Conservatives Fear Souter Repeat in Supreme Court Choice

By Marc Morano | July 7, 2008 | 8:31 PM EDT

( - Labeled a "home run" for conservatives when he was nominated for a vacancy on the U.S. Supreme Court in 1990, Justice David Souter has turned out to be anything but. In fact, conservatives now use Souter as an example of the kind of justice they want President George W. Bush to avoid as he deliberates on a replacement for outgoing Justice Sandra Day O'Connor.

Only one prominent conservative organization, the Conservative Caucus, opposed Souter's nomination 15 years ago. Other conservative groups believed Souter would help overturn Roe v. Wade, the Supreme Court's 1973 ruling legalizing abortion.

"I discovered that as a trustee of two New Hampshire hospitals -- Dartmouth Hitchcock and Concord Memorial -- [Souter] had changed the policies of those two hospitals from zero abortion to convenience abortion," Howard Phillips, chairman of the Conservative Caucus, told Cybercast News Service in recalling his investigation of Souter's background.

"So clearly, this was a guy who was going to be on the left wing of the Supreme Court," he said.

Phillips believes other pro-life conservatives supported Souter because they "were Republican sycophants. They believed John Sununu, the then-White House chief of staff, when he said that Souter's choice was a home run for conservatives."

Sununu, a former New Hampshire governor viewed as a solid conservative, had appointed Souter to the New Hampshire Supreme Court. The Souter nomination was also advanced by another New Hampshire Republican -- U.S. Sen. Warren Rudman -- Souter's former boss at the New Hampshire attorney general's office and a supporter of abortion rights.

"[The conservatives] should have known better. They should have trusted the evidence, even when it risked jeopardizing their ability to be invited to meetings at the White House," Phillips said. "It was obvious to anybody who didn't want to suck up to the White House that Souter was a bad choice," Phillips added.

In his 1996 political autobiography "Combat: Twelve Years in the U.S. Senate," Rudman agreed with Phillips' ideological assessment of Souter. Rudman wrote that he was convinced Souter would vote to uphold Roe v. Wade just by listening to Souter's confirmation hearing testimony before the Senate in 1990.

"I thought that throughout his testimony, he had given clues to anyone who would listen, that neither as a believer in stare decisis (the Latin term for judicial respect for precedent), nor as a compassionate human being, was he likely to vote against Roe," Rudman wrote in his book.

Rudman also revealed a behind-the-scenes strategy that the Bush administration used to make it appear Souter would side with the pro-life community.

"I suspected that the president was less concerned with how his nominee eventually voted on Roe than that he or she be nominated without a fight," Rudman explained.

Rudman also questioned President George H. W. Bush's commitment to the pro-life movement. "Earlier in his career, Bush had been pro-choice; then he embraced the pro-life cause when he attached himself to Ronald Reagan, but I doubted that his original feelings had changed," Rudman wrote.

While Rudman claimed he did not know how Souter would rule on Roe v. Wade, he was confident the justice would not disappoint abortion rights supporters. "[B]ecause of his belief in stare decisis," Rudman asserted, "he would never vote to overturn the decision, knowing what turmoil that would cause in our society."

Sununu also went along with the effort to placate pro-life activists, according to Rudman.

"Sununu encouraged this, telling conservatives that David (Souter) was 'okay' and thus hinting that he shared [Sununu's] anti-abortion views," Rudman wrote, adding: "But how could Sununu have known?

"I suspected that John, whom I viewed as more of a pragmatist than an ideologue, shared the president's hope for a trouble-free confirmation and was glad to help it along with a wink and a nod," Rudman added.

'Still waiting'

Paul Weyrich, chairman of the Free Congress Foundation, was among the pro-life conservatives supporting Souter's nomination in 1990.

"Not only did I receive a call from John Sununu, but also I received a call from (former New Hampshire GOP Governor) Meldrim Thompson, who is arguably the most right-wing governor to have served in this country in modern times," Weyrich told Cybercast News Service.

Weyrich said Thompson told him: "Listen, I'll stake my life on this. I appointed [Souter] attorney general, and you are going to love him, the opinions he comes out with. You are going to be so proud to have been associated with him. You just wait and see.

"Well, I am still waiting, and [Thompson is] dead now," Weyrich added.

Weyrich said the pro-life community and conservatives who want a new Supreme Court justice should "look for somebody with a record.

"If they don't have a record, then don't accept him," Weyrich cautioned. "If you have a candidate who has no paper trail and no record of having made a decision, I don't care who vouches for him, don't take anybody's word for it."

It was Souter's role in the 1992 Supreme Court decision, Planned Parenthood of Southeastern Pennsylvania v. Casey that established him as a judicial enemy of pro-lifers. In a 5-4 ruling, the court upheld Pennsylvania's abortion restrictions (24-hour waiting period and parental notification), but also re-affirmed Roe v. Wade.

On the day the decision was announced, Rudman coincidently met with Delaware Democratic Sen. Joseph Biden at a train station in Wilmington, Del.

"At first, I didn't see Joe; then I spotted him waving at me from far down the platform. Joe had agonized over his vote for David, and I knew how thrilled he must be. We started running through the crowd toward each other, and when we met, we embraced, laughing and crying," Rudman wrote.

"You were right about [Souter]," Biden told Rudman. "Did you read that opinion? You were right," Biden reiterated.

"People stared at us as if we were crazy, but we just kept laughing and yelling and hugging each other because sometimes, there are happy endings, even in politics," Rudman concluded.

Rudman summed up the 1992 decision, which affirmed Roe v. Wade: "The combined efforts of the Reagan and Bush administrations and the religious right to overthrow Roe had been defeated, probably for good."

President George W. Bush's motives in replacing Sandra Day O'Connor are also being questioned by Phillips. "[President Bush] doesn't want to get rid of Roe. He wants to 'change hearts and minds,' he doesn't want to change Roe v. Wade," Phillips said.

Phillips, who left the Republican Party shortly after Souter's confirmation and formed his own Constitution Party, warned that conservatives should not "deceive themselves" over Bush's pro-life intentions.

"It is self-deception on the part of conservatives and Christians, who are unwilling to say the Republican Party is leading us over the cliff," he added.

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