Full Court Press : Nominee David Souter Is Prepping for a Supreme Test


A few weeks ago, Supreme Court nominee David Souter was making the ritual Capitol Hill courtesy calls that could help him earn a lifetime appointment to one of America's most powerful posts when he slipped into the office of a senator with friendly advice.

"You better be prepared to answer the tough questions," the senator warned him. "There are going to be plenty of tough ones in the area of privacy. "

Souter, a New Hampshire judge known for his Yankee independence and dry wit, nodded at the carefully couched reference to abortion, a volatile issue sure to be raised at his coming Senate confirmation hearings.

According to a Senate aide, the judge replied: "After I do my visits, I'm going back to New Hampshire. And I'm going to think."

Now there's a frightening thought--that Souter, America's ultimate "A" student, goody-two-shoes, head-of-the-class, Phi Beta Kappa, Harvard magna cum laude and Rhodes Scholar at Oxford might somehow manage to expend any more brain power.

But the perennial bachelor--whose idea of a thrilling summer, the Washington Legal Times reports, was to plow through the 21-volume Cambridge History of England--is about to face one of the most arduous quizzings ever encountered by only the finest legal minds.

On Sept. 13, just four days before his 51st birthday, Souter will sit in front of a tangle of microphones in the Senate Judiciary Committee hearing room and face the intellectual fire from 14 polished politicians. They will want to know why he thinks he is qualified for a $118,600-a-year appointment to America's highest court.

The senators, in theory, can ask him any question about the law and his life. Their mission: To try to discover just who, really, is this mystery jurist. What thoughts lie behind his carefully cultivated reserve? What kind of heart beats in the chest of this man who lives a solitary, austere life and seems to do little more than read voraciously, hike and visit his mother?

Is Souter ready for his date with destiny before a bunch of potentially pesky politicians?

Well, maybe.

For now, he is undergoing yet another Capitol ritual. He has quietly withdrawn from public view and put himself in the hands of Washington's most experienced schmooze-meisters and legions of lawyers from the Bush Administration.

Their job is to prep the nominee, to ensure he's well briefed and ready to match wits with the worst questions from the wiliest senators.

They will offer him suggestions on issues of style, as well as substance, although past nominees have been known to ignore that advice.

Indeed, to some, the whole idea of a Supreme Court nominee trying to prepare for so august a job has seemed absurd; we're either ready or not, they have insisted.

Since making his Capitol Hill rounds, Souter has holed up in two offices in Washington: one in the Old Executive Office Building next to the White House; the other in the sprawling Justice Department.

Over at the Justice Department, Souter has done little else but hit the books, reports his longtime friend from New Hampshire, Republican Sen. Warren Rudman.

"Basically, he is setting his own agenda," Rudman said. "He's working with people at Justice. But a lot of his work is done in quite a solitary fashion."

The nominee, for now, is taking a crash, cram course, of sorts, on the court itself, Rudman and others report. Souter is reading through thick black binders of materials on two decades of Supreme Court decisions. The briefings have been supplied to him by the Justice Department.

Souter also is reviewing the 200 or so decisions he made as a state judge.

And he is scanning the raw, back-and-forth dialogues from past confirmation hearings, including five thick volumes of transcripts on Judge Robert Bork who underwent 30 hours of grilling, the longest questioning in Senate history, and was rejected by a Senate vote.

After a little more time in Washington, Souter soon will head back to New Hampshire with plenty of this homework. "He's going to need a cargo plane to get him back with all those books," Rudman said with a laugh.

So far, it appears that Souter will only try to hone his mind, not his appearances before he appears before the Senate Judiciary Committee.

His handlers haven't given the faintest sign that they will try to rid him of his persistent 5 o'clock-shadow nor update his preppie outfits, which give him the air of committed stamp collector. (A friend, recalling recently Souter's appointment to the state bench seven years ago, quipped that "the black robes did a lot to jazz up his wardrobe.")

Rudman, for one, bristled at the suggestion that anyone might try to gussy up Souter for the televised confirmation hearings: "He's not concerned about that at all. He's concerned about answering directly each question, in dealing with the committee directly, intellectually and rationally."

The media, Rudman said, would "like to portray David as out of the real world. But you're not dealing with some monk. Don't forget he was attorney general of New Hampshire."

Still, the national public scrutiny to which Souter will be subjected will be considerably more stressful than anything he might have been exposed to in New England. It will not be small potatoes, as the White House and Justice Department have recognized in deploying six lawyers to work with him.

Two influential Republican political consultants, Tom C. Korologos and Kenneth Duberstein, also have been detailed to the cause.

"My role is to scope out the land mines," said Korologos, a burly lobbyist who has made himself an expert in helping White House nominees through grueling confirmation battles. "If there's anybody grousing, well, these things catch on like prairie fire, so you've got to watch them."

Capitol insiders watched Souter's recent, limited contacts on the Hill recently and decided he had been well-received, although Korologos said a few want to see him again "for further seances."

The conventional wisdom, in fact, is that Souter, a virtual unknown except in New England's legal community, will sail through confirmation, avoiding the acrimony surrounding the nomination of Bork, who was one of the country's best known conservative legal theorists and who became a symbol of everything that liberals feared for the Supreme Court.

"The assumption on the Hill is that Bush picked (Souter) because he doesn't have any tracks," said a Senate aide who asked to remain anonymous. "My guess is that the senators will be looking for ammunition during the hearings. So there might be some fireworks while they try to snuff him out."

It's the truly tough stuff that senators might throw at him that Souter's team will try to prepare him for, Korologos said.

