the selling of judge david souter to movement conservatives

8/9/2019 The Selling of Judge David Souter to Movement Conservatives

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THE SELLING OF JUDGE DAVID SOUTER TO

MOVEMENT CONSERVATIVES

RANDALL BALDWIN CLARK

I. WHOS TO BLAME?............................................667

II. AN INCONVENIENT OPPORTUNITY......................670

III. PLANS FOR A TWO-FRONT BLITZKRIEG................672

IV. DESIGNING A TROJAN HORSE ..............................674

V. SOUTERS PAPER TRAIL: TABULA

RASA OR ROSETTA STONE?...................................677

VI. FRUSTRATING THE LIBERAL OPPOSITION ............681VII. CONVERTING THE CHOIR .....................................683

VIII.EXECUTING THE END GAME.................................686

IX. IS SPEED PLUS STEALTH A WORKABLE

MODEL FORJUDICIAL SELECTION? ......................691

X. THE WAGES OF SELF-DECEPTION ........................695

I. WHOS TO BLAME?

Most Court-watchers believe that President George W. Bush will

have the privilege of appointing two new Justices to the United StatesSupreme Court during his 2001-05 term. As President Bushs

supporters anticipate his future exercise of the Appointment Power,

some of them have turned renewed attention to their greatest

* Ph.D., A.M, University of Chicago; J.D., B.A., University of Virginia; author, THELAW MOST BEAUTIFUL AND BEST: MEDICAL ARGUMENT AND MAGICAL RHETORIC INPLATOS LAWS (Lexington 2003). This Article has benefited from the comments andadvice of Henry J. Abraham, Lillian Riemer BeVier, Austin W. Bramwell, Glenn W.Clark, Shawntel R. Fugate, Ian C. Jones, David H. Moore, and Jeffrey OConnell. Theerrors that remain, I regret, are mine alone. In the spirit of disclosure I should note that inthe summer of 2000 I was employed by Orr & Reno, the Concord, New Hampshire firm atwhich Justice David H. Souter began his legal career. I also served as a law clerk in thechambers of the Honorable Edith H. Jones, U.S. Court of Appeals for the Fifth Circuit, for

the 2002-03 term of that court. This work was written during the second year of my legalstudies under the supervision of Professor A.E. Dick Howard. In conceiving, drafting, andpublishing this essay I have consulted with neither Justice Souter, Judge Jones, nor any oftheir friends or colleagues. Please direct comments and questions to

[email protected].


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668 Harvard Journal of Law & Public Policy [Vol. 26

disappointment in recent memory: the nomination and confirmation

of David Hackett Souter to the United States Supreme Court.1

In 1990 President Bushs father appointed to the Supreme Court

Judge David Souter, a jurist with extensive state-court experience butonly three months tenure on the federal bench. Contrary to the stated

expectations of the President who appointed him, Justice Souter has

developed a reputation as a judicial liberal. So disappointed, in fact,

are conservative Court watchers that Justice Souters name is now

invoked as an epithet. In reference to potential Bush appointees,

Senator Orrin Hatch has sworn, No David Souters. I [can] guarantee

that.2

And this from a Senator who said to Bushs nominee at the

confirmation hearings, Youre precisely the type of person I think

ought to have this opportunity to serve on the Supreme Court. . . .3

The question now asked (as it was during the 1995-96 election

season) is how this happened. Three explanations are commonly

adduced. The first is that Justice Souter possesses the instincts not of

a constitutional theorist, but of a common-law judge.4

As Thomas

Jipping, an erstwhile supporter, said in retrospect:

Souter has the mentality of a state court judge, working through thedetails of common-law cases. He sees his job as adjusting thedetails of precedents and has no feeling for the larger constitutionalprinciples that have to be the main concern at the level of the U.S.Supreme Court.

5

This criticism was articulated at great length in an election-year

article, Original Thomas, Conventional Souter: What Kind of Justices

Should the Next President Pick?6

Second, some conservative critics have interpreted Souterssurprising course as the response of a small-timer, dazzled and made

giddy by the vastly broader challenges of the Supreme Court.7

Professor Jeremy Rabkin reports Justice Souter, by way of one of his

former clerks, as having said, I never had to think about these things

1. See, e.g.,Terry Eastland, Courting the Future, AM. SPECTATOR, Feb. 2000, at 28;Robert Novak, Stumbling Over Souter, WASH. POST, Feb. 12, 2001, at A21.

2. Eastland,supra note 1.

3. Nomination of David H. Souter to be Associate Justice of the Supreme Court of theUnited States: Hearings Before the Comm. on the Judiciary, 101st Cong. 223, 229 (1990).

4. See Jeremy Rabkin, The Sorry Tale of David Souter, Stealth Justice, WKLY.STANDARD, Nov. 6, 1995, at 31-33.

5. Id. at 31.

6. See John O. McGinnis, Original Thomas, Conventional Souter: What Kind ofJustices Should the Next President Pick? , POLY REV., Fall 1995, at 24.

7. See Rabkin,supra note 4, at 31.


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No. 2] The Selling of Judge David Souter 669

until I came to Washington. I just never thought much about them. I

had no settled views.8

The third theory is even less charitable toward Justice Souter.

Many conservatives believe, as Professor Rabkin has concluded, thatSouter is a master dissembler, who quite carefully hid his true views

to secure his appointment in an era when the key to advancement lay

through a Republican White House.9

Even though his record on the

New Hampshire Supreme Court was not particularly conservative,

Souter had, in this view, done a masterful job presenting himself as

one who believed in the need for judicial restraint and respect for

original intent in interpreting the Constitution.10

As Rabkin

concludes: So, Souter talked a good game, and it was good enough

to get him onto the Supreme Court.11

As the prospect of another Bush presidency came into viewand

beingthe Souter failure has been addressed with renewed

(perhaps even excessive) vigor.12 Instead of emphasizing, as Professor

McGinnis did, the deficiencies of Judge Souters otherwise

outstanding vitanamely, his lack of experience with federal law and

the rough-and-tumble of Washington politicsmany of those who

now pose this question answer it themselves with indictments of

Justice Souters personal integrity.

While I applaud such analytical enterprisethe selection of life-

tenured judges is a serious business that is not to be taken lightlyI

fear that the authors of works critical of Justice Souters character

make a mistake. As I shall demonstrate, the discontinuities in his

purportedly disappointing service on the Court are matched by

profound continuities. I do not knowand certainly will not presumeto fathomthe secrets of his heart. I will, however, confidently assert

that, for those who were willing to look and listen, the information

and opinions that surfaced in the days and weeks following Judge

Souters nomination to the Supreme Court sufficiently signaled the

direction of his future path. The important question for us to ask is

why observers fail to see and hear them.

8. Id.

9. Id. at 32.10. Id. at 33.

11. Id.

12. See Eastland, supra note 1.


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II. AN INCONVENIENT OPPORTUNITY

On the evening of July 20, 1990, President George H.W. Bush was

handed one of the most difficult challenges of his presidency. In a

letter delivered to the White House, Justice William J. Brennan, Jr.

announced his resignationeffective immediatelyfrom his seat

on the United States Supreme Court.13

Although every modern

president has desired the opportunity to remake the Court in his own

image, Brennans resignation came at a particularly inconvenient time

for the forty-first president.

While historians and other observers of the art of politics frequently

resort to the clich of Scylla and Charybdis to describe the challenge

of passing through a tight and perilous predicament, the image of a

man-eating monster on one side of the boat and a vicious whirlpool

on the other does nonetheless aptly convey the difficulty of President

Bushs situation. On one side, the President was embroiled in tensenegotiations with a Democrat-controlled Congress over the size and

reach of the tax increase that the Democrats wanted to include in the

upcoming years budget. To limit the scope of the increase and

minimize the political fallout from the breach of his promise not to

raise taxes, President Bush needed the cooperation of Democrats in

both houses. Mindful of the political price that President Reagan had

paid for his nomination of Judge Robert H. Bork, a brilliant but

incendiary conservative, to replace Justice Lewis F. Powell, Jr., Bush

very much wished to avoid staging another such debacle. He last

thing he wanted was a knock-down-drag-out fight on the Senate floor

between the extremes of both parties over the question of abortion, an

issue on which conservatives in his own party thought him faint-hearted and equivocal at best, opportunistic at worst.

