No More Souters
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Listener supported. WNYC Studios. This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to the New Yorker Radio Hour. I'm David Remnick. The justices of the Supreme Court who ended up overturning Roe versus Wade all said a very similar thing when they were asked about Roe during their confirmation hearings. Can you tell me whether Roe was decided correctly?

Senator, again, I would tell you that Roe v. Wade decided in 1973 as a precedent in the United States Supreme Court. To your point, your broader point, Roe v. Wade is an important precedent in the Supreme Court. It's been reaffirmed many times. Senator, I completely understand why you are asking the question. But again, I can't pre-commit or say, yes, I'm going in with some agenda because I'm not.

Basically, they're saying this. It's a precedent, and I can't speak about a hypothetical case that hasn't come before me yet. Now, remember, these are justices who would go on to sign an opinion saying that Roe was, quote, egregiously wrong and on a collision course with the Constitution from the day it was decided.

When you're in this seat, I'm not just sitting here for myself. I'm sitting here as a representative of the judiciary and the obligation to preserve the independence of the judiciary, which I know you care deeply about. And so one of the things I've done is studied very carefully what nominees have done in the past, what I've referred to as nominee precedent. What Brett Kavanaugh called nominee precedent boils down to this. I'll just keep my trap shut until I get the job, thank you very much.

So if that's the president, who said it? How can nominees just fudge their way through confirmation hearings, refusing all the while to answer questions that touch on every American's life? One answer to that is this: David Souter. David Souter of New Hampshire, a modest and unassuming justice who left an outsized mark on the court.

Today on the New Yorker Radio Hour, we're bringing you a special episode produced by More Perfect, WNYC's series about the Supreme Court. Here's Julia Longoria, host of More Perfect, speaking with journalist Ashley Lopez. So my name is Ashley Lopez, and I'm a political correspondent for NPR. But you are here today because of your...

Do we want to call it an obsession? You know what? I guess obsession is maybe a little bit too much, but it's not far. It's not far. I've just been very intrigued for many years by David Souter. Like who he was on the court is what sort of set off a chain of events that led us to the court we have today.

Like, I don't think you could talk about the court and what it is without talking about David Souter. Justice David Souter has informed the White House he will retire at the end of a Supreme Court term in June. Justice David Souter retired in 2009 when Barack Obama was president. First, I thought he was interesting because he was appointed by a Republican and was ceding his seat to a Democratic president. Like, that's...

a kind of a weird thing. Either you die in the seat or you hand it over to the party that put you into the seat. Souter is perhaps best known as one of the most surprising justices to hold the office. But the thing that stuck out to me was just like how everyone talked about David Souter. The reclusive justice stayed hidden. Notoriously camera shy. David Souter speaks in public rarely now. The shy reclusive bachelor from the other side of the country in New Hampshire.

Souter is unusual for a Supreme Court justice. And not just because he went rogue and left his seat to a Democrat. He was one of the most mysterious figures to ever sit on the Supreme Court. He hardly ever gave interviews, and he was rarely seen in public. Journalists like Ashley have scoured the internet for clues of who this elusive justice might be.

One of my favorite details is like that he would eat yogurt and an apple to its core every day. Like he would eat the core of an apple, which I'm just like, that's behavior I have never witnessed before.

Definitely seems like a nerd. Not a man about town. He liked to be with his books in like a kind of modest house for being a Supreme Court justice. Apparently he had to move out eventually and he told his neighbors because it couldn't support the weight of his books. Also kind of a Luddite. The only technology he used was a telephone and...

And he wrote only with fountain pens. And he would only write in longhand. And maybe a recluse? One of my favorite stories actually is that he like actually had a good date. He was like set up by someone. And at the end of the date turns to this woman and is like, this was fun. Let's do this again in a year.

