A pleasant and courtly man, Souter made his enemies honestly.

David Souter has died at 85. Just as Sandra Day O’Connor was the Supreme Court’s last politician and Byron White was the Court’s last moderate Democrat appointee, Souter was most likely the last of his kind: a liberal Republican appointee. Even the most moderate subsequent Republican-appointed justice, Chief Justice John Roberts, is significantly to Souter’s right.

Republicans, boxed entirely out of the Court by Franklin D. Roosevelt (between 1945 and 1952, all nine justices were Democrat appointees), were burned by a series of their own nominees who ranged from socially liberal moderates to across-the-board liberals: Earl Warren, John Marshall Harlan II, William Brennan, Charles Whittaker, Potter Stewart, Warren Burger, Harry Blackmun, Lewis F. Powell Jr., John Paul Stevens, O’Connor, Anthony Kennedy, and Souter. The only really reliable conservative on the Court before Antonin Scalia’s nomination in 1986 was William Rehnquist. Most notoriously, five of the seven members of the Roe v. Wade majority were Republican appointees.

There were a variety of reasons for this. Some of those choices were for political reasons: Dwight Eisenhower owed Warren for his support at the 1952 convention and picked Brennan to shore up his Northeastern Catholic support in 1956. Some, such as Burger, were chosen with a narrow focus on being tough on crime. Others, such as Blackmun and Kennedy, were replacements for more conservative choices rejected by the Senate. O’Connor was picked to satisfy Ronald Reagan’s campaign promise to choose a woman. Perhaps most significantly, only three of them (Warren, Harlan, and O’Connor) were confirmed by a Republican-controlled Senate. In fact, not since Clarence Thomas in 1991 has a Supreme Court justice been confirmed by a Senate controlled by the opposite party; Democrats haven’t gotten a nominee through a Republican Senate since 1888, and that was the first time they did.

Particularly after the “Borking” of Robert Bork in 1987 (led by Ted Kennedy and Joe Biden) brought ideological critiques of the nominees out into the open, Republican presidents adopted a strategy of looking for “stealth nominees” who had little paper trail of judicial decisions and academic writings to pick apart. Souter, nominated in 1990 to replace Brennan, was the ultimate stealth nominee, a soft-spoken, reclusive, colorless bachelor with no major red flags (from a liberal point of view) in his twelve-year judicial record, most of it on the New Hampshire state courts. George H. W. Bush didn’t set out to put a liberal on the Court, but he was willing to take the risk, and that left him vulnerable to staffers such as White House Chief of Staff John Sununu (Souter’s fellow New Hampshirite) who had a pretty good idea of what Bush was getting. Democratic interest groups gave Souter the generic Republican treatment, with the National Organization for Women printing “Stop Souter or Women will Die” buttons with an image of a coat hanger, but it didn’t fly, and he was confirmed 90-9. Even Biden voted for him; Ted Kennedy and John Kerry didn’t.

Souter’s subsequent liberal record on the Court — including voting to sustain Roe in 1992 in Planned Parenthood v. Casey — made his name a conservative rallying cry of “no more Souters.” The stealth nominee strategy came to an abrupt end in 2005 after conservative opposition forced George W. Bush to abandon Harriet Miers, his White House counsel with a scant paper trail, and instead send the Republican-controlled Senate the nomination of Samuel Alito, who already had a long judicial track record that included ruling on the Third Circuit in favor of the pro-life law struck down in Casey. It seems unlikely that either party will attempt anything like the stealth-nominee strategy again.

A pleasant and courtly man, Souter made his enemies honestly, over judicial rulings. He was never as much of an activist liberal as Brennan, and wrote some important pro-business decisions on issues such as the procedural standards for dismissing a case on the pleadings. But he also chose to retire in 2009, giving Barack Obama the opening to put Sonia Sotomayor on the bench in his place. For years after leaving the Court, he remained active in sitting on federal appeals panels, still handing down decisions. R.I.P.