You are on page 1of 30




I. WHO’S TO “BLAME”?............................................667
II. AN INCONVENIENT OPPORTUNITY......................670
IV. DESIGNING A TROJAN HORSE ..............................674
RASA OR ROSETTA STONE?...................................677
VII. CONVERTING THE CHOIR .....................................683
VIII.EXECUTING THE END GAME .................................686
MODEL FOR JUDICIAL SELECTION? ......................691
X. THE WAGES OF SELF-DECEPTION ........................695

Most Court-watchers believe that President George W. Bush will
have the privilege of appointing two new Justices to the United States
Supreme Court during his 2001-05 term. As President Bush’s
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, THE
PLATO’S LAWS (Lexington 2003). This Article has benefited from the comments and
advice of Henry J. Abraham, Lillian Riemer BeVier, Austin W. Bramwell, Glenn W.
Clark, Shawntel R. Fugate, Ian C. Jones, David H. Moore, and Jeffrey O’Connell. The
errors that remain, I regret, are mine alone. In the spirit of disclosure I should note that in
the summer of 2000 I was employed by Orr & Reno, the Concord, New Hampshire firm at
which Justice David H. Souter began his legal career. I also served as a law clerk in the
chambers 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 legal
studies under the supervision of Professor A.E. Dick Howard. In conceiving, drafting, and
publishing this essay I have consulted with neither Justice Souter, Judge Jones, nor any of
their friends or colleagues. Please direct comments and questions to
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.
In 1990 President Bush’s father appointed to the Supreme Court
Judge David Souter, a jurist with extensive state-court experience but
only 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 Souter’s 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.” And this from a Senator who said to Bush’s nominee at the
confirmation hearings, “You’re precisely the type of person I think
ought to have this opportunity to serve on the Supreme Court. . . .”
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. As Thomas
Jipping, an erstwhile supporter, said in retrospect:
Souter has the mentality of a state court judge, working through the
details of common-law cases. He sees his job as adjusting the
details of precedents and has no feeling for the larger constitutional
principles that have
to be the main concern at the level of the U.S.
Supreme Court.
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?
Second, some conservative critics have interpreted Souter’s
surprising course as “the response of a small-timer, dazzled and made
giddy by the vastly broader challenges of the Supreme Court.”
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 the
United 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 of
Justices Should the Next President Pick?, POL’Y REV., Fall 1995, at 24.
7. See Rabkin, supra note 4, at 31.
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.’”
The third theory is even less charitable toward Justice Souter.
Many conservatives believe, as Professor Rabkin has concluded, that
“Souter 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.” 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.” As Rabkin
concludes: “So, Souter talked a good game, and it was good enough
to get him onto the Supreme Court.”
As the prospect of another Bush presidency came into view—and
being—the “Souter failure” has been addressed with renewed
(perhaps even excessive) vigor. Instead of emphasizing, as Professor
McGinnis did, the deficiencies of Judge Souter’s otherwise
outstanding vita—namely, his lack of experience with federal law and
the rough-and-tumble of Washington politics—many of those who
now pose this question answer it themselves with indictments of
Justice Souter’s personal integrity.
While I applaud such analytical enterprise—the selection of life-
tenured judges is a serious business that is not to be taken lightly—I
fear that the authors of works critical of Justice Souter’s 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 know—and certainly will not presume
to fathom—the 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
Souter’s 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.
670 Harvard Journal of Law & Public Policy [Vol. 26

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 resignation—“effective immediately”—from his seat
on the United States Supreme Court. Although every modern
president has desired the opportunity to remake the Court in his own
image, Brennan’s 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 cliché 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
Bush’s situation. On one side, the President was embroiled in tense
negotiations with a Democrat-controlled Congress over the size and
reach of the tax increase that the Democrats wanted to include in the
upcoming year’s 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 party’s right flank—so-called “movement conservatives”—to
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.” If he was to retain their support for

13. See Linda Greenhouse, Vacancy on the Court; Brennan, Key Liberal, Quits
Supreme 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.
No. 2] The Selling of Judge David Souter 671

his upcoming reelection campaign, he could not break the promise to
appoint a bona fide conservative to the nation’s highest court.
While President Bush was aware of the stakes riding on his
decision, the various factions were quick to remind him. Within hours
of Brennan’s resignation, the colors were in full display. On the left,
Kate Michelman, the head of the National Abortion Rights Action
League, warned that “[w]e’re only one vote away, one vote away
from losing Roe completely.” 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.”
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,” 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.” Richard Viguerie’s reminder
was sharper yet:
It’s hard to think of a major issue where Bush hasn’t abandoned his
conservative base . . . . The major one left for him is pro-life and
judicial appointments. He hasn’t had the opportunity to deliver on
a pro-life Supreme Court20appointment. If he were to welch on it,
he’d have open rebellion.

