With Friday’s announcement that Justice David Souter is retiring from the Supreme Court, attention has turned to how President Obama will approach the vacancy and attempt to put his imprint on the court. In much of this discussion, the conventional wisdom has been that the balance of the court is not likely to change with the confirmation of Souter’s successor. Pegged as a member of the four justice “liberal” wing of the court, Souter has been viewed—especially among those on the left—as a reliable defender of choice, the separation of church and state, and other progressive stances . As such, he has become the justice that conservatives most love to hate. For those on the right, Souter’s decisions have been those of an apostate in light of the assurances originally made by his supporters including President George H.W. Bush.
This picture of Souter, I’d argue, is off base. Justice Souter, it seems to me, is not a “liberal” as we tend to define the term. Similarly, those who argue that his “conservatism” never materialized on the high court are misreading his approach. While I don’t want to argue that Souter’s jurisprudence is analogous to either the Democrats’ or Republicans’ ideologies, untangling his record and style might help us understand some of the troubles currently vexing the modern GOP.
Perhaps the best retrospective of Souter’s time on the court that I’ve read over the past few days is provided by the New Republic’s Gordon Silverstein. Combating the conventional wisdom, Silverstein argues that Souter has been the quintessential “judicial conservative”. He writes:
Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.
The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.
What Souter’s case illustrates more broadly, it seems, is the debate about what “conservatism” really means. This is a debate, I’d note that has been raging for the last few years on Andrew Sullivan’s blog and to which he has devoted an entire book. It is also a debate that has been necessitated by the evolution of the modern GOP. The Souter nomination is just one small chapter in this story. As traditionally understood (and defined by Sullivan among others), conservatism’s central tenet is a skepticism about the ability of man (especially via government action or the power of the state) to change or re-order the world. For these writers “conservatism” and “doubt” are analogous. Thus, conservatives have a respect for the status quo, tradition, and that which has served society well over the long term. This strain of conservatism doesn’t argue that society and culture don’t or shouldn’t change, but rather that such change should be allowed to take its natural course rather than through state led engineering. Attempts to legislate change are not only likely to fail but will also endanger our liberties and freedoms. Thus, when faced with the choice of acting and non-acting (despite the severity of the problem at hand), a conservative will in almost all cases choose non-action as the best course.
With Souter’s retirement, I’ve gone back and found many of the profiles written about him upon his nomination for the court in 1990. In addition to providing some interesting nuggets of irony—i.e. words of praise from David Keene and words of criticism from Planned Parenthood—these stories repeatedly used a term to describe Souter’s personality and judicial temperament--cautious. The Souter of 1990 was someone uncomfortable with attempts, including by the court, to disrupt the status-quo. A Newsweek piece at the time noted that “His record suggests that he sees the judiciary as an institution with limited powers.” In retrospect, then, we shouldn’t be surprised by his opinions in Planned Parenthood vs. Casey or Bush vs. Gore. In both, it can be argued that he took the conservative position—not using the court to overturn longstanding precedent or interfere with the normal workings of other institutions of government. In both cases, as well, Souter drew further ire from those on the Right.
In reflecting upon this, I went back and re-read some of former Senator Warren Rudman’s memoirs, “Combat.” Rudman has been one of Souter’s closest friends since Souter served under Rudman in the New Hampshire Attorney General’s office back in the late 1960’s. Rudman had long advocated the elevation of Souter to the high court and was aided in this effort by the fact that former NH Governor John Sununu served as White House Chief of Staff in 1990. When Souter’s nomination was announced, Rudman made it his personal mission to shepherd the nomination through the Senate. When we examine Rudman’s career and ideology we see someone who epitomized this “cautious conservatism.” In the last chapter, he writes:
If someone had told me in the 1960s that one day I would serve in a Republican Party that opposed abortion rights—which the Supreme Court had endorsed—advocated prayer in the schools, and talked about government inspired “family values,” I would have thought he was crazy.
To me the essence of conservatism is just the opposite: government should not intrude in anything as personal as the decision to have a child, it should not be championing prayer or religion, and family values should come from families and religious institutions, not from politically inspired, Washington based moralists. (p. 243)
Rudman left the Senate just as the conflict between this version of conservatism and “movement” conservatism came into stark focus. With George H.W. Bush’s intra-party challenge from Pat Buchanan in 1992 (and also recall the 1988 success of Pat Robertson), followed by the ascendancy of Newt Gingrich and a heavily southern-tinged GOP congressional majority in 1996, a pragmatic, “cautious” conservatism espoused by people like Rudman, Howard Baker, Bill Cohen, John Chafee, and John Danforth was cast aside. In its place was a more confrontational, activist, and ideological version. This metamorphosis reached its apotheosis during the Bush 43 presidency. Whether it be Terry Schiavo, the War in Iraq, or funding for faith based initiatives, the policies of the Bush Administration, though branded as “conservative,” were premised on activism, not the status quo. “Caution” is not a word one would use to define the past eight years. Electorally, one region of the country has responded most negatively to this governing philosophy—the northeast. I don’t think it’s accidental that this is the part of the country that produced David Souter (and Rudman).
To get a sense of how the GOP has suffered in the northeast, consider the following. Of the 33 Senate and Governor’s seats in the Northeast, Democrats currently hold 27 (including Senators Sanders and Lieberman). In 2008 every one of these states voted for Barack Obama as well. Looking back over the past three decades we see how much the Republicans’ fortunes have declined in this region. Even in 1976, in the aftermath of the brutal Watergate election for the GOP, Republicans held twice as many statewide seats in the Northeast as they do now. What’s happened is that the traditional “Yankee” or northeastern Republican has become virtually extinct, a point highlighted by one of the few remaining of this species, Olympia Snowe, in an op-ed to the New York Times last week. Yankee Republicans are quite different in outlook than the modern day “movement conservative.” Writing about the northeast, Kevin Phillips argued that it has been this region more than any other that has been the bastion and defender of the “establishment.” While the “establishment” or “old order” is “conservative,” it is not conservative in the “movement” sense. Rather, this conservatism is temperamental, privileging the status quo over attempts to re-order or re-make society. When Phillips penned The Emerging Republican Majority, the northeast had become the most “liberal” part of the country because at that time, “liberalism” was indeed the status quo: “ As America moved into a new political era in 1968, the Northeast once again assumed its position…as the national stronghold of the old order, which this time was an institutionalized liberalism.”
What this all shows, I think, is that while its dangerous to equate a judge’s philosophy and decisions with an underlying political ideology, its equally dangerous to assume that terms like “conservative” have a single meaning. Rather, as I think the Souter example shows, this term means different things to different people, at different times, and perhaps in different places. Whereas it certainly makes no difference to Justice Souter how more politically minded conservatives and Republicans untangle these conflicting definitions, for the GOP it seems imperative if they want to recover their footing and become, as Texas Senator John Cornyn said last week, a “national party” once again.