David Souter comes before the nation as, essentially, the substantively anonymous nominee to the Supreme Court. He has written no law review articles, given no speeches and authored very few judicial opinions touching even remotely on the nationally contentious issues, including abortion. We read that he has spent his life reading and hiking.
This is not to say that Souter is an implausible nominee; his high intellect, legal training and government experience say otherwise. But the very absence of a record on even a few of those questions that agitate the body politic means that all the public has to go on is what the President says: that Souter will interpret the law, "not legislate from the federal bench."
This is a huge generality on the President's part, and only as the years pass will the nation know how Souter's "general views," as Bush calls them, will take specific expression. Souter could turn out to horrify his sponsor, as Justice Harry Blackmun did President Richard M. Nixon, and indeed as Justice William J. Brennan Jr. did President Dwight D. Eisenhower. But Bush is willing to take what he evidently considers a small risk. Bush trusts the advice of his judge-pickers, who, it bears noting, include people involved in the selections of Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy, judicial conservatives all.
Bush's testimony as to Souter's philosophy probably will satisfy most conservatives even as it exasperates liberals. If the liberals wish to attack Souter, they must now proceed along lines less promising than the political campaign successfully waged against Robert Bork, which manipulated his abundant writings. One is to demand that Souter swear fidelity to certain liberal jurisprudential icons. Already abortion-rights proponents are demanding that the Senate condition confirmation on a commitment by Souter to uphold Roe vs. Wade. But senators who try that will be open to the charge that they are trying to impose a liberal litmus test upon a nominee whom the President can credibly say has made him no promises.
The other tack is direct--to argue that the issue isn't Souter but the President's philosophy. Senate liberals could say they don't want a justice of conservative bent and ask for one of their liberal (Brennan-like) inclination. But in the absence of particulars in Souter's record to seize upon, this exercise would be too abstract to interest the public for very long.
Souter's anonymity thus may help his confirmation. Still, it is an indictment of our time that Bush felt compelled to choose as he did. In his book "The Tempting of America," Bork writes: "A President who wants to avoid a battle like mine, and most Presidents would prefer to, is likely to nominate men and women who have not written much, and certainly nothing that could be regarded as controversial." In other words, persons like Souter.
Lawyers aspiring to sit on a federal bench, especially the Supreme Court, now know--in case they had any doubt--that they should guard their tongues lest their slightest speculation disqualify them. And for those already on a court, or in government service, they should edit their words, even in official writings, lest they give offense to this group or that. Ironically, the First Amendment provides no protection to a potential justice sworn to enforce free-speech guarantees.
Such quiescence is good neither for the law nor the intellectual life of the nation. Of course, lawyers are largely to blame for this state of affairs, some on the Supreme Court especially, and Brennan perhaps most of all. During the 1950s, '60s and '70s, the court's intrusion into more and more areas of American life transformed it into a political institution, usually in service to modern liberalism. The abortion decision in 1973 best symbolizes this era of judicial legislation. It's no wonder that special-interest groups now march on and file political briefs in the court. Or that the confirmation process has become enmeshed in the high-tech politics usually found in election campaigns.
At one point in Monday's press conference, the President interjected that he remembered "calmer days" for judicial nominations. Perhaps Souter himself will help take us there. Certainly one must hope so. For only when the court pulls back from the political thickets it has entered in recent decades will it cease to be treated as though it were an elective branch. And when that time arrives, one must also hope, Presidents will not be afraid to nominate lawyers whose substantive views are on the record. Something is very wrong with our public life when anonymity becomes a virtue.