Little-Known Judge Named to Replace Brennan on Court : Judiciary: David Souter served as New Hampshire justice and attorney general. He has no clear record on abortion.
President Bush on Monday chose David Hackett Souter, a little-known judge from New Hampshire, to be an associate justice of the U.S. Supreme Court.
Bush moved quickly to fill the vacancy created by Friday’s resignation of Justice William J. Brennan Jr., choosing a nominee with no clear record on the most contentious issues facing the court. The move at least temporarily short-circuits building pressure from groups on both sides of the abortion and affirmative action controversies.
“I will nominate as associate justice of the United States Supreme Court a remarkable judge of keen intellect and the highest ability, one whose scholarly commitment to the law and whose wealth of experience mark him of first rank,” Bush said at a hastily summoned meeting with reporters in the White House. “My choice will serve the court and the Constitution well.”
Souter, a former New Hampshire attorney general who served seven years on the state’s Supreme Court, is widely acclaimed as a brilliant legal mind but considered something of a loner, a 50-year-old bachelor who prefers mountain climbing and long hikes to socializing with colleagues. He will be a sharp contrast with the gregarious Brennan in both personality and politics.
Souter’s nomination to the U.S. high court came after he had sat only one day on the U.S. 1st Circuit Court of Appeals in Boston. Bush nominated Souter to the appeals court this past winter, and he was confirmed in April. But the panel on which he served heard arguments on cases only one day in June, court officials said.
The announcement won cautious praise from both conservatives and liberals in the Senate. Bush urged the Senate to consider the nomination quickly so that the court will be at its full strength of nine justices when it begins its term in October.
There is little in Souter’s writings as a judge that would provide a road map to his views on the most divisive issues likely to be presented to the court in coming years.
He was not the first choice of conservative activists, who had pushed federal appeals court Judge Edith Jones of Texas. But he was also hardly a favorite of judicial liberals, who worry about his association with Bush’s conservative chief of staff, John H. Sununu, who--as governor of New Hampshire--appointed Souter to the state’s Supreme Court in 1983.
Answering questions from reporters, Bush insisted repeatedly that he had not asked Souter’s views on abortion, and did not know them.
“I had one meeting with Judge Souter. I was very impressed but, in my view, it would have been inappropriate to ask him his views on specific issues,” Bush said.
Only one case on which Souter ruled in New Hampshire dealt with abortion. The complicated case, decided in 1986, “sends a message of great sympathy to those who are personally opposed to abortion,” said a lawyer who examined Souter’s opinions for the Senate when he was nominated to the federal appeals court. But the lawyer added that the case sheds no particular light on Souter’s view of Roe vs. Wade, the 1973 Supreme Court decision establishing a woman’s constitutional right to an abortion.
Said Bush: “My selection process was not geared simply to any legal issue. It is not appropriate in choosing a Supreme Court justice to use any litmus test.”
“I want a justice who will ably and fairly interpret the law across the range of issues the court faces.”
Souter’s more than 200 judicial opinions are almost devoid of any evidence of his views on most of the controversial issues facing the high court.
As a state court judge from 1978 until his appointment to the federal court and as New Hampshire attorney general before that, his career has involved state-law issues, including many criminal cases, but not interpretations of the federal Constitution.
In addition, in sharp contrast with such past nominees as Robert H. Bork, who was defeated for the high court three years ago, Souter has written almost nothing outside his job as a judge. As a result, he lacks the sort of “paper trail” that allowed opponents of Bork to stage a major battle over that nomination.
“I’m not going into this . . . expecting a highly contentious battle,” Bush said in announcing the nomination. Senate sources generally concurred.
“There’s a certain amount of futility” in waging a major fight, said a leading Senate Democratic aide who played a key role in the successful anti-Bork strategy. Bork’s nomination came late in the second term of former President Ronald Reagan, close enough to the 1988 election to give Democrats the hope that they might avoid a Reagan nominee altogether. But defeat of Souter would simply give Bush an opportunity to nominate someone else, the aide said.
“No matter what we do, we’re going to go from losing 85% of the cases in the Supreme Court to losing 95%,” he added.
