Liberal Justice David Souter Dead at 85

His left-wing rulings sparked the right to adopt the motto "No More Souters!"

Particularly after the "Borking" of Robert Bork in 1987 (led by Ted Kennedy and Joe Biden) brought ideological critiques of the nominees out into the open, Republican presidents adopted a strategy of looking for "stealth nominees" who had little paper trail of judicial decisions and academic writings to pick apart. Souter, nominated in 1990 to replace Brennan, was the ultimate stealth nominee, a soft-spoken, reclusive, colorless bachelor with no major red flags (from a liberal point of view) in his twelve-year judicial record, most of it on the New Hampshire state courts. George H. W. Bush didn't set out to put a liberal on the Court, but he was willing to take the risk, and that left him vulnerable to staffers such as White House Chief of Staff John Sununu (Souter's fellow New Hampshirite) who had a pretty good idea of what Bush was getting. Democratic interest groups gave Souter the generic Republican treatment, with the National Organization for Women printing "Stop Souter or Women will Die" buttons with an image of a coat hanger, but it didn't fly, and he was confirmed 90-9. Even Biden voted for him; Ted Kennedy and John Kerry didn't.

Souter's subsequent liberal record on the Court -- including voting to sustain Roe in 1992 in Planned Parenthood v. Casey -- made his name a conservative rallying cry of "no more Souters." The stealth nominee strategy came to an abrupt end in 2005 after conservative opposition forced George W. Bush to abandon Harriet Miers, his White House counsel with a scant paper trail, and instead send the Republican-controlled Senate the nomination of Samuel Alito, who already had a long judicial track record that included ruling on the Third Circuit in favor of the pro-life law struck down in Casey. It seems unlikely that either party will attempt anything like the stealth-nominee strategy again.

Except we still are nominating people who turn out to be stealth Souters. I blame the Federalist Society. I don't think they're recommending conservative judges. I think they're recommending judges who follow the upper-middle class white liberal consensus who have some slight moorings to reality. In other words, they're not recommending the hard-left culture warriors the Democrats pack the courts with, but they're still recommending people who are part of the former Liberal Consensus.

The Federalist Society is more concerned about judges who are "clubbable" than conservative.

Souter retired from the Court in 2009 when the presidency was held by Barack Obama. He chose to deliver Obama the chance to appoint another liberal.

posted by Ace at 12:43 PM

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