TIME: Almanac 1993/TIME Almanac 1993.iso/time/080690/08061012.000

Text File | 1992-08-28 | 10.2 KB | 217 lines

                                                                                NATION, Page 16

COVER STORIES

A Blank Slate


Hoping to place a conservative on the Supreme Court without a
bloody confirmation fight, Bush picks a man nobody knows

By RICHARD LACAYO -- Reported by Jerome Cramer and Dan
Goodgame/ Washington and Andrea Sachs/New York


    If there is anything George Bush dislikes more than eating
broccoli, it is taking risks. Thus when he learned on July 20
that Justice William J. Brennan was retiring from the Supreme
Court, Bush immediately recognized that in selecting someone
to fill the vacancy he could be facing one of the biggest risks
of his presidency. He quickly sought to defuse it.

    With the high court poised to tilt decisively to the right
on several inflammatory issues, a nominee publicly committed
to overturning Roe v. Wade, the 1973 ruling that established
the right to abortion, would provoke an outcry from the liberal
forces that derailed Robert Bork's nomination in 1987. But if
the President picked a Justice less inclined to overturn Roe,
right-to-life activists and conservative Republicans already
angered by Bush's retraction of his "no new taxes" pledge would
be enraged. Facing these polarized options, the President
deftly reduced the risk by selecting a Stealth candidate.
Federal Appeals Court Judge David Souter, the President's
choice for the court, has said and written so little about
major constitutional issues that it is almost impossible to
determine how he might rule on them.

    Bush is gambling that the liberal coalition that launched
the fight against Bork will be stymied by a paradox: nothing
could be more difficult than to draw battle lines on a blank
slate. While there is ample evidence of the quality of Souter's
intellect -- magna cum laude Harvard graduate, Rhodes scholar,
Harvard law -- most of his judicial experience has been on New
Hampshire's state supreme court, which is more likely to
consider auto-insurance cases and commercial litigation than
divisive social issues like abortion and affirmative action.
Elevated to the U.S. Court of Appeals in Boston only last
April, Souter has not yet participated in any of its decisions.

    Unable to get a fix on Souter from that sparse record,
activists from both sides of the political spectrum began
combing through what little was known about his personal life
in search of evidence to either calm their fears or justify
their suspicions. Some wondered if the 50-year-old lifelong
bachelor might be gay. (Friends assured them he is not.) Others
speculated that Souter's streak of Yankee independence would
make him a less than reliable vote for either side of the
abortion issue. In a rambling television interview last week,
Justice Thurgood Marshall, a last vestige of the high court's
liberal wing, took the unusual step of sizing up in public a
man who may soon sit alongside him on the bench. Harrumphed
Marshall: "Never heard of him."

    Nor had many on the G.O.P.'s right wing. They would have
preferred an outspoken champion of their cause, like Federal
Appeals Court Judge Edith Jones of Texas, a law-and-order
advocate who was the President's second choice. But they take
comfort from the fact that Bush's pick has the strong backing
of White House chief of staff John Sununu, a former Governor
of New Hampshire who appointed Souter to the state supreme
court in 1983. Says one senior Republican: "There's been a lot
of wink-wink, nod-nod among conservatives who think Souter is
Sununu's guy and therefore can be trusted."

    The swiftness with which Souter was named -- less than 72
hours after Brennan's resignation -- was almost as surprising
as the nominee himself. "The President saw immediately that he
needed to move quickly," says a senior White House official.
"Otherwise, the interest groups were going to take control of
the debate, narrow his options and make confirmation more
difficult." Bush was on Air Force One, preparing to head back
to Washington after a few days of politics and fishing out
west, when he got the news that Brennan was stepping down. After
calling Brennan to accept his resignation, Bush was on the
phone again with Sununu, arranging to round up other senior
advisers for a White House meeting at 8 a.m. the next day.

    At that meeting Bush huddled with Sununu, Vice President Dan
Quayle, White House Counsel C. Boyden Gray and Attorney General
Dick Thornburgh, looking over dossiers on about a dozen
possibilities whom the Administration had singled out over the
past 18 months. Sununu held back during the discussions,
letting Gray and Thornburgh make the case for Souter. After the
group had narrowed the list to about eight candidates, Bush
asked for further specifics on several of them, then retired to
Camp David for the weekend. Sununu went to work behind the
scenes on Souter's behalf.