People on all sides wondered, you know, who is David Souter? And in the moments he did reveal who he was, he made some very powerful people very unhappy. I really feel betrayed by David Souter. The slogan, the mantra within the Republican Party was no more suitors. No more suitors. Which was the rally. The effect was that when David Souter finally left the building, the Supreme Court never looked the same.

Hello? Hi, is this Tinsley? This is he. This is Tinsley E. Yarbrough, former political science professor at East Carolina University. I'm now long retired. We brought him out of retirement because back in the day, Tinsley was a prolific Supreme Court biographer. Biographies of the second Harlan, Hugo Black, Justice Harry Blackmun.

Also, author of the only biography we could find on Justice David Souter. He says he began writing that book the way he always begins. I began contacting his former clerks. Law clerks know a lot about a justice. They work closely together researching cases and writing decisions.

After a couple of weeks, I started getting these emails saying that on further reflection, we think it would be best not to, not to talk. This kind of response was a first for Tinsley. And then I found out that Justice Souter had asked them not to interview. He did not want a biography to be written about him, and he

wanted them not to cooperate, and the clerks, of course, did not. We sent many emails to clerks, had many background calls, and one clerk did agree to talk to us. You're kind of known as the Justice Souter Whisperer. Do you identify as that? No, but I do identify as one of his early law clerks.

Heather Gerken, dean of Yale Law School, was one of Souter's most trusted clerks. She showed producer Gabrielle Burbay a photo of her time working in the Supreme Court building. We were a very, very close group of clerks. And so... Wait, what do you guys do? Can you explain what is happening in this photo? So Stuart said, one of my co-clerks said, oh, we should do a photo with a pyramid. A pyramid, like a cheerleading pyramid, where they climbed up on top of each other.

And why we thought this was a good idea in the middle of the day in one of the courtyards inside the court, one of the most dignified institutions around, just shows the complete lack of judgment on our part. And then we looked up and there was the justice. And each one of us was ready at that moment to hand in our resignation because it was ridiculous. And instead, he very sweetly said, what this pyramid needs is a top.

Justice David Souter did not respond to our repeated requests for an interview. Shocker, I know. Sitting across from Heather was the closest we came to meeting him. And after Heather spoke to us, other clerks followed.

When I first laid eyes on him, I wouldn't say that he made a really strong impression on me. Former Souter clerk Kermit Roosevelt III says Souter was very different from other justices he interviewed with who did make an impression. I was like, these Supreme Court justices are strange people. Rehnquist, for instance, was kind of a performer. Rehnquist started reciting this poem by Arthur Henry Hallam.

And I had memorized it as part of my preparation. So I sort of chimed in appreciatively. So like he started reciting a poem and then you were like joining in? Yes, I joined in, which was a mistake because I think it made me look weird and overprepared. And definitely all of them came across with sort of a stronger personality.

Souter was more understated, say the clerks. He always wears a three-piece suit. He was polite. Deeply ethical, deeply kind. But firm. Unlike many other Supreme Court justices, Justice Souter wrote most of the words of his own opinions himself.

The justice would edit it so heavily and so fiercely that sometimes we would look back and say, well, he left an and, and a semicolon in the draft. But that's a real judge though, right? I asked the clerks about some of the rumors I'd heard. They had to reinforce the house.

This is Judge Peter Rubin, another Souter clerk. Is that true? That's a true story, yeah. That's true. The thing about him eating an apple to its core? That is true. And we as clerks actually tried to get him to stop doing that. Really? We said, justice, justice, don't eat the apple cores. They're bad for you. And he said,

And he was a bit of a technophobe. I walked into his chambers and the room was completely dark. And Justice Souter was standing by the window reading in the light that was coming through the window. Like from the moon or something? Well, yeah, because he didn't want to use the electricity until it was absolutely necessary. But the idea that he's a recluse? That's not true. It's just that he's not interested in putting on a public performance.

Growing up in New Hampshire, Souter was active in his church community. He was pretty popular in grade school and high school, says biographer Tinsley Arbro. And he always said that he was going to be on the Supreme Court, and some of his friends would joke and refer to him as Mr. Justice Souter. In his high school yearbook, David Souter was voted most likely to succeed and most sophisticated.

