Did Souter Really 'Go Souter'?

The Daily Kos has a link to an article that somewhat punctures the idea that David Souter was poised to be a reliable conservative vote when he was nominated to the Supreme Court by George H.W. Bush but that he changed sides once on the Court. What has come out of this is that George H.W., by choosing someone he did not personally know, made a mistake.

However, one of Souter's closest friends, former New Hampshire Senator Warren Rudman, maintains that what America saw in 1990, when Souter was nominated and went through hearings, is what we got:

"I've never figured that one out," says Rudman, now a partner in the D.C. office of Paul, Weiss, Rifkind, Wharton & Garrison. "Anyone who ever listened to his testimony would know that he was a judge in the model of [John Marshall] Harlan or [Felix] Frankfurter. He certainly wasn't in the mold of a real conservative."

Furthermore, he wasn't remebered as a doctrinaire conservative in his confirmation hearing:

Still, if Souter's White House vetting was problematic, his confirmation hearings were revealing. Mark Gitenstein, former chief counsel to then Senate Judiciary Committee Chairman Joseph Biden, D-Del., says he remembers Biden quizzing Souter about how he would determine fundamental rights under the 14th Amendment. "The answer is, we cannot, as a matter of definition at the beginning of our inquiry, narrow the acceptable evidence to the most narrow evidence possible," Souter said.

That broad standard, and Souter's expansive statements about unenumerated rights, reassured the Delaware Democrat. Says Gitenstein, "I remember talking to Biden and Biden said, 'I have to vote for him as a result of that answer.'"

And in his opinions:

It wasn't just at the hearings that Souter made clear his centrist thinking. His 200 or so opinions, written during a 12-year stint on the Superior Court of New Hampshire and the New Hampshire Supreme Court, and during his months as a judge on the 1st U.S. Circuit Court of Appeals, also made that evident.

"Conservatives have been saying, 'No more Souters, no more Souters,'" notes University of Chicago law professor David Strauss, who was a special counsel to the Senate Judiciary Committee during Souter's confirmation hearings.

"But I read all of Souter's lower court decisions, and I predicted at the time of the hearings, in an internal memo, that Souter wouldn't vote to overturn Roe," says Strauss, who was then working for Biden. "If you read his opinions and ask yourself, how does this guy approach judging? Souter doesn't just say he'll go by precedent -- precedent orients his legal universe."

So in a sense, Souter is a conservative. He does not like to overturn precedent which, agree or disagree with it as a principle, is a very conservative inclination. Furthermore, Souter was only a judge in the federal courts for a few months before he was nominated to the Supreme Court. There was not a lot of information out there either way that indicated his views on Constitutional questions. From what I have read about his many years as a judge in New Hampshire, he was a pretty standard law and order-oriented jurist, which may have given people like Sununu the idea that he would be the next Bork, but in hindsight, it seems like people gave Souter a pretty superficial read in 1990. So, in sum, maybe David Souter didn't "go Souter" maybe he just stayed Souter.