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5
A10 SUNDAY, JULY 29, 1990
THE WASHINGTON POST
Court's Balance May Shift on Some Divisive Issues
Another Conservative Voice Could Be Critical in Areas Such as Civil Rights, State Authority
By Ruth Marcus
Washington Writer
Five years ago, when liberal members of the
Supreme Court managed to scrape together a
five-justice majority to overrule a 1976 case lim-
iting the federal government's power over
states, Chief Justice William H. Rehnquist issued
a dissent-and a prediction."
Some day, said Rehnquist, the author of the
jettisoned decision, his view of federalism would
prevail. "I am confident," he said, that his posi-
tion will "in time again command the support of a
majority of this Court."
With the retirement of Justice William J. Bren-
nan Jr., that time may have arrived.
The dispute over an arcane though important
question of the scope of congressional authority
over the states underscores the
NEWS
broad potential impact of Brennan's
ANALYSIS
departure and the tenuous hold of
some key liberal victories.
Most public debate since Breman's surprise
announcement has focused on the future of abor-
tion rights. Without Brennan, it is clear, the
1973 Roe U. Wade decision-in which seven jus-
tices agreed that there is a fundamental consti-
tutional right to abortion-now has just three;
firm supporters on the court: its author, Justice
ASSOCIATED
Harry A. Blackmun, and Justices Thurgood Mar-
President Bush reaches to shake hands with Souter as Sen. Warren B. Rudman (R-N.H.) looks on Friday.
shall and John Paul Stevens.
But the resignation of the court's foremost
of the Warren court's landmark rulings, now en-
The court also will decide alsex-discrimination
liberal has far larger implications for the future
trenched in the law and society-cases like the
case involving whether companies can exclude
of constitutional law and the role of the court in
Miranda decision, the one-man, one-vote ruling,
fertile women from certain jobs in order to pro-
some of the most divisive social issues of the day.
or the decision excluding prayer from public
tect their fetuses, and it will consider whether
Brennan's absence, combined with the likely
schools.
punitive damages can be SO large as to violate
confirmation of federal appeals court Judge Da-
"I think there will be a sense on the part of a
due process.
vid H. Souter, nominated last week by President
substantial number of the conservative justices
And, in a case that could offer the first glimpse
Bush to replace him, strengthens the court's
about preserving the court's capital and not go-
of Souter's view on both abortion and free
fragile conservative majority. It is likely to tilt
ing so fast that it impairs the court's prestige as
speech, the court will review Reagan adminis-
the balance of power in conservatives' favor in
an institution," said University of Chicago Law
tration regulations that prohibit federally funded
cases involving civil rights, separation of church
School dean Geoffrey Stone, a former Brennan
family planning clinics from providing any infor-
and state, the role of the federal courts, and the
clerk.
mation about abortion, although it is unlikely that
power of states versus the federal government.
But whether Souter turns out to be an outspo-
the court in that case will contront Roe head-on.
While conservatives already have the upper
ken, aggressive advocate for change in the man-
In the longer run, however, the abortion de-
hand in such areas as capital punishment and the
ner of Justice Antonin Scalia or a swing voter and
cision is clearly in jeopardy. With Souter appar-
rights of criminal defendants, the addition of an-
force for narrowly written rulings in the mode of
ently hostile to the idea of affirmative action, as
other conservative voice could mark an end to
Justice Sandra Day O'Connor, the likelihood ap-
indicated in a 1976 speech, the court is also like-
the already rare instances in which liberals are
pears high of an eventual-and perhaps a
ly to cut back on congressional power to enact
able to cobble together a majority in such cases,
speedy-transformation in some of the most
affirmative action programs (following on its
and a further erosion of already weakened pre-
controversial areas within the court's purview.
1989 decision restricting state and local power),
cedents in the criminal law area.
An examination of the dwindling number of 5
and perhaps to limit the ability of employers to
"All the chips are in the middle of the table,"
to 4 rulings during Brennan's final years on the
adopt voluntary racial preference programs as
said Charles J. Cooper, an assistant attorney
bench offers a road map of the areas of likely
well.
general in the Reagan administration and archi-
change. During the last term, for example, he
With the addition of Souter the court could go
tect, of much of its legal philosophy. "We may
voted with the majority in a dozen 5 to 4 deci-
further in what Dorsen and other civil libertar-
well be on the precipice in which the court will
sions.
ians view as the dismantling of the wall between
stablilize and become predictably conservative in
A few of those rulings, like the decision strik-
church and state, allowing more government aid
the same way that the Warren court was predict-
ing down the federal flag desecration statute, did
to religious groups and parochial schools or per-
ably liberal," Cooper said.
not break down along ideological lines. Two of
haps upholding a moment of silence in public
the court's most conservative members, Scalia
schools.
"There are a large number of cases in many
and Justice Anthony M. Kennedy, provided the
In the criminal law area, some of the few lib-
important areas where a switch of one vote could
The doctrines
margin of victory in the flag case, and how Sou-
eral victories in the past several years are can-
have severe consequences.
ter would vote if confronted with such a statute
didates for overruling-for example, the deci-
are at risk," said Norman Dorsen, president of
the American Civil Liberties Union.
cannot be predicted.
sions excluding "victim impac" statements from
But others-expanding Congress's power to
consideration in death penalty cases.
The shift, when it comes, will be the culmina-
enact affirmative action programs; allowing fed-
And it is likely to continuewhat Brennan and
tion of a process that began with the appoint-
eral judges to order local school boards to raise
his fellow liberals have assered is the "eviscer-
ment of now-retired Chief Justice Warren E.
property taxes to pay for desegregation plans; or
ation" of Fourth Amendment protections against
Burger in 1969.
striking down most political patronage in hiring
unreasonable search and seiztre.
With Souter, Republicans will have made nine
and promotion-appear unlikely to survive on a
"Some areas, like protections for freedom of
consecutive appointments to the high court (al-
court without Brennan.
speech, at least outside the alea of pornography,
though two of those picks, Richard M. Nixon's
Justice Byron R. White provided the margin of
may be relatively unaffected. The First Amend-
selection of Blackmun and Gerald R. Ford's se-
victory in each of those cases. "If we assume for
ment freedom of speech is the most likely to con-
lection of Stevens, have turned out to be disap-
a moment that Souter will be more like Rehn-
tinue," said Harvard Law School professor Kath-
pointments to conservatives.) The last justice to
quist than like White, then White becomes irrel-
leen Sullivan, a liberal. "Thee's almost a sacral
be named by a Democratic president was Mar-
evant in terms of the transition of this court to a
attitude toward freedom of seech, even among
shall, in 1967.
more reliably conservative court," Cooper said.
the conservatives."
The new court may not manifest itself dramat-
The impact of the change could be felt as early
Rapid change, however, wuld not be unprec-
ically overnight. It takes time for some issues to
as the term beginning Oct. 1, when the court
edented. "Once the New De: formed its liberal
percolate up through the lower courts to the Su-
hears its first school desegregation dispute in
juggernaut, it overturned 26 ases in four years,"
preme Court. The court's respect for prece-
more than a decade. The case involves Oklahoma
noted conservative legal soolar Bruce Fein.
dent-even decisions with which a majority may
City's attempts to dismantle its court-ordered
"They had to rewrite volume on the commerce
now disagree-may put a brake on wholesale
busing plan and could determine the duties of
clause, economic liberties, sates' rights in that
change.
school boards throughout the country to main-
short a period.
So whals the institutional
And the justices are not likely to disturb some
tain desegregated schools.
restraint?"
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01. Memo
Deb Amend to David Demarest, et al., Re: Judge Souter
08/08/90
P-2,P-5
Update. (1 pp.)
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Issues - Judge Souter 7/90 - 8/90
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SOUTER
THE WHITE HOUSE
WASHINGTON
AUGUST 8, 1990
MEMORANDUM FOR DAVID DEMAREST
FRED MCCLURE
CHRISS WINSTON
BOBBIE KILBERG
FROM:
DEB AMEND
RE:
JUDGE SOUTER UPDATE
1. Attached please find: Editorial highlights with
specific articles attached. Our public affairs office is keeping
the clipping file and will update as necessary and appropriate.
2. Attached also find: A draft OP/ED for Griffin Bell.
Please note, it's an open memo to the members of the Senate
Judiciary Committee laying out how they should consider the
hearings ahead. I think it's an innovative approach. It was
written by Dan Casey at Justice. It was not staffed, please
let's chat if you have any changes, comments, questions, etc.
Here's an update:
1. Letters to the Boston papers from the New Hampshire crew
the of
Souter supporters: They have their marching orders but I
don't have any results yet. However, they are enthusiastic and
the
we only asked them to help two days ago.
2. Political's "A" list of folks around the country who
will sign OP/EDs, etc., is due Friday, per the discussion at our
last meeting.
3. Current Material -- we don't have much, which is part of
Rech
the problem. Talking points on "law and order" were finally done
today. Communications will distribute to all of our target
groups, per the discussion at our last meeting.
4. Future Material -- Solving the problem, Justice has one
more OP/ED cooking: The generic piece on Judicial activisism
which we should have on Friday. Chriss Winston has assigned Ed
McNally to the Souter beat next week, (Ed's a former Justice
Department lawyer) to help with the preparation of the rest of
the material we need to distribute to surrogates, which should
put us in pretty good shape.
5. Target states -- the quest for key surrogates in key
states continues.
WED 11:37 OPD
P.02
MEMO TO: Senate Judiciary Committee
When you arrive back in Washington in September to consider the
nomination of Judge David Souter you will have had the benefit of
five weeks of constituent "input" in the matter. It is doubtful
that the loudest voices heard have been counselling thoughtful,
judicious inquiry. Single-issue advocates have pleaded,
protested and importuned to enlist you in their cause. Their
assignment to you: find out from nominee Souter how he will vote
on their issue. After all, their's is the most important issue -
an issue of fundamental right(s). What's wrong with expecting
answers to a few simple questions? What does the nominee have to
hide? It will be easy to give in to the temptation. To promise
to get specific answers. Don't.
During the next few weeks listen to the quiet voices. Put aside
the temporal swirl of politics and political advantage and
reflect on the very essence of American government. Separation
of powers, checks and balances, rule of law, an independent
judiciary. There are no organized interest groups rating you on
your devotion to these fundamental precepts. No one greets you
at a town meeting chanting slogans from the Federalist Papers.
Yet it is precisely in defense of these principles that you must
shut out and defy the loud voices.
Since the Founding, the Senate's advise and consent role has been
construed both narrowly and broadly, usually depending upon the
prevailing political balance between the legislative and
executive branches. But the appointing power has and always will
be vested in the President, and, as such the Senate's role has
historically been limited to rejecting only the most politically
unacceptable of nominees. But it is not the Senate's ability to
confirm or reject a nominee that threatens today.
At stake is the common belief in and the acceptance of the
existence of an independent judiciary. Does that strike you as
overly dramatic? Consider: What is left of the Rule of Law, if
the public no longer perceives that judges are willing to put
aside their personal likes and dislikes? Yet that is precisely
the message sent by a Senate inquisition into a nominee's
personal and political views. What happens when the public
believes that political "correctness" and not neutral law is
being applied by judges who have been forced to run a Senate
gauntlet of single-issue litmus tests? What is "independent"
about a judiciary composed of men and women who have cleared the
gauntlet only by pre-judging a wide range of politically-
sensitive issues? Where then are the "open minds" upon which the
impartial consideration of a case rests?
AUG 8-90 WED 11:38 OPD
P.03
=
These are not questions pondered by the loud voices, no matter
how sincere. These are the questions long ago answered by the
Founding Fathers when they crafted a government of laws - not
men. Indeed, Alexander Hamilton, writing as Publius in
Federalist No. 78, warned against a judiciary made dependent on
the whims of legislative caprice and even went so far as to say
"there is no liberty, if the power of judging be not separated
from the legislative and executive power. An independent
judiciary are among the permanent things that you must preserve
and protect to assure liberty. Before you return to the Nation's
capital, listen to the quiet voices that speak across the
centuries.
or
2)
These are not questions pondered by the loud voices, no matter
how sincere. These are the questions long ago answered by the
Founding Fathers when they crafted a government of laws - not
men. These are the permanent things you must preserve and
protect. Before you return to the Nation's capital, listen to
the quiet voices that speak across the centuries.
EDITORIAL SUPPORT OF PRESIDENT BUSH'S NOMINATION
OF JUDGE DAVID SOUTER TO THE SUPREME COURT
"Judge Souter sounds like the kind of judge most
people admire. Maybe that's why I think he will pass
muster when he faces the Senate in September."
Godfrey Sperling, Christian Science Monitor, August 7, 1990
"All court cases, including those that come before
the Supreme Court, involve real events. The wisdom and
knowledge judges obtain from the face-to-face
encounters with those [they] judge are essential
components of the art of judging. It is wrong to
minimize Judge Souter's experience."
Judge Robert S. Brandt, The New York Times, August 7, 1990
"The key to the court's critical constitutional
role lies in the mystery of its future actions. If the
justices appear to have committed their votes to the
president, who appoints them, or to the Senate, which
confirms them, we will no longer trust them as our
ultimate authority on the Constitution's meaning."
Lloyd N. Cutler, The Washington Post, August 2, 1990
"For too long, Congress has written vague laws and
relied on the court to fill in the blanks and do the
heavy lifting Congress disdains. If judge Souter helps
bring that trend to an end, the nation will have taken
an important step toward restoring accountability in
government."
The Detroit News, July 29, 1990
"His stock in trade appears to be his innate
brilliance - a characteristic that has impressed
everyone with whom he has dealt as a lawyer and
jurist."
The Cincinnati Enquirer, July 29, 1990
"Despite the grumbles from the political extremes,
President Bush's appointment of Judge David H. Souter
to the Supreme Court has every indication of being a
superb choice - both substantively and politically.
What the country should care about is that the New
Hampshire jurist - by the unanimous testimony of those
who know him - brings a powerful, superbly trained
legal intellect, disciplined work habits and genuine
independence of judgment to the issues before the high
court."
David S. Broder, The Washington Post, July 27, 1990
"On the evidence to date, there is every reason to
believe that Judge Souter is a brilliant judge, a
'strict constructionist', and a solid sound judicial
conservative."
William Rusher, The Washington Times, July 27, 1990
"With the appointment of Judge Souter - according
to early reports a man of high intellect and integrity,
but one who is not a 'political animal' - Bush is
saying to the nation, let's stop thinking of the court
as the spoils of a partisan war."
Christian Science Monitor, July 26, 1990
"Those who know him praise him highly - 'an
absolutely spectacular reputation,' said former New
Hampshire Democratic Party Chairman J. Joseph
Grandmaison.
Mr. Bush has chosen astutely
All that Judge
Souter comes with is his basic credentials, and they
are excellent. "
The Hartford Courant, July 25, 1990
"
Justice Souter is an unknown quantity to many.
However, his career appears to indicate competence,
intelligence and personal achievement."
The Dallas Morning News, July 24, 1990
CHRISTIAN SCIENCE MONITOR
8/7/90
Will Souter
Make It?
W
IIY are the results of the last presidential election being
largely overlooked 111 the scrutify of the president's
nominee to the Supreme Court?
Where is the memory of the Democrats who said that they
must defeat George Bush because, 11 elected, he would have the
opportunity to turn the lugh count III the conservative direction?
They lost. Bush won. And that's what's happening. even
though the president has picked a conservative whose adeology
isn't showing III order to avoid a rancorous battle in the Senate.
Indeed. il there was any passion in the Democrats' light for
the presidency. it was on this Supreme Court opportunity issue.
They knew they were on the verge of losing control of the
Supreme Court's direction well into the next century. But this
possibility obviously didn't scare the voters- where a conservative
trend has been apparent since Ronald Reagan became president.
Obviously, Judge Souter isn't a Judge Bork. His manner is
quiet. He won't take on his critics on the Judiciary Committee.