He went to Harvard and Oxford and served as New Hampshire's attorney general and state Supreme Court judge. He just wasn't outspoken in the press. It was just part of his penchant for privacy. I might add to that he was appointed in part because he was such a low-profile person.

Outstanding credentials, but a low-key personality. His Concord, New Hampshire friends sold him as the perfect nominee to George H.W. Bush's chief of staff, John Sununu.

Well, this for me is a sensitive subject. I sat down to talk to John Sununu, former governor of New Hampshire, and more importantly for our purposes, former chief of staff to President George Herbert Walker Bush. He talked to me because he wanted to set the record straight about the Souter nomination. It all began in 1990. George H.W. Bush was about to have his first pick to the Supreme Court.

And the Republican Party had its sights set on abortion and overturning Roe versus Wade. As we've seen, the simplest and most direct way to do it is change the judges. So Republican Party appointments were certainly guided by a desire to find people who would vote to overturn Roe.

But abortion wasn't the only thing that might have been on George H.W. Bush's mind. The president wanted to nominate somebody that was a good conservative, but would minimize the chance of being borked again by the Democrats. Borked, as in Robert Bork. Looming over Bush's nomination of David Souter was a different nomination that had happened three years earlier.

President Ronald Reagan nominated Bork to the Supreme Court in 1987, resulting in some pretty infamous confirmation hearings. Up next, we continue our coverage of today's hearing. Committee Chairman is Joseph Biden of Delaware. Judge, welcome back.

Committee will come to order. Before Bork even opened his mouth to speak, then-Senator Joe Biden told the committee he was concerned. And you are no ordinary nominee, Judge. You've been recognized as the leading, a leading, perhaps the leading proponent of a provocative constitutional philosophy. A philosophy called originalism.

Bork explained his interpretation of it in his opening statement. How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. Democrats thought his theory would lead to dangerous conclusions on the ground. Robert Bork's America is a land in which Blacks would sit at segregated lunch counters.

Women would be forced into back alley abortions. And one of their biggest fears was that he'd overturn Roe v. Wade.

When Bork was asked about the right to an abortion, he was honest. I don't mean, Senator, to try to offer anybody some hope that I would find that constitutional right. He didn't say much to assuage their concerns. I think Judge Bork at that time made the mistake of thinking that his confirmation process was an opportunity to discuss the philosophical pluses and minuses of a lot of critical issues. John?

John Sununu again. And the Democrats jumped on that to make him sound like a radical through a process of attack that nowadays is recognized as being borked. I've never understood when people say he was borked, like something unfair happened to him. Former Souter clerk Judge Rubin. I think he accurately represented his views at the hearings.

And a majority of the Senate decided they didn't want him to be on the Supreme Court. All of the Democrats and six Republicans rejected Bork's nomination. It became a bit of a cautionary tale about what happens when a candidate to the Supreme Court is transparent about their views.

When I got to be chief of staff, I was certainly aware that this was something that President Bush had to keep in mind as he made his nominations. I look forward to presenting Judge Souter's nomination to the Senate as quickly as possible. You're listening to the New Yorker Radio Hour. More to come.

I'm Maria Konnikova. And I'm Nate Silver. And our new podcast, Risky Business, is a show about making better decisions. We're both journalists whom we light as poker players, and that's the lens we're going to use to approach this entire show. We're going to be discussing everything from high-stakes poker to personal questions. Like whether I should call a plumber or fix my shower myself. And of course, we'll be talking about the election, too. Listen to Risky Business wherever you get your podcasts.

This is the New Yorker Radio Hour. I'm David Remnick. Our program today is about a Supreme Court justice who quietly changed the nomination process for the justices who came after him. And he helped give us the Supreme Court we have today.