On the other side, the President was facing an insurrection by his

own partys right flankso-called movement conservativesto

whom he owed, in large measure, his victory over Michael Dukakis in

1988. Since taking office a year and a half earlier, the relationship

between President Bush and these conservatives had become strained.

After having disappointed them in many small ways, Bush committed

an almost unpardonable sin: He broke his much-publicized pledge

Read my lips. No new taxes.14

If he was to retain their support for

13. See Linda Greenhouse, Vacancy on the Court; Brennan, Key Liberal, QuitsSupreme Court; Battle for Seat Likely, N.Y. TIMES, July 21, 1990, at 1.

14. See Ralph Z. Hallow, Court Vacancy Gives Bush a Chance to Mollify the Right,WASH. TIMES, July 23, 1990, at A7.


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his upcoming reelection campaign, he could not break the promise to

appoint a bona fide conservative to the nations highest court.15

While President Bush was aware of the stakes riding on his

decision, the various factions were quick to remind him. Within hoursof Brennans resignation, the colors were in full display. On the left,

Kate Michelman, the head of the National Abortion Rights Action

League, warned that [w]ere only one vote away, one vote away

from losing Roe completely.16

On the right, Burke Balch, state

legislative director for the National Right to Life Committee, noted

that we expect and hope that the replacement named by the President

would be committed to interpreting the Constitution as it is written.17

Even though the President announced that evening that he intended to

appoint a judge who will be on there not to legislate from the bench

but to faithfully interpret the Constitution,18

the saber-rattling on the

right continued throughout the weekend. As Robert Billings,

legislative director of the American Conservative Union, declared,

After Lithuania, after reneging on the no-taxes pledge, after inviting

gays and lesbians into the White House [for a bill-signing ceremony],

after granting trade status to China, this is a chance for Bush to

redeem himself with conservatives.19

Richard Vigueries reminder

was sharper yet:

Its hard to think of a major issue where Bush hasnt abandoned hisconservative base . . . . The major one left for him is pro-life andjudicial appointments. He hasnt had the opportunity to deliver ona pro-life Supreme Court appointment. If he were to welch on it,hed have open rebellion.

20

15. See id . See also Ruth Marcus,No Clear Choice Emerges for Brennans Successor;Solicitor General Starr, Trade Representative Hills on Short, Conservative List of

Potential Court nominees, WASH. POST, July 21, 1990, at A8.

In the Oct. 13, 1988, presidential debate, Bush was asked about what kind ofpeople he would appoint to the Supreme Court. I dont have any litmus test, hesaid. But, what I would do is appoint people to the federal bench that will notlegislate from the bench, who will interpret the Constitution. I do not want to seeus go to againand Im using this word advisedlya liberal majority that isgoing to legislate from the bench. I wont support judges like that.

16. Robin Toner, Vacancy on the Court; Court Vacancy to Challenge President onVolatile Issues, N.Y. TIMES, July 21, 1990, at 1.

17. Id.

18. See Robin Toner, Vacancy on the Court; Two Sides Prepare for Hard Battle onCourt Nominee, N.Y. TIMES, July 22, 1990, at 1.

19. Ann Devroy & Ruth Marcus, Court Nomination is Expected Soon, WASH. POST,July 22, 1990, at A1.

20. Hallow,supra note 14.


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III. PLANS FOR A TWO-FRONT BLITZKRIEG

The question for the President and his advisers, as they turned their

attention to this appointment, was whether he should deliver on his

promise to the right or maintain his budget negotiations with

congressional Democrats. Bush apparently believed that he could, as

they say, have it all. Instead of biting the bulletinstructing that

the surgeon amputate one of his legs, be it the right or the leftBush

believed that he could escape his unenviable predicament (with both

legs intact) by way of a clever strategy. Dubbed at the time a stealth

nomination, Bushs plan had two basic elements: first, take the

offensive by dint of speed; second, tightly control vital information.

Bushs execution of the first element of his plan was flawless. Well

before Brennan announced his resignation, the Bush White House had

eagerly anticipated and diligently prepared for the Supreme Court

appointment(s) it hoped to make. With three octogenarian justices onthe highest courtWilliam Brennan, Harry Blackmun, and Thurgood

MarshallBush had every reason to believe that he would have the

opportunity to effect a substantial change in its composition and

direction.21

C. Boyden Gray had been directing much of his energy to this task

since Bushs inauguration in January 1989. At that time Gray

inherited, as he said, the files and the institutional memory of the

Reagan administration.22

Among these files were those of

approximately fifty candidates for potential nomination to the

Supreme Court and/or the Federal Court of Appeals.23

The list of

potential nominees mostly included sitting judges with a conservative

track record. Gray made efforts to meet them, often in the context ofappointment to the Federal Court of Appeals. By the time that

Brennan announced his resignation, Gray had prepared a list of

approximately eighteen candidates who looked a lot like the President

himself. Most were moderate-conservative males, but the list also

included a number of women, several Hispanics, and one Black.24

Thus, when Brennan announced his resignation precisely eighteen

months after Bushs inauguration, the President was well positioned

21. See Charles Fenyvesi, Washington Whispers, U.S. NEWS & WORLD REP., Dec. 25,1989, at 18.

22. See Ann Devroy,In the End, Souter Fit Politically, WASH. POST, July 25, 1990, atA1.

23. See id.

24. See DAVID G. SAVAGE, TURNING RIGHT: THE MAKING OF THE REHNQUISTSUPREME COURT 350-51 (1992).


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to seize the initiative from his opponents in the Senate and from his

antagonists on the right. And seize he did. In acknowledging

Brennans resignation on Friday evening, the President indicated that

he planned to act quickly.25

As announced, the President met firstthing Saturday morning with three top advisers: Chief of Staff John

H. Sununu, White House Counsel C. Boyden Gray, and Attorney

General Richard Thornburgh.26

After this seventy-five-minute

meeting, Bush reassured the press that no decision had yet been made.

Thornburgh and Gray then went to work with a team of Justice

Department lawyers, reviewing and updating the background files of

those on Grays list.27

Senators were polled regarding their

preferences28

and, perhaps more importantly, their willingness to

lobby their colleagues for confirmation. By Saturday evening or

Sunday morning, the list of eighteen candidates had been shortened to

eight: four top choices and four runners-up.29

On Saturday night or

Sunday morning, Bush met with Gray, Thornburgh, Sununu, andVice-President Dan Quayle, where they discussed the top four

candidates: Judge Edith H. Jones of the Fifth Circuit Court of

Appeals, Judge David H. Souter of the First, and Judges Clarence

Thomas and Laurence H. Silberman, both of the D.C. Circuit.30

After

eliminating Judges Thomas and Silberman, Gray was dispatched to

invite Judges Jones and Souter to come to Washington to meet with

the President.31

Gray was able to reach Judge Jones without difficulty. Souter was

more difficult to find. Gray was eventually able to contact him at his

office, after persuading Judge Souters incredulous mother that the

call was not a prank. Both of them arrived in Washington later that

day, Jones going to the home of John P. Schmitz, Grays deputy, and

Souter to the residence of Michael Luttig, Acting Assistant Attorney

General in charge of the Office of Legal Counsel. Shortly after

arrival, Gray gave each of them the do-you-have-any-skeletons-in-

your-closet interview at their respective hosts home. The next

25. See Greenhouse,supra note 13.

26. See Devroy & Marcus,supra note 19.

27. Seeid.

28. See Paul Bedard,Bush Likely to Choose Southern Conservative, WASH. TIMES, July23, 1990, at A1.

29. See Devroy,supra note 22.

30. See id.; Maureen Dowd,Dole Wary That Abortion May Color Court Selection, N.Y.TIMES, July 23, 1990, at A8.


32. See id.; Paul Bedard, Souter Surprise Selection for Court; Bush Taps ClassicScholar, WASH. TIMES, July 24, 1990, at A1.


