Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, July 25, 1990 TAG: 9007250407
SECTION: EDITORIAL PAGE: A/8 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
Probably the next justice of the U.S. Supreme Court, that's who - and potentially one of the most important appointments in the history of the court.
But who is Souter?
After Justice William Brennan's retirement announcement, President Bush took all of a weekend to nominate him. Yet Souter is hardly prominent. Indeed, he seems more notable for what isn't known about him, than for what is.
Inevitably, the bio is brief: Age 50. Massachusetts native. Bachelor. Episcopalian. Workaholic. Republican. Judicially apolitical. A private man. Former attorney general of New Hampshire. Appointed in 1983 by then-Gov. John Sununu (now Bush's chief of staff) to the New Hampshire Supreme Court. Appointed by Bush in April to the 1st U.S. Circuit Court of Appeals.
What does Souter think?
On that, too, a sketch must suffice. Souter has not been on the federal bench long enough to have issued a single written opinion. Bush, making a point of it, notes that he doesn't know Souter's views on abortion, and didn't ask. The president may have found one of the few reasonably well-qualified persons in America who have not publicly stated a view on the searing issue that divides the court as deeply as the country.
A look at Souter's sponsors doesn't help much either. According to a Sununu aide, the chief of staff didn't suggest Souter to Bush. But Sununu surely played a key role in the selection - and he's a staunch conservative and outspoken abortion opponent. On the other hand, Souter's friend and mentor, fiscally conservative GOP Sen. Warren Rudman of New Hampshire, is something of a liberal on the kind of social issues that often reach the high court; Rudman has voted, for example, against anti-abortion and school-prayer measures.
From Souter's years on lower-court benches, the nominee has gained a local reputation as a carefully intelligent and unemotional jurist. That might argue an aversion to Supreme Court decisions that are based on expansive readings of the Constitution. Or it might argue an aversion to undoing established precedent, including Roe vs. Wade.
Though Souter's confirmation as an appeals-court judge sailed through the Senate this past spring, nomination to the Supreme Court is different - perhaps now more than ever. The Senate is apt to examine Souter closely, and rightly so. On abortion, on civil rights and affirmative action, on free speech and First Amendment rights - in those areas and more, Brennan was consistent on an unpredictable court that often divided 5-4.
Souter hardly will make the court more liberal than did Brennan. But whether the court remains unpredictable or whether it comes under the control of a solidly conservative majority may well depend on Souter's predilections.
Clearly, President Bush for some time had been contemplating Supreme Court appointments, which is not unwise given the advanced age of some of the justices. You don't come up with so little-known a nominee in just three days without having prepared the way. Clearly, too, Souter's nomination is consistent with much else about Bush's fill-in-the-blanks presidency.
In rejecting the abortion issue as a litmus test for Supreme Court appointment, the president has come up with a reverse test of his own: Nominate only those who have no known abortion views. That's ironic, but it also makes political sense for a president trying to keep the support of the anti-abortion movement at a time when the public-opinion currents seem to flow in the opposite direction. Whatever Souter might do if confirmed to the court, the president has given himself a bit of deniability.
But there may be more to this than politics. By not inquiring too closely into Souter's views on specific issues, and instead focusing on the ancient verities of legal scholarship and appropriate judicial "temperament," Bush in a sense is returning to an older, pre-Reagan way of picking judges - and to the Tory tradition with which Bush was identified before he became Ronald Reagan's vice president.
The old way sometimes produced surprises. Now a hero to liberals, Brennan in fact was an appointee of a Republican president, Dwight D. Eisenhower. So was the late Chief Justice Earl Warren, whose name became synonymous with judicial activism. Byron White, a member of the current court's conservative bloc, was an appointee of Democratic President John Kennedy.
Yet in this era of 5-4 decisions, what in retrospect is remarkable about the '50s and '60s is the unanimity or near-unanimity with which the court so often spoke. As a result, there was an authority and a finality to the court's decisions that is absent today.
If Souter becomes the kind of justice who can help restore that sense of settling things, if he can help replace volatile and radical Reaganesque reaction with traditional conservatism's ability to accept and manage change gradually, he - and Bush - will have done the nation a service.
by CNB