The story comes from WNYC's More Perfect. Now, before the break, we heard about the hearings for Robert Bork in 1987. Bork's nomination failed after he answered Democrats' questions on abortion and other topics maybe a little too directly. And that cast a shadow over the next nomination, which came in 1990, when the liberal judge William Brennan retired with health issues.

I look forward to presenting Judge Souter's nomination to the Senate as quickly as possible. In the summer of 1990, President George H.W. Bush announced his nomination in the White House. And I look forward as well to a fair and expeditious confirmation process.

Helen? Did you ask Judge Souter his views on abortion? Do you know what his views are and affirmative action and all of these things that have become so controversial, the major issues of the day? No, and I had one meeting with Judge Souter. I was very impressed, but in my view, it would have been inappropriate.

to ask him his views on specific issues. Sir, I can follow up. You're not certain in your own mind how Justice Souter will vote? Reporters kept pressing him about this over and over. You all can keep trying all day long to get me to comment on abortion in relation to this nomination. And please stop trying because I'm not going to respond in that vein. President Bush said he didn't ask David Souter about abortion.

But his chief of staff, Sununu, did. I said, David, how would you act on Roe v. Wade? And in his answer, he told me he thinks abortion is an abomination. And then he said, but I don't want to go any further on discussing an issue that may come before the court.

Souter tried to convey to us that he was a conservative on all issues, including the life issue. But Sununu says he remained skeptical. I thought he'd be a decent judge, a good judge, but certainly not necessarily my first pick. What ultimately swayed the president, do you think, toward David Souter? I don't know. I never pressed the president to explain his decision to me.

People certainly thought that Justice Souter had been picked deliberately because he was a movement conservative who just didn't have a published track record. Judge Rubin says, unlike Robert Bork, Souter was a mystery from the start. He hadn't had a decision about abortion or really any major constitutional issue that I can think of. I think he'd only sat one day, heard oral argument one day on the First Circuit.

and not issued any written opinions yet when he was nominated. So, doubtless, people on all sides wondered, you know, who is David Souter?

Welcome back to the hearing, Judge Souter. As indicated before we left, we would welcome any opening statement you have to make for as short or as long as you wish to make it, and then we will begin with questioning. Thank you, Mr. Chairman. I probably should begin by asking if you can hear me as well as I can hear you. Yes, we can, Judge. Okay.

Unlike Bork, Souter did not begin with a high-minded legal philosophy. He began by reflecting on all the press coverage that swirled around him. And with a shout-out to the trees.

that had fallen to make those newspapers possible. Everybody knows who has lived in a small town. He also gave a shout-out to the human beings in his life. First, the ones in his hometown of Weir, New Hampshire. There is a closeness of people in a small town which is unattainable anywhere else. And the human beings he represented as a lawyer. I remember very well a woman whose...

Personal life had become such a shambles that she had lost the custody of her children and she was trying to get them back. And then from those human beings, he zoomed out. The first lesson, simple as it is. To the lessons he would take with him to the Supreme Court. Is that whatever court we are in, whatever we are doing, whether we are on 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. This idea that he wanted to remain close to the humans affected by the law was something we kept hearing from his clerks. One of the most beautiful things that I think he ever wrote

was about the myth of Antaeus. Heather Gerken again. Antaeus was one of these Greek monsters who had enormous strength, but only if he was touching the ground. And Hercules famously defeated Antaeus only by picking him up and holding him so far above the ground that Antaeus lost all of his strength.

And for Justice Souter, that was a touchstone for how judging should work, that you needed to keep your feet on the ground, you needed to be connected to facts and reality in order to articulate those grand generalities of the law. So that is very much the kind of judge he was. If indeed we are going to affect the lives of other people, we had better use every power available

of our minds and our hearts and our beings to get those rulings right. Thank you, Mr. Chairman. Thank you very much, Judge, for a statement that gives us all more insight into you, maybe a little glimpse into your heart. Chair of the committee, Senator Biden, seemed charmed. And then Biden dove into the question of abortion.