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morning Schmitz slipped Jones into the White House, where she met

with Bushs advisers and then the President in his private office for

approximately half an hour. Meanwhile, Murray G. Dickman, Special

Assistant to Thornburgh, brought Souter to the Department of Justice.He spoke in the morning with Thornburgh et al. and, at 1:30 p.m.,

was escorted into Bushs office, where the President and the judge

spoke for forty-five minutes. Bush then spent the next hour discussing

these two candidates with Sununu, Gray, Thornburgh, and Quayle,

after which he retired to his study to consider their advice. The

President settled upon Souter within an hours time and made the

public announcement a few minutes later. From start to finish, fewer

than seventy-two hours had elapsed.32

IV. DESIGNING A TROJAN HORSE

The second element of Bushs strategy, information control, was

more difficult to execute. In order for the Presidents strategy to work,

a candidate needed to be found who possessed two quite contradictory

qualities. On the one hand, he had to possess the ability and

willingness to bring to the Court an understanding of the judiciary

that was agreeable to the President and, pressingly, to his supporters

on the right. On the other hand, the successful candidate would also

have to be impervious, relatively speaking, to the slings and arrows

that Senators Biden, Kennedy, and Metzenbaum of the Judiciary

Committee would cast at him.

Concern with information control did not first emerge after

Brennans resignation. According to one White House official, almost

all of the dozen and a half potential nominees that Boyden Gray hadidentified during the previous year and a half fit into what the official

called the Trojan Horse category.33

Namely, that their writings on

the issue of abortion were slim or nonexistent, providing little of a

paper trail for abortion-rights advocates and other critics to leap on.34

Of the various names that were leaked (or otherwise imagined) over

the course of the weekend, only a handful could be described, as the

garrulous official said, as extra-chromosome conservative[s].35

The

names most frequently mentioned in the press over that weekend

included those of the finalists; other recurring candidates were

33. Ann Devroy, Bush Names Appellate Judge to Brennan Seat; President SelectsSouter, 50, For Intellect and Ability, WASH. POST, July 24, 1990, at A1.

34. Id.

35. Id.


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Kenneth W. Starr, Patrick E. Higginbotham, Ralph K. Winter, J.

Harvie Wilkinson III, Pamela A. Rymer, Carla A. Hills, Roger Miner,

William W. Wilkins, Ricardo Hinojosa, Ferdinand Fernandez, Emilio

Garza, Cynthia Hall, John C. Danforth, and Pasco Bowman.36

From what is known about the White House deliberations over the

weekend, Bushs goal of minimizing the availability of substantive

information concerning the nomineeto his opponents on the left

appears to have been the great desideratum. This can be seen in

Bushs two acts of list-shortening. In the meeting that occurred on

Saturday evening or Sunday morning, President Bushs advisers

presented him with a list of the four finalists. From accounts that we

have of this meeting, President Bush wanted to appoint Judge

Thomas,37

but was persuaded that his strident conservatism would

provide Senate Democrats with a far too easy target. In any event,

there was no hurry, as the President was persuaded that Thomas was

still quite young and could profit from several more years on the

Court of Appeals.38

President Bush appears to have been far less

interested in Judge Silberman, an exceedingly prolific author and

intellectually angular judge, striking his name from the list without

great hesitation.39

Bushs final decision, to favor Souter over Jones, while much more

difficult, was guided by the same concern: How much ammunition

will this appointment give to the Senate Democrats? From what can

be discerned about the lobbying directed at the White House over the

weekend, Judge Jones appears to have been the favorite of the

conservatives. While she had not writtenmuch to her advantage

directly on the question of abortion in her five years as a federalappellate judge, she had nonetheless demonstrated a disinclination to

further expand the scope of constitutional protections.40

As one of her

supporters, Beverly LaHaye, President of Concerned Women for

America, said on Sunday, [Joness] record on the federal appeals

court reveals a consistent adherence to strict construction of the

36. See Greenhouse, supra note 13; Ruth Marcus, No Clear Choice Emerges forBrennans Successor, WASH. POST, July 21, 1990, at A8; Devroy & Marcus, supra note19; Toner, supra note 18; Dowd, supra note 30; Bedard, supra note 28. The names ofClifford Wallace, Richard Thornburgh, Orrin Hatch, David Sentelle, Frank Easterbrook,Richard A. Posner, and Alex Kozinski, found their way into the press, though I doubt thatBushs advisers gave them serious consideration.

37. See SAVAGEsupra note 24, at 351.

38. See id.

39. See SAVAGE,supra note 24, at 351-52.

40. See Ruth Marcus, Caution Urged on Nomination; Bush Warned to Avoid AbortionLitmus Test in Choice for Court, WASH. POST, July 23, 1990, at A1.


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Constitution.41

There was some concern, however, that Judge Joness clear and

substantial record might provide Senate Democrats with too much to

chew on. Even though it was thought that, as a woman, it would have been difficult to hang the abortion issue around her neck, Joness

more partisan background and relatively lengthy service on the

federal bench would make it easier for the Democrats to turn the

appointment into an issue in the fall mid-term elections.42

While in

private practice, Jones served as general counsel to the Texas

Republican Party.43

Moreover, her five years on the Fifth Circuit

Court of Appeals were sufficient for her to write extensively on a

number of contentious constitutional issues.44

Judge Souter, on the other hand, was relatively free of such

liabilities. The reactionary arguments that he had made before the

state and federal courts as New Hampshires Attorney General could

plausibly be presented as dutiful service to Meldrim Thomson, the

states eccentric right-wing governor. Although he had spent twelve

years on the bench, most of themsave three monthswere on New

Hampshire state courts, where a more or less conventionally

conservative record could be portrayed as having its genesis in a

reverential regard for stare decisis in the context of the storied

jurisprudence of a small state.

In spite of the marked differences between the two remaining

candidates, considerable debate between Bushs top advisers still

ensued, even after Bush had interviewed both. Before retiring to his

study, the President spent approximately an hour debating the merits

and liabilities of the two candidates with Quayle, Sununu,Thornburgh, and Gray. According to two senior officials, Sununu

argued for the selection of Jones, with Quayle in agreement, and

Thornburgh and Gray in equipoise.45

Boyden Grays own comments

to the press tacitly suggested the same. According to the White House

Counsel, the decision between the two was very, very close. I think

in the Presidents mind, in Thornburghs and my mind, it almost

didnt matter because both were so good.46

41. Id. See also the opinion of Robert Billings, legislative director of the AmericanConservative Union: She would be my first choice. Id.


43. Paul Bedard, Souter Begins Wooing Senate, WASH. TIMES, July 25, 1990, at A1.

44. See Dale Russakoff, Hunting for Souters Smoking Gun, WASH. POST, July 26,1990, at A25.


46. Id.


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Interviews with other White House leak-mongers suggest that the

decision was not so much of a toss-up as Grays comments would

lead us to believe. According to other White House officials, Judge

Jones would have been Bushs choiceif Bush had been willing torisk an all-out fight.

47The response of one liberal advocacy group, the

People for the American Way, is illustrative. According to one

reporter, PAW officials were anticipating the selection of Judge Jones

and were seated in front of a television Monday evening awaiting the

nomination, holding voluminous files on her opinions. Suddenly Bush

and Souter appeared and, as one official recalled, Everyone said,

thats not Edith. Thats a MAN! All hands ran for the Souter files,

which have been filling up ever since.48

V. SOUTERS PAPERTRAIL: TABULA RASA ORROSETTA STONE?

Since Souters nomination, the crucial question was What do the

filled-up Souter files reveal? In spite of suggestions that his paper

trail was slight, Souters public life did not lack documentation. In

more than twenty-two years of state government workwith three

years of service as New Hampshires Attorney General and seven

years as an Associate Justice of the New Hampshire Supreme Court

David Souter left behind an abundance of paper for the curious to sift

and sort.

The most voluminous file would have contained the briefs he

wrote, decisions he made, and cases he argued over the course of his

ten-year career in the Attorney Generals office. Souter joined the

office as Assistant Attorney General in 1968, after a couple of years

in private practice with Orr & Reno, a prominent Concord, NewHampshire firm.

49His talents were readily recognized. Attorney

General Warren Rudman arranged for Souters promotion to the

office of Deputy Attorney General in 1970, several months after

Rudmans own appointment by Governor Walter Peterson.50

Five

years later, when Rudmans term expired, Governor Meldrim

Thomson appointed Souteragain at Rudmans requestas his

successor.51

47. See R.W. Apple, Jr., Read His Mind; Bushs Enigmatic Choice for the High Court,N.Y. TIMES, July 29, 1990, at 4-1.

48. Russakoff,Hunting for Souters Smoking Gun,supra note 44.

49. See WARREN B. RUDMAN, COMBAT: TWELVE YEARS IN THE U.S. SENATE 153-54(1996); David J. Garrow, Justice Souter Emerges, N.Y. TIMES, Sept. 25, 1994, 6(Magazine), at 36.