And he probably will be confirmed without much inflammatory
grilling - although he will be pressed hard on his views about the
right of privacy.
But the real story IS that the judiciary, along with the Executive
Brand h. now is in the hands of the Re-
publicans.
GODFREY
Certainly, Supreme Court justices are
SPERLING
independent of politics - and sometimes
show this independence. The best ex-
ample is William 1. Brennan Ji: an
Eisenhower appointee. The also put Earl
Warren on the Court. Both moved in
liberal directions that caused Eisen-
hower to regret these appointments.
So Souter as an associate justice might
surprise Bush and please the Democrats.
I can magine Souter relusing to over-
throw Roe V. Wade - deciding to stand by stare decises (decided
matters). He might even find humself joining another conserva-
live, Justice Sandra Dav O'Connor. in taking such a position.
But who savs abortion is a conservative versus liberal issue -
although many people hame It that way? It is arguable that the
imposition of government into the lives of individuals is some-
thing that conserv atives have been resisting for years.
There is nothing evil about a president appointing a justice
who he thinks will see the world the way he does. This has been
going on for a long time. I recall when Franklin D. Roosevelt even
tried to increase the size of the court and thus get people in svin-
pathv with his New Deal approach on that judicial body.
He tailed 111 packing the court. But his supporters saw noth-
mg wrong III .1 president seeking to get high-court approval for
measures that were taking the nation III a socialistic direction.
What would be wrong is it a president named an incompetent
or someone whose experience was insufficient. No one could
say that Judge Souter IS lacking III these categories.
I became convinced that the Souter nomination would win out
when I read Washington Post columnst Judy Mann's interview
with a woman who had been young Souter's girlfriend when he
Will a law student at Harvard. Ellanor Stengel Fink, his triend.
was a student at nearby Wheaton College.
Today. Ms. Fink. a Democrat and a mother of three children,
is chairman of the board of elections of the town of Somerset
on the edge of Washington, D.C. Her husband is a lawver. Of
Souter, with whom she has not spoken in 20 years. she has, ac-
cording to Mann. "extremely positive recollections."
"Whar's characteristic of him [Souter]." Fink told Mann. "is"
he's Lar-minded. He wants to know and listen to everybody and
to reach a tan position based upon the law. The one thing you
will 541 is he will be fair and he will listen to all sides and he will
tell vou how It 15.
Fink continued. "He is very much an individualist. with strong
feelings about the rights of individuals to control their lives. but
I think he also has strong feelings about an individual's duty to
the community. He feels very strongly about the country in a very
quiet. unassuming sort of way."
Judge Souter sounds like the kind of judge most people ad-
mire. Maybe that's who I think he will pass muster when he faces
the Senate III September.
NEW YORK TIMES
8/7/90
State Court Service
To the Editor:
Ann F. Lewis's thoughtful article on
David Souter and the coming confir-
mation process (Op-Ed, July 25)
refers to Judge Souter's "relative
lack of experience" and mentions his
"brief record." Judge Souter served
12 years as a state trial court judge
and state Supreme Court justice be-
fore moving to the Federal system.
Ms. Lewis probably means that
Judge Souter has had limited involve-
ment with that handful of highly vis-
ible issues that excite those at the ex-
tremes of the political spectrum.
Most of the cases that define the fun-
damental relationships in our society
- husband and wife, parent and child,
employer and employee, buyer and
seller, the state and its citizens - are
not decided by the Supreme Court or
Supreme Court from a state court.
All court cases, including those that
come before the Supreme Court, in-
volve real events. The wisdom and
knowledge judges obtain from the
face-to-face encounters with those we
judge are essential components of the
art of judging. It is wrong to minimize
Judge Souter's experience.
Ann Lewis may have raised some
legitimate concerns about Judge
Souter's selection, but that Judge
Souter's years of service are as
a state court judge is not one of
them.
ROBERT S. BRANDT
Judge, Chancery Court, Tennessee
Nashville, July 26. 1990
WASHINGTON POST
8/2/90
Llovd N. Cutler
In Justices, Mystery Is Essential
When the president was choosing his nominee to
replace Supreme Court Justice William Brennan., I
hope his advisers reminded him of what happened
when President Abraham Lincoln faced a simuar
choice. The tale is also worth the Senate's attention.
Lincoln had a Supreme Court vacancy to fill at A
time when the court was about to hear the Legal
Tender Cases. These cases involved the constitu-
tionality of the Civil War statute authorizing the
Treasury to issue paper money and making it "legal
tender" for the payment of existing as well as future
obligations. The cases were of enormous impor-
tanee to the solvency of the government. and the
argument was likely to turn on the vote of the new
chief justice Lincoln was about to nominate.
Lincoln wrote to a friend: "We cannot ask a man
what he will do, and it we should, and he should
answer us, we should despise him for it. Therefore,
we must take a man whose opinions are known He
then selected his secretary of the Treasury. Salmon
P. Chase, who had drafted the Legal Tender bill and
had urged Congress to enact it. Chase was duly
confirmed, but he confounded everyone by easting
the decisive vote and writing the court's opinion
holding the Legal Tender Act unconstitutional.
There are two morals to the story. The first is
fairly obvious. While the president and the Senate
both have the duty to consider a candidate's political
and legal philosophy, they press this prerogative too
far, as Lincoln recognized, if they ask how he or she
would decide a particular issue such as whether to
overrule Roe v. Wade
The second moral is that thanks to the "good
behavior" clause of the Constitution entitling a
justice once appointed to serve for life, presidents
and senators who try to make certain of how a
BY ELEANOR MILL
nominee will vote are often disappointed. Lincoln is
not the only president who made a wrong choice.
the great legitimator of our government, the final
Theodore Roosevelt was openly bitter that his
arbiter of whether or not the executive and legisla-
nominee Oliver Wendell Holmes wrote opinions
tive branches have exceeded or abused their limited
restricting the sweep of Roosevelt's antitrust legis-
powers. To perform that vital function, the court
lation. Dwight Eisenhower, when asked if he had
must be, and must appear to be, as independent of
made any mistakes as president. replied: "Yes, two,
the president and of Congress as humanly possible.
and they [Earl Warren and William Brennan] are
While the president must appoint and the Senate
both sitting on the Supreme Court." As Holmes,
must confirm or reject each nominee, it is vital to
Warren and Brennan prove, presidents sometimes
the integrity of the process that neither they nor
choose more wisely than they intend.
the rest of us insist on knowing in advance how a
Moreover, justices usually serve more than a
new justice is going to vote in a particular case.
decade. and some. like Justices Holmes and Brennan.
The key to the court's critical constitutional role:
for more than three decades. No president or
lies in the mystery of its future actions. If the
senator can predict what the important constitutional
justices appear to have committed their votes to the
issues will be a decade or two ahead. and no nominee
president. who appoints them. or to the Senate,
could reliably sav now how he or she would resolve
which confirms them. We will no longer trust them
those issues. In selecung a Supreme Court justice. n'
as our ultimate authority on the Constitution's
president or senator with a sense of history would
meaning.
limit the focus to todav's headline cases.
There IS a further and even more important
The writer. a Washington iawver, was White
point. As Prof. Charies Black has noted. the court is
House counsel to president jimmy Carter.
DETROIT NEWS
7/29/90
The Right Questions for Souter
All Washington is abuzz over just what kind of
Lessons have certainly been learned on the
questions are likely to be asked of Supreme Court
White House side. A major problem with Judge
nominee David Souter at his confirmation hear-
Bork turned out to be his "paper trail." numerous
ings in September. Many liberals want to find out
books and articles written over a long academic
how he reels about abortion without really asking
and legal career containing many statements that
quite SU bluntly. Some
could be misconstrued or
conservatives. wary of a
taken out of context.
netraval by a "moderate"
Judge Souter. in con-
President Bush. are just
trast. has said and writ-
as eager to have an an-
ten virtually nothing
-wer to the abortion
over the years. It is in-
question.
deed a sad day for the
What seems to be
republic when a presi-
missing from this debate
dent feels he has no
Is the substantive issue
choice but to nominate
of whether the Supreme
someone whose views
Court should be involved
are so hard to divine.
in deciding delicate questions of social policy.
From what has been revealed so far. however.
The real question for Judge Souter IS not what he
Judge Souter appears to be a man who has a
thinks about abortion. affirmative action. school
limited view of the role of judges. As a New
busing and the like. but his philosophy of the role
Hampshire Supreme Court justice. he opposed
.1 the court and the law in American society.
legislation that would have allowed judges to
It's no accident that as the court has arrogated
decide when minors could have abortions without
:01 itself more and more power during the last 25
the consent of their parents. He did not believe a
years. Supreme Court appointments have become
legislature could simply grant judges such power.
more and more controversial. Virtually every
This is as it should be. Unelected. unaccount-
appointment since President Lyndon Johnson
able judges ought not be in the position of making
tried to elevate his old political crony Abe Fortas to
moral or policy judgments that affect many lives
the chief justiceship in 1968 (an effort torpedoed
directly. such as whether or not school children
by Michigan Republican Sen. Robert Griffin) has
should be bused or local taxes raised. Questions of
resulted in a political battle. The climax was the
morality and policy are for our elected representa-
-uccessful and still-incredible campaign to smear
tives to decide.
judge Robert Bork in 1987.
So it is appropriate to ask Judge Souter about
One would hope that the extremists who de-
his philosophy of judging. Will he rule based on the
stroved Mr. Bork would have learned that. though
law. and not his personal view of right. wrong.
new won the battle. they lost the war. Whatever
good. bad or indifferent? For too long. Congress
views on issues. Judge Bork had a strong
has written vague laws and relied on the court to
for established court precedents. The man
fill in the blanks and do the heavy lifting Congress
eventually got the nod. Justice Anthony
disdains. If Judge Souter helps bring that trend to
nnedv. is more in the mold of Justice Antonin
and end. the nation will have taken an important
who believes in overturning liberal prece-
step toward restoring accountability in govern-
nis where possible.
ment.
CINCINNATI ENQUIRER
7/29/90
Supreme Court
Souter faces a long journey
on his way to confirmation
Senators. columnists. public-policy
judge hypothetical cases to provide
researchers and special-interest advo-
some insight into any predispositions.
cates will De working mght and Gay
If they fail that. they are likely to
for the next five or six weeks to learn
accuse him of deviousness and unre-
everything they can about David
sponsiveness.
Hackett Souter. whom President
In making his choice, President
Bush seeks to elevate to the
Bush could not have been
Supreme Court. What they
unaware of the Senate's
discover in their inquiries
treatment of Judge Robert
will determine not simply
Bork. whom President Rea-
whether the nomination is
gan wanted on the Supreme
confirmed or rejected. but
Court. Unlike Judge Souter.
also the tone in which the
Judge Bork had written doz-
Senate's hearings are con-
ens of decisions as an appel-
ducted.
late judge (none of them.
Whether by coincidence
significantly, reversed by the
or carefully formulated strat-
Supreme Court): he had
egy. the president's choice
Judge Bork
made scores of speeches and
to succeed retiring Justice William J.
written dozens of articles. Every word
Brennan has been a part of the federal
became grist for his opponents' mills.
judiciary only a few months. His judi-
cial experience stems from his work in
The deciding issue was not that
New Hampshire. where he had no
Judge Bork was inadequate in terms of
occasion to grapple revealingly with
intellect or experience. but that he
the contentious issues that are the
was. if anything. overqualified.
Supreme Court's regular fare. By the
Columnist Charles Krauthammer
same token. he has made few
perhaps put it most succinctly: "If
speeches and written few scholarly
Bork is rejected. it will ultimately be
articles.
because his opponents fear letting
His stock in trade appears to be his
such an intellect loose on the court.
innate brilliance - a characteristic
To deny Bork's constitutional
that has impressed everyone with
view one seat out of nine is to claim
whom he has dealt as a lawyer and
that it has no place at the highest level
jurist.
of American judicial discourse. And
That clearly won't be enough to
that is a confession of both judicial
satisfy the Senate or its Judiciary
narrow-mindedness and intellectual
Committee. Even if they find no skele-
fear."
tons in Judge Souter's closet. senators
The Bork experience should fore-
will do their best to persuade him in
arm Judge Souter and his supporters.
WASHINGTON POST
7/27/90
David S. Broder
The Next Three
Court Nominees
Despite the grumbles from the political ex-
now hangs on the success of his budget summit
tremes. President Bush's appointment of Judge
with Congress. Bush has paid a significant
David H. Souter to the Supreme Court has every
political-price, by abandoning his "no-new-
undication of being a superb choice-both sub-
taxes" piedge in order to keep the Democrats
stantively and politically.
negotiating. He needs to get 2 return on that
What the country should care about is that the
investment-a credible deficit-reduction
New Hampshire junst-by the unanimous testi-
agreement that will allow the Federal Reserve
mony of those who know him-brings a power-
to cut interest rates and help revive a faltering
ful. superbly trained legal intellect. disciplined
economy.
work habits and genuine independence of judg-
The urgency of that agreement is underlined
ment to the issues before the high court.
by the new Washington Post-ABC News poll's
The political finesse of Bush's first Supreme
finding that nearly three out of five Americans
Court-appointment is underlined by the array of
think the economy is worsening, and more
attractive options now open to him for those who
disapprove than approve Bush's leadership on
may follow Souter. After naming an easily con-
economic issues. Collapse of the budget talks
firmable conservative who shares hrs own New
would damage Bush politically and quite possibly
England, Yankee. WASP hermage to replace
tip the economy into recession.
The negotiations are arduous already, and
the venom of an ideological battle over a
Bush can play ethnic
Supreme Court nomination would inevitably
poison the chances of the budget summit
and ideological politics
accomplishing its objective.
The second reason Bush did not want a
pitched battle now over a clearly ideological
with subsequent
appointee is the imminence of the midterm
elections. Republican chances of making gains
Supreme Court choices.
in the Senate depend heavily on states such as
lilinois and Rhode Island. where Republican
Associate Justice William J. Brennan. Bush has
women challengers are supporters of abortion
put himself into a position where he can play
rights. and lowa, where the Democratic incum-
tough but rewarding ethnic and ideological poli-
bent is trying to turn the election into a
LICS with subsequent Supreme Court choices.
smgle-issue referendum on his challenger's
The tip-off to the long-term strategy came in
anti-abortion views.
the eagerness with which White House officials
The last thing Bush wanted to do was to
aided reporters in learning the identities of
send up a Supreme Court nommee who would
those who they said were highest on the list of
provoke a lengthy confirmation fight centered
also-rans. They were, in the White House's
on the abortion issue.
publicized order of preference. Circuit Court
None of these considerations would apply in
Judges Edith H. Jones. a Texan and a woman:
1991. should the opportunity for other appoint-
Clarence Thomas, a black: and Laurence H.
ments arise. Bush might well find it useful then
Silberman, a Jew-all clearly m the conserva-
to nail down his conservative base by making a
tive camp.
more ideological court appointment, just as be
A Democratic political consultant who looked
courted the religious right in pre-election 1987
at the list remarked, "They've got perfect
with a series of speeches and gestures.
positioning if they want to pick our coalition
A pitched battle in the Senate in 1991 would
apart." What he meant was that if Bush gets the
be a win-win proposition for Bush: Even if the
opportunity to make additional Supreme Court
liberals defeated his nominee, be would have
appointments before 1992. be can force the
made his point and could come back with a less
Democrats erther to acquiesce m moving the
controversial conservative.
high court much farther to the nght or to pay an
That is why the three names are so intrigu-
exceptionally high political price by challenging
ing. If Sandra Day O'Connor were to retire.
nominees from important constituencies.
Democrats opposing Judge Jones would find
Talking about the politics of the court ap-
themselves opposing a female and a southerner
pointments th such bald terms may seem offen-
on a court that has had only one woman and no
sive, especially when Bush just has acknowl-
one from Dixie in recent years.
edged a president's overriding obtigation to give
If Thurgood Marshall were the retiree, how
the greatest weight to the quality of the nominee
would Democrats feel about blocking Judge
for the high tribunal. But it would be fatuous to
Thomas and making the court all-white again?
pretend that the political environment was not
And if Silberman were the choice. how many
part of this choice. Bush did not want-and
Democrats would be eager to oppose the first
could not afford-a Robert Bork-like confrunta-
Jew on the court since Abe Fortas?
tion with the Democratic Senate at this moment.