15. See id. See also Ruth Marcus, No Clear Choice Emerges for Brennan’s 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 of
people he would appoint to the Supreme Court. ‘I don’t have any litmus test,’ he
said. ‘But, what I would do is appoint people to the federal bench that will not
legislate from the bench, who will interpret the Constitution. I do not want to see
us go to again—and I’m using this word advisedly—a liberal majority that is
going to legislate from the bench…. I won’t support judges like that.’”
16. Robin Toner, Vacancy on the Court; Court Vacancy to Challenge President on
Volatile 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 on
Court 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.
672 Harvard Journal of Law & Public Policy [Vol. 26

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 bullet—instructing that
the surgeon amputate one of his legs, be it the right or the left—Bush
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,” Bush’s plan had two basic elements: first, take the
offensive by dint of speed; second, tightly control vital information.
Bush’s 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 on
the highest court—William Brennan, Harry Blackmun, and Thurgood
Marshall—Bush had every reason to believe that he would have the
opportunity to effect a substantial change in its composition and
C. Boyden Gray had been directing much of his energy to this task
since Bush’s inauguration in January 1989. At that time Gray
inherited, as he said, “the files and the institutional memory” of the
Reagan administration. Among these files were those of
approximately fifty candidates for potential nomination to the
Supreme Court and/or the Federal Court of Appeals. The list of
potential nominees mostly included sitting judges with a conservative
track record. Gray made efforts to meet them, often in the context of
appointment 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.
Thus, when Brennan announced his resignation precisely eighteen
months after Bush’s 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, at
23. See id.
SUPREME COURT 350-51 (1992).
No. 2] The Selling of Judge David Souter 673

to seize the initiative from his opponents in the Senate and from his
antagonists on the right. And seize he did. In acknowledging
Brennan’s resignation on Friday evening, the President indicated that
he planned to act quickly. As announced, the President met first
thing Saturday morning with three top advisers: Chief of Staff John
H. Sununu, White House Counsel C. Boyden Gray, and Attorney
General Richard Thornburgh. 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 Gray’s list. Senators were polled regarding their
preferences 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. On Saturday night or
Sunday morning, Bush met with Gray, Thornburgh, Sununu, and
Vice-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. After
eliminating Judges Thomas and Silberman, Gray was dispatched to
invite Judges Jones and Souter to come to Washington to meet with
the President.
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 Souter’s 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, Gray’s 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 host’s home. The next

25. See Greenhouse, supra note 13.
26. See Devroy & Marcus, supra note 19.
27. See id.
28. See Paul Bedard, Bush Likely to Choose Southern Conservative, WASH. TIMES, July
23, 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.
31. See Devroy, supra note 22.
32. See id.; Paul Bedard, Souter Surprise Selection for Court; Bush Taps ‘Classic’
Scholar, WASH. TIMES, July 24, 1990, at A1.
674 Harvard Journal of Law & Public Policy [Vol. 26

morning Schmitz slipped Jones into the White House, where she met
with Bush’s 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 Bush’s 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 hour’s time and made the
public announcement a few minutes later. From start to finish, fewer
than seventy-two hours had elapsed.

The second element of Bush’s strategy, information control, was
more difficult to execute. In order for the President’s 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
Brennan’s resignation. According to one White House official, almost
all of the dozen and a half potential nominees that Boyden Gray had
identified during the previous year and a half fit into what the official
called the “Trojan Horse” category. 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.”
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].” 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 Selects
Souter, 50, For ‘Intellect’ and ‘Ability’, WASH. POST, July 24, 1990, at A1.
34. Id.
35. Id.
No. 2] The Selling of Judge David Souter 675

