Monday, October 10, 2005

Souter, Rudman, and Biden

With all the coverage of the recent Supreme Court nominations, it would be a good time to revisit the 1990 nomination of Justice David Souter. Liberal groups were concerned about the right to privacy being preserved in court decisions. They were so concerned about privacy, in fact, that some liberal groups leaked the video rental and emergency room records of a previous nominee to the media. Justice Souter faced similar attacks and rumors, based no doubt on his perceived conservatism.

The attacks made Souter want to have his nomination withdrawn. In Bob Woodward's Shadow: Five Presidents and the Legacy of Watergate (1999), we learn that Senator Warren Rudman physically restrained Justice Souter from calling President Bush. We also learn that Souter was probably selective about sharing how he would rule on abortion.

The anguish of scrutiny was too great a price to pay. Souter said he was going to phone President Bush and insist that his nomination be withdrawn.

Rudman was beside himself. He argued forcefully that Souter had to be tough. He should not throw away the nomination on these side issues, even though they may strike at his soul.

At that particular moment in history, the future of the 1973 Supreme Court decision in Roe v. Wade, which established abortion rights, hung in the balance. The newest member of the Court was likely to be the deciding vote….

Although Rudman had not talked directly to Souter about Roe v. Wade, he was certain that Souter would not vote to overturn the decision if he made it to the high court. Rudman, who was pro-choice, felt strongly that abortion was in part a matter of compassion, and he believed that Souter was compassionate and would see the brutality in taking away a woman’s right to choose abortion. Rudman also knew that Souter believed in the principle of not overturning Supreme Court precedents unless there was an overwhelming argument. For practical purposes, Rudman was planting a pro-choice mole on the high court….

Two years later, Souter and two other justices wrote a highly unusual three-justice signed opinion, joined by two others, upholding Roe v. Wade. Rudman was coming back from New York by train the day the decision in the case, Planned Parenthood v. Casey, was announced. He was overjoyed, certain that Souter had played a pivotal role. The efforts of the Reagan and Bush administrations and the religious right to overturn Roe were probably defeated forever, Rudman calculated. In the train station, he ran into Senator Joseph Biden, who had chaired the Senate Judiciary Committee during the Souter confirmation hearings. Biden, a Delaware Democrat, was equally delighted that Roe had been affirmed. The two senators embraced, laughed, yelled and even cried.

“You were right about him,” Biden said. “Did you read that opinion? You were right!”

First of all, I want to repeat that I do not like stealth candidates coming from the right or the left. If either the Senate or the President have inside information on how a nominee will rule on a hot-button issue, the information should be shared openly.

Secondly, it is doubtful that Rudman’s certainty about Souter’s position on abortion came only from his compassion (as defined by Rudman) and his reliance on stare decisis. Rudman did not talk to him “directly” about abortion, but they clearly had an understanding.


Blogger Derek Jensen said...

What about stealth candidates for student fees committees?

October 11, 2005 1:14 PM  
Blogger Marty said...

Or stealth Genders for SCSU homecoming "royalty"?

October 11, 2005 3:35 PM  
Blogger Derek Jensen said...

what is SCSU?

October 12, 2005 11:52 AM  
Blogger lloydletta said...

Exactly - and that's why Dobson and Rove should be called to testify under oath about their conversations.

October 16, 2005 9:52 AM  

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