You can see why White House political
The most important reason IS that so much
operatives like the setup.
7/27/90
WILLIAM RUSHER
Ahead for Souter
resident Bush's nomination
P
niques that even Messrs. Kennedy
of Judge David Souter to re-
and Metzenbaum can t bring them.
place retiring Justice Wil-
selves to use.
liam Brennan makes con-
I dont envy Judge Souter his
servative control of the Supreme
forthcoming ordeal. or predict his
Court almost inevitable at last.
confirmation. Sheer political dis-
It has been nearly a quarter of a
honestv has its victories. no less re-
century since the American people
nowned than war's This IS. nowever.
tired of liberalism. But as Robert
a game that President Bush IS bound
Whitaker noted. the Supreme Court
to win in the long run - just as Pres-
IS traditionally "the last bastion of
ident Reagan won the last one by
dying establishments." The liberals.
ultimately nominating Justice An-
thanks in large part to Justice Bren-
thony Kennedy. who has proved if
nan. have managed to continue im-
posing many of their views on a re-
luctant nation. by discovering them
hidden in previously unsuspected
It is enough to rouse
clauses of the Constitution. With any
luck. that sort of nonsense IS about
the venom of the
to end.
Senate liberals. As
But it probably won't end without
a fight. In the battle over Judge Rob-
the first nominee, he
ert Bork's nomination by President
Reagan. Sens. Edward Kennedy.
will probably be
Howard Metzenbaum and Joseph
Biden dragged the once-dignified
treated to the worst
process of senatorial advice and
trashing that the
consent squarely into the political
pit. and there it will fester until
fertile minds of
higher-quality men and women are
elected to the U.S. Senate.
Messrs. Kennedy,
Even if those experienced mud-
Metzenbaum and
gunners were disposed to let Judge
Souter take his seat without undue
Biden can devise.
delay. the screaming battations of
the abortion activists and their lib-
eral allies wouldn't let them. They
have learned. or think they have
anything slightly more conservative
learned. that a court nominee. no
than Judge Bork might have been.
matter how well-qualified. can be de-
For when the smoke has blown
feated if subjected to enough high-
away. if Judge Souter has been re-
octane billingsgate. They have al-
jected. Mr. Bush will send the Senate
ready decided to block Judge Souter.
another name. And it IS in the nature
and they can probably induce the
of such Grand Guignoi theater as
Senate's liberals to resist his confir-
Kennedy & Co. specialize in that It
mation.
can't be repeated right away. The
On the evidence to date. there is
second nominee. if only he or she IS
every reason to believe that Judge
closemouthed. competent and qui-
Souter IS a brilliant judge the was.
etly conservative. will sail through
for one thing. a Rhodes scholar). a
an exhausted Senate and onto the
"strict constructionist." and a solid.
court.
sound judicial conservative.
Conservatives. then. should pre-
That is quite enough to rouse the
pare for battle: first. in support of
venom of the Senate liberals. As the
Judge Souter. And this time let's
first nominee over the parapet. he
make It a brawl that Mr. Kennedy
will very probably be treated to the
will remember less tondly than the
worst down-and-dirty trashing that
last.
the fertile minds of Messrs. Ken-
nedv. Metzenbaum. Biden and their
leftist staffs can devise.
It may turn out (as it did in the
case of Chief Justice William Rehn-
quist) that he was a poll-watcher for
Barry Goldwater in 1964 and got into
a quarrel with a black Democrat He
may have been seen spitting on the
sidewalk outside an Equal Rights
Amendment rally. Somebody may be
found who will testify. truthfully or
otherwise. that he once saw the
judge. as an undergraduate at Har-
vard. smoking a marijuana cigaret-
ite.
With that much stimulus. Demo-
crats who know better. like Howell
Heflin of Alabama. will probably
sell out again to their black constit-
uencies. Such near-beer Republi-
cans as Arien Specter of Pennsylva-
nia will once more follow their
supple consciences down the well-
worn path of liberalism. Across the
land. liberal megaphones like Nor-
man Lear's People for the American
Way will indulge (again) in tech-
William A. Rusher. a senior jellow
of the Claremont Institute. IS a na-
tionaily syndicated columnist.
CHRISTIAN SCIENCE MONITOR
7/26/90
Respect for the Court
Souter to the Supreme Court
saying to the nation, let's stop
this
I
N nominating Judge David
not a "pôlitical animal" - Bush is
seat vacated by Justice Wil-
thinking of the court as the spoils
"liam Brennan, President Bush
in a partisan war, and to the jus-
appears to have had several
tices themselves, you are not
make
objectives. First, he selected a
champions of political causes.
judge who has virtually no record
It is a sign of Bush's respect for
the
on abortion, the most polarizing
the court that he doesn't want to
issue confronting the Supreme
perpetuate President Reagan's
Court and the nation todav. The
practice of nominating people
selection of a professed pro-life
with an agenda. Mr. Reagan
jurist not only would have met
seemed mindful only of the Su-
voice
with fierce resistance from pro-
preme Court's power - power he
choice advocates, but it would
wanted in "reliable" hands. He
have caused abortion to dominate
had little feel or regard for the
the confirmation hearings to the
court's supra-political role as a
near exclusion of other matters.
mediator of clashing interests in a
A related but broader point:
highly complex modern societv.
The president picked a man who.
and as a sensitive buffer between
unlike Reagan nominee Robert
government and the individual.
Bork. doesn't have a long "paper
Bush is more attuned to the
trail" of strongly articulated views
court's function in these respects.
on contentious issues. Clearly Mr.
Some commentators say that
Bush wants to avoid another bit-
at stake in the choice of Brennan's
ter and prolonged confirmation
successor is the "soul" of the
battle. Avoiding such a battle in-
court. Brennan himself probablv
creases the likelihood that the
doesn't agree. On several recent
high court will be at full strength
occasions he has stated his conti-
for its October term. Also. such a
dence in the durability and ulti-
partisan fight could have unpre-
mate fairness of American institu-
dictable consequences for the No-
tions. Those institutions. not
vember elections.
individuals. he savs. are the safe-
More important than these
guards of Americans' liberties.
short-term considerations. how-
Justice Brennan enlarged the
ever. the president seems to be
Supreme Court. but also was en-
signaling a desire to calm the po-
larged bv it. That capacity to be
liticized atmosphere that has en-
elevated bv the institution - com-
veloped the Supreme Court in re-
bining intellectual force with
cent years. With the appointment
open-mindedness. confidence
of Judge Souter - according to
with humility - is one of the chief
early reports a man of high intel-
qualities the Senate should look
lect and integrity. but one who is
for when it examines Souter.
THE HARTFORD COUPANT
7/25/90
Getting to know Judge Souter
T here is. or should be. more to a U.S. Supreme
praise him highly - "an absolutely spectacular
Court appointment than the nominee's thoughts on
reputation." said former New Hampshire Demo-
the issue of a pregnant woman's freedom of
cratic Party Chairman J. Joseph Grandmaison.
choice.
pristoric
But much of the nation doesn't know him at all.
But in the first day after President Bush's
and the Democratic-dominated Senate no doubt
introduction of Judge David H. Souter. national
will try to remedy that during the confirmation
attention IS fixed on abortion and little else. Will
process. The challenge will be to probe without
Mr. Bush's choice of a successor to Justice William
treating the occasion as an opportunity to embar-
J. Brennan Jr. vote to reverse the court's 1973 Roe
rass the administration or extract "campaign"
VS. Wade decision?
promises from the Supreme Court nominee.
The question is important. of course. but it
Confirming a lifetime judicial appointment
should be only one of many. Above all. the Senate
requires more than cross-checking the nominee's
must decide if Judge Souter is qualified intellec-
resume. however. A president should have wide
tually and temperamentally to sit on the highest
latitude in choosing members of his administra-
bench. Supreme Court appointments must not be
tion. Even in nominating the leaders for a differ-
made on the basis of a single issue. A president
ent branch of government. a president deserves
thought
who listens to only one special interest is a presi-
the benefit of doubt. But the Constitution doesn't
dent destined for disappointment.
require confirmation as a formality. Senators. Re-
Mr. Bush obviously should be expected to
publicans and Democrats. aren't elected to act as
was it
choose a justice with whom he feels philosophical-
rubber stamps.
ly compatible. But compatibility should be gener-
The confirmers must tread carefully in learn-
al. rather than specific. and the president
ing more about Judge Souter and at the same time
recognized that principle when he asserted that
eschewing litmus-test questions. What should be of
Judge Souter wasn't given a litmus test.
utmost concern is the nominee's temperament.
To believe that Mr. Bush and his subordinates
knowledge of the law. general intellect. sense of
haven t the foggiest idea about the nominee's
fairness. compassion and fidelity to constitutional
philosophical direction would be naive. Judge
principles.
Souter's two primary boosters - White House
Mr. Bush has chosen astutely. His nominee
Chief of Staff John H. Sununu and U.S. Sen. Warren
has no judicial "fingerprints" by which he can be
B. Rudman of New Hampshire - are scarcely
prejudged. The has given few speeches. written
liberal.
even fewer articles and left no clues about his
The 50-year-old nominee's paper credentials
position on the array of controversial issues. All
are impeccable: graduate of Harvard Law School.
that Judge Souter comes with is his basic creden-
Rhodes Scholar. attorney general of New Hamp-
tials. and they are excellent. At this juncture. the
shire. state Supreme Court justice for a dozen
burden of proving that Mr. Bush made anything
years and. for the past two months. a federal ap-
peals court judge in Boston. Those who know him
White House.
but a solid nomination lies on Capitol (presemed Hill. not the
pressurent
A COMMON SENSE, LAW AND ORDER JUDGE
Judge Souter is a tough, anti-crime judge. Having served
as New Hampshire's Attorney General -- the state's chief law
enforcement official -- and as a hands-on trial court judge, he
has a practical understanding of the problems that face
prosecutors and police, and takes a common-sense approach to
questions of criminal law and procedure.
In society's battle against drug traffickers, he has
upheld the constitutional use of "pen registers," a highly
effective law enforcement tool that's enabled police to track
down drug kingpins by identifying the phone numbers of those who
supply street-level drug dealers. (State V. Valenzuela, 536 A.2d
1252 (N.H. 1987) )
Protecting the lives and safety of citizens who act to
assist the police, he has shielded the names of police informants
from disclosures that could destroy sensitive criminal
investigations. (State V. Svoleantopoulos, 543 A.2d 410 (N.H.
1988) i State V. Cote, 493 A.2d 1252 (N.H. 1985)
Early on, Judge Souter took a common sense, constitutional
stand to protect our citizens from what the President has called
"one of the most deadly scourges ever to strike modern times" --
drunk driving. He has approved the careful use of properly
conducted police roadblocks to apprehend drunk drivers, upholding
a police department's judgment that roadblocks are an effective
means of law enforcement. In particular, Judge Souter has
observed that the public interest in protecting life, health, and
property on the highway is great, and is clearly "served by
detecting impairment caused by intoxicants before the impairment
manifests itself in the sort of behavior that would justify an
individual stop." (State V. Koppel, 499 A.2d 977 (N.H. 1985)
(Souter, J., dissenting) (emphasis added)
Demonstrating the kind of common sense for which the
people of New Hampshire are known, he has rejected arguments that
drunk driving convictions must only be based on "high-tech"
blood, urine, or breath samples. He observed that the people's
representatives in the legislature had not imposed any such
requirement, and that there is nothing unfair in proving a drunk
driving charge with evidence gathered through traditional methods
of observation and investigation. (State V. Alcorn, 484 A.2d
1176 (N.H. 1984) )
Judge Souter has resisted the arguments of those who would
tip the scales of justice further in favor of criminal wrong-
doers. He has been reluctant to impose new, judge-made
requirements that would be tougher on police than they would be
on criminals. For example, Judge Souter has declined to expand
the already-strict requirements of the Miranda decision (State V.
Jones, 484 A.2d 1070 (N.H. 1984) ) , and has rejected arguments
that would have prevented a jury from hearing certain relevant
evidence against a criminal defendant. (State V. Brown, 517 A.2d
831 (N.H. 1986) ; State V. Cormier, 499 A.2d 986 (N.H. 1985)
(state privilege against self-incrimination) ) .
Judge Souter's views in the criminal law area are
influenced both by his considerable experience as a public law
enforcement officer and his deep understanding of the community's
interest in combatting crime. He has consistently demonstrated a
strong willingness to defer to the decisions of legislators,
prosecutors and police so long as those decisions do not infringe
on the constitutional rights of criminal defendants.
July 24, 1990
David H. Souter
Judge David Souter was born on September 17, 1939 in
Melrose, Massachusetts to Joseph and Helen Souter. His family
moved to a farm in Weare, New Hampshire when he was 11, and he
has lived there since. After attending the public schools in
Concord, New Hampshire he went on to Harvard College, working
summers as a truck driver. He graduated from Harvard in 1961
magna cum laude and was a member of Phi Beta Kappa.
On the strength of his well rounded record at Harvard,
Souter was chosen a Rhodes Scholar and studied at Magdalen
College, Oxford University from 1961 to 1963. Returning to
Harvard, he earned his law degree in 1966 and entered into the
private practice of law with the Concord, New Hampshire firm of
Orr and Reno.
Judge Souter's career as a public servant began in 1968 with
his appointment as an Assistant Attorney General for the State of
New Hampshire.
After Judge Souter had served for three years in the
office's Criminal Division, he was appointed Deputy Attorney
General under then-Attorney General Warren Rudman. In 1976,
eight years after entering the office, Souter rose to become New
Hampshire's Attorney General, charged with final responsibility
for the legal affairs of the State. As the State's top law
enforcement officer, Souter was known as a firm advocate of law
and order who urged tough penalties for those who threaten
society.
-2-
Judge Souter's outstanding performance as Attorney General
led to his appointment to the Superior Court of New Hampshire in
1978. He served as a state trial court judge for five years
until 1983, when again he was promoted -- this time to a post on
the State's highest Court, the Supreme Court of New Hampshire.
As a state Supreme Court Justice, Souter quickly gained an
excellent reputation for his precise and lucid written opinions
and for his fidelity to the rule of law.
On April 30, 1990, President Bush appointed Souter to the
United States Court of Appeals for the First Circuit.
* * * * *
Judge Souter is a scholar of the law in particular and a
lover of books in general; he is a student of the history of the
State through whose mountains he hikes for recreation, and served
as a Trustee and Vice President of the New Hampshire Historical
Society. He has made further contributions to his community even
apart from his service on the bench. His service on legal and
judicial committees is too lengthy to describe in full, but has
included membership on the New Hampshire Police Standards and
Training Council, the Governor's Commission on Crime and
Delinquency, and the New Hampshire Bar Association Committee to
Recommend Codification of Rules of Criminal Procedure (of which
-3-
he was Vice Chair). He was also involved in the successful
effort to make St. Andrews Episcopal Church, of which he is a
parishioner, accessible to those with disabilities.
*****
Justice Souter described his general approach to judging in
the Senate Judiciary Committee Questionnaire he submitted upon
his nomination to the U.S. Court of Appeals for the First
Circuit. As he put it:
The obligation of any judge is to decide the case before the
court, and the nature of the issue presented will largely
determine the appropriate scope of the principle on which
its decision should rest. Where that principle is not
provided and controlled by black letter authority or
existing precedent, the decision must honor the distinction
between personal and judicially cognizable values. The
foundation of judicial responsibility in statutory
interpretation is respect for the enacted text and for the
legislative purpose that may explain a text that is unclear.
The expansively phrased provisions of the Constitution must
be read in light of its divisions of power among the
branches of government and the constituents of the federal
system.