Most of the record Souter does have is on criminal law, where his views appear to fit squarely into the conservative approach that already dominates the high court and has done so for nearly a decade.
Given the lack of a written record on Souter, a key issue in his confirmation will be how hard members of the Senate Judiciary Committee, which passes on court nominations, will push to force him to answer questions about his views.
Bork, because of his many writings, was forced to answer extensive questions. But nearly all other judicial nominees have refused to do so, saying that it would be inappropriate. Bush declined to say whether he thought Souter should answer such questions, saying only that he is confident his nominee would respond “appropriately.”
The last time Souter appeared before the panel, when he was nominated to the appeals court, the hearing attracted little public notice. Sen. Edward M. Kennedy (D-Mass.) asked Souter several questions on his criminal law opinions. Otherwise the panel had little to say.
Monday, several panel members voiced general support for Souter, but many said that they do not know enough about him to voice strong opinions. Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) avoided any public comment on the nomination.
“He’s a classic conservative. He believes government can be too intrusive at times but he’s tough on crime,” said Sen. Warren B. Rudman (R-N.H.), Souter’s longtime mentor, who had pushed him for the high court during the Reagan Administration. Largely at Rudman’s prompting, Reagan’s aides considered Souter for the court after Bork’s defeat. Souter served on Rudman’s staff when Rudman was the New Hampshire attorney general.
“He’s a devotee of the law; he’s not an ideologue. He believes the courts ought to deliver opinions on cases and not legislate. An intellect, a scholar--he’s not political,” Rudman said.
Sen. Dennis DeConcini (D-Ariz.), a moderate Democrat on the Senate Judiciary Committee, suggested that Souter would be confirmed unless there is “a very big issue in his confirmation hearings, which I don’t anticipate.”
Sen. Orrin G. Hatch (R-Utah), an influential Republican on the Judiciary Committee, said that “his credentials seem impeccable to me.” But, like others in the Senate, he said he wanted to reserve judgment until he had studied Souter’s record and had listened to his testimony in the confirmation hearing.
Bush praised his nominee’s “keen appreciation of the proper judicial role rooted in fundamental belief and separation of powers.”
“Judge Souter is committed to interpreting, not making, the law. He recognizes the proper role of judges in upholding the democratic choices of the people through their elected representatives with constitutional constraints,” the President said.
John Stabile, a former New Hampshire state senator, said that politically sensitive bills--often involving taxes--that were sent by the state’s Legislature to the state Supreme Court for interpretation were frequently returned by Souter, whose rulings reflected a reluctance to interject the court into legislative matters.
“He said: ‘This isn’t the job of the Supreme Court. You wrote the law. Go back and read the law and interpret it,’ ” Stabile said.
Reaction from those active in the debate over abortion was guarded on both sides of the issue.
“I don’t even have enough suspicion to be nervous,” said Joseph M. Scheidler, executive director of the Pro-Life Action League, a Chicago-based anti-abortion organization.
“I have to be suspicious of anybody put on the New Hampshire Supreme Court by John Sununu,” said Molly Yard, president of the National Organization for Women.
Souter, whose name rhymes with “pewter,” was portrayed by those who know him as man deeply committed to the law--a political neophyte who lives in the farmhouse where he grew up, down a dirt road in the town of Weare, about 15 miles outside of Concord.
“He’s truly been married to the law. He works seven days a week,” said Rudman, who portrayed Souter as “stunned” by the nomination.
Rudman, who drove Souter to the airport Sunday when the prospective nominee flew to Washington to meet with Bush, said that his passenger asked: “Is this trip really necessary? The President must know many people as qualified as I am.”
Souter showed little emotion Monday when his nomination was announced at the White House. Entering the press briefing room with Bush, he kept an almost glum expression on his face.
Later, he expressed gratitude for “the honor which the President has just done me.”
“I must defer any further comments of mine until I am before the Senate in the confirmation process,” he said.
Staff writers Marlene Cimons, Cathleen Decker, William J. Eaton and Paul Houston contributed to this story.
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