50. See RUDMAN,supra note 49, at 154; Garrow,supra note 49, at 40.

51. See RUDMAN,supra note 49, at 157-58; Garrow,supra note 49, at 41.


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Though his tenure as New Hampshires chief law-enforcement

officer was relatively brief, over the course of three years, Souter lent

his signature and legal skills to an odd assortment of projects. Among

other infamous acts, Attorney General Souter had prosecutedJehovahs Witnesses for obscuring with tape the state motto, Live

Free or Die, imprinted on their license plates52

and anti-nuclear

demonstrators for obstructing construction of the Seabrook reactor

site;53

advocated the legality of an executive order directing flags to

be flown at half-mast on Good Friday;54

urged the imposition of an

English-literacy test as a condition precedent for voter registration;55

and led a crusade against the insinuation of casino gambling into New

Hampshire.56

Were this laundry list the sum total of Souters record

on display before the Judiciary Committee, Senate Democrats would

easily and gleefully have Borked him.

In spite of the success that he and his office had enjoyed, Souter

resigned his post as Attorney General in 1978 to become a trial judge

on New Hampshires Superior Court,57

when it became apparent that

a seat on the states Supreme Court could not be obtained without

doing time in the trenches.58

The substantially reduced pressure of his

new position presented Souter with an opportunity to serve

simultaneously as the chairman of the Board of Trustees of the

Concord Hospital, which he did with diligence and vigor, scheduling

his judicial hearings around the boards calendar. At this time Souter

participated in a decision that subsequently confounded efforts to

portray him as a movement conservative. He, along with the

hospitals other trustees, decided to allow abortions to be performed

on premises.59

It is a telling measure of this civil servant, in whom respect for

settled ways and constituted authority were strongly ingrained, that he

so greatly valued and validated the presumed expectations of New

Hampshires practicing physiciansafter Roe v. Wade that they

would be free to perform abortions in a vital local medical facility. He

extolled the virtues ofstare decisisrepose, predictability, rewarding

52. SeeNomination of David H. Souter, supra note 3, at 152-53; see also Maynard v.Wooley, 406 F. Supp. 1381 (D.N.H. 1976), affd, 430 U.S. 705, (1977).

53. SeeNomination of David H. Souter,supra note 3, at 164-68.

54. Seeid. at 146-51.

55. Seeid. at 215-17.

56. Seeid. at 163-64.57. See Garrow,supra note 49, at 41.

58. See RUDMAN,supra note 49, at 159; Garrow,supra note 49, at 41.

59. See RUDMAN,supra note 49, at 159.


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settled expectationseven when he did not have to, given that here

he was acting as neither lawyer nor judge!

In his more public role as a state-court trial judge, however, Souter

continued to act in a manner consistent (or so it seemed) with hisexecutive branch service. He was precise and demanding, earning a

reputation as a hard-nosed skeptic60

when criminal defendants

asserted their claims to imaginative and extravagant criminal and

civil rights. This was the Judge Souter that movement

conservatives wanted to believe in.

But was such belief anything more than a chimera? Perhaps not,

when one considers the truism that in the kingdom of the blind, the

one-eyed man is king. At this time New Hampshire courts were

enamored by the notion thatby purporting to base their criminals

rights decisions solely on the state constitution, not at all on parallel

guarantees found in the U.S. Constitutionthey could exonerate

defendants who would not have escaped conviction had they

committed the same offense across the street on a federal reservation

(e.g., a National Park or a U.S. military base) and thus faced trial

before a United States District Judge. In other words, Judge Souter

seemed conservative because so many of his colleagues were not.

After five years of service on the Superior Court, Souter was

promoted to the New Hampshire Supreme Court in 1983.61

This came

as the repayment of a political debt owed to Warren Rudman by the

newly elected governor of New Hampshire, John Sununu.62

Once he

sat on his states high court, would Justice Souter persist in his

principled opposition to that courts facile evasion of increasingly

conservative federal standards of criminal procedure? A pair of casesfrom his first two years on this court suggest that the answer is, at

best, a resounding maybe.63

As a state court trial judge Souter had taken a position on a matter

of criminal procedure which, not unexpectedly, the New Hampshire

Supreme Court failed to sustain when it ruled in 1981.64

Still, Souters

position was accepted by two of the five sitting Justices. But the 3-2

vote established a judicial precedent. In 1984, in State v. Meister

(decided after Souter became a Justice) the New Hampshire Supreme

60. See Garrow,supra note 49, at 41.

61. See RUDMAN,supra note 49, at 159-60; Garrow,supra note 49, at 41.

62. See RUDMAN,supra note 49, at 159-60; Garrow,supra note 49, at 41.63. See Garrow,supra note 49, at 42-43.

64. See State v. Roger M., 424 A.2d 1139 (N.H. 1981).


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Court voted unanimously to affirm that precedent.65

Souters

explanation for his present failure to defend what had earlier been a

matter of principled legal reasoning (for him), and was now a legal

proposition at equipoise, reveals his extreme veneration of precedent,the consequences of what I believe was an unsound conclusion in

that case are not serious enough to outweigh the value of stare

decisis.66

In 1985, on the other hand, Justice Souter held to his prior attitude

as a trial court judge, declaring firm opposition to his present courts

evisceration of the random but systematic drunk-driving roadblocks

favored by local police to harvest D.U.I. violators. The New

Hampshire Supreme Court said nay, rebuffing Souter in a 4-1 vote.67

When does judicial precedent count for everything? Not always! A

definitive evaluation did not appear to be available, except to

conclude, especially with regard to Roe v. Wade abortion rights, that

precedent mattered a lot more to Souter than it did to his colleagues.

What do the filled-up Souter files reveal? Do they present, in the

words of the Bard, a tale told by an idiot, full of sound and fury,

signifying nothing? Reviewing them now, such a conclusion is

inappropriate, because these documents suggest a fundamental truth

about David Souter, namely, that he was inclined to leave it to others

to assume (or claim) ultimate personal responsibility for actions taken

in the publics name in which he was perhaps the most significant

participant. As Attorney General he was willingas many attorneys

general are notslavishly to do the bidding of his governor. As

Associate Justice of the New Hampshire Supreme Court, he was

willing, in the case of State v. Meister, to swallow both his professional judgment and personal pride in the service ofstare

decisis.

Such a conclusion was not the one that observerspeering from

either left or rightdrew from the available record in 1990. There

was a reason why paper evidence was taken seriously by nobody in

a position to address the nomination dispositively. Each side had its

own reasons for regarding important parts of Souters seemingly

sparse paper trail as a sham. The Democrats on the Senate Judiciary

Committee were not prepared to entertain the notion that a

Republican nominees loudly trumpeted propensity toward judicial

65. See State v. Meister, 480 A.2d 200 (N.H. 1984).

66. Id. at 205 (Souter, J., concurring).

67. Compare State v. Koppel, 499 A.2d 977, 983 (N.H. 1985) (Souter, J., dissenting)with State v. Ball, 471 A.2d 347 (N.H. 1983) (Souter, J., not sitting).


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restraint, possibly derived from indecision, might now translate into

a disinclination to vitiate the Roe v. Wade precedent (a disinclination

already evident at the Concord Hospital). The Republicans on the

same committee, assured by competent authorityas they believedthat Souter was reliably conservative, chose to forego any real

inquiry into the nominees views and experience.

It was a crucial element of the stealth strategy both to deny

putative Democratic opponents any large trove of potentially

defamatory information and to denigrate as irrelevant the scarcely

deniable fact that Souter, as Attorney General, had used his

considerable talent to advance a series of reactionary initiatives. The

exoneration offered by the nominees backers was simplebut

arguably disingenuous: Even an attorney general is just an attorney, a

hired gun doing the bidding of his client. Moreover, Souters

advertised conservatism, exhibited in his role as a New Hampshire

judge, appeared to have become considerably more conventional

moving in the direction of greater moderation than he had exhibited

as Attorney General.

It is understandable that both parties were reduced to whispers.

Here a wink, there a nod, was offered to explicate a studiously

ambiguous formal curriculum vitae. On what indicia could one rely?

Trust me, it came to be said: I know the real David Souter!