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.
From what is known about the White House deliberations over the
weekend, Bush’s goal of minimizing the availability of substantive
information concerning the nominee—to his opponents on the left—
appears to have been the great desideratum. This can be seen in
Bush’s two acts of list-shortening. In the meeting that occurred on
Saturday evening or Sunday morning, President Bush’s 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, 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. 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.
Bush’s 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 written—much to her advantage—
directly on the question of abortion in her five years as a federal
appellate judge, she had nonetheless demonstrated a disinclination to
further expand the scope of constitutional protections. As one of her
supporters, Beverly LaHaye, President of Concerned Women for
America, said on Sunday, “[Jones’s] 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 for
Brennan’s Successor, WASH. POST, July 21, 1990, at A8; Devroy & Marcus, supra note
19; Toner, supra note 18; Dowd, supra note 30; Bedard, supra note 28. The names of
Clifford Wallace, Richard Thornburgh, Orrin Hatch, David Sentelle, Frank Easterbrook,
Richard A. Posner, and Alex Kozinski, found their way into the press, though I doubt that
Bush’s advisers gave them serious consideration.
37. See SAVAGE supra 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 Abortion
‘Litmus Test’ in Choice for Court, WASH. POST, July 23, 1990, at A1.
676 Harvard Journal of Law & Public Policy [Vol. 26
There was some concern, however, that Judge Jones’s 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,” Jones’s
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. While in
private practice, Jones served as general counsel to the Texas
Republican Party. 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.
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 Hampshire’s Attorney General could
plausibly be presented as dutiful service to Meldrim Thomson, the
state’s eccentric right-wing governor. Although he had spent twelve
years on the bench, most of them—save three months—were 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 Bush’s 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. Boyden Gray’s 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 President’s mind, in Thornburgh’s and my mind, it almost
didn’t matter because both were so good.”

41. Id. See also the opinion of Robert Billings, legislative director of the American
Conservative Union: “She would be my first choice.” Id.
42. See Devroy, supra note 22.
43. Paul Bedard, Souter Begins Wooing Senate, WASH. TIMES, July 25, 1990, at A1.
44. See Dale Russakoff, Hunting for Souter’s ‘Smoking Gun’, WASH. POST, July 26,
1990, at A25.
45. See Devroy, supra note 22.
46. Id.
No. 2] The Selling of Judge David Souter 677

Interviews with other White House leak-mongers suggest that the
decision was not so much of a toss-up as Gray’s comments would
lead us to believe. According to other White House officials, Judge
Jones would have been Bush’s choice—if Bush had been willing to
risk an all-out fight. The 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,
that’s not Edith. That’s a MAN! All hands ran for the Souter files,
which have been filling up ever since.’”

Since Souter’s nomination, the crucial question was “What do the
filled-up ‘Souter files’ reveal?” In spite of suggestions that his “paper
trail” was slight, Souter’s public life did not lack documentation. In
more than twenty-two years of state government work—with three
years of service as New Hampshire’s 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 General’s 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, New
Hampshire firm. His talents were readily recognized. Attorney
General Warren Rudman arranged for Souter’s promotion to the
office of Deputy Attorney General in 1970, several months after
Rudman’s own appointment by Governor Walter Peterson. Five
years later, when Rudman’s term expired, Governor Meldrim
Thomson appointed Souter—again at Rudman’s request—as his

47. See R.W. Apple, Jr., Read His Mind; Bush’s Enigmatic Choice for the High Court,
N.Y. TIMES, July 29, 1990, at 4-1.
48. Russakoff, Hunting for Souter’s ‘Smoking Gun’, supra note 44.
(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.
678 Harvard Journal of Law & Public Policy [Vol. 26

Though his tenure as New Hampshire’s 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 prosecuted
Jehovah’s Witnesses for obscuring with tape the state motto, “Live
Free or Die,” imprinted on their license plates and anti-nuclear
demonstrators for obstructing construction of the Seabrook reactor
site; advocated the legality of an executive order directing flags to
be flown at half-mast on Good Friday; urged the imposition of an
English-literacy test as a condition precedent for voter registration;
and led a crusade against the insinuation of casino gambling into New
Hampshire. Were this laundry list the sum total of Souter’s 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 Hampshire’s Superior Court, when it became apparent that
a seat on the state’s Supreme Court could not be obtained without
doing time in the trenches. 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 board’s calendar. At this time Souter
participated in a decision that subsequently confounded efforts to
portray him as a “movement conservative.” He, along with the
hospital’s other trustees, decided to allow abortions to be performed
on premises.
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
Hampshire’s practicing physicians—after Roe v. Wade—that they
would be free to perform abortions in a vital local medical facility. He
extolled the virtues of stare decisis—repose, predictability, rewarding

