WORLD

PLAYING IT SAFE

BUSH NOMINATES A CONSERVATIVE, BUT ENIGMATIC, JUDGE FROM NEW HAMPSHIRE TO THE SUPREME COURT

MARCI McDONALD August 6 1990
WORLD

PLAYING IT SAFE

BUSH NOMINATES A CONSERVATIVE, BUT ENIGMATIC, JUDGE FROM NEW HAMPSHIRE TO THE SUPREME COURT

MARCI McDONALD August 6 1990

PLAYING IT SAFE

WORLD

BUSH NOMINATES A CONSERVATIVE, BUT ENIGMATIC, JUDGE FROM NEW HAMPSHIRE TO THE SUPREME COURT

He is, from most reports, a paragon of caution. At 50, he lives alone in the same New Hampshire farmhouse where he grew up, a shy, ascetic bachelor who keeps a careful eye on his electricity bills. His lunch usually consists of an apple and cottage cheese, which he brings from home, and his pastimes are intellectual and bucolic: reading, walking the same elderly woman home from an Episcopal church on Sunday and taking solitary mountain hikes. But to White House officials, the very blandness of David Hackett Souter’s personal life was almost as attractive as the fact that, in 22 years as a state prosecutor and judge, he had left almost no “paper trail,” as one of them called it—no scholarly article or speech that pinned down his views on key legal and social issues. Indeed, last week that curiously blank slate won Souter a nomination to the United States Supreme Court by President George Bush, who, faced with his first opportunity to leave his imprint on the nation’s highest court,

seemed equally intent on avoiding controversy.

Bounding to the podium of the White House media room to hail Souter as a keen intellect who would “interpret the Constitution and not legislate from the bench,” Bush seemed slightly out of breath. And with good reason. He had made the choice less than three hours after his first 45-minute meeting with the judge—and

less than three days after he had received word that the exuberant pillar of the court’s declining liberal wing, 84-year-old Justice William Brennan, had resigned after he suffered a mild stroke.

Bush’s haste in filling Brennan's seat on the nine-member court was clearly calculated as a pre-emptive strike against lobbyists preparing to turn the nomination into a bitter Senate confirmation battle over the explosive issue of abortion rights. And most political leaders paid tribute to his political acumen in avoiding what Senate Republican leader Robert Dole had warned could be a “blood bath” in an election year.

But as legal teams pored over 200 of Souter’s past decisions for clues as to how he would rule on abortion and other social issues, the judge remained an enigma whose nomination left neither conservatives nor liberals elated. Indeed, the appointment proved most revealing about Bush himself, who once again showed that he prefers to play the role of a conciliator, not a visionary. Wrote syndicated conservative columnists Rowland Evans and Robert Novak: “By picking Souter, Bush’s characteristic political move was to play it safe, forgoing risks—and rewards.”

For conservatives, the biggest danger in not knowing Souter’s opinions is that he could turn out to surprise them as much as the justice whose high-backed leather chair he will fill. A diminutive Roman Catholic named to the court as an apparently safe moderate in 1956, Brennan stunned the man who appointed him, Republican President Dwight Eisenhower, by turning into a giant of liberalism. Eisenhower later claimed that, during his administration, he had made only two major blunders “and they’re both sitting on the Supreme Court.” Eisenhower’s other mistake was the appointment of Earl Warren, the liberal chief justice who went on to forge the 1960s’ judicial revolution that remade both the Constitution and American society itself. But many legal scholars credit Brennan as the strategist behind the landmark decisions of the Warren court, which extended the guarantees of civil rights to minorities and banned prayer from public schools.

0 trict of Columbia Court of §■ Appeals, who, two weeks ago, g overturned one of the 1989

Even after Warren’s retirement in 1969 and the gradual shifting of the court to the right, Brennan remained the standard-bearer of liberal views. Acclaimed by fellow liberals as the conscience of the court, he became the butt of conservative attacks that challenged his judicial activism and his unswerving opposition to capital punishment. But in the 1980s, after Ronald Reagan appointed four new conservatives to the bench—Chief Justice William

Rehnquist and justices Sandra Day O’Connor, Antonin Scalia and Anthony Kennedy—Brennan found himself leading an increasingly enfeebled liberal minority.

