In retrospect, I deeply apologize for all the nasty things I've said about the people responsible for putting David Souter on the Supreme Court. Compared to what we know about John Roberts, Souter was a dream nominee.
As New Hampshire attorney general in 1977, Souter opposed the repeal of an 1848 state law that made abortion a crime even though Roe v. Wade had made it irrelevant, predicting that if the law were repealed, New Hampshire "would become the abortion mill of the United States."
At this point the only people more opposed to abortion than Souter were still in vitro.
He filed a brief arguing that the state should not have to pay for poor women to have abortions – or, as the brief called it, "the killing of unborn children" and the "destruction of fetuses."
Also as state attorney general, Souter defended the governor's practice of lowering the flag to half-staff on Good Friday, arguing that "lowering of the flag to commemorate the death of Christ no more establishes a religious position on the part of the state or promotes a religion than the lowering of the flag for the death of Hubert Humphrey promotes the cause of the Democratic Party in New Hampshire."
Wait, seriously – who is that guy on the Supreme Court and what has he done with the real David Souter?
Souter vowed in a newspaper interview to "do everything we can to uphold the law" allowing public school children to recite the Lord's Prayer every day.
As a justice on the New Hampshire Supreme Court, Souter dismissively referred to abortion as something "necessarily permitted under Roe v. Wade" – not exactly the "fundamental right" he seems to think it is now.
In a private speech – not a brief on behalf of a client – Souter attacked affirmative action, calling it "affirmative discrimination."
Souter openly proclaimed his support for the "original intent" in interpreting the Constitution.
The fact that Souter decided – like Warren, Brennan, Blackmun, Stevens, O'Connor and Kennedy – that he would prefer to be a Philosopher King rather than a judge once he got on the court doesn't mean you never can tell with any of these guys. It means you have to find judges who wake up every morning: (1) thinking about the right answers to legal questions; and (2) chortling about how much his latest opinion will tick off the left.
We had a pretty good idea what kind of justices Antonin Scalia and Clarence Thomas were going to be. Scalia had spoken at the very first symposium of the Federalist Society as a young law professor – before it became a felony to do so – and served as faculty adviser to the group. (By contrast, Roberts is running from the Federalist Society like a 9-year-old boy running from Neverland Ranch.)
Before becoming a judge, Thomas had spent 10 years on the editorial advisery board of the Lincoln Review, a black conservative publication that ran articles comparing abortion to murder. He had given a speech praising an article by Lewis Lehrman calling abortion a "holocaust" that should be outlawed without exception. (There were even rumors, never proven, that during his law studies Thomas had actually read the Constitution.)
That's the sort of nominee we were hoping for! This wasn't a paper trail; it was more like a paper superhighway.
Compare that to the principal evidence cited to prove Roberts' conservative bona fides: As a judge, he upheld the arrest of a girl for eating French fries on a subway even though he disagreed with the policy. Well, there's a hot-button issue! (And if he's so conservative, why didn't he call them "freedom fries"?)
Oh yes, and I quote: "He loves his children."
I gather that last boast is supposed to be some sort of signal about his position on abortion. (If he were pro-choice, they would have said, "He loves all of his children who survived gestation.") I don't give a rat's behind whether the guy is pro-life, whether his wife is pro-life, whether he used to be pro-life, whether he will become pro-life, etc. That tells us how he would vote as a state legislator. He isn't being nominated for state legislator.
The relevant question for a prospective justice, and it can be asked properly either by a president or a senator, is: "What, in your view, is the legal force of a Supreme Court opinion?" If Roberts believes that Supreme Court opinions are law of some kind, all is lost.
Now comes the news that Roberts says he respects "precedent" – which is another way of saying: We can count on Roberts to uphold the court's previous unconstitutional findings.
It doesn't help to have someone who thinks that, as an original matter, the Constitution says nothing about state abortion laws if he is then going to "balance" the law against "the integrity of the institution," "public confidence in our system of justice," "the need for stability and predictability," "the sweet mystery of life," blah blah blah. The problem with establishment types is precisely that they worry about everything except the law. Just get the law right and shut up.
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