July 24, 1990
David H. Souter
Judge David Souter was born on September 17, 1939 in
Melrose, Massachusetts to Joseph and Helen Souter. His family
moved to a farm in Weare, New Hampshire when he was 11, and he
has lived there since. After attending the public schools in
Concord, New Hampshire he went on to Harvard College, working
summers as a truck driver. He graduated from Harvard in 1961
magna cum laude and was a member of Phi Beta Kappa.
On the strength of his well rounded record at Harvard,
Souter was chosen a Rhodes Scholar and studied at Magdalen
College, Oxford University from 1961 to 1963. Returning to
Harvard, he earned his law degree in 1966 and entered into the
private practice of law with the Concord, New Hampshire firm of
Orr and Reno.
Judge Souter's career as a public servant began in 1968 with
his appointment as an Assistant Attorney General for the State of
New Hampshire.
After Judge Souter had served for three years in the
office's Criminal Division, he was appointed Deputy Attorney
General under then-Attorney General Warren Rudman. In 1976,
eight years after entering the office, Souter rose to become New
Hampshire's Attorney General, charged with final responsibility
for the legal affairs of the State. As the State's top law
enforcement officer, Souter was known as a firm advocate of law
and order who urged tough penalties for those who threaten
society.
-2-
Judge Souter's outstanding performance as Attorney General
led to his appointment to the Superior Court of New Hampshire in
1978. He served as a state trial court judge for five years
until 1983, when again he was promoted -- this time to a post on
the State's highest Court, the Supreme Court of New Hampshire.
As a state Supreme Court Justice, Souter quickly gained an
excellent reputation for his precise and lucid written opinions
and for his fidelity to the rule of law.
On April 30, 1990, President Bush appointed Souter to the
United States Court of Appeals for the First Circuit.
*****
Judge Souter is a scholar of the law in particular and a
lover of books in general; he is a student of the history of the
State through whose mountains he hikes for recreation, and served
as a Trustee and Vice President of the New Hampshire Historical
Society. He has made further contributions to his community even
apart from his service on the bench. His service on legal and
judicial committees is too lengthy to describe in full, but has
included membership on the New Hampshire Police Standards and
Training Council, the Governor's Commission on Crime and
Delinquency, and the New Hampshire Bar Association Committee to
Recommend Codification of Rules of Criminal Procedure (of which
-3-
he was Vice Chair). He was also involved in the successful
effort to make St. Andrews Episcopal Church, of which he is a
parishioner, accessible to those with disabilities.
* *
Justice Souter described his general approach to judging in
the Senate Judiciary Committee Questionnaire he submitted upon
his nomination to the U.S. Court of Appeals for the First
Circuit. As he put it:
The obligation of any judge is to decide the case before the
court, and the nature of the issue presented will largely
determine the appropriate scope of the principle on which
its decision should rest. Where that principle is not
provided and controlled by black letter authority or
existing precedent, the decision must honor the distinction
between personal and judicially cognizable values. The
foundation of judicial responsibility in statutory
interpretation is respect for the enacted text and for the
legislative purpose that may explain a text that is unclear.
The expansively phrased provisions of the Constitution must
be read in light of its divisions of power among the
branches of government and the constituents of the federal
system.
COMMENTS ON THE SUPREME COURT NOMINATION
OF JUDGE DAVID SOUTER
"I believe I'm recommending an individual with a
incisive, independent devotion to interpreting the Constitution. strong,
He's a quiet man of enormous intellectual strength. A tough
quality that will serve the Court well."
trial court judge with a great legal mind and an impartial
--- President Bush on his decision to nominate
Judge David Souter to the Supreme Court to
the Philadelphia GOP on July 24, 1990
The Administration on Judge Souter:
Governor John Sununu said that he, Attorney General
Thornburgh, C. Boyden Gray were all "struck by the
Souter's opinions. (New York Times 7/25/90)
crispness, the logic, the flow and the structure" of Judge
On ABC-TV's "Good Morning America," Attorney General
Thornburgh said, "I don't think it will be a hard sell at
all, when you look at the man's (Judge Souter) record,
questions of law."
experience, integrity and ability to deal with tough
The Congress on Judge Souter:
O
Rep. Newt Gingrich (R-GA) said of the Souter nomination, "It
commitments seems to meet all of the President's philosophical
At the same time, it doesn't allow the
President's ideological opponents very much automatic
opportunity I to fight with him.' He then added, "The people
know from New Hampshire who have known him say that he is
a very solid person. (New York Times 7/26/90)
"It's a good one
qualifications, not his ideological ones," remarked Sen.
he has chosen someone for his legal
Patrick Leahy (D-VT), a member of the Senate Judiciary
Committee, on the selection of Souter by President Bush.
(Boston Globe 7/25/90)
"From what I have read, my impression is positive," said
Sen. Sam Nunn (D-GA) of Souter. (New York Times 7/26/90)
Associates from New Hampshire on Judge Souter:
"I know him as a scholarly, bright and articulate exponent
of his judicial philosophy," remarks Judge Brock who served
with Judge Souter on the New Hampshire Supreme Court.
(Washington Times 7/25/90)
"He's fiercely independent in his legal reasoning and he'll
get there on his own. He has no constituency," remarked
John Broderick, president of the New Hampshire Bar
Association, on Souter's decisions while on the bench.
(Washington Times 7/25/90)
"A man of industry, integrity and great intellectual
ability," said Martin Gross, a Democrat and former mayor in
New Hampshire. (Dallas Morning News 7/24/90)
"
he has taken an approach in his style and his demeanor
and his judicial conduct that is conservative
People who
admire brilliance will be very impressed with this man
He has tremendous respect in the legal community as an
attorney general and as a judge as well," remarks Rep.
Thomas Gage, Chairman of the New Hampshire House Judiciary
Committee in his dealings with Judge Souter. (Washington
Times 7/25/90)
During his tenure as New Hampshire's Attorney General, Judge
Souter hired Richard McNamara as a prosecuting attorney.
When asked about Souter he remarked that, II (Souter)
inculcated in young prosecutors a sense of fairness."
(Washington Times 7/25/90)
Others on Judge Souter:
In his 7/27/90 syndicated column, David Broder remarked,
"What the country should care about is that the New
Hampshire jurist - by the unanimous testimony of those who
know him - brings a powerful, superbly trained legal
intellect, disciplined work habits and genuine independence
of judgment to the issues before the high court, " when
discussing the Souter nomination to the Supreme Court.
(Washington Post 7/27/90)
Said L. Gordon Crovitz, in an editorial for the Wall Street
Journal (7/25/90), wrote "his willingness to ask whether all
issues are necessarily legal issues could help nudge the
court back to its more modest practice of avoiding
essentially political cases."
"He's always wanted to be a defender of America and American
values. That's why he went into law, said Dr. Melvin
Levine, a Rhodes Scholar at Oxford University with Judge
Souter. (New York Times 7/25/90)
described as a conservative. But indications are that is
Anthony Lewis, in his column, wrote: "Judge Souter
York of legal wrongs he is determined to right. " (New
no comes list to this great appointment with no ideological agenda: he
Times 7/27/90)
him Souter when they were deputy attorney generals who
with Gov. Gerald L. Baliles, former Virginia governor, worked
"without a trace of ideology. " (Washington Post 7/26/90) found
THE NDN YORK TIMES
7/25/90
Sununu Tells How and Why
He Pushed Souter for Court
By R. W. APPLE Jr.
operatio
the
New
York
T
mes
WASHINGTON July 24 - John H. lumbia Circuit.
Sununu. the White House chief of staff.
The list. the chief of staff reported.
said todav that ne had assured Presi-
had been cut from a dozen names early
dent Busn that David H. Souter would
Saturday morning to four or five by
upnoid conservative values on the Su-
Sundav evening. Only Judge Souter and
preme Court. He also said he had given
Judge Jones met with the President.
strong personal support' :0 Judge
It was Attorney General Dick Thorn-
Souter at a Kev moment in the Presi-
buren and Mr Grav. Mr Bush's coun-
dent decision-making.
sel. who brought David's name out of
As Governor of New Hampshire, Mr.
the pack" of 20 or more names with
Sununu named Judge Souter an Associ-
which the Administration began 18
ate Justice of its Supreme Court.
months ago. Mr. Sununu said. "I stayed
"I was looking for someone who
out until almost the end."
would be a strict constructionist. con-
sistent with basic conservative atti-
Rudman Wields Influence
tudes. and that S what 1 got." the chief
But It was Senator Warren E. Rud-
of staff said in an interview. "I was.
man. the influential New Hampshire
able to tell the President that 1 was.
Republican. who first brought Mr.
sure he would do the same thing when
Souter's name to the attention of offi-
he encountered Federal questions.
cials in Washington in 1986 and 1987.
What he says and does is what he IS.
Reacting a bit testily to reports de-
No pretense. no surprises.
scribing Judge Souter as a protege or
Their Kind of Man?
an ideological twin of Mr. Sununu. Mr.
Rudman declared: John Sununu did-
The chief of staff's comments were
n°t know David Souter - though he of
designed to advance the overall White
course
knew
of
him.
in
a
small
state
House strategy of seeking to convince like New Hampsnire - when the va-
conservatives that Judge Souter was cancy on the state court came up. I
their kind of man. who could be trusted pushed him for that, I told Ronald Rea-
to vote "right" on the big issues. with- gan about him. I pushed him for the
out getting him involved in fierce de- Circuit Court job and I urged Bush to
bates about abortion or flag burning or choose him this time. He's not Sununu's
other contentious specifics.
man."
In being unusually candid about the:
The chief of staff largely confirmed
details in the selection process, Mr. that account. but said-he came to know
Sununu was carrying out his role as and respect Judge Souter later. not so-
Mr. Bush's primary liaison to the right cially but professionally. Asked
wing of the Republican Party and to whether he considered the jurist as one
the ideological groups that support Mr. of those who worked to create a mood
Bush
but
are
nervous
about
the
com-
of ideological conservatism in New
mitment to their issues.
Hampshire - like Mr. Sununu himself,
Mr. Sununu said that neither he nor
the President asked the 50-year-old ju-1
rist any questions about abortion. the
most politically explosive issue facing
the Supreme Court. or about Roe v.:
Message to
Wade. the Court's basic decision on
abortion rights. which has been under
conservatives:
attack by anti-abortion groups. An-1
other White House official said Mr.
You'll like him.
Bush had crossed several questions off
a list prepared for his meeting with
Judge Souter by his counsel. C. Boyden
Gray, because they seemed too spe-
former late Gov. Meldrim Thomson or
cific.
the late newspaper publisher William
Judge Souter. named only recently tol Loeb - Mr. Sununu replied: "David
the United States Court of Appeals for was philosophically comfortable with
the First Circuit. in Boston, has no 1 it. but temperamentally not suited to
record of public statements on the public battle. He was content to make
issue.
his contribution in a judicial sense."
"We think it's wrong for us to apply a:
'A Little Problem' Recalled
litmus test on a single issue in selecting
a nominee." Mr. Sununu said. "We'
On one occasion. Mr. Sununu added.
think wrong for the Senate to do SO! the judge "created a little problem for
in confirmation proceedings. That's a me" in an opinion "so light and so iron-
principle we're going to try to stress in clad and leak-proof" that the structure
the weeks ahead."
of the state's meal taxes had to be thor-
Reading Between the Lines
oughly redesigned.
The man loves the law to the point
Mr. Sununu said that President Bush of keeping himself completely out of
had had two candidates under consid-1 the public eye." he said. "He loves
eration when he retired to his office on being a judge. reading and doing pri-
Monday with a yellow legal pad to vate things. not showing off by talking
make. his decision - the two he had
and writing about being a judge."
just spoken with. Judge Souter and
"There's a feeling that this IS a guy
Judge Edith H. Jones. 41. who sits on
who wants to be a Supreme Court Jus-
the Court of Appeals for the Fifth Cir-
tice and wants to dedicate his life to IL"
cuit. in Houston.
said an aide briefing reporters about
"Reading between the lines. and the reasons for Mr. Bush's choiced.
that's all It IS," the chief of staff said, 'He's not a political guy. On a personal
"maybe we're talking about a se-, basis. the President was impressed by
quence here. Maybe she IS the choice the fact that he's a humble man, quiet
the next time that we have a vacancy I and studious."
on the Court. There are no sure things.
Mr. Sununu said that Mr. Gray and
and times and conditions can change. I Mr. Thornburgh had been struck by
but the President was impressed."
"the crispness. the logic. the flow and
Mr. Sununu said that he had "inter- the structure" of Judge Souter's opin-
vened with strong personal support" ions. But if he IS thoroughly at home
for Judge Souter only on Monday with the written word. Judge Souter ap-
morning, and that even then he had parently has no gift whatever for chit-
made positive comments about the two chat or small talk.
other candidates still in the running at! What did Judge Souter have to say at
the time. identified by another Bush: his meetings with Mr. Sununu Mon-
aide as Judge Jones and Judge Lau- day?
rence H. Silberman. 54. who IS on thei
Not
very
much."
the
chief
of
staff
Court of Appeals for the District of Co-1 answered. "As usual."
THE WASHINGTON POST
7/25/90
Bush Opens Drive
For Court Nominee
Confirmation Hearings Set for September
By David S. Broder
and Helen Dewar
Post and Weners
The White House launched the
confirmation drive for President
COURT. From A1
Souter began preparing for the
ished." But White House officials
Bush's first Supreme Court nom-
confirmation process by meeting
said Souter was a strong contender
inee yesterday against a virtually
abortion. "I don't have to be circum-
with White House officials and Ken-
from the beginning, having im-
invisible opposition and amid signs
spect." he said. "but he may."
neth Duberstein. former White
pressed Thornburgh and others
that David H. Souter will resist ef-
Grassley added that "at this
House chief of staff in the Reagan
with his intellectual qualities when
forts to pin down his views on abor-
point, it looks like it [confirmation]
administration. who will shepherd
he was being interviewed for the
tion.
will go very smoothly," a judgment
him through the hearings.
circuit court.
Souter. the little-known. 50-year-
that was echoed at the liberal end of
Rudman. who hired Souter as a
Barring a surprise discovery about
old New Hampshire jurist named by
the political spectrum by another
young lawyer when Rudman was
Souter. most senators who ventured
Bush Monday to replace retiring
Judiciary Committee member, Sen.
a judgment yesterday said he should
Justice William J. Brennan Jr., con-
Howard M. Metzenbaum (D-Ohio).
be easily confirmed. Rather than
tinued to draw approving comments
"The waters are quiet." Metzen-
baum said. "He's got a clean slate so
"The waters are
question his qualifications, they fell
across the political spectrum.
far. But that doesn't mean some-
to debating the propriety of asking
"I think there's a positive feel-
ing." said Sen. Patrick J. Leahy (D-
thing won't come up tomorrow
quiet. He's got a
him about abortion and other seast-
live issues.
Vt.). a member of the Judiciary
morning."
Committee. which will hold confir-
Liberal interest groups said last
clean slate so far.
Sen. Alan K. Simpson (R-Wyd.)
night that their first look at Sou-
said. "I think it would be appalling
mation hearings in September.
But that doesn
to spend too much time. if any at all.
President Bush told a GOP fund-
ter's judicial record had yielded no
ammunition for a fight against him.
on abortion," when the hearings be-
raising luncheon in Philadelphia
Initial eview of the more than 200
mean something
gin.