52. See Nomination of David H. Souter, supra note 3, at 152-53; see also Maynard v.
Wooley, 406 F. Supp. 1381 (D.N.H. 1976), aff’d, 430 U.S. 705, (1977).
53. See Nomination of David H. Souter, supra note 3, at 164-68.
54. See id. at 146-51.
55. See id. at 215-17.
56. See id. 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.
No. 2] The Selling of Judge David Souter 679

settled expectations—even 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 his
executive branch service. He was precise and demanding, earning a
reputation as a “hard-nosed” skeptic 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 that—by purporting to base their “criminals’
rights” decisions solely on the state constitution, not at all on parallel
guarantees found in the U.S. Constitution—they 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. This came
as the repayment of a political debt owed to Warren Rudman by the
newly elected governor of New Hampshire, John Sununu. Once he
sat on his state’s high court, would Justice Souter persist in his
principled opposition to that court’s facile evasion of increasingly
conservative federal standards of criminal procedure? A pair of cases
from his first two years on this court suggest that the answer is, at
best, a resounding maybe.
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. Still, Souter’s
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).
680 Harvard Journal of Law & Public Policy [Vol. 26
Court voted unanimously to affirm that precedent. Souter’s
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
In 1985, on the other hand, Justice Souter held to his prior attitude
as a trial court judge, declaring firm opposition to his present court’s
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.
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 public’s name in which he was perhaps the most significant
participant. As Attorney General he was willing—as many attorneys
general are not—slavishly 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 of stare
Such a conclusion was not the one that observers—peering from
either left or right—drew 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 Souter’s seemingly
sparse “paper trail” as a sham. The Democrats on the Senate Judiciary
Committee were not prepared to entertain the notion that a
Republican nominee’s 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).
No. 2] The Selling of Judge David Souter 681

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 authority—as they believed—
that Souter was reliably “conservative,” chose to forego any real
inquiry into the nominee’s 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 nominee’s backers was simple—but
arguably disingenuous: Even an attorney general is just an attorney, a
“hired gun” doing the bidding of his client. Moreover, Souter’s
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!

President Bush’s strategy succeeded with respect to the coalition of
liberal advocacy groups that had successfully torpedoed President
Reagan’s nomination of Judge Bork. Possessing little conclusive
information 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 Souter’s nomination, Jackson declared that he remained
undecided, but added, “I believe in an active Supreme Court justice. I
don’t know a lot about the nominee, but I know a lot about the
nominator.” 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.

68. Joyce Price, Pro-lifers Demand Souter’s 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.
682 Harvard Journal of Law & Public Policy [Vol. 26

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, “There’s a lot of defeatism
and a lot of feeling that no matter what we do he’s just going to get
confirmed. People are saying, ‘Because he’s not a Bork, we could do
much worse.’” Her exasperation was noted by contemporaneous
commentators. As A.E. Dick Howard, professor at the University of
Virginia School of Law, said:
I don’t sense any real coordination among the [liberal] groups.
There’s no field marshal, there’s no command post, there are
nothing but fragmented inquiries . . . . They’re frustrated . . . . The
best they have are doubts and suspicions fueled by a case here and
a statement
there, but simply not enough to fuel a major
With the passage of time, however, an increasing number of groups
found evidence of Souter’s perceived inadequacies, or at least figured
out how to articulate a demand for further disclosure. By September
6, two more critical groups—the Alliance for Justice and the National
Association of Criminal Defense Lawyers—declared their opposition,
substantiated by analyses of Judge Souter’s decisions on the New
Hampshire bench and his actions as Attorney General. 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.” A few days later a coalition of ten liberal advocacy
groups—including 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. 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.

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 To
Oppose Nominee, WASH. POST, Sept. 13, 1990, at A4.
No. 2] The Selling of Judge David Souter 683

The flip side of Bush’s 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 Bush’s 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.” 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.
Critical, in that Bush still needed the conservatives’ support. Most
immediately, Bush wanted to ensure that his party’s right wing would
be willing to support his efforts to shepherd Judge Souter to and
through 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 nation’s
newspapers and reception desks of one hundred Senatorial offices.
Nor was Bush was unaware of the fact that he had two critical
elections before him—November’s 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 Reagan’s coalition, at
least until he no longer needed it. Leaders on the right had vocally
expressed their disappointment with his performance thus far and had
indicated 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.” As another declared, “It’s time for Bush to show his
conservative colors.”
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 Bush’s announcement, the
word on the streets was that conservatives were less than satisfied.

