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Another David Souter?

Speaking on the Fox News Sunday program, C. Boyden Gray of the Committee for Justice said that he would support Alberto Gonzalez if President Bush nominated him for the Sandra Day O’Connor vacancy on the Supreme Court. Yet, as a member of the Texas Supreme court, Gonzales allowed a teenager to get an abortion without notifying her parents despite the state’s notification law. That is a big problem for many conservatives.

Gray is an articulate spokesman for nominating judicial nominees of a “constitutionalist” persuasion.”  But he was also White House counsel for the first President Bush, who nominated David Souter for a seat on the court. Gray was described at the time as someone who helped “coordinate” the Souter nomination, and Souter was sold to conservatives as a fellow conservative. But Souter turned out to be a solid member of the court’s liberal bloc. Gray says that Souter was a surprise and that there was no way in advance to know that he would turn out to be so liberal. He describes Souter today as a “consistent liberal.” Indeed, as Gray notes, Souter would vote to uphold the pro-abortion ruling, Roe v. Wade, and to lay the groundwork for court-ordered homosexual ‘marriage.'”

One has to consider the possibility that if Gray was wrong about Souter, he could be wrong about Gonzalez.

One conservative, Howard Phillips of the Conservative Caucus, opposed Souter from the start and is one of the few who had correctly analyzed his record and predicted how he would turn out. Phillips discovered that Souter had voted to permit abortion at a hospital in New Hampshire on whose board of trustees he served. On that basis, Phillips opposed him. Souter’s pro-abortion record was an indication that he was liberal on other social issues.

Some conservative Senators were saying that Gonzalez would be acceptable. But it’s important to look at their records, too. Phillips notes that only three Republican Senators voted to oppose the confirmation of Ruth Bader Ginsburg, a former general counsel for the ACLU nominated to the court by President Clinton; only nine voted against Stephen Breyer, also nominated by Clinton; and no Republican Senator voted against confirming either pro-abortion David Souter or pro-abortion Sandra Day O’Connor. “The positions of both of these nominees were a matter of public record when the Senate placed them on the Supreme Court of the United States,” Phillips noted.

Phillips had also predicted that O’Connor, a Reagan nominee, would turn out to be pro-abortion on the court. He noted that she was a pro-abortion member of the Arizona State Senate and a liberal judge on the Arizona Court of Appeals.

“She was chosen because of her gender and a desire to attract to the GOP the support of feminists,” he said.

Phillips suggests that Bush pick former Alabama Supreme Court Chief Justice Roy Moore to replace O’Connor. Moore was named “Person of the Year” by Human Events newspaper for displaying a Ten Commandments monument in an Alabama courthouse and refusing to take it down.

In any case, it will be interesting to see if our media cover the views of people like Howard Phillips after President Bush makes his pick to replace O’Connor.  A July 3 story in the New York Times noted that O’Connor turned out to be a “major disappointment to the right.” But those on the right who were disappointed are those, like C. Boyden Gray in the Souter case, who were admittedly mistaken about his real record. Gray may have been surprised by Souter, but Howard Phillips was not.