And Then There Were 2 and Finally 1--Souter : Court: Nominee selected over Texas woman primarily for his lack of ‘paper trail’ on controversial issues.


In the end, the decision came down to two candidates and one issue.

The candidates were David H. Souter of New Hampshire and Edith H. Jones of Texas. And the issue, according to officials involved in the process of picking the next justice of the Supreme Court, was not abortion, but politics--did President Bush want an ideological war or a smooth, non-disruptive confirmation process.

The 68-hour-long process of picking a successor to retired Justice William J. Brennan Jr. began with a flurry of telephone calls Friday night. It ended with a simple meeting Monday in Bush’s private study, where the President offered the lifetime appointment to Souter.

In between, Bush and top aides winnowed a list of potential nominees to eight, then four, then finally to two. Souter’s intellect, particularly impressive in one-on-one meetings, was a persuasive factor, Bush aides said. But even more important was his lack of a “paper trail” on controversial issues that would have opened the way for a long and rancorous confirmation fight.


The key event, according to officials familiar with the process, was a 90-minute meeting Sunday night with Bush and four advisers in the White House residential quarters. Earlier that day, four candidates had been in the running--Souter, a former New Hampshire Supreme Court justice who was appointed to the U.S. Circuit Court of Appeals earlier this year; Jones, a conservative judge on the U.S. 5th Circuit Court of Appeals, who sits in Houston; Solicitor Gen. Kenneth W. Starr and federal Appeals Court Judge Laurence Silberman in the District of Columbia.

Silberman and Starr are based in Washington. The other two had been summoned to the capital by White House counsel C. Boyden Gray, who had reached them by telephone Sunday afternoon.

But as Bush and his advisers began the evening meeting, the President quickly knocked first Starr, then Silberman off the list, White House officials said.

Then, Bush turned to Vice President Dan Quayle, Atty. Gen. Dick Thornburgh, White House Chief of Staff John H. Sununu and Gray and divided them into teams to argue the merits of the two remaining candidates.

Quayle and Sununu were told to make the case for Jones, while Gray and Thornburgh were given Souter. The cagey maneuver neutralized both Sununu’s own personal fondness for Souter, whom as governor he had appointed to the New Hampshire Supreme Court, and the strong pro-Jones bias of some members of Gray’s staff.

For more than an hour, the two sides argued as Bush took notes. Naming Jones, the conservative favorite, would be “a strong ‘in your face’ political appointment,” Quayle and Sununu argued, according to an official familiar with the process.


By contrast, Thornburgh and Gray counseled Bush that “there would be other times to do that, a better time to appoint Jones or someone like her,” the official said.

Or, as another White House official put it, “the President is likely to have another appointment” given the age of several members of the high court. “Maybe the second time around you’ll see a ‘hotter’ nominee.”

“The next couple of months, when the confirmation hearings will take place, will be right smack in the middle of an election cycle,” the official said. A major confirmation fight at that point, particularly one waged over the emotional issue of abortion, “could have thrown things out of whack.”

“There was a desire to move quickly and in a non-disruptive way, and the way you can do this is with an extraordinarily impressive candidate who has a relatively thin” paper record on the most controversial issues, a senior Justice Department official explained.

Souter was that candidate. By contrast, Jones has been for several years a favorite speaker at meetings of the Federalist Society, an association of conservative activist lawyers whose members have provided many of the young judicial clerks and Justice Department and White House special assistants who charted the conservative path during the Ronald Reagan Administration.

Jones also had written a number of judicial opinions that contained a notably conservative tone and rhetoric, although she had no clear statements on abortion in her file. Silberman was also considered a conservative activist and one whose reputation for temper has worried officials in the past.


Starr, the government’s advocate before the high court and an early favorite for the job, was viewed as less ideological than Jones. But he did have a clear abortion stand attached to his name.

Last year, Starr had been directed by the Administration to file a brief with the Supreme Court urging the justices to overturn Roe vs. Wade, the 1973 decision that made abortion legal in the nation. His obedience now came back to haunt him--Bush feared that Starr’s name on that brief would have “ensured that abortion would be center stage,” said one senior official.

For the White House, the process began at roughly 7:30 p.m. Friday when two law clerks from Brennan’s office arrived with the justice’s letter of resignation. Bush was on Air Force One flying back to Washington from an afternoon of fishing in Wyoming. And by the time Sununu contacted him with the information, the news already was on television, radio and news wire services and had reached the plane.