VI. FRUSTRATING THE LIBERAL OPPOSITION

President Bushs strategy succeeded with respect to the coalition of

liberal advocacy groups that had successfully torpedoed President

Reagans nomination of Judge Bork. Possessing little conclusiveinformation concerning Souter, potential opponents could not

immediately point to any reasoned ground for their opposition. The

response of the Reverend Jesse Jackson was typical. Several days

after Souters nomination, Jackson declared that he remained

undecided, but added, I believe in an active Supreme Court justice. I

dont know a lot about the nominee, but I know a lot about the

nominator.68

Even after the passage of three full weeks, only two

liberal groups, NOW and the Fund for a Feminist Majority, had

publicly announced their opposition to the Souter nomination.69

68. Joyce Price,Pro-lifers Demand Souters Views, Too, WASH. TIMES, July 27, 1990,at A1.

69. See Dawn M. Weyrich, Enigmatic Souter Frustrating to Liberals, WASH. TIMES,Aug. 17, 1990, at A3.


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According to Rosemary Dempsey, an official at NOW, whose

organization was working to resurrect the anti-Bork alliance but was

having tremendous difficulty doing so, Theres a lot of defeatism

and a lot of feeling that no matter what we do hes just going to getconfirmed. People are saying, Because hes not a Bork, we could do

much worse.70

Her exasperation was noted by contemporaneous

commentators. As A.E. Dick Howard, professor at the University of

Virginia School of Law, said:

I dont sense any real coordination among the [liberal] groups.Theres no field marshal, theres no command post, there arenothing but fragmented inquiries . . . . Theyre frustrated . . . . Thebest they have are doubts and suspicions fueled by a case here anda statement there, but simply not enough to fuel a majorcampaign.

71

With the passage of time, however, an increasing number of groups

found evidence of Souters perceived inadequacies, or at least figuredout how to articulate a demand for further disclosure. By September

6, two more critical groupsthe Alliance for Justice and the National

Association of Criminal Defense Lawyersdeclared their opposition,

substantiated by analyses of Judge Souters decisions on the New

Hampshire bench and his actions as Attorney General.72

Even then,

the mood among the coalition of liberal groups that had successfully

led the battle against Judge Bork was one of wariness and

frustration.73

A few days later a coalition of ten liberal advocacy

groupsincluding NOW, the National Lawyers Guild, the Fund for

a Feminist Majority, and the National Gay and Lesbian Task Force

made a joint public denunciation of the nomination.74

Many others

professed a desire to wait until he testified at a nomination hearing

(the better to gauge his commitment to civil rights and liberties)

before announcing any opposition, which several then did, to very

little effect.75

70. Id.

71. Id.

72. See Carleton R. Bryant, 3 Liberal Groups Open Fire Against Souter Nomination ,WASH. TIMES, Sept. 7, 1990, at A3.

73. Linda Greenhouse, Opponents Find Judge Souter Is a Hard Choice to Oppose , N.Y.TIMES, Sept. 9, 1990, at 4-4.

74. See Dawn M. Weyrich, 10 Liberal Groups Gang up on Souter, WASH. TIMES, Sept.12, 1990, at A1.

75. See Ruth Marcus, Souter Faces Questions in Senate Today; Panel Seen Unlikely ToOppose Nominee, WASH. POST, Sept. 13, 1990, at A4.


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VII. CONVERTING THE CHOIR

The flip side of Bushs stealth strategy, namely, convincing his

conservative supporters of the wisdom of nominating Judge Souter,

was perhaps even more difficult and critical.

Difficult, in that Court appointments were exceedingly important

for Bushs conservative supporters. One administration official had

said, shortly after Brennan resigned, that Court appointments are the

start-all, end-all, and be-all for this group and that selecting a

candidate whom they could embrace is vital.76

Nor were their

standards low. Still angered by the liberals defamation of Judge

Bork, many conservatives were hoping against hope that George Bush

would have the fortitude to renominate him.77

Critical, in that Bush still needed the conservatives support. Most

immediately, Bush wanted to ensure that his partys right wing would

be willing to support his efforts to shepherd Judge Souter to andthrough the Senate Judiciary Committee. Even though Bush did not

expect the liberals to have a full arsenal at their disposal, the White

House knew that some counter force would be necessary. The

important battle would be waged on the op-ed pages of the nations

newspapers and reception desks of one hundred Senatorial offices.

Nor was Bush was unaware of the fact that he had two critical

elections before himNovembers mid-term Congressional elections

and his own re-election bid in 1992. Although some conservatives

might be satisfied only with the renomination of Judge Bork, Bush

still hoped to maintain the integrity of Ronald Reagans coalition, at

least until he no longer needed it. Leaders on the right had vocally

expressed their disappointment with his performance thus far and hadindicated that with this nomination he could redeem himself. As one

White House official said over the weekend, The pressure from

conservatives is intense to nail down the completion of the swing of

the court.78

As another declared, Its time for Bush to show his

conservative colors.79

There was, however, a sticking point. Judge Souter was not the

moral equivalent of Judge Bork. Nor even Judge Jones. And the

conservatives knew that. Immediately after Bushs announcement, the

word on the streets was that conservatives were less than satisfied.

76. Devroy & Marcus,supra note 1977. Id.

78. Bedard, supra note 28.

79. Id.


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They frankly admitted that he was not their first choice and that their

personal unfamiliarity with him and the lack of a paper trail of

written opinions setting out a judicial philosophy were forcing them

to carefully examine his record before stating a public position.80

Asone activist said, Theyre putting a lot of green on this shot. This is a

big, big step for a guy from a New Hampshire state court. You bring

in a guy like this, they have a tendency to pull a Harry Blackmun on

you.81

Apparently concerned by the volubly expressed discontent on the

right, Bushs senior advisers initiated a series of moves to secure the

support of conservative activists. On Tuesday, the day following

Bushs announcement, Chief of Staff John Sununu invited Patrick

McGuigan to his office to reassure him of Souters conservative bona

fides. McGuigan was at the time a senior scholar at the Free Congress

Center for Law and Democracy, was affiliated with the Coalitions for

America, and had served as an informal adviser to the Reagan White

House during the Bork hearings. Also present at the meeting were Bill

Kristol (Quayles Chief of Staff), Ed Rogers (a Sununu aide), and

John Schmitz (a Gray aide). Vice-President Dan Quayle arrived

later.82

McGuigan was quite upset with Bushs choice. As soon as he was

ushered into Sununus office, McGuigan pointedly expressed his

dissatisfaction: Well, John, you guys could have hit a home run if

you had picked Edith Jones. Instead, youve hit a blooper single

which has barely cleared the mitt of the first baseman, whos back-

peddling furiously and almost caught the ball. Sununu offered the

following words of assurance: Pat, you are wrong. This is a homerunand the ball is still ascending. In fact, its just about to leave

earth orbit.83

McGuigan was willing to entertain the possible correctness of

Sununus claim: Look, I dont necessarily disagree on the merits.

Two years from now, our people will probably look back at Souter,

having written the key opinion overturning some outrageous decision,

and say, It turned out that guy [Souter] did get to home base, after


81. Id.

82. See Murray Waas, The Trojan Horse Strategy: Sununu, Souter, and a Secret Memo,VILLAGE VOICE, Aug. 28, 1990, at 19. For confirmation of the authenticity of thismemorandum, see John Elvin,Inside the Beltway , WASH. TIMES, Aug. 28, 1990, at A5.

83. Waas,supra note 82.


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all.84

The concerned activist could not see the connection between

that outcome and the documentation before him. Sununu then

elaborated for McGuigan the rationale for Souters nomination and

the strategy the White House was pursuing to effect hisconfirmation.

85

First, according to Sununu, Bushs preference of Souter over Jones

was solely a matter of congressional politics. From a conservative

perspective, Judge Souter was just as good as Judge Jones. As Sununu

argued to McGuigan, the President

really liked Edith. The final cut was his . . . , and it was a political judgment call on which one wed be most likely to get through.His decision was for Souter, but I can tell you that Edith starts nexttime at the top of the stack. . . . Something could change that, but Ibelieve shell get the next one.