76. Devroy & Marcus, supra note 19
77. Id.
78. Bedard, supra note 28.
79. Id.
684 Harvard Journal of Law & Public Policy [Vol. 26

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. As
one activist said, “They’re 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
Apparently concerned by the volubly expressed discontent on the
right, Bush’s senior advisers initiated a series of moves to secure the
support of conservative activists. On Tuesday, the day following
Bush’s announcement, Chief of Staff John Sununu invited Patrick
McGuigan to his office to reassure him of Souter’s 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 (Quayle’s Chief of Staff), Ed Rogers (a Sununu aide), and
John Schmitz (a Gray aide). Vice-President Dan Quayle arrived
McGuigan was quite upset with Bush’s choice. As soon as he was
ushered into Sununu’s office, McGuigan pointedly expressed his
dissatisfaction: “Well, John, you guys could have hit a home run if
you had picked Edith Jones. Instead, you’ve hit a blooper single
which has barely cleared the mitt of the first baseman, who’s back-
peddling furiously and almost caught the ball.” Sununu offered the
following words of assurance: “Pat, you are wrong. This is a home
run—and the ball is still ascending. In fact, it’s just about to leave
earth orbit.”
McGuigan was willing to entertain the possible correctness of
Sununu’s claim: “Look, I don’t 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

80. See Devroy, supra note 33.
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 this
memorandum, see John Elvin, Inside the Beltway, WASH. TIMES, Aug. 28, 1990, at A5.
83. Waas, supra note 82.
No. 2] The Selling of Judge David Souter 685
all.’” The concerned activist could not see the connection between
that outcome and the documentation before him. Sununu then
elaborated for McGuigan the rationale for Souter’s nomination and
the strategy the White House was pursuing to effect his
First, according to Sununu, Bush’s 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 we’d be most likely to get through.
His decision was for Souter, but I can tell you that Edith starts next
time at the top of the stack. . . 86
. Something could change that, but I
believe she’ll get the next one.
Souter’s 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
The other advantage that the President saw in Souter’s selection,
Sununu explained to McGuigan, was the vigorous advocacy that
Senator Rudman was sure to deliver. Sununu emphasized that Bush’s
choice had Sununu’s strong personal support. Nonetheless, the White
House intended to present Souter’s nomination as the work of Senator
Warren Rudman, a pro-abortion Republican. As Sununu explained,
“You’ve got to admit there are certain advantages to having one of the
leading moderates so strongly for the nominee.” The message that
McGuigan took away from the meeting, he related, was that Senator
Rudman would be the White House’s 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.
686 Harvard Journal of Law & Public Policy [Vol. 26

strong support from perhaps the most disliked and distrusted
Republican member of the Senate for movement conservatives,
Warren Rudman.”

Sununu’s 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 Souter’s opinions on the bench and his work as New
Hampshire’s Attorney General. He emblazoned it with the words
“NO LEAKS ALLOWED!” and sent it to a handful of his fellow
conservative activists. 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, conservative
commentary on Bush’s choice was noncommittal or guardedly
optimistic. Paul Kamenar, executive legal director of the Washington
Legal Foundation, tried to find a silver lining—Souter “has been very
strong in the criminal law area, so we expect to see the already
conservative majority on those issues solidify”—but admitted that
“everybody is still trying to learn more about him before they form
solid opinions.” McGuigan himself said that Souter is “at a
minimum, conservative.” On the basis of “his state record, I’m
cautiously optimistic.” 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 else—not what we were given. . . . But we have to accept
what’s on the table and move forward.” Others 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 we’re not going to wait for People
for the American Way and the ACLU to bring this battle to us.”
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 Position
Unknown, WASH. TIMES, July 24, 1990, at A1.
92. Id.
93. Joyce Price, Conservatives Lukewarm on Souter, WASH. TIMES, July 25, 1990, at
94. Joyce Price, Christians, Lions Both Await Souter in Senate Arena, WASH. TIMES,
July 26, 1990, at A3.
No. 2] The Selling of Judge David Souter 687

consistent attempt to attribute Souter’s nomination to Senator Warren
Rudman. On Monday, Richard Viguerie had initially associated
David Souter with John Sununu: “Baker didn’t want conservatives to
get involved in supporting the Bork nomination. . . . That won’t
happen with Sununu, and, besides, this time conservatives aren’t
going to wait for a request from the White House to join the fray.”
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.” 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 Souter’s chief sponsor is not
at all reassuring.”
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. On Monday, however, President Bush personally
went out of his way to distance Sununu from the selection. In
response to a reporter’s question, the President insisted that the
appointment was not Sununu’s work:
This matter is, as I’ve indicated was—there was almost a certain
recusal on the part of Governor Sununu on this. Clearly he knows
Judge Souter. He has great respect for Judge Souter. But this
process is, as I’m sure Boyden Gray and Dick Thornburgh would
tell you—came up through a system—excellent came to the top.
And so there is no politics of this nature in this kind of an
appointment. If I was looking to shore up one fact or another,
there’d be plenty of more visible ways to do it. Here we are talking
about excellence—judicial excellence, and the highest 99
degree of
qualification based on excellence, to be on the Court.
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, at
688 Harvard Journal of Law & Public Policy [Vol. 26

