansive and swelling currents of progressive political ideals.
Justice Souter’s judicial obscurity was highlighted at the time of his confirmation by then-Sen. Joe Biden, who noted that “no nominee has come to [the Senate Judiciary] Committee with less known about his philosophy.”
And now that Souter has announced his retirement from the bench, his former clerks are lining up to extol the virtues of “Justice Cincinnatus,” as one former assistant described him shortly after his resignation, referring to the dictator of ancient Rome who crushed a plebeian rebellion against the tyranny of political elites.
During Justice Souter’s term of purportedly good behavior, this most clandestinely liberal member of the court became for conservatives the anti-Bork — an example of Republican tomfoolery whereby the necessity of a solid record of judicial philosophy for a nominee is brushed aside in favor of quiet personal assurances that the nominee is a true conservative.
The announcement of Justice Souter’s retirement came during a difficult week for conservatives, who must soon face a filibuster-proof Democratic majority in the Senate, compliments of Pennsylvania Sen. Arlen Specter’s political defection and the all-but-certain victory of Al Franken over Norm Coleman in the protracted race for a seat from Minnesota.
Slightly more than 100 days into his administration, President Obama now has the opportunity to shape the composition and philosophical persuasion of the court for decades to come.
Naturally, conservatives are wary.
The conservative frustration with Souter’s leftward drift results from his positions on four key cases involving abortion rights, school prayer, public displays of the Ten Commandments and eminent domain.
In 1992, Souter jointly wrote the majority opinion in Planned Parenthood v. Casey, a watershed 5-4 decision that upheld a woman’s right to abort her fetus as a fundamental liberty guaranteed in the 14th Amendment. For Republicans who supported Souter’s confirmation on the soft promise that he might overturn Roe v. Wade, this was treason of the worst order.
That same year, Souter joined the majority in Lee v. Weisman to forbid public-school-sponsored prayers at graduation ceremonies. In a lengthy concurrence, Souter differentiated school prayer from presidential invocations and religious proclamations, which he believed to “inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families.
Thirteen years later, Souter wrote for the majority in McCreary County v. ACLU to declare unconstitutional the public display of the Ten Commandments in two Kentucky counties.
And finally, perhaps the last straw for conservatives was Souter’s willingness in Kelo v. New London to uphold the government’s seizure of private lands for a purpose that can only be described as public in the most penumbral sense of the term.
Souter might have been still more villainous to conservatives had the bachelor justice offered substantive words of concurrence on the various decisions advancing gay rights that came before the court during his 18-year tenure. For reasons unknown, the justice demurred.
The body of work David Souter left behind is notably absent any profound, original or memorable articulation of elegant jurisprudential prose. On church-state issues, Souter has been a reliably strict separationist. On issues of prenatal life, he maintained a firm commitment to reproductive choice.
When he joined the court, Souter was the great Right hope of reversing the liberal course set by his predecessor, Justice William Brennan. As he leaves, conservatives have learned a hard lesson about stealth jurists and the pain of buyers’ remorse.
It is unlikely that President Obama will nominate a centrist to replace Souter, and he doesn’t need to. With the political capital he earned last November and the supermajority his party claims in the Senate, the president will have the widest possible berth to select a nominee who advances his own leftist views of the Constitution.
As for the balance of the court, however, nothing will change. The only advantage that Souter’s replacement could bring to conservatives is a more robust and formidable proponent of liberal judicial activism with whom to spar, or at least one for whom they cannot take blame.