"there should be no litmus test in
But Sen. Dennis DeConcini (D-
the process of confirmation." rest-
opinions Souter wrote during his
seven years on the state supreme
won t come up
Ariz.), another Judiciary Committee
erating his statement that he had
member. said. "lle doesn't look con-
applied no such standard himself on
court reflected a jurist who focused
more often on the mundane and
tomorrow morning. "
tentious to me
but it's unreal-
abortion or any issue.
technical issues of a state court
istic to think he will not be asked
-Sen. Howard M. Metzenbaum,
White House press secretary
Martin Fitzwater said Bush is mov-
than on sweeping constiutional
Judiciary Committee member
about abortion. flag burning, the
line-item veto and a lot of other IS-
questions.
ing quickly on the nomination be-
Administration officials ex-
New Hampshire attorney general,
sues. But I don't expect him to give
cause "we saw that some of the spe-
said he would escort the nommee
us any clear-cut answers."
pressed confidence that Bush had
cial interests-on abortion, civil
found what he wanted-a conser-
personally to meetings with Senate
One of the few negative notes
rights-were going to try to cook
vative judge with no written opin-
leaders today and with Judiciary
was sounded by Sen. Orrin G.
up a stew that this nomination
ions, especially on abortion issues,
Committee members tomorrow. "I
Hatch (R-Utah) who said he would
would get dumped into."
that would fuel ideological conflict
know him better than anyone else,"
have preferred if Souter, a lifelong
Sen. Warren B. Rudman (R-
on the eve of the midterm election.
he said, "and I'm going to do the
bachelor, were a family man. But
N.H.). a close friend of the nomi-
"I don't think it will be a hard sell
honors myself."
Hatch quickly backed away from
nee, said the former New Hamp-
at all, when you look at the man's
At a bnef photo session yester-
the statement. "It came out wrong."
shire Supreme Court justice had
record. experience, integrity and
day afternoon in Rudman's office,
Hatch said. "I did not mean that as
made it clear to administration of
criticism."
ability to deal with tough questions
Souter confessed that "I really was
ficials that "if they had any titmes
of law," Attorney General Dick
in some state of shock" when he
Staff writer Dan Balz, tranding
tests to apply, be was not interest-
Thornburgh said on ABC-TV's
stood at Bush's side for the an-
with President Busk, contributed to
ed" in the appointment be received
"Good Morning America."
nouncement Monday. "I was aston-
this report.
from Bush earlier this year to the
1st U.S. Circuit Court of Appeals in
Boston or in being elevated to the
Supreme Court.
"He will take that same stance
with senators," Rudman said. "He
has iar too much respect for the -
dependence and integrity of the ju-
diciary to allow that to happen."
Bush made the same point, argu-
ing that the court needed justices
with "independent minds above
the flames of political passion."
The first Judiciary Committee
member to indicate publicly an in-
tent to press Souter on the abortion
issue was Sen. Charles E. Grannley
(R-lowa), a strong opponent of
See COURT. A& Col. 4
Souter Meets With Leaders of Senate
In Session of Humor and Good Will
By LINDA GREENHOUSE
Specialio
Yors
Letter About Abortion
WASHINGTON July 25 - Judgel
David H Souter. President Bush Si
The scrutiny of Judge Souter
choice for the Supreme Court, visited
and goes bevond his more than 200
'I must say, I
the Senate's Democratic and Republ:-
written opinions as an Associate Jus.
can leaders today in a relaxed atmos-
tice of the New Hampshire Supreme
phere that reflected the absence of ac.
Court. extending to his actions as the
never thought of
live opposition to his nomination so far
state's Attorney General and even 10
letters he wrote on official business
myself as that
with Senator George J. Mitchell. the
majority leader. Judge Souter ex.
The National Abortion Rights Action
obscure.'
changed reminiscences about a senior
Beague, which has expressed concern
Federal judge from the Senator's home.
over the lack of knowledge about Judge
state of Maine.
Souter views on abortion found in Its
Judge Souter told Mr Mitchell that
New Hampshire affiliate $ files a letter
aides from previous Republican ad-
he admired the judge. Frank M Coffin.
that he wrote to a committee of the
ministrations who are now in the public
and had once received a letter from
State Legislature in 1981. Judge Souter
relations business. have been asked to
him. "I would frame it." Judge Souter
then a judge on the state 5 trial court
work with Judge Souter in preparation
said. "but that would be ostentatious.
the Superior Court was expressing the
for the hearing.
A Straight Line for Dole
views of a committee of judges on a bill
At a White House meeting this morn-
Probablv inadvertently, the nominee
to require teen-agers to Re! their par
ing with Congressional leaders. Presi-
ents consent before having an abor
dent Bush urged support of the nomina-
fed a straight line to the Republican
tion
leader. Senator Robert Dole of Kansas.
tion.
Leaving the meeting. Senator Sam
about New Hampshire, which IS Judge
His letter said that the judges had de
Nunn. Democrat of Georgia. said the
Souter's home state and the place
where Senator Dole's Presidential
cided to take no position on the question
President had "made a pitch" for
of parental consent but that they die
Judge Souter. From what I've read.
campaign ran aground two vears ago.
oppose a provision in the bill to give
my impression 15 positive. the Senator
"Are you going to be sorry to leave
the alternative of
said.
New Hampshire?" someone asked
permission from a Superior nurt
Representative Newt Gingrich, a
Judge Souter as the meeting with Sena-
judge
Georgia Republican who IS a spokes-
tor Dole was about to begin.
"I don't know that anyone wants to
riting on behalf of his fellow
man for conservatives in the House.
leave New Hampshire, the judge re-
judges. Judge Souter said the
said as he left the same meeting that
piied.
would force the judges 10 engage in
the nomination was a "surprise" and
did," Mr. Dole said.
"acts of unfettered personal choice.
sort of a George Bush-like choice.
The two brief sessions. in elegant of.
He said "a principled and consistent
"II seems to meet all of the Presi-
application of the quoted provision
dent's philosophical commitments."
would be impossible because judges
Mr Gingrich said. "At the same time.
The nominee, no
would respond to the teen-agers
it doesn't allow the President's ideolog-
quests on the basis of their own VIEWS
ical opponents very much automatic
longer stunned,
about abortion, or at least their views
opportunity to fight with him."
about 1981F ability 10 make choices
Mr. Gingrich added. "The people I
about abortion for another person.
know well from New Hampshire who
appears at ease in
Judge Souter's letter said:
Much
have known him say that he is a very
solid person."
the Senate.
criticism of the role of the judiciary in
this country has characterized judicial
activity in the application of constitu-
fices at opposite ends of a corridor be-
tional standards as no more than the
hind the Senate chamber. began with
imposition of individual judges views
photo opportunities. as consecutive
in the guise of applying constitutional
waves of photographers were admitted
terms of great generality. The provi-
to record the event. Judge Souter ap-
sion that 1 have quoted from the
peared at ease. almost amused as he
present bill would force the Superior
parried the shouted questions with a
Court to engage in just such acts of un-
politician's ease. He had shed the
fettered personal choice."
stunned expression he wore when hel
The parental consent bill did not pass
stood beside President Bush two daysi
the Legislature.
ago for the announcement of his nomi-
nation. which Mr. Bush officially sent
A Pitch From Bush
to the Senate this morning.
Dawn Johnsen. legal director of the
abortion rights group. said she found
WIt and Parry
Judge Souter's letter "disturbing" be-
How did it feel to be plucked from ob-
cause It indicated that he might vote on
scurity, he was asked.
the Supreme Court to uphold parental
must sav, I never thought of my-
consent laws that did not give teen-
self as that obscure." Judge Souter re-
agers the option of seeking approval
plied.
from a judge. The Supreme Court has
Asked to recount his feelings upon
not ruled on whether a "judicial by-
being nominated, he answered: The
pass" IS constitutionally required for
best news I have IS that the blood IS cir.
all such legislation.
culating to the brain well enough now
But Ms. Johnsen said the letter did
so that I'm beginning to have some
not appear to indicate Judge Souter's
feelings.
view on the constitutionality of other
Judge Souter. who sits on the United
restrictions on abortion.
States Court of Appeals for the First
The White House today was also pol-
Circuit 5 Boston. IS to meet Thursday
ishing its strategy for the confirmation
morning with Senator Joseph R. Biden
process. Kenneth M. Duberstein and
Jr., the Delaware Democrat who heads
Tom C. Korologos, two White House
the Senate Judiciary Committee. The
committee's confirmation hearing will
be held in September.
Senate Democrats have been largely
silent about the nomination. Neither
the Democrats nor the liberal interest
groups that organized the successful
fight against Judge Robert H. Bork's
nomination to the Supreme Court three
years ago have yet arrived at an ap-
proach to this nomination. Judge Sout-
er's views about the issues that con-
cern these groups the most. like abor-
tion, are not known.
NEW YORK TI'IES
One Democratic aide to the Judici
7/26/90
ary Committee was asked today howl
he was spending his time. 'Reading."
the aide replied.
THE BOSTON GLOBE
7/25/90
Souter confirmation strategy mapped
By John W. Mashek
and Stephen Kurkjian
: DRE STAFF
ASHINGTON Judge David
The longer the president took,
In the 19th century. Supreme
the more his decision would be
H Souter President Bush's nominee
Court nominees were routinely re-
framed as by the abortion issue."
3 the Supreme Court. met with
jected for a broad range of political
-aid a White House adviser who
White House officials yesterday to
reasons. But in this century. the
asked not be to be identified. "He
map out his Senate confirmation
trend has been to allow the presi-
telt the quicker If was done the more
strategy. while Bush urged the Sen-
dent to nominate to the court a per-
people would concentrate on the per-
ate to avoid letting d -ingle issue
son who shares his judicial philos-
Jominate the hearings.
was qualifications. rather than any-
ophy.
thing else.'
As Senate investigators began
The most recent exception to
scrutinizing Souter's record. buth
We hope the Senate will agree." Mc-
that trend. the Senate's rejection of
personal and judicial, political strate-
Clure added.
Reagan's nomination of Robert H.
gists said that by moving rapidly to
Bork. was fueled by Bork's lengthy
nominate Souter, Bush had succeed-
The nominee's lobbyist
writings and opinions on a range of
ed in shifting much of the enormous
The White House confirmed that
controversial topics before the court.
attention concerning the nominee's
Kenneth Duberstein. a former chief
position on abortion 'n his significant
of staff and congressional liaison in
Following a falst trail
qualifications as a jurist.
the Reagan administration. will help
lobby Capitol Hill for Souter on an
There is only a faint paper trail
Souter appeared relaxed when
in Souter's care. a fact that worries
he posed for photographers at the
unpaid basis. Duberstein. a Wash-
conservatives as well as liberals.
White House. The blood IS circulat-
ington lobbyist, IS likely to help
"Most conservatives today have ner-
ing a little bit better than it was yes-
Democrate on the Judiciary Com-
VOUS smiles." said Richard A. Vi-
terday afternoon at five o'clock." he
mittee over how hard Souter should
guerie. chairman of the United Con-
be pressed to detail his position on
servatives of America. "We think we
said. "I didn't think It was going to
abortion. which he has not directly
can be happy, but we're & little ap-
happen. 1 was astonished."
Souter was selected from a list of
ruled on during his 12 years on the
prehensive. We don't know a lot
New Hampshire Superior and Su-
about Judge Souter."
potential nominees that numbered
preme courts.
18 last Saturday. that was trimmed
Until the confirmation hearings
Some senators believe that be-
(i) four over the weekend and that
begin. Souter is likely to stay out of
was reduced to two on Monday:
cause Souter has taken no public po-
the public eye and withhold all com-
sition on abortion. questions should
Souter and Juige Eirth H. Jones.
ment on matters before the court.
41. of the 5th US Circuit Court of
be limited to his positions on the
administration sources said.
Appeals in Houston. sources and.
Souter on the limits of questioning
He is not expected to return to
Bush interviewed Junes and Souter
during the hearings.
his home in Weare. N.H.. until the
on Monday afternoon before decid-
Asked how Souter would respond
weekend. Today. Souter will begin a
ing on Souter. they -aid.
Hearings on his nomination in
to heated questioning by Democrate
tour of Capitol Hill to meet with
on the abortion issue, one Bush ad-
Senate leaders. followed by mem-
the Senate Judiciary Committee are
viser said: "I doubt very much if
bers of the Judiciary Committee.
expected to start in early Septem-
ber. The White House and the Sen-
you'll see anything very deep on any
issue. such as that. that in oefore the
Metaenbane's scere card
ate leadership want the vacancy left
court."
Sen. Howard M. Metzenbaum. an
by retiring Justice William J. Bren-
nan Jr. filled when the new court
However. according to sources.
Ohio Democrat and a Simon col-
term starts on the first Monday in
there is a potential split among the
league on the Judiciary Committee
who is likely to be the toughest ques-
October
broader issue. such as whether the
Lioner. told reporters: "At this point
Speaking on a political fund-rais-
Constitution sets out the right to pri-
it's no hits. no runs, no errors. It
ing top in Philadelphia. Bush al-
vacy.
may not be = good thing in a justice.
luded to the divisive abortion debate
To concentrate on one issue, even
but it's a good thing in sending up a
as he urged the Senate to avoid let.
one as emotional as abortion. would
nominee to be confirmed."
:ing a single issue dominate the con-
"relegate the historic confirmation
Sen. Patrick J. Leahy of Ver-
firmation proceedings.
process to single-issue polities."
mont. a liberal Democrat on the Ju.
"In my nomination
there was
Leahy said.
diciary Committee and a fierce critic
no single issue. no litmus test or
However, other Democrats on
of many of President Reagan's judi-
standard dominating my decision to
the committee appear to feel that
cial nominations. was similarly posi-
nominate." Bush said. -1 will add
abortion is a significant enough issue
tive. "It's a gout one." Leahy said of
there should be THE humus test in the
legally and politically to center the
Bush's decision. "He could have sent
process of confirmation."
debate over Souter's qualifications to
up a.symbol that would pander to
He promoted Souter as a judge
sit on the court.
the far right of his party. but instead
"true to the life and spirit of the
he has chosen someone for his legal
Constitution. a priority that I'm con-
Polities and history
qualifications. not his ideological
fident will also guide the Congress in
Some staff members are already
ones."
the confirmation process."
researching the number of past con-
At the White House. Souter met
firmation battles that hinged on a
with Frederick McClure. Bush's con-
Advantageses background
single issue, including the Senate's
gressional lisison chief. to discuss
The relative lack of definition in
rejection of George Washington's
the confirmation strategy. McClure
Souter's judicial background is
elevation of Justice John Rutledge to
said the meeting was routine. a nor-
working in his favor, as various in-
chief justice in 1796 because of Rut-
mal practice associated with new
terest groups and some members of
ledge's opposition to a treaty with
nominees. "He's a well qualified guy.
the Senate struggle to find any nug-
England.
gets of controversy in his record in
Doug Bailey, a Republican politi-
New Hampshire and on the federal
cal consultant, said that abortion is
bench.
such an explosive, political issue that
Liberals and conservatives are in
senators might legitimately be able
the same predicament. because so
to press Souter to define his position.
little is known about the 50-year-old
without being viewed - abusing the
Souter. a close friend of Sen. Warren
confirmation process.
B. Rudman. Republican of New
"Two years from now, if Souter is
Hampshire.
on the bench and overrules Roe V.
-It is an unclear nomination in
Wade: there are going to be a lot of
the sense of where he is going. and
prochoice people out there asking
that really does help him in this situ-
their senators why they weren't
ation in the Senate." said Sen. Paul
tougher in questioning this guy,"
Simon. an Illinois Democrat who is a
Bailey said.
liberal member of the Judiciary
Committee. "I think the president
was aware of that."
By deciding to announce Souter's
nomination less than three days
after receiving official notification
that Brennan was resigning, Bush
was able to cut off the pressure from
both sides of the abortion issue to
nominate M person who reflected
their views.
WASHINGTON TIMES
7/25/90
White Mountains echoing
pride and praise for Souter
By an McConagna
Judge Souter on the state Supreme
Franklin Pierce Law Center. said
WASHINGTON
Court.
MES
Judge Souter in the past closely ana-
Judge Souter IS "a big-league ball
lyzed the text of the New Hampshire
CONCORD, N.H. - New Hamp-
player who's finally getting to go to
Constitution in arriving at his de-
shire. a state with an abiding faith in
the big league." said John Broderick.
cistons.
tradition. elaborated its version of a
president of the New Hampshire
Horatio Alger epic yesterday with
Bar Association.