Souter. It was Boyden Gray and Dick Thornburgh, he said, who
“brought David’s 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, he
made positive comments about the other candidates. The real
promoter of Judge Souter was Senator Rudman.
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 Souter—notably solitary
101 102
scriveners such as George Will and Bruce Fein —the vast
majority of conservative interest groups lined up behind the President
in defense of his nominee. Most interesting is the White House’s
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 Souter’s 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. The
following comments are representative of the lot:
Tuesday, July 24

Š The president described Judge Souter—a favorite of chief of
staff and former New Hampshire Gov. John Sununu—as 104
remarkable judge of keen intellect and the highest ability.”

Š Anticipating the searching evaluation, Mr. Bush surely has
studied his nominee’s record more than he acknowledged
yesterday. His chief of staff, John Sununu, who as Governor of
New Hampshire appointed Judge Souter to the state’s highest
court, must have a 105
fairly clear idea of the nominee’s predilection
on inflamed issues.

Š [New Hampshire Governor] Thomson named him to the

100. See R.W. Apple, Jr., Bush’s Court Choice; Sununu Tells How and Why He Pushed
Souter for Court, N.Y. TIMES, July 25, 1990, at A12.
101. See George Will, What I Want to Know about Supreme Court Nominee, SEATTLE
POST-INTELLIGENCER, Sept. 13, 1990, at A11; Political Convenience and Blank-Slate
Souter, ST. LOUIS POST-DISPATCH, July 30, 1990, at 3B; David Souter: A Pig in a Poke?,
102. See Bruce Fein, Better to Avoid the Cobwebs?, WASH. TIMES, Aug. 28, 1990, at
G3; Souter’s Judicial Soul Facing an Early Test, WASH. TIMES, Sept. 14, 1990, at F1;
Maybe in Classic Mold—or 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.
No. 2] The Selling of Judge David Souter 689

Superior Court in 1978. Five years later Mr. Thomson’s successor,
Gov. John H. Sununu, elevated him to the Supreme Court. “I think
when I’m old and gray, people will say, ‘This is one of the greatest
things you did as Governor,’”
Mr. Sununu said at Judge Souter’s
swearing-in ceremony.

Š Liberals are not kidding themselves that a New Hampshire
Republican with strong ties to White House
Chief of Staff John
Sununu will be another Justice Brennan.
Š Sununu’s ties to Souter were considered an important credential
by some conservative Republicans, even though Bush, Sununu and
other aides played down any suggestion that the chief of staff had a
key role in Souter’s nomination. Bush said Sununu, a Republican
former governor of New Hampshire who has retained a strong
hand and interest in that state’s politics, had all but recused himself
from 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 I’m concerned, anyone 108
who passes the John Sununu litmus test is good enough for me.”

Wednesday, July 25

Š The meetings provided most White House officials their first
look at 109
the lifelong bachelor and friend of Chief of Staff John

Š The President says he knows all he needs to know about Judge
Souter: that he had a great record at Harvard University, was
appointed to the New Hampshire bench by John Sununu and
served on the Federal appeals court.

I do wonder about his sponsor: the avowedly anti-choice White
House chief of staff. Is it really credible that Governor Sununu has
no idea about this nominee’s attitude on politically significant
issues? We can expect to hear support for Judge Souter from the
more moderate Senator Warren Rudman of New Hampshire. But
Governor Sununu’s 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 New
Hampshire, chose a candidate for his state bench in blissful

106. David Margolick, Ascetic at Home but Vigorous on Bench: New Hampshire View
of President’s 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.
690 Harvard Journal of Law & Public Policy [Vol. 26

ignorance of the decisions that judge was likely to make on issues
close to Governor Sununu’s heart. What is it that the White House
staff knows that leads it to recommend a candidate to the United
States Supreme Court that the 110
rest of us have to wait until after
he’s on the Court to find out?
Though one reporter—Linda Greenhouse of the New York Times—
describes Senator Rudman as “Judge Souter’s principal champion and
sponsor” on Tuesday, 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

Š Asked if he thought Judge Souter was “Sununu’s guy”—a
reference to conservative White House Chief of Staff John Sununu,
who as governor of New Hampshire named Judge Souter to the
state supreme court—Mr. Biden said he did not. The Delaware
Democrat said he thought the judge was more closely aligned with
Sen. Warren Rudman, a112New Hampshire Republican with a
reputation for moderation.

