David Souter - U.S. Supreme Court Appointment

U.S. Supreme Court Appointment

President George H. W. Bush originally considered appointing Clarence Thomas to Brennan's seat, but decided that Thomas did not have enough experience as a judge. Warren Rudman, who had since been elected a senator, and former New Hampshire Governor John H. Sununu, then Chief of Staff to President Bush, suggested Souter, and were instrumental in his nomination and confirmation. Prior to this time, few observers outside of New Hampshire knew who Souter was, although he had reportedly been on Reagan's short list of nominees for the Supreme Court seat that eventually went to Anthony Kennedy.

Souter was seen as a "stealth justice" whose professional record in the state courts provoked little real controversy, and provided very little "paper trail" on issues of U.S. Constitutional law. President Bush saw this lack of a paper trail as a positive for Souter, because one of President Reagan's nominees, Robert Bork, had recently been rejected by the Senate partially because of the availability of his extensive written opinions on controversial issues. Bush nominated Souter on July 25, 1990, claiming that he did not know Souter's stances on abortion, affirmative action, or other issues.

Senate confirmation hearings were held beginning on September 13, 1990. The National Organization for Women opposed Souter's nomination and held a rally outside of the Senate during his confirmation hearings. The president of NOW, Molly Yard, testified that Souter would "end freedom for women in this country." Souter was also opposed by the NAACP, which urged its 500,000 members to write letters to their senators asking them to vote no on the nomination. In Souter's opening statement before the Judiciary Committee of the Senate he summed up the lessons he had learned as a judge of the New Hampshire courts:

The first lesson, simple as it is, is that whatever court we are in, whatever we are doing, whether we are in a trial court or an appellate court, at the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate judges, as far removed from the trial arena as it is possible to be. And so we had better use every power of our minds and our hearts and our beings to get those rulings right.

Despite the opposition, Souter won an easy confirmation compared to those of later appointees. The Senate Judiciary Committee reported out the nomination by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9, and Souter took his seat shortly thereafter, on October 9, 1990.

The nine senators voting against Souter included Ted Kennedy and John Kerry from Souter's neighboring state of Massachusetts. These senators, along with seven others, painted Souter as a right-winger in the mold of Robert Bork. They based their claim on Souter's friendships with many conservative politicians in New Hampshire.

An opinion article by The Wall Street Journal some ten years after the Souter nomination called Souter a "liberal jurist" and said that Rudman took "pride in recounting how he sold Mr. Souter to gullible White House Chief of Staff John Sununu as a confirmable conservative. Then they both sold the judge to President Bush, who wanted above all else to avoid a confirmation battle." Rudman wrote in his memoir that he had "suspected all along" that Souter would not "overturn activist liberal precedents." Sununu later said that he had "a lot of disappointment" about Souter's positions on the court and would have preferred him to be more similar to Justice Antonin Scalia.