TIME: Almanac 1993/TIME Almanac 1993.iso/time/080690/08061010.000

Text File | 1992-08-28 | 15.3 KB | 307 lines

                                                                                NATION, Page 19

COVER STORIES

An 18th Century Man


David Souter is a flinty New Englander with a love of books and
a reverence for legal precedent. He has plenty of brains, but
does he have a heart?

By MARGARET CARLSON/WASHINGTON -- Reported by Dan
Goodgame/Washington and Melissa Ludtke/Boston


    In this the age of shameless self-promotion, Supreme Court
nominee David Souter comes onto the national stage as an
oddity. No one knows quite what to make of a man who has a
life, not a life-style, who lives modestly, works hard, spends
inconspicuously, attends church, enjoys solitude, honors his
mother, and helps his neighbors. While part of being a public
official these days is vying for an appearance on Nightline,
Souter is extremely publicity shy, pursuing a life of quiet
introspection.

    When he was named attorney general of New Hampshire in 1976,
Souter decided not to move into the office that went along with
the job. Instead, he stayed put in the adjoining office he had
occupied as the department's No. 2 man and gave the more
prestigious quarters -- and the attention of the press -- to
his deputy, Tom Rath, who welcomed it. Souter labored behind
the scenes and spread the glory around. Then assistant attorney
general Bill Glahn recalls, "If you screwed up, David took the
blame. If you did well, you got the credit."

    That self-deprecating style has made Souter the Nowhere Man,
a tabula rasa in the cult of personality -- and so the perfect
post-Bork appointment. Law-review articles asserting opinions
on controversial subjects? There are none. Sweeping court
decisions? Souter, as a trial and appellate judge, narrowly
ruled on the facts at hand. In Souter, Bush may have found the
last person in America who does not think in opinionated sound
bites. Souter, with his Yankee reticence, does not presume
anyone would be interested in what he thinks if legal scholars
have already thought about it. In that, he may be the answer to
the President's secret moderate dreams: someone conservative
enough to allay right-wing suspicions that he has been
insufficiently sympathetic to their causes but at the same time
unknown enough to keep liberals from finding anything on which
to hang another bruising confirmation fight.

    As it turns out, Souter, like everyone, has a personality,
if not strong personal opinions, and a rich inner life, which
he was able to keep to himself until last Monday. Friends
describe him as a combination of the intellectual, scholarly,
never married Justice Benjamin Cardozo and a tightfisted
solitary cleric. In looks and wit, he resembles comedian Pat
Paulsen; in his 5 o'clock shadow, Richard Nixon. He favors
well-worn suits (black robes are said to add color to his
wardrobe), cheap cars (a 1987 Volkswagen), non-power lunches
(cottage  cheese and an apple) and classical music. His main
indulgence is to go off with his small circle of friends to
Boston for the symphony, with a stop at Goodspeed's, a rare
print-and-book shop in the city. There he purchased the 1850s
print of the Merrimack River and Concord that hangs above the
stereo in his living room. He is an accomplished mimic, doing
a wicked imitation of Meldrim Thomson Jr., the archconservative
former Governor who named him attorney general.

    To call Souter bookish would be like describing the Grand
Canyon as a hole in the ground. In the ramshackle farmhouse
nine miles outside Concord where he has lived since he was 11,
groaning shelves of books on philosophy, history and the law
have won the battle for space. Souter jokes that the room looks
like "someone was moving a bookstore and stopped." Vacations
are devoted to rereading as much of the work of a particular
author as he can; he has plowed through Dickens, Proust,
Shakespeare and Oliver Wendell Holmes, the legendary Supreme
Court Justice. When he is not reading, Souter is hiking, often
alone. He has climbed all the White Mountains 4,000 ft. or
higher, and in one day hiked the 25-mile-long trail that
crosses over the Presidential Range. His habits include
attending services at St. Andrew's Episcopal Church in
Hopkinton, where he prefers the 1928 prayer book to the 1970s
modernized version. His close friend from Oxford, Dr. Melvin
Levine, who now teaches pediatrics at the University of North
Carolina Medical School at Chapel Hill, says of Souter, "You
really feel as if you are with one of our Founding Fathers."

    Like other aspects of his life, the unmarried Souter's
social activities resemble those of an 18th century gentleman,
when an unmarried relative was often the backbone of the
community, with the leisure to do what those with children did
not have time for. Like Henry Higgins, Souter may be happiest
spending "his evenings in the silence of his room; [in] an
atmosphere as restful as an undiscovered tomb."