Š The importunate White House Chief of Staff John H. Sununu is
taking bows for the appointment and signaling to the right wing
that they need have no fears.
On the other hand, Sen. Warren B. Rudman (R-N.H.) is saying,
“He’s my guy. Sununu being chief of staff of the White House
helped make it happen, but I spotted Souter 20 years ago and I’m
the one who promoted him.”

The question of his sponsorship matters. Most senators assumed
that Sununu was the driving force behind the choice, since Souter
and Sununu are from New Hampshire and the chief of staff has
assumed control of so many aspects of White House activity.


Sen. Dale Bumpers (D-Ark.) spoke for just about everybody when
he told the Arkansas Gazette last weekend that he thought Sununu
“would probably get his way” in President Bush’s first Supreme
Court pick.
But Rudman, a popular, pragmatic middle-of-the-road second-

110. Ann F. Lewis, Souter’s Blank Slate Just Won’t Do, N.Y. TIMES, July 25, 1990, at
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.
No. 2] The Selling of Judge David Souter 691

termer, 113
says he proposed Souter long before Sununu ever thought
of him.
Similar reports appeared for the subsequent several weeks, until
Sununu almost disappeared from the news reports. Rudman became
the source to which journalists invariably turned for information
concerning Bush’s nominee. The White House had won.

In the weeks, months, and years following the Senate’s
confirmation of Judge Souter to serve on the United States Supreme
Court, the White House’s strategy for the selection and presentation
of its candidate was hailed—and lamented—as a textbook model of
moderation, decorum, and success. So effective was it that when
President Bush had the opportunity to fill Justice Thurgood
Marshall’s 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.
With the passage of over a decade, however, President Bush’s
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
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 John
Sununu, the president’s chief of staff and New Hampshire’s former governor.
“They were quite wrong,” says Sen. Warren Rudman with trademark bluntness.
The combative New Hampshire Republican these days is savoring his latest
coup. Once just a label on the deficit-busting Gramm-Rudman-Hollings bill,
more recently the bulldog vice chairman of the Senate ethics committee that
wrestled Sen. Dave Durenberger to denouncement, Mr. Rudman today is the man
who pushed David Souter to the brink of the land’s highest court.
And he doesn’t care who knows it was he, and not his good friend the White
House 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 him
and Judge Souter on the way to Kennebunkport, Maine, for the weekend.
Cathryn Donohoe, The Nation’s No. 1 Booster; Rudman Calls His Protégé ‘Most Brilliant
Intellect I’ve Ever Met’, WASH. TIMES, July 31, 1990, at E1.
115. See, e.g., Matthew Cooper, Colin’s K-Street Crowd, NEW REPUBLIC, Nov. 27,
1995, at 18.
692 Harvard Journal of Law & Public Policy [Vol. 26

Republican can now appreciate the dangers of buying, as Will said at
the time, “a pig in a poke.” As conservative Court-watchers have
regularly reminded over the past decade, Justice Souter has been a
profound disappointment to advocates of an originalist understanding
of 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 House’s 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 timely—and friendly—objections. While the
speed of President Bush’s deliberations achieved its end, the other
aspect of the president’s strategy—information control—had a
profoundly debilitating affect on the president’s allies.
The tale—that it was moderate advocates like Senator Warren
Rudman who played the pivotal role in George H.W. Bush’s selection
of Souter over Edith Jones—hid from conservative advocacy groups
the perverse fact that the public lie concerning Souter’s likely but not-
yet-exhibited moderation was true (as remained to be revealed) while
the privately circulated “truth” of Souter’s movement-conservative
bona fides was a lie. Had Pat McGuigan not been so bedazzled by the
cleverness of Sununu’s duplicitous scheme—“Get 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
Most importantly, McGuigan et al. would have learned that David
Souter could hardly be described as John Sununu’s soulmate. Mary
McGrory’s 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
Sununu’s highly selective “spin”) suggests that Warren Rudman had
been vigorously boosting David Souter’s career ever since they first

