Souteronomy

That’s the title of an email I received from our good friend Dafydd ab Hugh, who questions whether David Souter “grew in office” or was always a liberal and simply “passed” as a conservative on John Sununu’s say-so. Here’s what Dafydd wrote:

I’ve been ruminating a lot about David Souter. The myth is that he was thought to be a staunch conservative, but then he “grew in office” once appointed to the U.S. Supreme Court and became a liberal.
But that never made sense to me. People don’t typically change in that way. Specifically, I began to wonder: what on earth convinced people, particularly GHWB, that Souter was ever a conservative?
I looked up his professional bio, and it seems he was a superior-court judge in New Hampshire for four years, then served on the New Hampshire Supreme Court for seven before being named to SCOTUS. I doubt there would be much chance to suss out his judicial philosophy as a mere state superior-court judge.
He was named to the NH Supreme Court in 1983; but that was the same year that John H. Sununu became governor. Did Sununu and Souter know each other before that? Souter was the Attorney General, but Sununu appears to have been an engineering professor before becoming governor, so it’s possible they didn’t really know each other.
What I’ve gathered is that Souter was something of a protege of Warren Rudman; Rudman was AG for six years, during which time he appointed Souter Deputy State AG; when Rudman retired in 1976, he seems to have hand-picked Souter to succeed him; Rudman also pushed him into his first judgeship two years later.
So if Rudman, one of the most liberal Republicans ever to tread the halls of power, was David Souter’s mentor, and if a Supreme Court position opened up in New Hampshire in 1983 (when Rudman was serving his first term as U.S. senator), isn’t it likely that it was Rudman, not the newly elected governor who had not been in politics before 1982, who pushed Souter to be appointed to the Supreme Court in 1983?
Gov. John H. Sununu might not have known Souter from sauerkraut. So the mere fact that Sununu, a conservative, appointed Souter does not necessarily mean that Souter was any sort of a conservative in 1983. In fact, being so closely tied to Rudman, I would be skeptical.
I can’t seem to find anything about Souter’s tenure on the New Hampshire Supreme Court. Was he the author of any clearly conservative opinions? He was only there for seven years, but surely he must have had some paper trail… though evidently, he was picked specifically for not having one. It’s entirely possible (at least in my mind) that Sununu’s recommendation of Souter for SCOTUS was more personal than political, and that Warren Rudman (then mostly through his second term in the Senate) was the primary person pushing him on Bush.
Bush himself was hardly a conservative; he famously referred to Reagan’s economics program as “voodoo economics,” and of course he raised taxes and pushed many other pieces of legislation desired by the Democrats. Bush was certainly not a conservative when he was a member of the House: he ran for the Senate as a “Goldwater Republican” in 1964 — and then as a “Nixon Republican” in 1970! Bush ran against Reagan conservatism in 1980, then ran as a “Reagan Republican” in 1988. So I honestly don’t see any evidence that Bush would be concerned whether Souter was a conservative or not.
Unless Souter wrote some major conservative opinions on the New Hampshire Supreme Court between 1983 and 1990, I think that there was ample reason in 1990, when he was nominated for the First [Circuit] Court of Appeals, to doubt his cred as a “conservative”… except nobody really looked for it. Since he sat on the federal bench for less than three months before being nominated, again by Bush, for the US Supreme Court, I doubt there was any significant opinion he wrote as a federal appellate judge that would indicate he was a conservative.
So my point is this: if nobody ever really had any good reason to suppose that Souter was a conservative in 1990, then it may well be a myth that he “grew in office” and turned liberal; he may have shared the worldview of his mentor, Warren Rudman, all along — had we but looked a second time. So maybe this prototypical example of the staunch conservative who turned into a liberal on the bench is nothing of the sort; maybe it’s just an example of insufficient political vetting by the staff of a president who really didn’t give a whoop whether Souter was conservative, liberal, or an intellectual drifter. (And for that matter, perhaps Papa Bush is totally happy with the way Souter has ruled in the last fifteen years.)
In which case, it wouldn’t be precedential at all for Judge John Roberts… who has a very strong track record of judicial conservatism, according to a large number of people, both left and right, who have worked with him over the decades.

My understanding is that Warren Rudman was, indeed, Souter’s “rabbi” and that he somehow sold Sununu (a conservative but not an expert on the legal community) on Souter. Sununu’s endorsement was good enough for President Bush, who probably didn’t obsess over whether Souter was a moderate or a conservative (though I’m confident he didn’t want a liberal).
My guess is that Souter was a moderate who leaned liberal when he became a Justice, and that he quickly “grew” into a full-fledged knee-jerk liberal while in office. However, the case that Justices move leftward over time rests more on O’Connor and Kennedy than on Souter.

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