THE SELLING OF JUDGE DAVID SOUTER TO “MOVEMENT CONSERVATIVES”

RANDALL BALDWIN CLARK

WHO’S TO “BLAME”?............................................667 AN INCONVENIENT OPPORTUNITY......................670 PLANS FOR A TWO-FRONT BLITZKRIEG................672 DESIGNING A TROJAN HORSE ..............................674 SOUTER’S PAPER TRAIL: TABULA RASA OR ROSETTA STONE?...................................677 VI. FRUSTRATING THE LIBERAL OPPOSITION ............681 VII. CONVERTING THE CHOIR .....................................683 VIII.EXECUTING THE END GAME .................................686 IX. IS SPEED PLUS STEALTH A WORKABLE MODEL FOR JUDICIAL SELECTION? ......................691 X. THE WAGES OF SELF-DECEPTION ........................695

I. II. III. IV. V.

I.

WHO’S TO “BLAME”?

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 LAW MOST BEAUTIFUL AND BEST: MEDICAL ARGUMENT AND MAGICAL RHETORIC IN 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 baldwin@randallclark.org.

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disappointment in recent memory: the nomination and confirmation 1 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 2 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 3 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 4 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. 5 Supreme Court.

This criticism was articulated at great length in an election-year article, Original Thomas, Conventional Souter: What Kind of Justices 6 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 7 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.

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until I came to Washington. I just never thought much about them. I 8 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 9 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 10 ‘original intent’ in interpreting the Constitution.” As Rabkin concludes: “So, Souter talked a good game, and it was good enough 11 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 12 (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 lifetenured 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.

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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 13 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 fainthearted 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— 14 “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.

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his upcoming reelection campaign, he could not break the promise to 15 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 16 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 17 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 18 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 19 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.

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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 21 direction. 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 22 Among these files were those of Reagan administration. approximately fifty candidates for potential nomination to the 23 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 24 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 A1. 23. See id. 24. See DAVID G. SAVAGE, TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME 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 Brennan’s resignation on Friday evening, the President indicated that 25 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 26 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 27 those on Gray’s list. Senators were polled regarding their 28 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 29 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 30 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 31 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-inyour-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.

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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 32 than seventy-two hours had elapsed. IV. DESIGNING A TROJAN HORSE 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 33 called the “Trojan Horse” category. Namely, that “their writings on the issue of abortion were slim or nonexistent, providing little of a 34 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 35 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.

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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 36 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 37 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 38 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 39 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 40 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.

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Constitution.” 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 42 appointment into an issue in the fall mid-term elections. While in private practice, Jones served as general counsel to the Texas 43 Republican Party. Moreover, her five years on the Fifth Circuit Court of Appeals were sufficient for her to write extensively on a 44 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 45 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 46 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.

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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 47 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, 48 which have been filling up ever since.’” V. SOUTER’S PAPER TRAIL: TABULA RASA OR ROSETTA STONE? 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 49 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 50 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 51 successor.
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. 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 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 52 Free or Die,” imprinted on their license plates and anti-nuclear demonstrators for obstructing construction of the Seabrook reactor 53 site; advocated the legality of an executive order directing flags to 54 be flown at half-mast on Good Friday; urged the imposition of an 55 English-literacy test as a condition precedent for voter registration; and led a crusade against the insinuation of casino gambling into New 56 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 57 on New Hampshire’s Superior Court, when it became apparent that a seat on the state’s Supreme Court could not be obtained without 58 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 59 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.

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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 60 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 61 promoted to the New Hampshire Supreme Court in 1983. This came as the repayment of a political debt owed to Warren Rudman by the 62 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 63 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 64 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. 61. 62. 63. 64. See Garrow, supra note 49, at 41. See RUDMAN, supra note 49, at 159-60; Garrow, supra note 49, at 41. See RUDMAN, supra note 49, at 159-60; Garrow, supra note 49, at 41. See Garrow, supra note 49, at 42-43. See State v. Roger M., 424 A.2d 1139 (N.H. 1981).

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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 66 decisis.” 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 67 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 decisis. 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).

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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 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! VI. FRUSTRATING THE LIBERAL OPPOSITION 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 68 nominator.” Even after the passage of three full weeks, only two liberal groups, NOW and the Fund for a Feminist Majority, had 69 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.

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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, “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 70 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 71 campaign.

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 72 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 73 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— 74 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 75 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.

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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 76 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 77 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 78 the court.” As another declared, “It’s time for Bush to show his 79 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. 77. 78. 79. Devroy & Marcus, supra note 19 Id. Bedard, supra note 28. 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 80 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 81 you.” 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 82 later. 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 backpeddling 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 83 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.

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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 85 confirmation. 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. . . 86Something 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 87 judging.” 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 88 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. 85. 86. 87. 88. Id. Id. Id. Id. Id.

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strong support from perhaps the most disliked and distrusted Republican member of the Senate for movement conservatives, 89 Warren Rudman.” VIII. EXECUTING THE END GAME 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 90 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 91 solid opinions.” McGuigan himself said that Souter is “at a minimum, conservative.” On the basis of “his state record, I’m 92 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 93 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 94 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 A3. 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 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 95 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, pro96 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 97 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 98 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 degree of 99 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 A18.

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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 100 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 and Bruce Fein —the vast scriveners such as George Will 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 103 Sununu, with Senator Rudman appearing as an afterthought. The following comments are representative of the lot:
Tuesday, July 24 The president described Judge Souter—a favorite of chief of staff and former New Hampshire Gov. John Sununu—as “a 104 remarkable judge of keen intellect and the highest ability.” 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. [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?, SEATTLE POST-INTELLIGENCER, July 26, 1990, at A11. 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.

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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 106 swearing-in ceremony. Liberals are not kidding themselves that a New Hampshire Republican with strong ties to White House Chief of Staff John 107 Sununu will be another Justice Brennan. 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 The meetings provided most White House officials their first look at 109 lifelong bachelor and friend of Chief of Staff John the Sununu. 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.

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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 rest of us have to wait until after 110 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 111 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 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. 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 A19. 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, 113 he proposed Souter long before Sununu ever thought says 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. IX. IS SPEED PLUS STEALTH A WORKABLE MODEL FOR JUDICIAL SELECTION? 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 115 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

114

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 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.

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Republican can now appreciate the dangers of buying, as Will said at 116 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 notyet-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 uncovered. 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.

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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 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 117 Appeals. Had Pat McGuigan pursued these leads a bit further, he might have found, in addition to the advertised instances of Rudman’s boosterism 118 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 119 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, 120 a more senior and conservative judge. Even though court custom played a role in that decision, even the modest David Souter felt that 121 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 160-62. 119. See id. 120. See id.; 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,” 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 123 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 124 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.

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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 126 “he felt it was egregiously wrong.” Broderick insisted that Souter “sees the law in an evolutionary mode, not a revolutionary mode. He 127 won’t give the electric shock treatment to any precedent.” And the editors of the Concord Monitor were “far from certain whether, for 128 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. 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 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.

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of New Hampshire politics. From years of politicking in an overlypoliticked 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 sixtythree 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 porridge. 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.