86

Souters great attraction to the President, Sununu elaborated, was

that the White House would be able to argue to great good effect that

the president made the nomination on utterly non-ideological grounds

and could then turn around and accuse his opponents of pressing their

own narrow ideological agenda. Sununu said they wanted to push

the theme, The President had no single issue litmus test, so the

Senate should have no single issue litmus test. McGuigan warmed

up to this idea, helping Sununu et al. revise their presentation to read:

The only legitimate litmus test is the Constitution, and constitutional

judging.87

The other advantage that the President saw in Souters selection,

Sununu explained to McGuigan, was the vigorous advocacy that

Senator Rudman was sure to deliver. Sununu emphasized that Bushschoice had Sununus strong personal support. Nonetheless, the White

House intended to present Souters nomination as the work of Senator

Warren Rudman, a pro-abortion Republican. As Sununu explained,

Youve got to admit there are certain advantages to having one of the

leading moderates so strongly for the nominee.88

The message that

McGuigan took away from the meeting, he related, was that Senator

Rudman would be the White Houses stooge, Souter has the great

blessing of strong support from John Sununu, whom conservatives

know, like and trust. At the same time, Souter has the burden of

84. Id.

85. Id.86. Id.

87. Id.

88. Id.


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strong support from perhaps the most disliked and distrusted

Republican member of the Senate for movement conservatives,

Warren Rudman.89

VIII. EXECUTING THE END GAME

Sununus meeting with Pat McGuigan appeared to have had the

desired effect. After leaving the White House, McGuigan drafted a

six-page memo detailing the conversation and providing some

analysis of Judge Souters opinions on the bench and his work as New

Hampshires Attorney General. He emblazoned it with the words

NO LEAKS ALLOWED! and sent it to a handful of his fellow

conservative activists.90

From that point onward, the messages of the

White House and a number of conservative advocacy organizations

started to converge.

On Monday, the day of the announcement, conservativecommentary on Bushs choice was noncommittal or guardedly

optimistic. Paul Kamenar, executive legal director of the Washington

Legal Foundation, tried to find a silver liningSouter has been very

strong in the criminal law area, so we expect to see the already

conservative majority on those issues solidifybut admitted that

everybody is still trying to learn more about him before they form

solid opinions.91

McGuigan himself said that Souter is at a

minimum, conservative. On the basis of his state record, Im

cautiously optimistic.92

But on Tuesday a number of conservative

groups ventured tepid endorsements at a press conference organized

by Richard Viguerie, The consensus is that we would have preferred

someone elsenot what we were given. . . . But we have to acceptwhats on the table and move forward.

93Others were slightly more

vigorous. Bob Billings, Executive Director of the American

Conservative Union, promised affirmatively to fight for Souter, We

led the forces for Judge Bork, and were not going to wait for People

for the American Way and the ACLU to bring this battle to us.94

The emerging difference in the conservatives rhetoric was their

89. Id. at 19-20.

90. Id. at 19.

91. Dawn M. Weyrich, Souter Surprise Selection for Court; Abortion PositionUnknown, WASH. TIMES, July 24, 1990, at A1.

92. Id.

93. Joyce Price, Conservatives Lukewarm on Souter, WASH. TIMES, July 25, 1990, atA3.

94. Joyce Price, Christians, Lions Both Await Souter in Senate Arena, WASH. TIMES,July 26, 1990, at A3.


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consistent attempt to attribute Souters nomination to Senator Warren

Rudman. On Monday, Richard Viguerie had initially associated

David Souter with John Sununu: Baker didnt want conservatives to

get involved in supporting the Bork nomination. . . . That wonthappen with Sununu, and, besides, this time conservatives arent

going to wait for a request from the White House to join the fray.95

Viguerie and other conservatives acknowledged that they were

reduced to relying on the endorsements of Judge Souter by Mr.

Sununu, a former New Hampshire governor, and conservative, pro-

life Sen. Humphrey, New Hampshire Republican.96

On Tuesday,

however, Viguerie left Sununu out of the picture. Peter T. Flaherty,

chairman of the Conservative Campaign Fund, refrained from

endorsing Souter, but did go on at length about his close ties to

Senator Rudman, On social issues, Warren Rudman is Ted Kennedy.

. . . The fact that Rudman appears to be Souters chief sponsor is not

at all reassuring.97

The White House was doing its part too. Note the progress of the

story from Saturday to Tuesday. On Saturday, White House staff

speaking to the press were not chary of associating Sununu with the

selection process.98

On Monday, however, President Bush personally

went out of his way to distance Sununu from the selection. In

response to a reporters question, the President insisted that the

appointment was not Sununus work:

This matter is, as Ive indicated wasthere was almost a certainrecusal on the part of Governor Sununu on this. Clearly he knowsJudge Souter. He has great respect for Judge Souter. But thisprocess is, as Im sure Boyden Gray and Dick Thornburgh would

tell youcame up through a systemexcellent came to the top.And so there is no politics of this nature in this kind of anappointment. If I was looking to shore up one fact or another,thered be plenty of more visible ways to do it. Here we are talkingabout excellencejudicial excellence, and the highest degree ofqualification based on excellence, to be on the Court.

99

And Sununu himself, in an interview with the New York Times,

presented himself as only remotely involved in the selection of Judge

95. Ralph Z. Hallow, Nomination Called Boost to Bush with Conservatives, WASH.TIMES, July 24, 1990, at A10.

96. Id.

97. Price,supra note 93.

98. See Devroy & Marcus,supra note 19.

99. Comments by President On His Choice of Justice , N.Y. TIMES, July 24, 1990, atA18.


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Souter. It was Boyden Gray and Dick Thornburgh, he said, who

brought Davids name out of the pack. I stayed out until almost the

end. All he did at that point was to intervene with strong personal

support for Souter only on Monday morning. Even then, he said, hemade positive comments about the other candidates. The real

promoter of Judge Souter was Senator Rudman.100

Over the course of the next few weeks the conservative prong of

the White House strategy appeared to have worked. Although some

conservatives continued to object to Judge Souternotably solitary

scriveners such as George Will101

and Bruce Fein102

the vast

majority of conservative interest groups lined up behind the President

in defense of his nominee. Most interesting is the White Houses

success in redirecting the attention of the press and other interested

parties away from John Sununu and toward Warren Rudman.

The initial reportage of Judge Souters nomination to the Supreme

Court almost invariably refers to Souter as a friend or favorite of John

Sununu, with Senator Rudman appearing as an afterthought.103

The

following comments are representative of the lot:

Tuesday, July 24

The president described Judge Soutera favorite of chief ofstaff and former New Hampshire Gov. John Sununuas aremarkable judge of keen intellect and the highest ability.

104

Anticipating the searching evaluation, Mr. Bush surely hasstudied his nominees record more than he acknowledgedyesterday. His chief of staff, John Sununu, who as Governor of New Hampshire appointed Judge Souter to the states highest

court, must have a fairly clear idea of the nominees predilectionon inflamed issues.

105

[New Hampshire Governor] Thomson named him to the

100. See R.W. Apple, Jr.,Bushs Court Choice; Sununu Tells How and Why He PushedSouter for Court, N.Y. TIMES, July 25, 1990, at A12.

101. See George Will, What I Want to Know about Supreme Court Nominee, SEATTLEPOST-INTELLIGENCER, Sept. 13, 1990, at A11; Political Convenience and Blank-SlateSouter, ST. LOUIS POST-DISPATCH, July 30, 1990, at 3B; David Souter: A Pig in a Poke?,SEATTLE POST-INTELLIGENCER, July 26, 1990, at A11.

102. See Bruce Fein, Better to Avoid the Cobwebs?, WASH. TIMES, Aug. 28, 1990, atG3; Souters Judicial Soul Facing an Early Test, WASH. TIMES, Sept. 14, 1990, at F1;Maybe in Classic Moldor Just Malleable, WASH. TIMES, Sept. 25, 1990, at G3.

103. For examples of articles in which Rudman is discussed, see Bedard,supra note 32;David S. Broder & Helen Dewar, Bush Opens Drive For Court Nominee; Confirmation

Hearings Set for September, WASH. POST, July 25, 1990, at A1.

104. Bedard,supra note 32.

105. The President Proposes, N.Y. TIMES, July 24, 1990, at A20.


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Superior Court in 1978. Five years later Mr. Thomsons successor,Gov. John H. Sununu, elevated him to the Supreme Court. I thinkwhen Im old and gray, people will say, This is one of the greatestthings you did as Governor, Mr. Sununu said at Judge Souters

swearing-in ceremony.106

Liberals are not kidding themselves that a New HampshireRepublican with strong ties to White House Chief of Staff JohnSununu will be another Justice Brennan.