    His first step was to phone Republican Senator Warren
Rudman, a fellow Granite Stater who is among Souter's closest
friends. According to Rudman, Sununu told him he was "trying
to keep a low profile" on the nomination. He asked the Senator
to fax to Washington a letter on the judge's behalf. It was
included in materials delivered to Bush at Camp David.

    On Sunday Bush narrowed the field to five. They included
Souter, Jones, Solicitor General Kenneth Starr and two judges
on the federal appeals court in Washington -- Lawrence
Silberman, who two weeks ago joined in a ruling that threw out
one of Oliver North's convictions in the Iran-contra scandal,
and Clarence Thomas, the black former chairman of the Equal
Employment Opportunity Commission. Not having met Jones and
Souter, the President asked to have them invited to Washington.

    After Souter was contacted at his office in Concord, he made
three calls in quick succession to Rudman. The first was to
tell Rudman the news. Then Souter quickly phoned again,
inquiring whether it was possible to fly to Washington directly
from Manchester, N.H. ("This is not a guy who travels a lot,"
says Rudman.) Souter called a third time to add that at the
White House he would not discuss how he might rule in future
cases. "They ought to know that beforehand," Souter insisted.
"It might save all of us a lot of time."

    Rudman passed on Souter's message to Sununu, who assured him
that the President could learn what he needed from testimony
at the judge's earlier confirmation to the federal appeals
court and the record of his decisions. After separate
interviews with Jones and Souter at the White House on Monday,
Bush opted for the New Hampshirite, hoping that the judge's
intellect and blue-ribbon resume would offset concerns about
his sparse written record. "I have looked for the same
dedication to public service and strength of intellect
exemplified by Justice Brennan," said Bush. By putting forth
a candidate with such a low profile, the President has shifted
the debate from Souter's record to the matter of what questions
it is appropriate for the Senate to ask him when his
confirmation hearing gets under way. Pro-choice groups were
already pushing last week for a full inquiry into Souter's
philosophy. "Our whole focus now is to ensure [that the
necessary] questions are asked," says Kate Michelman, executive
director of the National Abortion Rights Action League. In the
end, says Kathleen Sullivan, a law professor at Harvard, "the
Senate can probe as much as it wants; Souter is entitled to
stonewall as much as he wants."

    Souter promises that when he faces the Senate Judiciary
Committee at his confirmation hearings in September, he will
reply to their questions with "constitutionally appropriate
candor." When he introduced the judge last week, Bush insisted
that even he did not know the nominee's views on abortion --
a claim that would allow the President to accuse opponents of
subjecting Souter to an unfair "litmus test" if they try to pin
him down.

    Both Republicans and Democrats have contributed to the
deterioration of judicial appointments into political tests of
strength. While the campaign against Bork was the most highly
politicized in this century, it took place only after Ronald
Reagan had loaded the lower federal courts with judges who met
his own tests on abortion, prayer in school, affirmative action
and the separation of powers. Both sides can also point to
history to support their arguments about how Senators should
interpret their constitutional mandate to "advise and consent"
in the process of choosing Justices. Over the years 29
presidential nominees, about a fifth of the total, have failed
to win Senate approval, many of them over questions of
philosophy, not competence.

    Whatever Souter's fitness for the court, his relative
obscurity has prompted many to reflect unhappily that the path
to the high bench may now be open only to candidates who leave
few footprints on the way. A large and respected body of
commentary on constitutional law -- the very thing that used
to be considered an important qualification for any would-be
Justice -- appears to have become a disadvantage instead. Asks
Arizona Senator John McCain, a Republican: "Should law students
in America now be saying to themselves, `I better not write or
speak on controversial issues if I aspire to the highest
position in the judicial system of America?'"

    Whenever they choose candidates for the Supreme Court,
Presidents must decide whether to select known quantities whose
votes they believe they can reliably predict or to go with
gifted independents, putting faith in their judgment if not
their loyalty. Americans will learn which category Souter fits
into only if they see his rulings on the court. For that
matter, Souter himself may not know until then.


____________________________________________________________
  Do you think that Souter should be required to divulge his
views on abortion before he is confirmed?

    Yes 43%     No 49%

    Do you favor or oppose a Supreme Court nominee who would
vote to overturn Roe v. Wade?

    Favor 29%     Oppose 59%


[From a telephone poll of 1,000 adults taken for TIME/CNN on
July 24-25 by Yankelovich Clancy Shulman. Sampling error is
plus or minus 3%.]