But Souter seemed ready for this. Toward the one case which has been on everyone's mind and everyone's lips since the moment of my nomination, Roe v. Wade, upon which the wisdom or the appropriate future of which it would be inappropriate for me to comment.

Souter would not say how he'd rule. And the only thing I can say is, as you know, is that Roe v. Wade is discussing a constitutional issue. Any time Roe came up... There really isn't anything I can say about reconciling it. He just wouldn't answer. If I were to be confirmed...

is just a subject that I cannot discuss without giving misleading suggestions. We need to develop an abbreviated answer so that each time this situation arises, you can just say whatever it is you choose to say in a few words so we don't have to go through the long explanation. Many anti-abortion Republicans thought Souter was skillfully avoiding saying how he really felt. But when the time came, Souter would know what to do.

And John Sununu said, famously, this nomination is a home run. I respected the president's decision, and I wholeheartedly supported David Souter in all my public comments. On the basis of what he told me, I believed he was going to be a home run. And that excited the conservative base, I think, and worried liberals. There were these posters that abortion rights groups...

had come up with that said, stop Souter or women will die. Despite fears from abortion rights advocates, Justice David Souter was confirmed by the Senate overwhelmingly by a vote of 90 to 9. Souter was sworn into the Supreme Court on October 8th, 1990. And President Bush and all the other Republicans watched as their stealth candidate began to make decisions on the Supreme Court

and reveal who he was. Well, I think any first year for a justice is pretty difficult. Souter's biographer, Tinsley Yarbrough. On the surface, not much happened that first year. The decisions he wrote were pretty uncontroversial to the Republican Party. I remember, for example, the court upheld a ban on nude dancing.

Up next on Supreme Court Review, the court is being asked to decide if nude dancing is conduct or expression protected by the First Amendment. Souter wrote a concurring opinion in which he joined...

And so Republicans would have said to that, like, yes, this man's a home run kind of thing. Like that was in line with what... Right, right. Yeah. That was the case. No nude dancing. On the outside, it seemed this was a home run. On the inside, Souter seemed to be going through something.

The summer after his first year, Souter wrote a letter to Justice Blackmun and said, quote, I have wanted as much as possible to be alone, to come to terms in my own heart with what has been happening to me. What do you think he meant by that? Well, I think it was all pretty overwhelming to him.

The nomination itself and the press attention that he got was just over the top. Earlier today, the Supreme Court of the United States heard arguments in the case of Planned Parenthood v. Casey, an abortion case from Pennsylvania. Planned Parenthood v. Casey.

Bob Casey was the governor of Pennsylvania. A Pennsylvania statute sought to protect fetal life by adding requirements for people who wanted to get an abortion.

Patients needed to inform their spouse, to give informed consent, and wait 24 hours before getting the procedure. Planned Parenthood sued the governor, saying the law violated Roe v. Wade. It is our view that the question before the court is whether or not Roe v. Wade remains the law of the land. Peter Rubin was a suitor clerk at that time. By the time of Casey in 1992...

It was thought that there were at least five votes on the Supreme Court to overrule Roe. Souter was thought to be that fifth vote, Sununu's home run to overturn Roe. He had been a fairly conservative justice on the New Hampshire Supreme Court. He was a very typical, moderate, conservative judge and what had once been a quite normal kind of Republican.

Souter thinks judges should be hesitant to make any sudden moves. Souter is not an activist. And he thinks that courts are very important because they're a moderating force on society, so that courts can try to tamp down partisan conflict. His clerk, Kermit Roosevelt, says this idea sort of ran in Souter's family.

Souter had a New England ancestor who was a town magistrate or some kind of judge. And as the Salem witch trials were going on, the hysteria was sort of spreading from town to town. And someone came to him and said, you know, this girl is a witch, just like in Salem, you know, and we're going to put her on trial. And his ancestor just looked at the man and said, there will be none of that here.

and refused to let that hysteria take hold of the town and refused to let that kind of persecution start. And that, I think, is sort of what Justice Souter thought courts were supposed to do.