Bush directed Sununu to convene a meeting early Saturday morning with Gray and Thornburgh--Quayle was at Bethesda Naval Hospital with his wife, who was undergoing surgery--to begin a process that had been carefully prepared months in advance.

When the process began, Thornburgh and Gray presented Bush with an extensive series of files that their staffs had drawn up summarizing the legal writings and other statements of potential nominees. An Administration source said that the President “got the whole spiel,” a sharp contrast with former President Reagan, who allowed his aides to largely select nominees for him, only getting involved to formally offer them the job at the end.

After the meeting with Bush, the senior advisers met again to continue winnowing down the list to a shorter, eight-person slate. Jones was the only woman on that “short list,” according to officials involved in the process. The list also included one black judge, Clarence Thomas, a colleague of Silberman’s on the federal appeals court here, and one Latino, Judge Ricardo Hinojosa of Texas. The President “had a high view” of Hinojosa, said a participant in the process.


One by one, as Bush reviewed the candidates, names were crossed off, officials said. Finally, Sunday afternoon, Bush told Gray to call Souter and Jones to Washington.

Souter was in his judicial office in Concord, spending a mild, sunny Sunday afternoon indoors reading law. Shortly after Gray reached him, he called his longtime friend and political mentor, Sen. Warren B. Rudman (R-N.H.), who had gone home from Washington to his home state.

“ ‘You can tell nobody this but I’ve just talked to the White House legal counsel, Mr. Gray, and they’ve asked me to come to Washington, and I suppose I should,’ ” Rudman later recalled that Souter had said.

“I said: ‘What do you mean you suppose you should?’ ”

“ ‘Well,’ he said, ‘there are a lot of wonderful judges in this country, and I’m sure the President must know them personally, and, you know, I don’t know the President, I’ve never been involved in politics. Why would he want me?’ ”

“You pack a suitcase and I’ll pick you up,” Rudman said he responded.

Rudman drove Souter to the Manchester, N.H., airport, stopping along the way at an ice cream store. The senator got ice cream while Souter, true to his ascetic image, drank a cup of coffee. At the airport, the senator lent his friend some cash and put him on the plane. He flew coach.

Jones, meanwhile, was flying north from Houston.

As Bush met with his advisers to debate the merits of the two candidates Sunday, White House aides met them separately at the airport. The White House was reluctant to have either candidate spend the night at a hotel for fear that word they were in Washington would leak out. But Souter, who is virtually unknown in Washington, had nowhere to stay because Rudman was still in New Hampshire. White House aides arranged for him to spend the night at the home of an Administration official.


The next day, Gray interviewed Souter, satisfying himself that there were “no skeletons” in the judge’s closet. Souter was asked a series of questions.

Then, at 1:30 p.m., after Bush had concluded a meeting with the visiting president of Ecuador, Souter was ushered into the White House residence, where he met with Bush for 45 minutes. Aides had prepared a list of questions for Bush but the President had crossed two off because he felt they were too close to asking about specific issues--an approach that he had decided to avoid, the senior official said.

Jones met with Bush next, in the Oval Office, while Souter waited down the hall in the office of Deputy White House Chief of Staff Andrew H. Card Jr.

Bush finished interviewing Jones about 3 p.m., officials said. As Jones and Souter waited in the White House West Wing, Bush pondered six pages of notes, written in longhand, on which he had listed the candidates’ pros and cons. Of Souter, he had written: “He’s a scholarly man . . . he has a good education . . . he has been recommended by legal authorities . . . he has a good record in lower courts,” said the senior official, adding that he had never seen Bush prepare such an extensive memorandum to himself.

Then, at 3:30, Bush called his spokesman, Marlin Fitzwater, to the Oval Office, told him he wanted to make his court announcement that day and asked how much time he had to make up his mind. Fitzwater--with an eye on news media deadlines--suggested a decision should be announced by 4:30 p.m. Bush said he needed an extra half hour.

At 4:15 p.m., Bush called Fitzwater again, told him he had selected Souter, gave him the nominee’s biographical information, and asked where Souter was waiting. While an aide informed Jones that she was not the choice, Bush escorted Souter into his personal study.


Staff writers James Gerstenzang and Paul Houston and Washington Bureau Chief Jack Nelson contributed to this story.