His firmest ally, Thurgood Marshall, the nation’s first black justice, is 82 and in poor health. And at 81, liberal Justice Harry Blackmun has undergone surgery for prostate cancer. Brennan himself had survived cancer in 1978 and a stroke the following year, vowing that he would not give up his lifetime appointment “until the Good Lord says otherwise.” And by the sheer force of his personality and persuasive skills, Brennan had managed to choreograph an occasional 5-to-4 majority.

Blackmun says that the court’s new conservative drift is a natural swing of the pendulum, which could last for the next four decades. But in a television interview last week, the outspoken Marshall made clear just how demoralized he was about the court’s recent shift, especially on civil rights. Asked about Bush’s civil rights record, he declared, “It’s said that if you can’t say something good about a dead person, don’t say [anything at all].” When ABC’s Sam Donaldson pointed out that Bush was very much alive, Marshall replied, “Well, I consider him dead.” He added: “I just don’t understand what he’s doing. I mean, this last appointment is ...” Marshall’s thoughts on Souter’s nomination ended in an apparently indecipherable fury.

Despite the surprise of Brennan’s retirement, Bush has been preparing for the decision that some political scholars call the most important of his 18-month presidency. Shortly after beginning his first term on Jan. 20, 1989, Bush had his top aides draw up a list of possible Supreme Court candidates. At the top of the short list: Texas Appeals Court Judge Edith Jones, a former law partner of Secretary of State James Baker, known for her lawand-order rulings. A close runner-up was Judge Laurence Silberman of the Dis-

1 convictions against former Lt.-Col. Oliver North for his role in the Iran-contra affair and suspended three others.

Bush secretly flew both Jones and Souter to Washington last week to get a sense of their judicial philosophy, hiding them on the upper floors of the White House while he retreated to his private office to make the final decision. One reason Souter’s name did not appear in media speculation over the appointment turned out to be the very factor that helped Bush decide in his favor. The Senate had only approved his appointment to the federal Appeals Court in Boston three months ago, and Souter had not yet had time to wrestle with issues on the national agenda.

Souter has ruled only once on abortion—the issue that divides not only the nation but Bush’s own Republican party—and the case broke no new ground. The President insisted that his decision was not based on a litmus test of the candidate's views on abortion. Still, administration officials said that the issue may have been a factor. Souter’s main advantage over his chief rival, Jones, appears to be that he carried no burdensome abortion baggage that would turn his confirmation hearings into the sort of bruising partisan battle that defeated Reagan nominee Robert Bork three years ago. Indeed, in a slip of the tongue, the President praised Souter’s “clean—er, keen intellect.”

Initially, Souter’s nomination won outspoken support from conservatives who considered him to be the candidate of Bush’s staunchly conservative chief of staff, John Sununu. As New Hampshire governor in 1983, Sununu had appointed Souter to the state Supreme Court. But, as it became clear that Souter’s real champion and mentor was Senator Warren Rudman, a former New Hampshire attorney general regarded as a moderate Republican, doubts swiftly infected the conservative camp. Said Richard Viguerie, a prominent right-wing lobbyist: “The consensus is that we would have preferred someone else—not what we were given.”

At the same time, some liberals and feminists, after examining Souter’s decisions and the details of his staid life in his home town of Weare (population 2,500), were generally optimistic. While sitting on the board of Concord Hospital in New Hampshire’s capital from 1973 to 1985, he reportedly did not object to the hospital’s decision to perform abortions. Some former colleagues predict that, as a classic conservative, he is unlikely to want to overturn women’s rights to have an abortion, as established in the 1973 Supreme Court decision known as Roe vs. Wade.

Indeed, by week’s end, most conversations about Souter centred on how the senators at his confirmation hearings in September will ask a lifelong bachelor, who was engaged, briefly, only once as a young man, about his views on women’s reproductive rights. Not only have abortion-rights groups sent 50,000 letters to their senators demanding that they put the question to him directly, but feminists found an unaccustomed supporter in conservative columnist George Will, who had his own reasons for wanting to see Souter interrogated. Will said that, in another hasty decision, Bush had put Vice-President Dan Quayle “a heartbeat from the nation’s highest political office.” Wrote Will: “It is only prudent to insist that Souter bear the burden of proving that he is not a Quayle—not a cipher recklessly miscast for Bush’s political convenience.” Given that challenge, Souter may well find his long-cultivated caution especially useful as the hearings approach.

MARCI McDONALD in Washington