Justice Souter valued stability. It's a very modest approach to judging. Former clerk Heather Gerken again. The justice is a common law judge. Common law is the law developed over centuries by judges looking at similar kinds of questions and building out the case law over time.

So it's not a top-down, I am the great philosopher and I will command from on high and thus and so shall be the principles. And I think you see that most clearly in

in the opinions where he is focused on the question of stare decisis. Stare decisis. It's the fancy Latin phrase for the idea that courts should try to uphold the decisions that came before them, follow precedent. Justice Souter takes precedent very seriously, in part because...

He values stability, but I think it also shows the extent to which he thinks that courts are important and individual judges aren't. He doesn't think that he's better or smarter than the judges who went before him. We know that precedent was on Souter's mind when he sat down to write the Casey opinion.

In the exchanges of the justices, memos that were going back and forth, it's very clear that he, whatever his personal view about Roe v. Wade and the abortion right, it was very clear to him that the court had no business reversing the Roe decision. And he wanted to find some way of getting the court to avoid a reversal.

Planned Parenthood of Southeast Pennsylvania versus Casey in a companion case will be announced by Justices O'Connor, Kennedy, and Souter. The opinion was announced and written in a pretty unusual way. There were three bylines. All people who were originally put there by Republican presidents fully co-authored the opinion. Lots of people thought that Roe was going to be overturned. So it was a moment of high drama.

Justice Sandra Day O'Connor went first. Justice Kennedy, Justice Souter, and I have filed a joint opinion, and we conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

Surprising everyone, this plurality opinion preserved the fundamental right to abortion. We reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undue interference from the state.

Justice Souter wrote the part of the opinion talking about respect for precedent. Here's Justice Souter. "The foundation for our decision today is the conclusion that if there was error in Roe, its significance is outweighed by the importance of following prior precedent. Stare decisis is necessary not only to accomplish the mundane tasks of any legal system, but to realize our hope for a stable society aspiring to the rule of law."

Like the character of an individual, the legitimacy of the court must be earned over time. If the court's legitimacy should be undermined, the country would also, in its very ability to see itself through its constitutional ideals. It's worth noting, the justices did open the door to significant limits on the right to an abortion. They allowed governments to restrict the right with things like a 24-hour waiting period,

But at the time, the headline across America was Roe Holds. The nation was watching Justice Souter.

After the questions raised by his confirmation hearings, the public finally had an answer. His co-authorship of Casey told everyone, you know, this is who he is. This was not good news for Bush chief of staff John Sununu. Do you remember what people were saying to you when the Casey decision came down? Yeah, you blew it.

I thought David was going to be a good judge on the Supreme Court and tried to support the president's decision wholeheartedly in all of my assurances to the conservative groups around the country. I was so consistent and so aggressive in that direction is one of the reasons I really feel betrayed. I think it's something he planned all along, to be deceptive during this process, to very clearly obfuscate

the real positions he had on the life issue, the Roe v. Wade issue. What I'm hearing you say is that you think he was being deceptive out of ambition for wanting to be on the Supreme Court? Exactly right. Souter's clerk Rubin says there's nothing deceitful about the way he ruled. I think if you go back now and read Justice Souter's testimony at his confirmation hearing, you'll find that every word of it is truthful. ♪

Casey wasn't the only decision that term where Souter disappointed conservatives. That same year, he joined the majority in ruling that prayer in public schools violated the separation of church and state. But the abortion decision seemed to be the biggest disappointment. Coming away from Casey, how do you think the public's image of Justice Souter changed? Well, that's what gave rise to the no more suitors meme.

