Nineteen years ago, President George H.W. Bush put everything aside to call personally numerous conservative and pro-life leaders around the country. That he lavished such attention on them was unusual, but Bush had campaigned vigorously as a pro-life candidate to succeed President Ronald Reagan in 1988, and the retirement of Justice William Brennan gave him his first opportunity to fill a seat on the Supreme Court.
The fact that it was Brennan’s seat conferred a special significance on the vacancy. After all, Dwight Eisenhower had appointed Brennan by mistake, one which he later lamented. Early in Ike’s first term, his Attorney General, Herbert Brownell, had seen Brennan give a speech to a legal convention. Brownell came back to Washington and told Ike that Brennan was quite a conservative. The only problem: Brownell did not know at the time that speechmaker Brennan was standing in for New Jersey Supreme Court Chief Justice Vanderbilt, who was ill – and that Brennan was reading the text that had been written by Vanderbilt. Ike was looking for a conservative Irish Democrat to help him in the 1956 election, so Brennan got the nod.
Brennan was one of eight children of Irish Catholic immigrants, but he became an ardent champion of abortion – and an effective advocate of Roe v Wade, in which he voted with the majority. Curiously, when he died in 1997, his funeral was not held in his home diocese of Arlington, Virginia. Instead, in spite of protests of chagrin and outrage from the laity, the Archdiocese of Washington allowed him a Catholic burial, and Brennan’s funeral took place in Saint Matthew’s Cathedral in Washington.
Justice David Souter delivered the eulogy.
When Brennan retired, pro-lifers naturally expected President Bush to keep his word and nominate a strict constructionist to the court. That’s why Bush was busily making passionate calls all over the country. “Trust me on this one,” he repeatedly told conservative leaders. Alas, most of them did, some in spite of their better judgment, others ignoring danger signals like the strong support for Souter shown by his friend from New Hampshire, the notoriously pro-abortion Senator Warren Rudman. In the Senate Republican cloakroom, Rudman assured Senators Grassley (R – Ia.) and Helms (R – N.C.), “Chuck, Jesse, David Souter is just as conservative as you are.” (It is clear now that Rudman was either very dumb or a liar. Over the years before and since, he has paraded around Washington, invariably acting as though he were the smartest guy in the room. Draw your own conclusions). Meanwhile, Edith Jones, a young, brilliant, and constitutional judge on the U.S. Court of Appeals for the Fifth Circuit, was waiting in the wings as the most solid conservative choice. But Bush’s chief of Staff, John Sununu, was also from New Hampshire. Ignorant in principle but a skilled tactician, he successfully short-circuited the selection process, with crafty assistance from Rudman, and Souter got the nod.
Enter Howard Phillips, founder and longtime president of the Conservative Caucus. Phillips had battle-tested experience with faux conservatives in Republican administrations who put the stiletto in the back of constitutional initiatives at the critical moment. Their number is legion. And so he alone, of all the conservative and pro-life leaders who had worked so closely and loyally with President Reagan, took the bull by the horns and went to the Senate Judiciary Committee to testify in opposition to Souter’s confirmation.
If He Walks Like A Duck …
It required a sense of bravery, as well as conviction, for Phillips to make his case. After all, the National Organization of Women had testified against Souter the day before, because Souter’s support of abortion was not sufficiently brazen for them. Furthermore, Phillips knew that this was the very same committee, still dominated by Democrats and chaired by Joe Biden, that had savaged Judge Robert Bork when President Reagan nominated him to the Supreme Court in 1987. (Pennsylvania Republican, now Democrat, Senator Arlen Specter was indispensable in that assault).
Phillips began his testimony where he always has in the forty years and more that I have known and admired him: “The Declaration of Independence asserted that ‘we are endowed by our creator with certain inalienable rights,’” he told the committee, “and that, ‘among these are life, liberty, and the pursuit of happiness.’ The Declaration rested on the assumption that there exists ‘the laws of nature and of nature’s God,’” he continued. “Our law system is necessarily rooted in and legitimated by that fundamental recognition of higher authority.”
Based on that bedrock preamble of principle (after all, the truths that Mr. Phillips cited are supposed to be “self-evident”), Phillips zeroed in on the critical issue:
“One moment of truth for Mr. Souter came in February 1973, when, as a member of the board of trustees of Concord Hospital, he participated in a unanimous decision that abortions be performed at that hospital,” Phillips recounted. “It is one thing to intellectually rationalize the case for permitting legal abortions, while still opposing the exercise of such legal authority. It is quite another—something far more invidious, morally—to actually join in a real world decision to cause abortions to be performed, routinely, at a particular hospital.”
For Souter, The Self-evident Truth Isn’t True
But didn’t Roe v. Wade, issued just the month before Souter’s assent to abortions in the Concord Hospital vote, require him to “follow the law”? No way, said Phillips:
“Those abortions whose performance was authorized by David Souter were not mandated by law or court opinion. In fact, laws have remained to this day [1990, 17 years later] on the books in New Hampshire which provide criminal penalties for any ‘attempt to procure miscarriage’ or ‘intent to destroy quick child.’ Indeed, section 585:14 of the New Hampshire Criminal Code establishes the charge of second degree murder for the death of a pregnant woman in consequence of an attempted abortion. Nor were those abortions which Mr. Souter authorized performed merely to save the life of the mother, nor were they limited to cases of rape or incest.”
But might Souter’s Concord vote just have been an isolated mistake? No way. “Similarly, Dartmouth Hitchcock Hospital, which is associated with the Dartmouth Medical School, of which Judge Souter has been an overseer, has performed abortions up to the end of the second trimester,” Phillips testified.
The inescapable verdict? “One must conclude that either Mr. Souter accepts the view that the life of the unborn child is of less value than the convenience and profit of those who collaborate in the killing of that child, or that, despite his recognition of the fact that each unborn child is human, a handiwork of God’s creation, he lacked the moral courage or discernment to help prevent the destruction of so many innocent human lives, when he had the authority, indeed the responsibility, to do so.”
In an ironic and ultimately malevolent way, the pro-abortion committee members were probably heartened by Mr. Phillips’s testimony. Yesterday’s confused and wayward harridans of NOW could not be sure that Souter was their man, but Mr. Phillips’s precise, logical presentation made that conclusion inescapable.
In the years since Roe v. Wade, support for abortion has been demanded of virtually every Democrat: now they are solidly entrenched throughout the government. Self-evident truths have not swayed them. Prayer can. “In the world ye shall have tribulation: but be of good cheer; I have overcome the world.” (John 16:33)