Some time after Labor Day, Souter will go through what Korologos fondly calls "murder boards," a series of mock hearings at which he will be grilled. His inquisitors will try to dream up the grisliest possible questions.

The first question Korologos likes to ask--whether of a Supreme Court nominee or a presidential appointee--is always the same: "When did you find out the young lady was only 15 years old?"

"The idea we try to get across to these brilliant guys is that the senators may ask anything that comes into their minds," Korologos explained. "The hearing room is not a courtroom. There are no rules of evidence or hearsay that limit what can be said. Rumors are as good a subject as any."

Of course the more likely subjects on which senators will quiz Souter include abortion, civil rights, his views on constitutional interpretation, his own decisions and various other topical concerns, from flag burning to school prayer.

While there isn't much in his record to question his personal life, some Senate aides apparently are wondering whether to formulate questions inquiring whether Souter has led too sheltered a personal life and has too limited an exposure to people of different backgrounds.

Past nominees haven't always followed the same procedures to prep themselves for confirmation hearings.

Bork scoffed at the idea of the murder boards. He went through only two full-scale rehearsals of his hearings, both of which reportedly turned into bull sessions in his living room with a few of his friends. (Bork also cast off attempts to make him more telegenic. He refused to shed a few pounds and shave off his beard.) Justice Antonin Scalia reportedly adopted the same attitude toward extensive, formal preparations.

But both Justices Anthony Kennedy and Sandra Day O'Connor underwent rigorous rehearsals before their hearings.

O'Connor's preparation began when two Justice Department lawyers flew to her Arizona home loaded with boxes of cases covering areas of law to which she had limited exposure as a state judge.

Jonathan Rose, one of the lawyers on that trip, recalled that O'Connor graciously served a home-cooked meal in her Phoenix house. Then she sat down to review the most complicated areas of law.

Rose insisted there was no attempt to fill her with Reagan Administration views of controversial issues. "We dealt with gaps in her knowledge rather than saying 'you've joined the Blue Jays so here's the Blue Jays' view of things so let's go in there and win one for the Gipper," said Rose. "That's not how it worked."

Back in Washington, eight lawyers grilled her for two weeks during daily three-hour sessions, recalled Robert McConnell, who shepherded O'Connor through the process and is now a lawyer in private practice. "Different people would take turns playing the senators and predicting who would ask what when."

O'Connor was tense before the hearings. But she loosened up once she got going and encountered encouraging signs all around her. Like what? Well, for example, Strom Thurmond--the South Carolina Republican who then was Judiciary Committee chairman and was inclined to support O'Connor--replaced all the plants in his office with potted cacti in her honor.

"I believe we were very fortunate in that she was a politician before she was a judge," McConnell said of O'Connor. "She really understood the legislative process."

Senators, too, prep for the big Supreme Court hearings.

In fact, before the Bork ordeal, Joseph Biden Jr.--the Delaware Democrat who chairs the Senate Judiciary Committee and who was known to be the chief architect of the nominee's defeat--videotaped himself in mock questioning of Judge Bork to see how it would play on television.

For more than six hours, the cameras rolled while Biden sat at a table at his Wilmington home and fired questions at a surrogate Bork, a role played by Laurence Tribe, the Harvard Law School professor.

Capitol Hill sources say that senators haven't seriously turned their attention to Souter, distracted as they have been by the economy and the Middle East, among other matters.

Biden reportedly has hired a University of Chicago professor to plan his Souter hearing strategy. But for now, the senators' staff simply has pored over Souter's every utterance in search of leads about the judge and just what questions to ask him.

It wasn't until early in the 20th Century that nominees began testifying before the Senate on behalf of their nomination. In 1925, Harlan Fiske Stone, President Calvin Coolidge's attorney general, showed up on the Hill to explain why he had tried to prosecute a Montana senator on fraud charges. After his explanation, the senators gave his nomination their blessing.

Over the years, a deep debate has developed over what questions should be asked and which should be answered.

Senators increasingly have demanded to know more about the reasoning of the individuals who, as justices, will have so much power over Americans' lives for three or four decades; the senators' questions have grown plenty specific.

But this has put future justices in a quandary: They prefer to stay as philosophical as possible when discussing issues because they don't want to prejudge matters that later may come before them when they're members of the high court.

Justice Scalia angered many senators in 1986 because he repeatedly refused to answer some confirmation questions, saying he might face a case on the high court that dealt with similar issues. Judge Bork, on the other hand, had already written extensively on controversial issues and was more forthcoming about his views than any other nominee in the recent past.

Philosophic scuffles already have broken out over how aggressive senators should be in scrutinizing Souter's views.

Advocacy groups, liberal and conservative, have papered the Judiciary Committee offices with memos offering contrary interpretations on what the Constitution means when it says the Senate shall give "advice and consent" to the President on Supreme Court appointments.

Just last week, Justice John Paul Stevens and Sen. Edward M. Kennedy, (D-Mass.), offered their views in separate speeches at the American Bar Assn. annual meeting in Chicago.

"One thing is certain," Kennedy asserted: "The Judiciary Committee intends to find out what Judge Souter thinks about the Constitution. In this day and age, the Senate will not confirm a blank slate to the Supreme Court of the United States."

But retorted Stevens: "It's a mistake to assume that this (confirmation) process is going to enable the senators or other members of the court or the bar generally to predict how a nominee will vote after he or she comes on the court. That's not part of the independent judiciary. . . ."

Meantime, Rudman predicted that Souter will attempt to both satisfy the senators' need to get to know him as well as maintain his judicial integrity.

"David," he said, "will be able to discuss intellectally the law with that panel without obviously indicating how he would rule on any future case."

Copyright © 2019, Los Angeles Times
EDITION: California | U.S. & World