I don't think we had memes then. But I think they did have posters that said, "No more suitors." No more suitors. No more suitors. No more suitors. Justice David Souter, someone who was appointed by a Republican president, ended up being a vote for the liberal side of the Supreme Court. The slogan, the mantra within the Republican Party was, "No more suitors." So, you know, first we had our "Stop Souter or Women Will Die" posters, and then we had our "No more suitors" posters, because the Republicans realized they hadn't gotten what they wanted.

No more suitors means we're going to know how this person's going to vote. We're not going to get disappointed or surprised again. This is the New Yorker Radio Hour. Our story continues in just a moment.

I'm Maria Konnikova. And I'm Nate Silver. And our new podcast, Risky Business, is a show about making better decisions. We're both journalists whom we light as poker players, and that's the lens we're going to use to approach this entire show. We're going to be discussing everything from high-stakes poker to personal questions. Like whether I should call a plumber or fix my shower myself. And of course, we'll be talking about the election, too. Listen to Risky Business wherever you get your podcasts.

This is the New Yorker Radio Hour. I'm David Remnick. Our program today is a special episode produced by More Perfect, WNYC's Supreme Court show. And it's about the lasting influence on the court of retired Justice David Souter. Souter's influence wasn't an imposing judicial philosophy or a momentous decision. That was never Souter's style. But he set the pattern for how justices get to the bench in a closely divided Senate.

Souter was thought to be a staunch conservative, but he consistently deflected questions about his views before and even after his appointment to the Supreme Court. So hardly anybody, Democrat or Republican, felt compelled to vote against him. And then he massively disappointed Republicans by upholding Roe v. Wade in the 1992 Casey decision. Here's the final chapter of our story.

The power of the no more suitors rallying cry was on display in 2005 when Sandra Day O'Connor announced her retirement. This morning I'm proud to announce that I'm nominating Harriet Ellen Myers. President George W. Bush nominated Harriet Myers, a lawyer friend of the Bush family.

And immediately, Republicans raised a red flag. She was a David Souter. No more Souters. An unknown, unpredictable, stealth candidate. While she seemed conservative, Myers' views on key conservative issues like abortion weren't totally clear. Harriet Myers would be another David Souter, kind of an indistinct, even liberal justice. A reporter called her Souter in a skirt.

Amidst all the pressure, two weeks before her confirmation hearing, Myers withdrew her nomination. And in her place, President Bush nominated the antithesis to Justice Souter, the reliable, staunch conservative judge Samuel Alito. Good afternoon. The Senate Judiciary Committee will now proceed to the confirmation hearings of Judge Samuel Alito Jr. for the Supreme Court of the United States.

Thank you very much, Mr. Chairman. And at the confirmation hearing, you might have assumed Alito would have sounded like Bork, explaining his views on abortion. But Alito took a page from Souter's book. If the issue were to come before me, if I am fortunate enough to be confirmed, the first question would be the issue of stare decisis. He hedged and talked about stare decisis.

And in the years since then, a strange thing has happened. When it comes to talking about abortion, Justice Neil Gorsuch... Precedent is a key part of that because... Justice Brett Kavanaugh... As a judge, it is an important precedent... They also took a page from Souter's book in their confirmation hearings...

One of the really funny things about Souter, I think, is that his confirmation hearings became kind of a model for what judges say because he sounded so moderate and reasonable and modest. Here's Souter. I have not made up my mind. And here's Clarence Thomas just a year later. I have not made Senator Souter.

A decision one way or the other. And here's Amy Coney Barrett. Again, I can't pre-commit or say, yes, I'm going in with some agenda because I'm not. I don't have any agenda. I have no agenda to try to overrule Casey. All of them went on to overturn Roe and Casey. Judges after Souter say much the same thing, but he really meant it. And I think that many of the people who came after him didn't.

I think the suitor disappointment and what happened before him with Bork was the red flag, if you will, to conservatives. This is John Sununu again. The beginning of a message that...

that Supreme Court seats are important. The Democrats may have recognized before conservatives how important they were, but conservatives now understand they are important and they're involved much more aggressively in the process and devoting more time and more assets to preparing well and to dealing with the nominations when they come to the Senate for confirmation.