107

Sununus ties to Souter were considered an important credentialby some conservative Republicans, even though Bush, Sununu andother aides played down any suggestion that the chief of staff had akey role in Souters nomination. Bush said Sununu, a Republicanformer governor of New Hampshire who has retained a stronghand and interest in that states politics, had all but recused himselffrom the decision. But Edward J. Rollins, co-chairman of the National Republican Congressional Committee who was pushing

for a conservative nominee, said, As far as Im concerned, anyonewho passes the John Sununu litmus test is good enough for me.

108

Wednesday, July 25

The meetings provided most White House officials their firstlook at the lifelong bachelor and friend of Chief of Staff JohnSununu.

109

The President says he knows all he needs to know about JudgeSouter: that he had a great record at Harvard University, wasappointed to the New Hampshire bench by John Sununu andserved on the Federal appeals court.

. . . .

I do wonder about his sponsor: the avowedly anti-choice WhiteHouse chief of staff. Is it really credible that Governor Sununu hasno idea about this nominees attitude on politically significantissues? We can expect to hear support for Judge Souter from themore moderate Senator Warren Rudman of New Hampshire. ButGovernor Sununus fingerprints are not so easily camouflaged.

It is difficult, if not impossible, to believe that Governor Sununu,who served as the forceful hands-on chief executive of NewHampshire, chose a candidate for his state bench in blissful

106. David Margolick,Ascetic at Home but Vigorous on Bench: New Hampshire View

of Presidents Choice for Supreme Court, N.Y. TIMES, July 25, 1990, at A1.107. The Souter Nomination, WASH. POST, July 24, 1990, at A22.

108. Devroy,supra note 33.

109. Bedard,supra note 43.


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ignorance of the decisions that judge was likely to make on issuesclose to Governor Sununus heart. What is it that the White Housestaff knows that leads it to recommend a candidate to the UnitedStates Supreme Court that the rest of us have to wait until after

hes on the Court to find out?110

Though one reporterLinda Greenhouse of the New York Times

describes Senator Rudman as Judge Souters principal champion and

sponsor on Tuesday,111

it was not until Thursday that the rest of the

press started placing Senator Rudman alongside Sununu as a putative

architect of the Souter nomination.

Thursday, July 26

Asked if he thought Judge Souter was Sununus guyareference to conservative White House Chief of Staff John Sununu,who as governor of New Hampshire named Judge Souter to thestate supreme courtMr. Biden said he did not. The Delaware

Democrat said he thought the judge was more closely aligned withSen. Warren Rudman, a New Hampshire Republican with areputation for moderation.

112

The importunate White House Chief of Staff John H. Sununu istaking bows for the appointment and signaling to the right wingthat they need have no fears.

On the other hand, Sen. Warren B. Rudman (R-N.H.) is saying,Hes my guy. Sununu being chief of staff of the White Househelped make it happen, but I spotted Souter 20 years ago and Imthe one who promoted him.

The question of his sponsorship matters. Most senators assumed

that Sununu was the driving force behind the choice, since Souterand Sununu are from New Hampshire and the chief of staff hasassumed control of so many aspects of White House activity.

. . . .

Sen. Dale Bumpers (D-Ark.) spoke for just about everybody whenhe told the Arkansas Gazette last weekend that he thought Sununuwould probably get his way in President Bushs first SupremeCourt pick.

But Rudman, a popular, pragmatic middle-of-the-road second-

110. Ann F. Lewis, Souters Blank Slate Just Wont Do, N.Y. TIMES, July 25, 1990, atA19.

111. Linda Greenhouse, An Intellectual Mind: David Hackett Souter, N.Y. TIMES,July 24, 1990, at A1.

112. Paul Bedard, Souter Looks OK in Senate, WASH. TIMES, July 16, 1990, at A1.


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termer, says he proposed Souter long before Sununu ever thoughtof him.

113

Similar reports appeared for the subsequent several weeks,114

until

Sununu almost disappeared from the news reports. Rudman becamethe source to which journalists invariably turned for information

concerning Bushs nominee. The White House had won.

IX. IS SPEED PLUS STEALTH A WORKABLE MODEL

FORJUDICIAL SELECTION?

In the weeks, months, and years following the Senates

confirmation of Judge Souter to serve on the United States Supreme

Court, the White Houses strategy for the selection and presentation

of its candidate was hailedand lamentedas a textbook model of

moderation, decorum, and success. So effective was it that when

President Bush had the opportunity to fill Justice ThurgoodMarshalls seat, he marketed Judge Clarence Thomas with an

amazingly similar sales plan. As some commentators complained at

the time, the answers that Judge Thomas gave at his confirmation

hearings were almost identical to those presented by Judge Souter.115

With the passage of over a decade, however, President Bushs

strategy appears less commendable, even from a practical perspective.

Putting aside the principled and meritorious objections offered at the

time by George Will and Bruce Fein, even the most partisan

113. Mary McGrory,Nice Guy With Powerful Friends, WASH. POST, July 26, 1990, at

A2.114. See, for example, the following report on July 31:

When George Bush tapped David H. Souter of Weare, N.H., for the U.S.Supreme Court last week, cognoscenti thought it was the handiwork of JohnSununu, the presidents chief of staff and New Hampshires former governor.

They were quite wrong, says Sen. Warren Rudman with trademark bluntness.

The combative New Hampshire Republican these days is savoring his latestcoup. Once just a label on the deficit-busting Gramm-Rudman-Hollings bill,more recently the bulldog vice chairman of the Senate ethics committee thatwrestled Sen. Dave Durenberger to denouncement, Mr. Rudman today is the manwho pushed David Souter to the brink of the lands highest court.

And he doesnt care who knows it was he, and not his good friend the WhiteHouse chief of staff, who pulled it off.

I doubt if John Sununu and David Souter have been together six times, ever.Never socially to my knowledge. In fact, never socially, period, he says.

He is talking by phone from New Hampshire, where the president dropped himand Judge Souter on the way to Kennebunkport, Maine, for the weekend.

Cathryn Donohoe, The Nations No. 1 Booster; Rudman Calls His Protg Most BrilliantIntellect Ive Ever Met, WASH. TIMES, July 31, 1990, at E1.

115. See, e.g., Matthew Cooper, Colins K-Street Crowd, NEW REPUBLIC, Nov. 27,1995, at 18.


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Republican can now appreciate the dangers of buying, as Will said at

the time, a pig in a poke.116

As conservative Court-watchers have

regularly reminded over the past decade, Justice Souter has been a

profound disappointment to advocates of an originalist understandingof constitutional interpretation.

The facile lesson that one might draw from the episode is that

candidates for lifetime appointment to the highest court in the land

should be forced to render clear responses to questions regarding their

understanding of constitutional adjudication. The Souter nomination

suggests to us another, simpler and more fundamental moral.

The long-term failure of the White Houses confirmation strategy

(along with its dazzling short-term success) occurred because the plan

was too clever by half. Whatever effect it might have had upon the

ability of left-wing advocacy groups to wage an effective war against

President Bush and Judge Souter, it had a clear effect upon the ability

of peer groups on the right to gather relevant information, carefully

analyze it, and present timelyand friendlyobjections. While the

speed of President Bushs deliberations achieved its end, the other

aspect of the presidents strategyinformation controlhad a

profoundly debilitating affect on the presidents allies.

The talethat it was moderate advocates like Senator Warren

Rudman who played the pivotal role in George H.W. Bushs selection

of Souter over Edith Joneshid from conservative advocacy groups

the perverse fact that the public lie concerning Souters likely but not-

yet-exhibited moderation was true (as remained to be revealed) while

the privately circulated truth of Souters movement-conservative

bona fides was a lie. Had Pat McGuigan not been so bedazzled by thecleverness of Sununus duplicitous schemeGet that stooge

Rudman to carry our water?! How clever!he might have taken the

time to pick up the newspapers and discover some interesting, but

quite disturbing, information that more honest brokers had easily

uncovered.