But Judge Souter's respect for le-
the story of Judge David H. Souter.
gal precedent might make him re
Former state Attorney General
As reporters flocked here to learn
Steve Merrill. now a Manchester
luctant to overturn earlier rulings.
more about the surprise nominee to
lawyer. added, "The New Hampshire
said Mr. Duggan. He thought it was
the Supreme Court, his friends re
bar is delighted that one of the best
an "open question" whether Judge
vealed that he is a jurist with an abid-
Souter would vote against Roe VS
and brightest in New England. if not
Wade.
ing faith in tradition.
the whole country. was chosen."
He is also popular. The retiring.
But it was also apparent in these
One government official who re
scholarly. 50-year-old federal ap-
interviews that Judge Souter's views
quested anonymity told the Associ-
peals judge was hailed as the
on such sensitive issues as abortion
ated Press that Judge Souter follows
"Abraham Lincoln of New Hamp-
are as little known in his hometown
the values and philosophy of "the
shire" by Concord High School Prin-
as they are among Washington advo-
Great Dissenter." conservative Su
cipal Charles Foley.
cacy groups.
preme Court Justice Oliver Wendell
According to the enthusiatic Mr.
The Concord Monitor, in an ad-
Holmes. another stickler for prece
Foley. if Judge Souter ran for public
miring editorial. noted that the
dent. The official said he took that to
office "he'd be a shoo-in - and peo-
nominee respects legal precedent:
mean Judge Souter would be reluc
ple would be running to get into the
"Souter is no Robert Bork." the
tant to overturn a previous decision
pictures with him. He's that re-
newspaper said. "It's far from cer-
such as Roe VS. Wade.
spected."
tain whether. for example. he would
Judge Souter was born in Mel
Chief Justice David A. Brock of
vote to overturn Roe VS. Wade."
rose. Mass.. and moved at age 11 to
the New Hampshire Supreme Court
The newspaper was referring to
the nearby community of Weare. A
said he was "extremely pleased' and
the 1973 landmark Supreme Court
bachelor. he continues to live quietly
shared in the state's pride at Judge
decision that legalized abortion and
III the austere farmhouse in which he
Souter's selection for the high court.
to retired Judge Robert Bork. whose
was raised.
"I know him as a scholarly, bright
nomination to the high court by
He went to school in Concord, and
and articulate exponent of his judi-
President Reagan failed to win con-
his high school yearbook describes
cial philosophy," said Judge Brock.
firmation.
him as "very hard working and stu-
who served for several years with
James Duggan. a professor at
dious and in constant demand."
WASHINGTON TIMES
7/25/90
Colleagues find Souter
non-political on bench
By Dawn M Wevrich
bers have said they plan to quiz Judge Souter
THE WASHINGTON TIMES
about his philosophy on abortion. and some
interest groups insist the nomination will turn
David Souter's short career on the federal
on that single question. The one case in which
bench makes it hard to predict how he will tip
he dealt with that issue, however. does not
the balance of the Supreme Court. but col-
reveal his position on Roe VS. Wade. the 1973
leagues call the nominee a "judge's judge"
Supreme Court ruling that recognized a fun-
who consistently refused to let politics en-
damental abortion right.
croach on the outcome of his decisions.
But because Judge Souter is a "strict con-
Judge Souter was appointed to the New
structionist" - one who interprets the Consti-
Hampshire Superior Court in 1978 by conser-
vative Gov. Meldrim Thomson Jr. and ele-
tution by the framers' intent - some spec-
ulate he might vote to overturn the decision.
vated to the state's Supreme Court five years
"If the chance were to come before him and
later by another conservative, Gov. John
it involved what he believed to be a correct
Sununu. now White House chief of staff.
interpretation of the Constitution. the answer
"If I were a conservative, I'd say that was
would have to be yes. he would overturn Roe."
a fairly good sign," st.id John Broderick, pres-
ident of the New Hampshire Bar Association
said Mr. Thomson. the former governor.
and counsel for the state's Democratic Party.
But other colleagues insist that Judge
Souter has high respect for prior decisions
But to connect those dots to say he will carry
and might be loath to take such an extreme
out some conservative agenda on the court is
step.
to miss the man."
"He sees the law in an evolutionary mode.
Colleagues from New Hampshire's clan-
not a revolutionary mode." Mr. Broderick
nish legal community insist that Judge Souter
said. "He won't give the electric shock treat-
has no political agenda. But they agree that
ment to any precedent."
he is an adamant opponent of "judicial activ-
Mr. Merrill agreed: "If people think Souter
ism" - legislating from the bench.
"Judge Souter might not have voted for a
is going to be easy to predict on these very
troubling legal issues. they're wrong."
specific piece of legislation had he been in the
legislature." said former state Attorney Gen-
Mr. Broderick said Judge Souter's opinions
are likely to surprise those who attempt to
eral Stephen Merrill. who has argued cases
label him a true conservative.
before the nominee. "If it appeared in front of
"He will not cast his lot with the conserva-
him as bad law, he would criticize it for being
bad law, but he would not strike it down if it
tives on the court merely because they re con-
were constitutional."
servatives." he said. "He's fiercely indepen-
dent in his legal reasoning and he'll get there
Some Senate Judiciary Committee mem-
on his own. He has no constituency:"
Bush reveals high court nominee
Views differ
knowledged Monday that the evalua-
Judge Souter for a job in the aftor
now after the court has built on it
non process was not as thorough as
ney general's office in 1972 that he
and decided a lot of cases on it. is a
the one Judge Souter now will un-
on label for
"ought to be on the Unite it States Stt.
different question," Mr. Duggan said.
DALLAS MORNING NEWS
dergo
preme Court."
Mr. Souter. whom friends say is a
Judge Souter's close friend. Sen.
"He just had an intellect and an
Republican, has been appointed to
7/24/90
Warren Rudman. R-N.H., said the
approach to the law that struck you
four legal and judicial jobs by two
federal jurist
nominee "cannot be categorized as
as special." said Mr. Rath. who de.
Republican governors and Mr. Bush.
having an ideology in any way,
scribed himself as a close friend.
But he IS not viewed by intimates as
shape or form. and a reading of his
Martin Gross, a Concord. N.H.,
actively political himself.
opinions would quickly indicate
By Steve McGonigle
that."
lawyer. called his longtime colleague
Mr. Gross, a Democrat. sought to
Washington Buress of The Daffas Morning News
"a man of integrity and unques-
dispel the notion that Judge Souter IS
Cass Sunstein. a law professor at
tioned legal ability."
a political appointee, although he is
WASHINGTON - President Bush
the University of Chicago. said a
"He doesn't enter cases with any
close to Mr. Rudman and was ap-
described U.S. Appellate Judge David
computer study of legal journals
Souter as conservative Monday but
predetermined views. He believes
pointed to the state Supreme Court
shows that Judge Souter has not
likened his intellect and background
that a judge should decide cases
by John Sununu. the former New
written a decision on abortion. the
issue that some interest groups deem
based on what's argued." Mr Gross
Hampshire governor now serving as
to that of William Brennan. the lib-
said.
Mr. Bush's chief of staff.
eral Supreme Court justice whom
crucial.
Judge Souter may succeed.
James Duggan. head of New
"This is a man who has not had a
What is clearly evident about
Judge Souter. the president and the
Hampshire's public defender pro-
political tie in his life," Mr. Gross
A lawyer in Judge Souter's home
gram. said that Judge Souter tends to
said. "Each time he was named, we
state of New Hampshire offered an-
judge's friends say, is that his intelli-
view the law in strict, literal terms.
all breathed a sigh of relief."
other comparison. He invoked the
gence and legal skills are excep-
image of former Justice Lewis Pow-
tional.
"He interprets rights as they are
Mr. Rath called Judge Souter
ell, a moderate who was often a key
written and interprets the powers of
"apolitical."
Mr. Souter, 50, IS a magna cum
government as they are written." Mr.
Mr. Rudman said his longtime
swing vote on issues such as abor-
laude graduate of Harvard College
Duggan said.
friend and former chief deputy
tion and civil rights.
and also received his law degree
Although Judge Souter once par-
when he was New Hampshire's attor-
Time will tell which, if either,
from Harvard University Law
ney general most likes reading and
portrayal fits Judge Souter.
School. Before starting his legal stud-
ticipated in an abortion-related deci-
mountain-climbing.
His name and legal opinions are
les. he was a Rhodes Scholar at Ox-
sion while on the New Hampshire
"Dave and I rarely discuss politics
not well-known outside the North-
ford University in England
Supreme Court, Mr. Duggan said he
because he doesn't know much about
east, where he served as a state trial
Accolades for his knowledge
could not predict how Judge Souter
politics." Mr. Rudman said. "We talk
and appellate judge for 12 years.
come in shades of brilliance.
would vote on abortion while on the
about other things."
Mr. Brennan, who resigned Fri-
The president called his nominee
Supreme Court.
The senator said he did not know
day because of ill health, was a New
"a remarkable judge of keen intellect
The 1986 decision - in which
Judge Souter's view of the 1973 Roe
Jersey Supreme Court justice when
and the highest ability. one whose
Judge Souter wrote al concurring
decision. which ruled that women
President Dwight Eisenhower tapped
scholarly commitment to the law
opinion ruled that the parents of a
him for the high court in 1956. Mr.
and whose wealth of experience
child born with multiple birth de-
had a constitutional right to privacy
fects could sue a doctor because he
in making the decision to terminate
Brennan went on to become the
mark him of the first rank."
court's leading liberal and a source
did not counsel them about abortion.
a pregnancy in its early stages.
Mr. Bush said be decided to nomi-
of Irustration to five Republican
nate Judge Souter after meeting and
basis of Roe VS. Wade, the New Hamp-
Paul Rothstein, a Georgetown
talking with him Monday for the
shire court noted that the Supreme
University law professor who at-
presidents.
President Bush named Judge
first time. They did not discuss abor-
Court had found that a woman "has a
tended Oxford University with
Souter to the 1st U.S. Circuit Court of
tion or any other legal issue, the
constitutionally secured right to ter-
Judge Souter in the early 1960s.
president insisted to reporters
minate a pregnancy."
praised him as a "very. very sound
Appeals in Boston in April. and he
Tom Rath, a former New Hamp-
Judge Souter. in his concurrence,
lawyer with a lot of judicial experi-
was confirmed unanimously by the
ence."
Senate. However, several senators ac-
shire attorney general. said he told
wondered what the ruling's impact
Please see COLLEAGUES on Page 11A.
his wife after being interviewed by
would be on doctors who oppose
"Based on legal skills, this man is
abortion but were bound to advise
a first-rate lawyer and will make a
patients about 11.
first-rate judge. Mr Rothstein said.
"I think he would have dissented
from Roe vs. Wade, but whether he
would be prepared to overrule If
WASHINGTON TIMES
7/25/90
Souter endorsed
of those arrested during the Sea-
brook demonstrations had been de-
tained in nearby armories rather
than being booked and released. Mr.
the death penalty
Souter testified that the demonstra-
tors had expected to be locked up.
They thought the state of New
Hampshire was not going to do a
By Jerry Seper
more subtle effect" than life impris-
damn thing with them." Mr. Souter
THE WASHING TIMES
onment or other long-term incarcer-
said. "They got a good deal more
ation.
than they bargained for."
CONCORD. N.H. -- Supreme
Mr Souter. who was appointed to
Other positions Mr. Souter took
Court nominee David H. Souter. who
the New Hampshire Superior Court
when he served as attorney general
has avoided public comment on con-
in 1978, told the committee that sta-
included opposition to the construc-
troversial issues since his appoint
tisties had proved that the death pen-
tion of Seabrook over thermal dis-
ment a dozen years ago as a judge.
alty served as a deterrent to murder.
charges and opposition to gambling.
had well-known positions when he
His views on civil disobedience
"He would devote so much
served as a state prosecutor. records
surfaced in June 1977. when he tes-
thought to what the state of New
show.
tified before the state Senate Fi-
Hampshire should do." said Richard
In fact, during his tenure as New
nance Committee that anti-nuclear
McNamara, whom Mr. Souter hired
Hampshire's attorney general be-
protesters at the Seabrook nuclear
as a prosecutor straight out of law
tween 1976 and 1978. Mr. Souter en-
plant had made a "farce" of the crim-
school. "He inculcated in young
dorsed the death penalty and took a
mel justice system. according to the
prosecutors a sense of fairness."
firm stand against civil disobedi
records.
Rep. l'homas Gage, who chairs
ence.
As attorney general. Mr. Souter
the state House Judiciary Commit-
His death penalty stand came
told the committee he planned to
tee. said his dealings with Mr. Souter
during an April 1977 appearance he.
strictly enforce civil disobedience
led him to think of him as a conserva-
fore the state House Judiciary Com-
laws and vowed to vigorously pros-
live "with a little C."
mittee in New Hampshire when. as
ecute those who violated them.
"I think conservative is a good
attorney general. Mr. Souter testi-
Mr. Souter prosecuted the cases
word for him in that he has taken an
fied that he favored the death pen-
against the demonstrators himself.
approach in his style and his demea-
alty in some cases of first-degree
It was unusual." said Al Casassa,
nor and his judicial conduct that is
murder. the records show.
who served as the Hampton District
conservative." he said. "He strikes
"For a certain. limited class of
Court judge for eight years. I think
one as a very gray pin-striped sort of
crime. I do not believe life imprison-
it was the only time in my period in
a guy.
ment is sufficient penalty." Mr.
court that he or any attorney general
"People who admire brilliance
Souter told committee members.
came down there."
will be very impressed with this
Mr. Souter. who had served as
"He was extremely thorough." re-
man." he said. "He has tremendous
deputy attorney general from 1971
members Mr. Casassa. now it lawyer
respect in the legal community as an
to his appointment as attorney gen-
in private practice.
attorney general and as a judge as
eral in 1976. testified that capital
well."
When questioned by Finance
punishment as a deterrent "has a lot
Juy Mallin in Washington con-
Committee members on why many
tributed to this report.
THE WASHINGTON POST, FRIDAY, JULY 27, 1990
A27
The Next Three
David S. Broder
Court Nominees
Despite the animbles from the political ex-
now hangs on the success of his budget summit
Tremes. President Busn's appointment of Judge
with Congress. Bush has paid a significant
Pavid H Souter (1) the Supreme Court has every
political price by abandoning his "no-new-
releasion Superb choice-both sub-
taxes" pledge in order to keep the Democrats
cantively and conticaliv.
negotiating. He needs to get a return on that
What the country should care about is that the
investment-a credible deficit-reduction
New Hampshire jurist-by the unanimous tesu-
agreement that will allow the Federal Reserve
mony of those who know hum-brings a power-
to cut interest rates and help revive a faltering
superbly trained legal intellect. disciplined
economy.
rk habits and genume independence of judg-
The urgency of that agreement is underlined
went to the issues before the high court.
by the new Washington Post-ABC News poll's
The postical finesse of Bush S first Supreme
finding that nearly three out of five Americans
Court appointment underlined by the array of
think the economy is worsening, and more
aur ictive options now open () him for those who
disapprove than approve Bush's leadership on
may follow Souter. After naming an easuy con-
economic issues. Collapse of the budget talks
Imaole conservative who shares has own New
would damage Bush politically and quite possibly
England. Yankee. WASP heritage to replace
up the economy into recession.
The negotiations are arduous already, and
the venom of an ideological battle over a
Bush can play ethnic
Supreme Court nomination would inevitably
poison the chances of the budget summit
and ideological politics
accomplishing its objective.