    But Souter had barely left the podium in the press room of
the White House before Republican Party officials were raising
"the 50-year-old bachelor thing," which was widely interpreted
as a way of introducing speculation that Souter is homosexual.
In fact the question has been dealt with twice: once in 1978,
when Souter was about to be appointed a superior court judge,
and then again in 1983, before he was named a state supreme
court justice by then Governor John Sununu. During law school,
he went out with Ellanor Fink, a student at Wheaton College.
After he became a superior court judge, he dated Anne Hagstrom,
a lawyer in the attorney general's office. She said going out
with Souter was like "knowing someone from another century."
More recently, Souter has dated a woman who works at a Boston
television station.

    The more serious question about Souter's ascetic ways is
whether a man who seems to prefer books to people can empathize
with and understand the problems of ordinary people. Former
state attorney general Steven Merrill says he once feared that
Souter lacked "the social context" to serve as a judge, but
that concern dissipated once Merrill got to know him. Former
girlfriend Fink says, "Having never married, I know everyone
is wondering does he have the empathy to understand women's
issues. He's not all brain. He's a friendly, warm person and
extremely considerate." His former colleague Rath says, "David
is the kind of person who will visit a clerk who is in the
hospital or attend the funeral of the mother of one of his
employees." On Sundays, Souter wheels an aged churchgoer across
the street to the general store to pick up her Sunday New York
Times, and then goes off to visit his mother Helen, 82, who
moved to a nearby retirement home 10 years ago.

    Souter's belief system mirrors that of an aunt, a Simmons
College professor and Cambridge dowager who swam Lake
Winnipesaukee in her 70s, was conservative socially and
politically but liberal in her concern for other people.
Although she was an heiress of the Boston & Maine Railroad who
didn't need the money, she became a pioneering medical social
worker at Massachusetts General Hospital.

    Souter's conservative philosophy alternately pleases and
confuses both ends of the political spectrum and is a reminder
that the label does not belong only to Jerry Falwell and Jesse
Helms. Elizabeth Hager, who led the state's successful 1972
fight to pass an equal-rights amendment, points out that people
outside the state "equate the word conservative with right
wing. We don't do that in New Hampshire."

    That philosophy led Hager to seek Souter's aid when she
wanted to kill a parental-consent bill in the New Hampshire
house of representatives in 1981. In response, he wrote a
letter to lawmakers opposing the bill because it would have
required judges to make "fundamental moral decisions about the
interests of other people without any standards to guide the
individual judge." Last week, as Sununu was hinting to
right-to-lifers that Souter could be trusted, Hager was busy
allaying the fears of members of the National Abortion Rights
Action League. Hager kept repeating, "He has never associated
with pro-life groups. His friends aren't pro-life." His closest
political allies and friends -- Republican Senator Warren
Rudman and Rath -- are pro-choice.

    Souter is the son of an assistant bank manager and a mother
who worked in a giftshop. He attended public elementary schools
and Concord High School, where he managed to be well liked
despite being something of a grind -- voraciously studious,
fastidiously neat, with no time for organized sports.

    At Harvard College, Souter joined Hasty Pudding and majored
in philosophy. He wrote his senior thesis on Justice Holmes'
belief that a judge should not be influenced by either politics
or ideology. He graduated magna cum laude and Phi Beta Kappa.
For a graduation gift, friends put together a scrapbook of
made-up news stories featuring Souter as the lawyer he hoped
to be. One headline read, DAVID SOUTER NOMINATED TO THE SUPREME
COURT.

    He won a Rhodes scholarship to Magdalen College at Oxford.
His classmate Bill Bardel, now a managing director of Shearson
Lehman Hutton, recalls that Souter belonged to a group that
would return so late to their rooms after visiting the local
pubs that they would have to climb a ladder to get over the
locked gates. Back at Harvard Law School, Souter played the
role of courtly gentleman, wearing a three-piece suit to
parties and telling stories in his strong New England accent.
Says Levine: "No one I've ever met is more fun at a party; he
has that British satirical sense of humor, does wonderful
impressions." That hardly qualifies him as a party animal, but
it may have contributed to his failure to make law review.

