Comment: Supreme Court nomination may have saved Roe in 1992

David Souter, who would prove to be the swing vote in a case, nearly withrdrew his nomination in 1990.

By Bob Woodward / The Washington Post

The Supreme Court this past week heard oral arguments over a Mississippi abortion law in a case that poses the starkest challenge to Roe v. Wade since 1992’s Planned Parenthood v. Casey. That case saw a 5-to-4 vote to reaffirm the constitutional right to abortion, though it did allow states to establish some restrictions.

But Casey might not have turned out that way. In 1990, when the liberal Justice William Brennan retired, court-watchers anticipated another move against Roe. President George H.W. Bush’s White House considered several candidates for the open seat: Clarence Thomas, whom Bush would nominate to the high court in 1991, was seen as too inexperienced as an appeals judge. Kenneth Starr, then the solicitor general and later the independent counsel investigating President Bill Clinton, didn’t seem conservative enough. Instead, Bush opted for David H. Souter, a 50-year-old federal appeals court judge in New Hampshire, who the administration believed would back abortion restrictions at the court. Moderate Sen. Warren Rudman, R-N.H., Souter’s best friend, was his champion in Washington.

This account of Souter’s confirmation — and how he came to be the swing vote that saved Roe in 1992 — was originally published in my 1999 book, “Shadow.” It’s based on recorded interviews with Rudman, now deceased, and with Bush White House officials.

Bush nominated Souter. The press began to investigate. In an Aug. 6, 1990, cover story on Souter, Time magazine reported on “speculation that Souter is homosexual.” The Washington Post in a Style section profile noted that there was “a flurry of speculation that the Supreme Court might be getting its first gay justice.” There were never any specifics or details, simply that the bookish, gentle Souter and his lifelong bachelorhood seemed to fit the stereotype.

Rudman was outraged. He had known Souter for 20 years. The printed rumors were irresponsible and reflected a grotesque intolerance; not just for homosexuality but toward anyone who might choose to live alone and differently. Rudman was convinced that Souter loved the law and his privacy above all else. It would be monstrous if this issue somehow became part of the Senate or public debates. Rudman had already dropped everything to focus on his friend’s nomination. He made it his single cause, escorting him for personal sessions with most of the 100 senators, counseling him and pouring his considerable energy into getting his friend confirmed. Before the formal confirmation hearings were to begin in September, Souter and Rudman got word that a New York gay newspaper was planning an “outing” of Souter’s alleged secret gay life.

That night, Souter and Rudman went to the senator’s apartment at the Harbour Square in Washington, overlooking the Potomac River. Souter had a salad, Rudman a sandwich. Souter was unusually quiet. About 10 p.m., his frustration spilled out.

“If I had known how vicious this process is,” Souter told his friend, “I wouldn’t have let you propose my nomination.” He wished he had not accepted the nomination. It had been a mistake. The anguish of scrutiny was too great a price to pay. Souter said he was going to phone Bush and insist that his nomination be withdrawn.

Rudman was beside himself. He argued forcefully that Souter had to be tough. He should not throw away the nomination on these side issues, even though they might strike at his soul.

At that moment, the future of Roe v. Wade hung in the balance. The newest member of the Supreme Court was likely to be the deciding vote. The court had four members hostile to Roe, and Bush was nominally in favor of overturning it. Although Rudman maintained that he had not talked directly with Souter about Roe, he was certain that Souter would not vote to overturn the decision if he made it to the high court. Rudman, who was pro-choice, felt strongly that abortion was in part a matter of compassion, and he believed that Souter was compassionate and would see the brutality in taking away a women’s right to choose abortion. Rudman also knew that Souter believed in the principle of not overturning Supreme Court precedents unless there was an overwhelming argument. For practical purposes, Rudman was planting a pro-choice mole on the high court. Much more than Souter’s future was at stake.

But Souter was determined to withdraw.

“It’s your destiny to serve on the Supreme Court,” Rudman argued. “This is your destiny. The court needs you.”

No, Souter said, he was taking himself out. He was going to call Bush that moment, and he moved toward the telephone in the small third-floor apartment.

Rudman, a large man who had served in combat during the Korean War, grabbed Souter’s small, wiry frame and restrained him physically.

Souter resisted, trying to make his way to the telephone. Rudman felt he had no choice. He physically held onto his friend or blocked his access to the phone for what seemed like nearly an hour. Wait, ride it out, think, Rudman argued vehemently. His phone was not going to be used to withdraw. Souter, for all his mildness, was tough and he fought back. He eventually had a Scotch, and Rudman, still keeping him from the phone, drank a bourbon. It took hours before the storm finally passed. By 3 a.m., Souter had agreed to stay and fight.

When Bush heard indirectly that Souter had almost withdrawn, he shuddered. What in the world was happening to America? The gay newspaper never published an article, and nothing concrete ever surfaced about his alleged sexual preference, but what if it had?

At his Senate confirmation hearings, Souter declined to take a position on Roe, but he explained his understanding of the duties of a judge and a justice of the Supreme Court in what he called the “stewardship of the Constitution.” He added: “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. … We had better use every power of our minds and our hearts and our beings to get those rulings right.”

The Senate confirmed Souter by a vote of 90 to 9.

Two years later, Souter and two other justices wrote a highly unusual three-justice signed opinion, joined by two others, upholding Roe v. Wade. Rudman was coming back from New York by train the day the decision in Casey was announced. He was overjoyed, certain that Souter had played a pivotal role. The efforts of the Reagan and Bush administrations and the religious right to overturn Roe were probably defeated forever, Rudman calculated. In the train station, he ran into Sen. Joe Biden, D-Del., who had chaired the Senate Judiciary Committee during the Souter confirmation hearings. Biden was equally delighted that Roe had been affirmed. The two senators embraced, laughed, yelled and even cried.

“You were right about him,” Biden said. “Did you read that opinion? You were right!”

Twenty-nine years later, Biden still supports Roe. But he may be the president when it’s substantially altered; or even overturned.

Bob Woodward is an associate editor at The Washington Post.

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