The second reason Bush did not want a
with subsequent
pitched battle now over a clearly ideological
appointee is the imminence of the midterm
Supreme Court choices.
elections. Republican chances of making gains
in the Senate depend heavily on states such as
Illinois and Rhode Island, where Republican
Associate Justice William J. Brennan. Bush has
women challengers are supporters of abortion
out furnseif into a position where he can play
rights, and Iowa, where the Democratic incum-
hugh but rewarding ethnic and ideological poli-
bent is trying to turn the election into a
C.CS with subsequent Supreme Court choices.
single-issue referendum on his challenger's
The sp-off to the long-term strategy came in
anti-abortion views.
the eagerness with which White House officials
The last thing Bush wanted to do was to
aided reporters in learning the identities of
send up a Supreme Court nominee who would
those who they said were highest on the list of
provoke a lengthy confirmation fight centered
also-rans. They were. in the White House's
on the abortion issue.
publicized order of preference, Circuit Court
None of these considerations would apply in
Judges Edith H. Jones, a Texan and a woman;
1991, should the opportunity for other appoint-
Clarence Thomas, a black; and Laurence H.
ments arise. Bush might well find it useful then
Süberman. a Jew-all clearly in the conserva-
to nail down his conservative base by making a
tive camp.
more ideological court appointment, just as he
A Democratic political consultant who looked
courted the religious right in pre-election 1987
at the list remarked, "They've got perfect
with a series of speeches and gestures.
positioning if they want to pick our coalition
A pitched battle in the Senate in 1991 would
apart." What he meant was that if Bush gets the
be a win-win proposition for Bush: Even if the
opportunity to make additional Supreme Court
liberais defeated his nominee, he would have
appointments before 1992. he can force the
made his point and could come back with a less
Democrats either to acquiesce in moving the
controversial conservative.
high court much farther to the right or to pay an
That is why the three names are so intrigu-
exceptionally high political price by challenging
ing. If Sandra Day O'Connor were to retire,
nominees from important constituencies.
Democrats opposing Judge Jones would find
Talking about the politics of the court ap-
themselves opposing a female and a southerner
pointments in such bald terms may seem offen-
on a court that has had only one woman and no
sive. especially when Bush just has acknowl-
one from Dixie in recent years.
edged a president's overriding obligation to give
If Thurgood Marshall were the retiree, how
the greatest weight to the quality of the nominee
would Democrats feel about blocking Judge
for the high tribunal. But it would be fatuous to
Thomas and making the court all-white again?
pretend that the political environment was not
And if Silberman were the choice, how many
part of this choice. Bush did not want-and
Democrats would be eager to oppose the first
could not afford-a Robert Bork-like confronta-
jew on the court since Abe Fortas?
tion with the Democratic Senate at this moment.
You can see why White House political
The most important reason IS that so much
operatives like the setup.
THE WALL STREET JOURNAL
7/25/90
David Souter, Bush's UnBorkable Nominee
stery nominee David Senter.
the Constitution the trugal reading It often
get a high-stakes test of the
criminal liability A statute regulating
deserves but rarely gets from judges more
commitments of dangerous defendants fnl-
still the state could not exemide them from:
philosophy that what counts IS not
Pager to add their footprints to the head of
lowing findings of insanity does not deal
working III day-care Centers.
and who loses in cases but how
a jurisprudential pin.
with criminal offenses and. by definition.
So 11 a fight develops against Judge
NYES play the game His empty file
Cral libertarians and separation-of-
11.11 button legal issues should make
could not do so." he wrote. Therefore. the
Sonter. It probably won be the smear and
powers nenoscenti will also be cheered by
interence (n anyone so long as he
PX post facto clause does not apply.
misrepresentation campaign that worked
this opinion. Judge Souter chastised a
These cases help explain
so well against Robert Bork. The lobbyists
the litmus test of reasoning by law
magistrate in the case who had advised the
ties aside-the Bush administration does
instead might have to debate the role of
not by politics.
police that evidence would be suppressed If
not need to ask potential nominees their
judges. We already hear liberal voices
review of Judge Souter's New Hamp-
they denied one of the arrested defendants
VIPWS on substantive issues. Put It this
testing the waters by dismissing the dis.
opinions suggests he IS a practi-
his request to make d phone call. Judge
way: If you have to ask a nominee his
tinction between judges interpreting the
Joner of MISSIC judicial restraint. He does
Souter wrote that "legal advice to police
views after analyzing his opinions. you
law and legislating from the bench as noth-
officers ought to come from city or county
probably shouldn't nominate him. It IS
ing but a "cliche.
Rule of Law
attorneys or from the attorney general's
highly unlikely that a judge who will parse
Anyone tempted to push this notion
office. not from judges. Giving advice
the ex post facto prohibition to distinguish
might think twice. For one thing. It IS a
By L. Gordon Crovitz
places neutrality at risk. with potentially
between criminal defendants and the crim-
problem for liberals to disnuss the exis-
appailing consequences." He warned that
mally insane would then fail to take seri-
tence of judicial activism even as they
'all of us in the judiciary should take care
ously other statutes
erect monuments to its champion. William
to avoid occasions for any more litigation
or the Constitution.
Brennan. Justice Brennan had to ignore
not legislate from the bench or make up
about judicial detachment.
It's worth noting
whole tracts of the Constitution to find a
new parts of the Constitution. Indeed. SHV-
Judge Souter also criticized judges for
that litmus-test
prohibition on the death penalty.
PT.II of his cases feature what might be
adopting multipronge: balancing tests as a
questions on sub-
If liberal Senators defeat J judicial
called a Thrifty Yankee view of the Consu-
hidden way of creating new legal rules.
stantive issues were
nommee because he believes too strongly
Use It sparingly.
The straightforward question in City of
put (1) judicial candi-
III judicial restraint. they legitimize activ-
Judge Souter supporters cite one case
Divi l'. Imperial Casualty & Indemnity
dates during the
1st judging at their peril. After all. most
in particular to show the importance of
1990) was whether the city was immune
Carter administra-
federal judges were appointed by Presi-
has J indge reaches his decision. Now
from liability when a woman slipped on a
tion. This makes
dent Reagan or Bush. No one has seen a
Hampshire !' Valenzuela 1987 was d
public sidewalk. Somehow this tort case
sense. It IS obviously
right-wing activist judge in many decades.
of the-mill appeal by drug dealers
led to d majority opinion on the wrinkles of
important to know
but il new breed IS possible to imagine.
ght with h5 pounds of cocaine. almost a
the Constitution's equal protection clause.
the policy views of
Such a judge might ignore the 16th Amend-
marijuana and weapons. The defen-
in his dissent. Judge Souter warned that
an activist judge
ment in order to invalidate income taxes
that's tried to invoke the exclusionary rule
the court's "middle-tier equal protection
whose legal method-
scrutiny
ology could well be
David Souter
or dismiss the Clean Air Act as patently ir
suppress the evidence.
and accompanying questions
rational and refuse to hold defendants ha-
The police had used what's called a nen
as vet unanswered will provide fodder for
determined by the result to be reached.
ble.
register to record the telephone numbers
al good many opinions.'
President Bush may well have found an
diated by one of the drug dealers. To the
More likely. Judge Sonter will become
Judge Souter's dissent in New Hamp-
defendants argument that this was an un-
imBorkable nominee. Judge Souter has ap-
Justice Souter in time for the next term of
Shire 1. Ballon (1984) IS strict construction-
parently never written a law-review article
reasonable search. Judge Souter did not
the Supreme Court. HIS close analysis of
ism at work. The state extended the period
waite III 10 make new search-and-seizure
or given a memorable speech. The liberal
statutes and the Constitution will put him
of new committals to mental hospitals for
how Instead. he ruled that unitke a wiretap
lobbyists will have a hard time making
In the conservative camp of justices. His
criminal defendants who plead guilty by
much of his opinions likeliest to attract
that hing this device to a subscriber's tele-
willingness to ask whether all issues are
reason of insanity. Recommittals would
phone line was not d search at all.
their attention. He has written on abortion.
necessarily legal issues could help nudge
last five years instead of two years. The
He dismissed the view that "any effort
but in a medical malpractice case and only
the court back to its more modest practice
defendant claimed this violated the pro-
(11 eather evidence should be treated as a
to say that doctors don't have to perform
of avoiding essentially political cases. It IS
lubition against ex post facto laws for the
search." Otherwise, he reasoned. the po-
abortions themselves when they advise pa-
d tribute to the influence of Justice Bren-
punishment of criminal offenses.
tients that there may be a birth defect: In
her would also have to get a warrant be.
nan that even his replacement by David
But Judge Souter noted that the insanity
for they could use information given to an
another case. he was part of a court that
Souter would mean only that the new con-
plea IS not an admission of a crime. In-
agent or informer. Judge Souter thus gave
ruled New Hampshire could prohibit homo-
servative intellectual jurisprudence will be
stead. the purpose of the plea IS to avoid
sexuals from adopting children. but also
off to a healthy infancy.
Ascetic at Home but Vigorous on Bench
By DAVID MARGOLICK
New York Times 7/25/90
Special 10 The New York Times
'I'm disappointed that Brennan is
WEARE, N.H., July 24 - Whenever
Neighbors like Martha Knox and
leaving, but Bush could have done a
lawyers assess a candidate for the
Nellie Perrigo, as well as college
lot worse," Mr. Duggan said. "Souter
United States Supreme Court, they
classmates from his days at Harvard
is not a blind right-wing law-and-or-
generally make comparisons to
30 years ago. describe him as courte-
der judge. On the other hand, he's not
known judicial quantities. That IS how
ous, loyal, unaffected and upright.
gomg to cut any breaks for criminal
the lawyers of New Hampshire are
defendants."
"He isn't stuck up, doesn't put on
describing Judge David H. Souter,
Mr. Gross agreed. 'David places a
any airs and is very down to earth,"
whom they have followed from pri-
much stronger value on society's
said Howard Ineson, who lives a mile
vate practice in Concord to the State
need to protect itself than most civil
up Sugar Hill Road from the judge
libertarians would like," he said.
Attorney General's office to the state
and has known him and his family for
"What they'd better be rejoicing
and Federal bench.
40 years. "They're going to have to
about IS that they didn't get another
Some see in Judge Souter the quirk-
work very hard to find any blem-
right-wing nut. This IS a guy who lis-
iness of Justice John Paul Stevens.
ishes."
tens intently to what litigants have to
Others see the intellectual rigor of
On the New Hampshire Supreme
say."
Justice Antonin Scalia, or the prag-
Court, where unanimity is common-
matic conservatism of Justice Lewis
Bruce E. Friedman, director of the
F. Powell Jr. And almost everyone
place and whose spectrum runs less
civil practice clinic at the Franklin
reaches all the way back to the 1930's
from liberal to conservative than
Pierce Law Center in Concord, was
for a Justice of Judge Souter's ascetic
from humanistic to hyper-logical,
less enthusiastic. "He's smart and
style and monastic personal life:
lawyers here say Judge Souter IS at
diligent," Mr. Friedman said, but I
Benjamin N. Cardozo.
the iar edge of the latter.
don't think he will be a general in the
If there are any qualms at all about
war for a kinder. gentler America,"
The one Justice to whom he is
For the past day, New Hampshire
never compared here, either in tem-
Judge Souter, It IS a quiet concern
residents have experienced a surge of
perament or judicial philosophy. is
over his circumscribed way of life. As
pride as they did when two other New
the one he would replace: William J.
a young man he was briefly engaged
Hampshire natives, Alan Shepard
Brennan Jr.
to the daughter of a State Superior
and Christa McAuliffe, were selected
Cottage Cheese and an Apple
Court justice, but he never married,
for the space program. New Hamp-
and even his admirers wonder
shire has not had a Supreme Court
In this green and pleasant state,
whether his solitary style has limited
Justice It could call its own since Har-
where lawyers number just 3,500 and
his empathy or level of human under-
lan Fiske Stone, in the 1940's. In Con-
State Supreme Court justices just
standing.
cord, WKXL radio's "Party Line"
five rather than the usual seven or
Almost no one here purports really
program, originally set aside for
nine, even someone as reclusive as
to understand the small, buttoned-
phone calls about big-band music, de-
Judge Souter cannot remain a remote
voted today's show to Judge Souter,
down figure who stood by awkwardly
whom the moderator described as
Olympian figure.
as President Bush nominated him to
Lawyers here can tell you what
"squeakier than squeaky clean."
the-nation's highest Court on Monday.
kind of cars he drives (and drives and
Even by the laconic standards of this
drives): cheap subcompacts, most
community, he is known for his reti-
The Student
recently a 1987 Volkswagen Golf.
cence.
They can tell you what he undeviat-
Few, including his fellow judges,
ingly eats for lunch every day (cot-
have ever been inside his house, with
Formal, Reserved,
tage cheese and an apple): what he
its peeling paint, sagging porch. and
wears (his black judge's robe was
lawn clogged with clover and Queen
Intensely Private
said to add color to his attire), and
Anne's lace. Those who have say it is
filled with books. By all accounts, he
Judge Souter, an only child, moved
how and where he lives (alone, in a
is much more interested in Tennyson
here with his parents at the age of 11.
weatherbeaten farmhouse in this
than tennis, though he likes hiking in
His father, Joseph, was an official at
southern New Hampshire town nine
the White Mountains as much as ei-
the New Hampshire Savings Bank in
miles from the Supreme Court where
ther.
Concord.
he sat for seven years).
The Judge
The younger Souter was a diligent
They know he is intermittently and
student, whose only brush with juve-
nile delinquency, as one story has it,
selectively gregarious, a good story-
teller who displays a dry New Eng-
Independence
came when he was kicked out of the
New Hampshire Historical Society
land wit to those who really get to
And Hard Work
for loitering after hours. At Concord
know him. He is said to do a splendid
High School where he was voted
imitation of former Gov. Meldrim
"most literary," "most sophisticat-
Thomson Jr., who named him Attor-
But Judge Souter's reticence vani-
ed" and "most likely to succeed."
shes behind the bench. He is credited
ney General, and to tell great tales
The high school yearbook described
with bringing a new level of fire and
about Senator Warren Rudman, the
him as "witty and in constant de-
vigor to the once-sleepy oral argu-
New Hampshire Republican who is
mand" and said he enjoyed "giving
ments that long characterized the
his long-term political mentor and
and attending scandalous parties."
court. He is also widely praised for
Mr. Souter entered Harvard in 1957.
sponsor.
his hard work, dedication, intellectual
From 1961 to 1963 he attended Oxford
Outside the courtroom, they say, he
acuity and independence. "Souter
University on a Rhodes Scholarship,
can cast aside judicial rigor for a
does not carry this huge cargo of
studying law and philosophy. He then
ideological precommitments that
measure of personal warmth. Each
moved to Harvard Law School, where
seems to have been a qualification for
he did well but did not make the Law
Sunday he walks the same elderly
everyone who's been appointed to the
Review.
woman home from St. Andrew's
Supreme Court for the last 10 years,"
When he graduated from Harvard
Episcopal Church in Hopkinton,
said Martin L. Gross, a lawyer in Con-
College in 1961, several classmates
where he is a vestryman, and each
cord.
came up with the perfect idea for a
Sunday he visits his mother at a Con-
James E. Duggan, a professor at
gift: a scrapbook filled with imagi-
Franklin Pierce Law Center in Con-
cord nursing home each Sunday. He
nary news stories about the blazing
cord who has often argued before
offered money to help rebuild a
career everyone foresaw for him. In
him, described Judge Souter as "very
friend's barn after it burned down.
the book, someone pasted the head-
conservative, but with a streak of
line "David Souter Nominated to the
Yankee independence that makes
Supreme Court."
him somewhat unpredictable."
'Mr. Justice Souter'
Pg. 2
NEW YORK TIMES 7/25/90
It was a joke that said much about
his classmates' affection for him, and
At Oxford, Mr. Souter was very pa-
about his single-mindedness. "All
triotic, deeply offended at anti-Amer-
Rudman's tutelage. "They were the
David ever wanted to be was a
ican remarks, Dr. Levine said, add-
two sides of a perfect public person:
ing: "He's always wanted to be a de-
Warren Rudman was gregarious and
judge," said the Rev. John L.
