A blog post by Anton Piatigorsky caught my eye. It repeats, in part, the fairly widespread belief that when Justice William J. Brennan, a leading, long-serving liberal justice, retired from the Supreme Court in 1990, President George H.W. Bush looked to replace Brennan with a stealth arch-conservative. Former Governor John Sununu, from New Hampshire and then Bush’s White House chief of staff, has said as much. And, the belief continues, the eventual Bush nominee, then-Judge David Souter, also of New Hampshire, turned out to be a huge disappointment if not a traitor to how he presented himself to the president and why he (Souter) was nominated.
I don’t think that holds up. For example, I don’t think that President Bush ever said that that’s what he sought in Souter. I also don’t think that there is evidence that that is the vetting and assessment of Souter that occurred at the president’s level.
What Bush was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.
Tinsley Yarborough describes in his biography of Justice Souter (click here) how Sen. Warren Rudman of New Hampshire, Souter’s old boss and close friend and also a friend to Sununu and President Bush, was Souter’s principal recommender and really the cause of his nomination. Sen. Rudman was a Republican but not of the slash/burn type; in fact, in many instances he was quite moderate and non-partisan.
As Yarborough recounts, Rudman suggested the Souter nomination to Sununu and Bush and it all rolled quickly from there, including that no one ever vetted Souter for or had a basis to determine that he would be the determined anti-Brennan. Based on the historical record (such as we can see it), while many on the farther right were disappointed in the jurist that Justice Souter turned out to be, I’m skeptical that President Bush is or that the late Senator Rudman was in that group. And I’m very skeptical that they would have a basis, given how Souter was vetted and picked, to feel that way.
In picking Justice Souter, President Bush went for huge smarts, relevant experience and no paper trail. He wanted a problem-free nominee and he got him. Bush never asked litmus test questions—which Souter would have refused to answer anyway.