    After graduating, Souter returned home to Weare, N.H., and
took a job at Orr & Reno, a Concord law firm. But he was not
happy in private practice. In 1968 he took the turn in the road
that would eventually land him in the White House chatting with
the President, by joining the New Hampshire attorney general's
staff. Shortly after Warren Rudman became state attorney
general in 1970, he plucked Souter from a group of assistants
to become his top aide. The thoroughly scholarly Souter soon
became the perfect complement to the gregarious, politically
wired Rudman. The two, along with Rath, who headed Bob Dole's
losing presidential campaign in the 1988 New Hampshire primary,
became best friends. Rath joked that his job in the office was
to go to lunch and "explain to Warren what David had just
said."

    In 1976 Rudman resigned as attorney general and four years
later ran for a Senate seat. Thomson reluctantly went along
with Rudman's advice to appoint Souter to the job. Over the
next two years Souter became involved in several controversial
cases, largely at Thomson's behest. In 1978 Souter's staff
defended the Governor in a suit to prevent him from lowering
the American and state flags over state buildings on Good
Friday. In another Thomson crusade, Souter's staff
unsuccessfully defended the state's attempts to prosecute
residents who for religious reasons covered up the state motto
-- "Live Free or Die" -- on their license tags.

    In those cases, Souter seems to have been acting as a lawyer
putting forth the best argument he could on behalf of his
client. But friends still talk about the zeal Souter brought
to one of the few cases he personally argued as attorney
general: whether the state or the Federal Government had
jurisdiction over Lake Winnipesaukee. Combining his love of New
Hampshire with his passion for history, Souter headed off to
museums and historical societies to dredge up scraps of
information. He spent weeks with ancient maps spread out over
his office, scanning each meticulously to ferret out tiny
differences. When Souter went to Washington to present his
case, he went alone and without notes. His argument -- that
since a boat could not get to the ocean from the lake, it was
not a navigable waterway subject to federal control -- was so
cogent and airtight that the Coast Guard withdrew its claim.
This case added to the legal lore in the state that no one who
is party to a case ever knows more about it than Souter. Says
Merrill: "You can always count on David to have read relevant
cases that you haven't heard of. He'll say, `There's an
interesting line of 17th century British cases that I'm sure
you're familiar with.'"

    But there are few dog-eared tomes from a hundred years ago
to consult on the divisive issues of today. Liberals are
worried that just as Souter spurns gold chains and Club Med
vacations, he will also eschew the "penumbras" emanating from
the Constitution that activist judges have used to find
heretofore unknown protections -- like the guarantee of
privacy, which underlies Roe v. Wade's right to abortion. New
Hampshire Governor Judd Gregg predicts that "Souter won't
graft current ideas or social concerns onto constitutional
law." In a dissent he wrote in 1986, Souter said "the court's
interpretive task is to determine the meaning of . . .
[constitutional language] as it was understood  when the framers
proposed it." A judge cannot be more strict constructionist
than that. On the other hand, Roe v. Wade does constitute
precedent, another principle the conservative Souter holds
dear. Says Fink: "He really reveres the law. He's not someone
who's coming from his personal opinions and then twists the law
accordingly."

    It is this kind of on-one-hand, on-the-other-hand aspect of
Souter's behavior that has thrown the likely combatants over
a new Justice into disarray. Souter gave a commencement address
at Daniel Webster College in Nashua, N.H., in 1976 in which he
called affirmative-action rules "affirmative discrimination"
and said the government has no place meddling in such
initiatives. He flew across the state by helicopter to make
sure protesters who were arrested for demonstrating against the
Seabrook nuclear power plant were forced to serve actual jail
terms rather than suspended sentences. He tends to rule in
favor of the prosecution in criminal trials. But Souter is also
a great supporter of environmental and consumer protection, of
victims' rights, and of giving child abuse and neglect cases
high priority. He let the government in the skinflint state of
New Hampshire know at the end of a suit to recover $206 in
mistaken payments from an indigent that he would not look
favorably on similar suits in the future. At Concord Hospital,
where he served on the board from 1971 to 1985, he did not
object to abortions being performed.

    As the week wore on and Souter came to life, he was
transmuted from a dazed and gray-faced gnome standing awkwardly
beside the tall and tanned Bush into a Yankee original in the
mold of astronauts Alan Shepard and Christa McAuliffe and the
last Supreme Court Justice to hail from the Granite State,
Harlan Fiske Stone. By choosing someone so hard to pigeonhole,
indeed, someone from another era, Bush may have created the
kind of philosophical gridlock he felt he needed to get his
nominee swiftly approved. If Americans are lucky, they will
also get the kind of Justice they need -- someone who looks at
the law of the land with reverence and the people it governs
with respect.