Most importantly, McGuigan et al. would have learned that David

Souter could hardly be described as John Sununus soulmate. Mary

McGrorys answer to the question, Who got him the job?, run in the

Washington Post on Thursday, July 26, would have suggested that

Sununu modestly underplayed his own role. This article (reflecting

Sununus highly selective spin) suggests that Warren Rudman had

been vigorously boosting David Souters career ever since they first

116. Will,David Souter: A Pig in a Poke? ,supra note 101.


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met. Rudman (it was said) later persuaded Governor Meldrim

Thomson to appoint Souter Attorney General of New Hampshire. In

1983, after helping John Sununu win New Hampshires governorship,

Rudman was supposed to have called in his chit: Now appoint Souterto the New Hampshire Supreme Court!

Several years later, after Robert Borks nomination had gone down

in flames, Senator Rudman suggested to Howard H. Baker, Jr. (then

Chief of Staff to Ronald Reagan), that the President should give

careful consideration to Souter. Rudman had indeed continued

lobbying for Souter after George H.W. Bush became Presidentand

succeeded in getting him appointed to the First Circuit Court of

Appeals.117

Had Pat McGuigan pursued these leads a bit further, he might have

found, in addition to the advertised instances of Rudmans boosterism

helping Souter,118

that Sununu had been less than forthright in his

characterization of his own relationship with Souter. McGuigan might

have learned, as noted above, that Souters appointment to the New

Hampshire Supreme Court was said to involve the repayment of a

political debt.

Disquietingly, McGuigan might also have discovered the fact

(hinting even more directly at Sununus duplicity) that Sununu had

previously enjoyed yet another opportunity to promote Souter within

the New Hampshire judiciarybut passed it up. Namely, after

Souters appointment in 1983 to the New Hampshire Supreme Court,

the publicly retiring bachelor was soon recognized as its intellectual

leader.119

Three years later, when its Chief Justice retired, Souter

feltas did much of the rest of the New Hampshire barthat hedeserved the seat. In spite of Rudmans supportive suggestion,

Governor Sununu passed over Souter in favor of Judge David Brock,

a more senior and conservative judge.120

Even though court custom

played a role in that decision, even the modest David Souter felt that

this position should have been his.121

If, according to John Sununu,

David Souters appointment to the highest court in the land was like a

117. See McGrory,supra note 113.

118. In the months following Reagans nomination, first, of Douglas Ginsburg and,next, Anthony Kennedy to the Supreme Court, Rudman continued to press Howard Bakerfor Souters nomination to the federal appellate bench. See RUDMAN, supra note 49, at

160-62.119. Seeid.

120. Seeid.; Garrow,supra note 49, at 36.

121. See RUDMAN,supra note 49, at 160.


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home run just about to leave earth orbit,122

McGuigan would have

wanted to know why Sununu had allowed an unsettled custom to

deprive the Governor of the opportunity to promote the most talented

jurist in the state to be Chief Justice of the New Hampshire SupremeCourt. What have we here of promoting the best available man (or

woman) on utterly non-ideological grounds?

Recognition of the fact that Souter was not John Sununus truly

conservative ideological ally might have led Pat McGuigan and his

associates to find other, more reliable sources of information about

this cipher from New Hampshire. Such would not have been difficult

to obtain. Even as John Sununu was sweet-talking McGuigan,

newspaper reporters were in Concord, New Hampshire, soliciting the

opinions of Judge Souters friends and colleagues. What emerges

from these interview reports, published from July 25 to 28, is a

remarkably consistent picture of a man whose salient features should

have been deeply troubling to those anxious to secure fast the ongoing

rightward shift of the Court.

The most striking aspect of his friends accounts is that Judge

Souter, though conservative, is fiercely independent. Each agreed that

Judge Souter can fairly be characterized as conservative, even very

conservative. Nonetheless, each said that this term, conservative,

had little predictive value with regard to this man. James E. Duggan, a

professor at the Franklin Pierce Law Center in Concord who had

often argued before Justice Souter, said that Souter is very

conservative, but with a streak of Yankee independence that makes

him somewhat unpredictable.123

The Reverend John L. McCausland,

an Episcopalian minister and former lawyer in Weare, NewHampshire, Souters hometown, predicted that his buddyhe has

been close friends with the Judge since their college days at

Harvardwould be very conservative as a Justice, but my feeling is

he is the kind of conservative who can fool the people who appointed

him.124

And John Broderick, president of the New Hampshire Bar

Association and counsel for the states Democratic Party, insisted

that, in spite of certain conservative indicia, Souter was not

programmatic: to connect those dots to say he will carry out some

conservative agenda on the court is to miss the man. . . . Hes fiercely

independent in his legal reasoning and hell get there on his own. He

122. Waas,supra note 82, at 19.

123. Margolick,supra note 106.

124. Id.


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has no constituency.125

Second, he was known to his colleagues as a firm believer in the

importance of legal precedent, even to the point of tolerating the

preservation of dubious law. While they generally suspected that hewas personally opposed to abortion, and that he thoughtRoe v. Wade

wrongly decided, each of them (with the exception of the aged and

eccentric ex-governor Thomson) knew him to be loath to overturn

precedent. Professor Duggan suspected that he would only do so if

he felt it was egregiously wrong.126

Broderick insisted that Souter

sees the law in an evolutionary mode, not a revolutionary mode. He

wont give the electric shock treatment to any precedent.127

And the

editors of the Concord Monitor were far from certain whether, for

example, he would vote to overturn Roe vs. Wade.128

In sum, David

Souter wasand was locally known to beindependent of his

political patrons but beholden to precedent.

X. THE WAGES OF SELF-DECEPTION

Hindsight, as they say, is 20/20. It is easy, looking back on the

information and opinions that surfaced in the days and weeks

following Judge Souters nomination to the Supreme Court, to

conclude that everything was there, at least for those with eyes to see

and ears to hear. Had David Souters career on the high court turned

out to confirm John Sununus proffered measure of the man, aspects

of Souters background could now be found to justify Sununus

predictions. The fact remains, however, that there was enough in

Judge Souters record to give to those who craved absolute certainty a

commensurate cause for hesitation. Moreover, one would not havehad to dig too deeply to find it. With perhaps the exception of

Governor Sununus failure to promote Justice Souter to the supreme

position on New Hampshires Supreme Court, all this information

was readily available.

In the weeks and months following President Bushs selection of

David Souter, the whole spectrum of liberal advocacy groups were

furious.As they then saw it, John Sununu, one of their self-professed

arch-enemies, had successfully capitalized on his superior knowledge

125. Dawn M. Weyrich, Colleagues Find Souter Non-political on Bench, WASH.TIMES, July 25, 1990, at A4.

126. Margolick,supra note 106

127. Weyrich,supra note 125.

128. See Alan McConagha, White Mountains Echoing Pride and Praise for Souter,WASH. TIMES, July 25, 1990, at A5.


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of New Hampshire politics. From years of politicking in an overly-

politicked state, he had come to know David Souter as a publicly

bland but privately reactionary jurist. Sununu must knowthough

none of them could prove itthat, were Souter given the opportunityto serve on the United States Supreme Court, he would be the final

nail in the Warren Courts coffin. All this was surely the work of John

Sununu: Was it not he who rescued George H.W. Bushs bid for the

Presidency in the snows of New Hampshire? Was he not now the

gatekeeper of the Oval Office because of that stellar service? The left

knew that Sununu was pulling a fast one on them, but there was

nothing they could do.

With eleven years hindsight it is amazing how correctand

erroneousthe assessment of anti-Bork liberals was. Yes, John

Sununu was modestly more duplicitous than politicians are commonly

thought to be. Yes, he prevaricatedeven lied, some would have

said. But, as it now appears, not to them!

It is understandable that pro-Bork conservative activists might be

upset at the continued presence of David Souter, still a youthful sixty-

three years old, on the Supreme Court. They supported the

Presidential bid of Vice-President George H.W. Bush in 1988 with

the understanding that he would continue Ronald Reagans

painstaking effortbarely begunto staff the judiciary with strict

constructionists. Then, when Bush had an opportunity to replace the

Courts most liberal justice, he traded his birthright for a bowl of

porridge.

Though justifiably angered, conservatives would do well to

remember at whom their wrath should be properly directed. Eventhough the temptation to finger Justice Souter is strong, it should be

resisted. It is they themselves, rather, who are to blame. Let us not

forget the injunction our mothers gave us: When one of your fingers

is pointing at somebody else, three of your own are pointing back at

you. Those who live by the sword, die by the sword. Sununu and his

co-conspirators chose to pass off the truth as a lie. It is only fitting

that they should have to accept their lie as the truth.

the selling of judge david souter to movement conservatives

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