And frankly, I think it was a major impetus, among other things, for the efforts of groups like the Federalist Society that put together a list of judges for Trump and so on. Throughout his career, Justice Souter kept defying expectations. And he kept disappointing Republicans. He voted to uphold affirmative action and the Voting Rights Act.

It was reported that he drafted a blistering dissent in Citizens United, which was never published. And in the Bush v. Gore election, he rejected Bush's request to stop counting votes. Which brings me to one final story I heard about Justice Souter. Souter was apparently a mess after Bush v. Gore. NPR politics reporter Ashley Lopez said,

She heard that the politicized way the court ruled in that case was part of the reason Justice Souter decided to retire. And in fact, he almost resigned because of the ruling. And he would like cry sometimes, like wept. One journalist said Justice Souter was shattered by Bush v. Gore.

Look, I have no idea. Former Souter clerk Judge Rubin is skeptical about this story. I've seen him since then. He's not shattered. You know what I mean? But I put the story to Kermit Roosevelt, who clerked for Souter just a year before Bush v. Gore. Do you know what happened behind the scenes? Um, I don't know if I can really talk about that. Yeah? Why not? Um...

I don't know if he would want me to. Yeah. I mean, so I can tell you, generally speaking, Bush v. Gore was upsetting to Justice Souter. And I think he's said that publicly because it looked as though the justices were behaving as partisans. And partisanship is what Justice Souter most firmly believes should not be a part of judging. So I'm

I think it shook his faith in the institution. I think that no more suitors is sort of a poignant phrase because there aren't justices like David Souter anymore. But I think that justices like David Souter are what we need. I hear like a certain like wistfulness or disillusionment in your voice when you talk about him. I do feel sad because I think we do see the court

tending to take extreme positions and amplify rather than reduce partisan conflict. Justice Souter is sort of an example of what we could have been the way that the court could have been. That kind of justice is exceedingly rare nowadays. I could say one thing, which was... That's the so-called Souter whisperer, Heather Gerken again. When he retired...

I remember thinking two things. So first, that it was really sad for the court to lose someone so wonderful and such a great judge. He had a clear North Star, and he never wavered from it. He always did what was ethical, and it made you believe that it was possible to do and still live in this complicated world, in this complicated profession, with these complicated jobs. And he had served...

Heather Gerken of Yale Law School, speaking on WNYC's More Perfect, which you can find wherever you listen to podcasts. Okay, here we go. Chambers of Justice Suitor. And then it says, parentheses, retired. Dated July 14th, 2023. Now there's an epilogue.

David Souter never replied to the request by More Perfect for an interview, which is pretty much what they expected. But after months and months and months, a letter came, and it was addressed to the host, Julia Longoria. Julia took a deep breath, she pressed record, and opened the letter. Dear Ms. Longoria, I'm so far behind in correspondence that I'm afraid you will think I'm unappreciative of the generosity of your letter broaching the possibility of an interview.

That is not the case. Nor do I mean to imply any failure to feel thanks for your kindness when I ask you to excuse me from giving the interview that you requested. From my earliest days as a judge, I have felt that we should explain why we are taking the positions that we take by what we write in our opinions. And beyond that, and beyond... Sorry.

I have felt that we should explain why we are taking the positions that we take by what we write in our opinions, and beyond that should not be engaged in public self-justifications.

As a consequence, I have made no further comment with only two exceptions in the course of my career. On the one occasion that I accepted an honorary degree, I gave a speech to a college commencement audience, and a few months ago, I gave an interview to two students from my old high school who had the job of introducing me at a ceremony of unveiling a plaque recognizing me as a former member of the school. I hope you will be as generous in tolerating my reticence as you were in your letter to me. Yours sincerely,

David Souter. This is the New Yorker Radio Hour. Hope you have a great holiday weekend. Thanks for listening. See you next time.