116. Will, David Souter: A Pig in a Poke?, supra note 101.
No. 2] The Selling of Judge David Souter 693

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 Hampshire’s governorship,
Rudman was supposed to have called in his chit: Now appoint Souter
to the New Hampshire Supreme Court!
Several years later, after Robert Bork’s 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 President—and
succeeded in getting him appointed to the First Circuit Court of
Had Pat McGuigan pursued these leads a bit further, he might have
found, in addition to the advertised instances of Rudman’s boosterism
helping Souter, that Sununu had been less than forthright in his
characterization of his own relationship with Souter. McGuigan might
have learned, as noted above, that Souter’s 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 Sununu’s duplicity) that Sununu had
previously enjoyed yet another opportunity to promote Souter within
the New Hampshire judiciary—but passed it up. Namely, after
Souter’s appointment in 1983 to the New Hampshire Supreme Court,
the publicly retiring bachelor was soon recognized as its intellectual
leader. Three years later, when its Chief Justice retired, Souter
felt—as did much of the rest of the New Hampshire bar—that he
deserved the seat. In spite of Rudman’s supportive suggestion,
Governor Sununu passed over Souter in favor of Judge David Brock,
a more senior and conservative judge. Even though court custom
played a role in that decision, even the modest David Souter felt that
this position should have been his. If, according to John Sununu,
David Souter’s appointment to the highest court in the land was like a

117. See McGrory, supra note 113.
118. In the months following Reagan’s nomination, first, of Douglas Ginsburg and,
next, Anthony Kennedy to the Supreme Court, Rudman continued to press Howard Baker
for Souter’s nomination to the federal appellate bench. See RUDMAN, supra note 49, at
119. See id.
120. See id.; Garrow, supra note 49, at 36.
121. See RUDMAN, supra note 49, at 160.
694 Harvard Journal of Law & Public Policy [Vol. 26
home run “just about to leave earth orbit,” 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 Supreme
Court. 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 Sununu’s 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 Souter’s 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.” The Reverend John L. McCausland,
an Episcopalian minister and former lawyer in Weare, New
Hampshire, Souter’s hometown, predicted that his buddy—he has
been close friends with the Judge since their college days at
Harvard—would be “very conservative as a Justice, but my feeling is
he is the kind of conservative who can fool the people who appointed
him.” And John Broderick, president of the New Hampshire Bar
Association and counsel for the state’s 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. . . . He’s fiercely
independent in his legal reasoning and he’ll get there on his own. He

122. Waas, supra note 82, at 19.
123. Margolick, supra note 106.
124. Id.
No. 2] The Selling of Judge David Souter 695
has no constituency.”
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 he
was personally opposed to abortion, and that he thought Roe 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.” Broderick insisted that Souter
“sees the law in an evolutionary mode, not a revolutionary mode. He
won’t give the electric shock treatment to any precedent.” And the
editors of the Concord Monitor were “far from certain whether, for
example, he would vote to overturn Roe vs. Wade.” In sum, David
Souter was—and was locally known to be—independent of his
political patrons but beholden to precedent.

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 Souter’s 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 Souter’s career on the high court turned
out to confirm John Sununu’s proffered measure of the man, aspects
of Souter’s background could now be found to justify Sununu’s
predictions. The fact remains, however, that there was enough in
Judge Souter’s record to give to those who craved absolute certainty a
commensurate cause for hesitation. Moreover, one would not have
had to dig too deeply to find it. With perhaps the exception of
Governor Sununu’s failure to promote Justice Souter to the supreme
position on New Hampshire’s Supreme Court, all this information
was readily available.
In the weeks and months following President Bush’s 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.
696 Harvard Journal of Law & Public Policy [Vol. 26

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 know—though
none of them could prove it—that, were Souter given the opportunity
to serve on the United States Supreme Court, he would be the final
nail in the Warren Court’s coffin. All this was surely the work of John
Sununu: Was it not he who rescued George H.W. Bush’s 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 correct—and
erroneous—the assessment of anti-Bork liberals was. Yes, John
Sununu was modestly more duplicitous than politicians are commonly
thought to be. Yes, he prevaricated—even 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 Reagan’s
painstaking effort—barely begun—to staff the judiciary with “strict
constructionists.” Then, when Bush had an opportunity to replace the
Court’s most liberal justice, he traded his birthright for a bowl of
Though justifiably angered, conservatives would do well to
remember at whom their wrath should be properly directed. Even
though 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.