Did Bush break his no-more-Souters pledge?

The most enduring legacy of the first Bush presidency is not that George Herbert Walker won the first Gulf War. That is already a historical footnote thanks to the second President Bush and the second Gulf War. What most defines the first Bush presidency is the nomination of New Hampshire’s David Hackett Souter for a seat on the Supreme Court. And it just may be that George W. is making the same kind of mistake his father made.

Souter was supposed to be, in the words of former Gov. John Sununu, a “home run for conservatives.” He would be the vote that at long last would get the Supreme Court out of political judging and restore the rule of law. Heck, Souter even told the nation during his confirmation hearings that he was an “intentionalist,” which was lawyer-speak for “I will approach the law the same way Antonin Scalia does.” He didn’t mean it.

Souter has turned out to be the most liberal, activist Supreme Court justice since William Brennan. And it is his vote in 5-4 decisions upholding the judicially invented right to an abortion, allowing government discrimination against white males, and holding that nonsectarian prayer is somehow the establishment of a state religion, to name just a few, that are the legacy of Bush 41.

During both of Bush 43’s campaigns, he pledged to appoint supreme court justices in the mold of Scalia and Thomas. In other words, he wouldn’t make the same mistake his father made — no more Souters.

This pledge was the equivalent of his father’s read-my-lips-no-new-taxes pledge. Conservatives did not come out in record numbers, and stand hours waiting at the polls, to vote for George W. because of the No Child Left Behind act, or because of his prescription drug benefit, or because he increased spending more than any president since Jimmy Carter. They supported Bush because he was a far better choice for commander-in-chief than Kerry and because he promised to appoint judges like Scalia and Thomas to fill one or more likely vacancies on the Supreme Court.

But the nomination of John Roberts to replace Sandra Day O’Connor seems to be based on the same playbook used by the Bush 41 White House when it nominated Souter. Pick somebody with no paper trail so liberals can’t “Bork” him.

Souter had just been confirmed for the First Circuit Court of Appeals when he was nominated. While Roberts has a longer paper trail, having been on the District of Columbia Circuit Court of Appeals for about two years, he hasn’t decided many cases that would give a sense whether he would be another Scalia or Thomas.

Roberts’ testimony before Congress when he was nominated for the appeals court, however, suggests that he does not have the same judicial philosophy as Scalia and Thomas. They are “originalists,” which means their approach is to look at what a constitutional provision meant when it was adopted and to apply that meaning to the facts of the case. Roberts testified that “I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document,” which appears to reject originalism.

Roberts’ testimony raises an important question for President Bush: Why did you pass over eminently qualified candidates, such as appeals court judges Samuel Alito, Edith Jones and Michael Luttig, who have track records that strongly suggest they would approach judging the same way that Scalia and Thomas do, in favor of someone without such a track record?

Since Republicans hold a majority in the Senate and the so-called “nuclear option” would be an option had the Democrats chosen to filibuster an Alito, Jones or Luttig, there shouldn’t have been any need for another “stealth candidate” like Souter. Which suggests that the choice of Roberts was designed to satisfy Republicans who don’t want to see Roe v. Wade overturned.

If this is the calculus behind the Roberts nomination, then Bush 43 has broken his read-my-lips-no-more-Souters pledge. It won’t take too long to find out if we have another Souter on our hands. The Supreme Court is scheduled to take up New Hampshire’s parental notification law late this year. And if Roberts upholds the law on any basis other than Roe v. Wade was wrongly decided and should be overturned, then we’ll know that we didn’t get another Scalia or Thomas.

Ed Mosca is a Manchester attorney and former chairman of that city’s Republican Party.