McCausland, an Episcopal minister
fender of America and American
great on his feet, and David Souter
values. That's why he went into law."
more thoughtful, careful." said
who was one of his closest friends at
Charles Leahy of Concord. a friend of
Harvard College and Harvard Law
Influence of an Aunt
Judge Souter's. "It was a chemical.
School. He said Mr. Souter's friends
Mr. Souter was profoundly influ-
intellectual and emotional match."
used to call him "Mr. Justice Souter."
enced by an aunt. Harriet Bartlett.
In 1976 Governor Thomson named
But just three weeks ago, when Mr.
who was a pioneer in medical social
Mr. Souter Attorney General, and
McCausland called Judge Souter to
work. "She had a combination of
during his two-year stint he took sev-
congratulate him on being confirmed
being politically and socially conser-
eral controversial stands, often at
to an appellate court seat in Boston
vative, but she fulfilled liberal
Mr. Thomson's behest. He urged. for
and jokingly asked if this would just
causes," Dr. Levine said.
instance, that demonstrators ar-
be a steppingstone to the Supreme
Dr. Levine said he thought Mr.
rested at the Seabrook nuclear power
Court. he said the judge replied: "No.
Souter had modeled himself on her.
plant be given more than suspended.
sentences. He also argued. unsuccess-
There's no chance I'll be nominated.
and added that she might be the
fully, that It was constitutionally per-
because I come from a politically in-
source of his interest in medicine and
missible to fly the American flag at
significant state."
hospitals: for 13 years he served as a
half staff on Good Friday and that
As an undergraduate. Mr. Souter
trustee of Concord Hospital in New
New Hampshire could force residents
was fascinated by Justice Oliver
Hampshire. 6 of them as president.
to use "Live Free or Die" license
Wendell Holmes. and though he ma-
Mr. Souter's old friends took a turn
plates on their cars.
jored in philosophy. he wrote his sen-
at guessing what kind of Supreme
Mr. Thomson named him to the Su-
for honors thesis about Holmes's judi-
Court Justice he might be. Mr.
perior Court in 1978. Five years later
cial positivism. Mr. McCausland re-
McCausland. who was a lawyer in
his successor. Gov. John H. Sununu.
called an evening meeting at Lowell
Chicago before he became a minister,
elevated him to the Supreme Court to
House at which Mr. Souter read his
predicted that his friend would be
replace Maurice Bois, who had re-
thesis. **It was very technical and
"very conservative as a Justice. but
tired. "I think when I'm old and gray.
erudite." Mr. McCausland said. but
my feeling IS he IS the kind of conser-
people will say 'This is one of the
what struck him was that it examined
vative who can fool the people who
greatest things you did as Gover-
Holmes's belief that a judge should
appointed him."
nor, Mr. Sununu said at Judge Sout-
not act out of political persuasion. or
"He's extraordinarily honorable
er's swearing-in ceremony.
ideology.
and thoughtful and intelligent." Mr.
Over the next seven years. he be-
A Book of Common Prayer
McCausland added. "He would be
came known for writing forceful but
Mr. Souter's father was a loan offi-
technically conservative, but not
increasingly long and complex opin-
cer in a savings bank in Concord. N.H.
ideologically conservative, not like a
ions. "He has a tendency to disclose
The family didn't have a lot of money.
Scalia.
compulsively every twist and turn in
Mr. McCausland said. and so David
"He might well continue to be a
his reasoning," Mr. Gross said. It is
Souter went to Concord High School,
swing vote. He is not a crusader for
an odd fate for someone who, as At-
not to a prep school.
any cause."
torney General, handed out copies of
Mr. Souter was deeply religious,
Strunk and White's manual on Eng-
Mr. McCausland and other longtime
Dr. Levine also said he thought
lish usage to lawyers working for
friends recalled. The Episcopal priest
Judge Souter might prove to be a sur-
him.
said he was amused by Judge Sout-
prise on the Court. "I've always be-
er's preference for the 1928 Episcopal
lieved he is more liberal than he al-
prayer book, rather than the updated
lows in public," he said. "He is very
1970's book, which dropped the use of
conservative, but part of that is pre-
words like thee and thou.
serving an image of old American
David Eisenberg, another Harvard
values. On the humanistic side, he is
classmate who was a Rhodes scholar
very compassionate."
with Mr. Souter, recalled that Mr.
Souter was one of the few Rhodes
scholars who attended chapel and
The Legal Mind
took communion.
Professor Eisenberg, who teaches
Conservative,
molecular biology at the University
of California at Los Angeles, recalled
But What Else?
Mr. Souter as somewhat reclusive
and bookish. "At every break, the
rest of us would take off for the conti-
nent, to get away from the English
After law school, Mr. Souter re-
cold and to explore," he said. "But
turned to Concord, a move that sur-
David always just stayed at Oxford."
prised some who had expected him to
Like other friends, Mr. Eisenberg
settle in a more distant and exotic
described Judge Souter as "an excel-
place. He joined the Concord law firm
lent conversationalist, great fun to
Orr & Reno, where he spent two un-
have dinner with, but formal, re-
happy years. In 1971 he became a
served and intensely private."
Deputy State Attorney General.
He added, "I think he is rather an
He remained in that office for the
old-fashioned kind of person, with
next 12 years, much of it under Mr.
strong values and principles."
Other old friends used similar
terms. Dr. Melvin Levine, another
former Rhodes scholar, said Mr.
Souter, his close friend at Oxford, was
"in the 18th-century mold." He has
"magnificent handwriting that looks
like calligraphy," and is courtly and
unfailingly polite, said Dr. Levine,
who is now a professor of pediatrics
at the University of North Carolina
Medical School in Chapel Hill.
THE NEW YORK TIMES, FRIDAY, JULY 27, 1990
ABRCAD AT HOME
Anthony Lewis
He was respectful of the past He
natieved in stare decises. the principle
that precedent should ordinarily be
Models
followed. and he accepted rules. once
established. from which he had
earlier dissented But his mind was
open to fresh applications of the Con-
For a
stitution to meet new threats.
When the Supreme Court first con-
sidered a Connecticut law against the
use of contraceptives, in 1961. Justice
Justice
Harlan saw the law as a violation of
the liberty guaranteed by the 14th
Amendment. The state, he said, was
introding on "the most intimate de-
talls of the marital relation with the
S
enator Warren Rudman of New
full power of the criminal law."
Humpshire was asked the other
day whether Judge David
Justice Harlan had been a Wall
Souter especially admired any past
Street lawyer, and he was a thorough
members of the Supreme Court.
gentleman. But he had the rare em-
Senator Rudman said he thought the
pathic ability to see issues from the
Souter favorites were Justices Oliver
viewpoint of others with different
Wendell Holmes Jr and John Mar.
backgrounds and different premises.
shall Harlan the younger
in 1971, during the Vietnam War.
the Court considered the case of a
If that IS so - and as a close friend
Senator Rudman should know - It is
young man convicted of disturbing
the peace when he wore a sweatshirt
an extremely interesting answer It
bearing an obscenity against the
dees not tell what everyone in Wasn-
draft. Justice Harlan would no doubt
ington IS panting to know how Judge
Souter would vote on this issue or that
have been outraged, personally. at
such behavior. But he wrote the opin-
as a member of the Court But It gives
ion reversing the conviction.
intriguing insight into how he may
see the job.
Justice Holmes, who served from
The constitutional right of free ex-
1902 to 1932, generally believed in
pression IS powerful medicine in a
judicial deference to legislative
society as diverse and populous as
choices. When the Court tried to stop
ours," he said.
economic reforms. for example when
"It IS designed and intended to re-
It held restrictions on child labor un-
move governmental restraints from
constitutional. he wrote eloquent dis.
the ena of public discussion. putting
the decision as to what views shall be
sents. He thought that democracy
meant that majorities must usually
voiced largely into the hands of each
have their way - but not when It
of us. in the hope that use of such free-
came 10 freedom of speech.
dom will ultimately produce a more
"If there IS any principle of the Con-
capable citizenry and more perfect
stitution that more imperatively calls
polity and in the belief that no other
for attachment than any other."
approach would comport with the
Holmes wrote in 1929, "It IS the princi-
premise of individual dignity and
pie of free thought - not free thought
choice upon which our political sys-
for those who agree with us but free-
tem rests."
dom for the thought that we hate."
Judge Souter IS described as a con-
He was dissenting there from a deci-
servative. But indications are that he
sion that denied American citizenship
comes to this great appointment with
to a woman because she was a pacifist
mo-ideological agenda: no list of legal
and said she would not bear arms to
wrongs he IS determined to right.
defend the Constitution."A later Court
la Washington both conservatives
overruled the decision and came to
and liberals seem discontented with
Holmes's view of free speech.
that They want to make him register
Justice Harlan served from 1955 to
has. votes in advance: for a constitu-
1971. For many of us who knew the
tional right to abortion or against. for
affirmative action or against. I think
thatts a terrible idea.
Requiring a nominee to fill out a
Harlan and
scorecard on particular issues would
be contemptuous of the Court and of
Holmes may
the judicial process. It would tell a
judge that he must make up his mind
before hearing the facts and argu-
shape Judge
rents in a particular case. It would
reduce the Supreme Court to sheer
Souter's
politics and wound an institution on
which all of us ultimately depend for
approach.
our freedom.
Court in that period. he is a model of
what 3 Supreme Court justice should
be. That IS not because he reached re-
sw/hs that always pleased us - far
from It - but because of his crafts-
manship and the way he committed
himself to deciding cases.
He had no agenda. He did not go
into a case with certainty about how It
should come out. He struggled to be
disinterested. That did not mean un-
concerned: he cared deeply. It meant
that he tried genuinely to understand
both sides of the argument.
THE WASHINGTON POST
7/26/90
MARY McGRORY
Nice Guy With Powerful Friends
he nouns about Judge David H.
Bush announced the choice. Rudman
T
Souter are sparse: Yankee.
took the shocked nominee to the Senate
bachelor. intellectual. Phi Beta
Dining Room for supper and put nim up
Kappa. Rhodes scholar.
in his Capitol Hill apartment.
mountain-climber. skinflint.
Rudman has pushed Souter since
The adjectives are somewhat more
1977. when the 1968 Harvard law
promising: shy. brilliant. thoughtful.
graduate came to then-New Hampshire
considerate. witty, pleasant. measured.
attorney general Rudman and dazzled the
courteous.
boss with his prose-"scintillating,
Hordes of reporters are climbing
magnetic. revealing." He made Souter
through the lovely hills of New
his deputy. When Rudman moved on.
Hampshire in search of the man.
then-Gov. Meldrin Thomson made
Here, two questions hover. Who got
Souter attorney general.
him the job? And should he be required to
In 1983. Rudman told the newly
tell his views on questions of the day?
elected governor, Sununu, that the only
The importunate White House Chief
thing he wanted for his help was a seat
of Staff John H. Sununu is taking bows
on the Supreme Court for Souter.
for the appointment and signaling to the
Rudman IS expected to shepherd
right wing that they need have no fears.
Souter's nomination safely
On the other hand. Sen. Warren G.
through-while Sununu continues to
Rudman (R-N.H.) is saving. "He's my
wink at the right and assure them that
guy. Sununu being chief of staff of the
the justice-designate will not be a
White House helped make it happen,
"judicial activist"-a term that means
but I spotted Souter 20 years ago and
he won't hand down decisions that will
I'm the one who promoted him."
upset Newt Gingrich (R-Ga.).
The question of his sponsorship
The administration is acting as if it
matters in the Senate. Most of the
would be unthinkable for anyone to ask
members assumed that Sununu was the
Souter his views on burning social
driving force behind the choice, since
questions, such as abortion. The
Souter and Sununu are both from New
president. when asked if he had asked
Hampshire and the chief of staff has
Souter how he felt about Roe D Wade
assumed control of so many aspects of
said. in effect, of course not, you cur.
White House activity.
The president's men are hinting that
Sununu is controversial on Capitol Hill.
it is unconstitutional to raise the issues
It is not just his militant conservatism
with a man who could decide how they
that raise hackles; it is the suspicion that
will be dealt with for the next 30 years.
the co-presidency that was briefly floated
The usually uninhibited Howard M.
at the 1976 GOP convention, when
Metzenbaum (D-Ohio), of the Judiciary
Gerald R. Ford considered picking
Committee. said he thought it would be
Ronald Reagan, has come to pass.
"inappropriate" to inquire.
Sununu's fingerprints are on the levers
Some people are saying that Bush
from Moscow to Massachusetts.
pulled a fast one by naming a cipher with
Sen. Dale Bumpers (D-Ark.) spoke for
no written opinions. That is a minority
just about everybody when he told the
view. Senators can, if they want to, hear
Arkansas Gazette last weekend that he
raves about Souter from Democrats such
thought Sununu "would probably get his
as Paul McEachern. who was twice
way" in Bush's first Supreme Court pick.
defeated for governor by Sununu and
But Rudman, a popular, pragmatic
regards Souter as "an honorable man"
middle-of-the-road second-termer, says
who appears in court so prepared, other
he proposed Souter long before Sununu
judges listen to his every word.
ever thought of him. In 1987, he told
Gerald L. Baliles. a former
Howard Baker. then the White House
Democratic governor of Virginia, also is
chief of staff, that Souter was Supreme
a fan. He and Souter worked together
Court caliber. Reagan chose Anthony
as deputy attorney generals on Atlantic
M. Kennedy instead. In 1990, Souter,
seaboard questions. Baliles found him to
with a push from Rudman, was
be "without a trace of ideology."
unanimously confirmed for the 1st
Even Renny Cushing, a veteran of the
Circuit Court of Appeals.
Clamshell Alliance who was arrested in
Last Sunday, when Souter was
Seabrook demonstrations and sent to jail
summoned to the White House. he
at Souter's insistence, thinks well of him.
called Rudman. The senator picked him
The judge in the case suspended
up, drove him to the airport, gave him
sentences but Souter. as the attorney
cash, gave him advice: "When you talk
general, dashed to court and begged for.
to Bush. give him those legal
jail time for the protesters. Souter, says
pyrotechnics of yours." Monday after
Cushing, is "basically a nice person."
4/o
9
5
10 18 = X
18 = 10x X
F-32 F 32 =
081
Is
F = F = 9/5 9/5c+32 +32 +
32
32
N
212
F
5/32
PETERE
3
6 6.6 F= =
51
37.6.6 98.
oh
oh
51900
081
0
100
C
9 9:8b
32
3
66.6
37
7
WHITE HOUSE DISCUSSION POINTS
SUPREME COURT NOMINATION OF JUDGE DAVID SOUTER
"Judge Souter, I believe with all my heart, will a
most worthy member of the court. His tenure as an Associate prove
Justice of the Supreme Court of the State of New Hampshire,
Attorney General of that state, and more recently, as a federal as
appeals judge, unquestionably demonstrates his ability, his
integrity, and his dedication to public service. And he has a
keen appreciation of the proper judicial role rooted in
fundamental belief in separation of powers and the democratic
principles underlying our great system of government."
--- President Bush nominating Judge Souter as an
Associate 1990 Justice of the Supreme Court on July 24,
*
In nominating Judge Souter to the Supreme Court, the
with impeccable qualifications.
President selected a jurist of extraordinary ability
*
Judge Souter is a man of unquestioned distinction and
equitable, and thoughtful.
accomplishment. He is an outstanding judge, fair,
*
Judge Souter received the ABA's highest rating of "well
qualified" before he was nominated for a judgeship on
the court of appeals. He was unanimously confirmed for
that position by the Senate in April, 1990.
*
Judge Souter is a believer in judicial restraint, a
tough trial court judge with a great legal mind who
will bench. interpret the Constitution not legislate from the
*
The President did not use any litmus test nor did any
single issue dominate his decision to choose. There
confirmation. should be no litmus test in the process of
*
Judge David Souter was chosen because of his fidelity
to the Constitution and the rule of law. These
qualities, coupled with a nominee's education and
experience, determine whether a nominee will be a
good Justice of the Supreme Court.
Affairs at 202-456-2483.
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