From Left: Supreme Court nominee David Souter, Senate Judiciary Chairman Joe Biden, and New Hampshire Senator Warren Rudman meet in Washington, July 26, 1990. Photo Credit: Arnie Sachs via Getty Images
By David Kurlander
Last week, the New York Times reported that Supreme Court nominee Amy Coney Barrett added her name in support of an Indiana “Right to Life” ad in 2006. The signature offers a clue backing the thesis that Barrett may vote to overturn Roe v. Wade, the seminal 1973 Supreme Court abortion ruling that established the constitutional right to choose. In 1990, political debate also raged around then-low-profile Supreme Court nominee David Souter’s ambiguous views on women’s reproductive rights. Behind the scenes, New Hampshire Senator Warren Rudman and Senate Judiciary Committee Chairman Joe Biden took an immensely important pro-choice gamble on Souter…
Republican New Hampshire Senator Warren Rudman considered David Souter to be his closest friend. Rudman, a passionate former boxer who grew up in a Nashua-based Jewish family, became the Attorney General of New Hampshire in 1970 and made young Souter his deputy. In his memoir, Combat, Rudman described Souter as “a very special younger brother.” Souter took over for Rudman after the older man launched his national political career. During the 1980s, Souter became a respected, no-drama state Supreme Court Judge while Rudman gained a reputation as a bombastically independent Republican Senator. Rudman attacked Oliver North during the Iran-Contra hearings. He fiercely criticized evangelical Christians and the rise of the religious right. And he strongly believed in women’s reproductive rights.
As Souter rose through the New Hampshire Courts, Democrats and Republicans were increasingly engaged in ideological warfare over the future of the Supreme Court. In 1987, Delaware Senator Joe Biden replaced segregationist South Carolina Senator Strom Thurmond as Chairman of the Senate Judiciary Committee. Biden was at the same time mounting a run for the presidency. The two missions collided in September, when Justice Lewis Powell retired and President Ronald Reagan nominated Robert Bork to replace him. Biden controversially scuttled the nomination of Bork, who had a long public record of opposition to pro-choice and anti-discrimination law. Amid the judicial drama, however, Biden ended his presidential campaign, unable to devote adequate time to fighting allegations that he had plagiarized biographical details from British Labour Party leader Neil Kinnock. Biden ushered through Reagan’s nomination of the comparatively moderate Anthony Kennedy in Bork’s stead.
Despite expressing lukewarm support for Bork’s nomination, Rudman sympathized with Biden’s political journey, describing him as an “honorable man.” He even filmed an ultimately-unaired Senate campaign ad defending Biden after the plagiarism scandal. Rudman also understood the centrality of the abortion issue in Biden’s distaste for Bork, as he shared many of the same frustrations. “Why had abortion, a common medical procedure that the Supreme Court had ruled legal seventeen years earlier, come to dominate our politics?” Rudman asked in Combat. “I learned it was pointless to meet with anti-abortion groups, because they couldn’t discuss the issue objectively,” he went on. “If you disagreed with them you were a baby-killer.”
In 1990, Justice William Brennan retired, setting up yet another nomination fight that was almost sure to revolve around abortion access. Rudman immediately thought of Souter, who had recently ascended to the lofty U.S. Court of Appeals for the First Circuit. Rudman claims he had never discussed abortion rights with Souter, but he had an inkling that Souter would not move to overturn Roe v. Wade, citing the Judge’s belief in upholding precedent — a legal principle known as stare decisis — and his awareness of the “turmoil that would cause in our society.” Rudman sensed that he could play a role in protecting women’s rights, while elevating a man he loved and trusted to the nation’s highest court.
Rudman called President Bush’s militantly conservative Chief of Staff, John Sununu (who he knew well from Sununu’s days as Governor of New Hampshire), to sing Souter’s praises. President Bush agreed to nominate Souter, and Rudman served as his primary booster to the Judiciary Committee. Rudman even accompanied the Judge to meet Biden, who grilled him about his legal philosophy for over an hour. Souter did not offer any clues as to his perspective on abortion, though Biden certainly knew where Rudman stood.
Within days, journalistic gossip and liberal backlash to the nomination began to grate on Souter. Major outlets—from TIME to the Washington Post—insinuated that Souter, a 50-year-old bachelor—was gay. Meanwhile, women’s rights groups and LGBTQ+ organizations positioned Souter as another Bork, holding protests outside of the Senate and urging Democrats to vote against him. “The problem David had is everybody thought John Sununu had wanted him,” Rudman later told the Miller Center. The pressure overflowed one night shortly before the formal hearings began. Bob Woodward later reported that Souter—over dinner with Rudman—tried to call President Bush and ask for his nomination to be withdrawn. Rudman physically restrained Souter, arguing “It’s your destiny to serve on the Supreme Court.” Souter relented, and the two men sipped whiskey and cooled down.
During his confirmation, Souter—as is the custom for cases that could come before the Court—declined to discuss Roe v. Wade. Senator Howard Metzenbaum, however, asked him if he considered how an unwanted pregnancy felt. Souter responded by telling a story of counseling a Harvard freshman during his time as a proctor in law school. She was considering a self-abortion. Souter refused to reveal what he told her, but ended his story by saying, softly, “I know what you were trying to tell me, because I remember that afternoon.” If he was evasive, he also appeared compassionate. Biden was not ebullient, but he certainly did not “Bork” Souter, and the Senate confirmed him by a vote of 90-9.
Almost two years later, the Supreme Court heard Planned Parenthood v. Casey, a case about Pennsylvania’s abortion restrictions that offered the Court an opportunity to overturn Roe. Souter seemingly played a fundamental role in convincing the two other swing Justices—Kennedy and O’Connor—to write with him a plurality opinion that upheld the “essential holding” of abortion access. Roe was reaffirmed.
When Rudman heard the news, he was traveling by train to Wilmington, Delaware, to speak at a forum sponsored by Biden. “When I got off the train,” Rudman wrote in Combat, “the platform was packed with commuters. At first I didn’t see Joe, then I spotted him waving at me from far down the platform…We started running through the crowd toward each other, and when we met we embraced, laughing and crying. ‘You were right about him,’ he kept saying. ‘Did you read the opinion? You were right!’”
Rudman’s last words of the chapter evoke a spirit of bipartisanship and a belief in human rights that echoes dramatically into our moment. “People stared at us as if we were crazy, but we just kept laughing and yelling and hugging each other, because sometimes there are happy endings, even in politics.”
For another fascinating perspective on this episode, read Bob Woodward’s full account in his 1999 Shadow: Five Presidents and the Legacy of Watergate. UPDATE: In December 2021, Woodward also published the excerpt in The Washington Post.
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