A Blank Slate

By Richard Lacayo

If there is anything George Bush dislikes more than eating broccoli, it is taking risks. Thus when he learned on July 20 that Justice William J. Brennan was retiring from the Supreme Court, Bush immediately recognized that in selecting someone to fill the vacancy he could be facing one of the biggest risks of his presidency. He quickly sought to defuse it.

With the high court poised to tilt decisively to the right on several inflammatory issues, a nominee publicly committed to overturning Roe v. Wade, the 1973 ruling that established the right to abortion, would provoke an outcry from the liberal forces that derailed Robert Bork's nomination in 1987. But if the President picked a Justice less inclined to overturn Roe, right-to- life activists and conservative Republicans already angered by Bush's retraction of his "no new taxes" pledge would be enraged. Facing these polarized options, the President deftly reduced the risk by selecting a Stealth candidate. Federal Appeals Court Judge David Souter, the President's choice for the court, has said and written so little about major constitutional issues that it is almost impossible to determine how he might rule on them.

Bush is gambling that the liberal coalition that launched the fight against Bork will be stymied by a paradox: nothing could be more difficult than to draw battle lines on a blank slate. While there is ample evidence of the quality of Souter's intellect -- magna cum laude Harvard graduate, Rhodes scholar, Harvard law -- most of his judicial experience has been on New Hampshire's state supreme court, which is more likely to consider auto- insurance cases and commercial litigation than divisive social issues like abortion and affirmative action. Elevated to the U.S. Court of Appeals in Boston only last April, Souter has not yet participated in any of its decisions.

Unable to get a fix on Souter from that sparse record, activists from both sides of the political spectrum began combing through what little was known about his personal life in search of evidence to either calm their fears or justify their suspicions. Some wondered if the 50-year-old lifelong bachelor might be gay. (Friends assured them he is not.) Others speculated that Souter's streak of Yankee independence would make him a less than reliable vote for either side of the abortion issue. In a rambling television interview last week, Justice Thurgood Marshall, a last vestige of the high court's liberal wing, took the unusual step of sizing up in public a man who may soon sit alongside him on the bench. Harrumphed Marshall: "Never heard of him."

Nor had many on the G.O.P.'s right wing. They would have preferred an outspoken champion of their cause, like Federal Appeals Court Judge Edith Jones of Texas, a law-and-order advocate who was the President's second choice. But they take comfort from the fact that Bush's pick has the strong backing of White House chief of staff John Sununu, a former Governor of New Hampshire who appointed Souter to the state supreme court in 1983. Says one senior Republican: "There's been a lot of wink-wink, nod-nod among conservatives who think Souter is Sununu's guy and therefore can be trusted."

The swiftness with which Souter was named -- less than 72 hours after Brennan's resignation -- was almost as surprising as the nominee himself. "The President saw immediately that he needed to move quickly," says a senior White House official. "Otherwise, the interest groups were going to take control of the debate, narrow his options and make confirmation more difficult." Bush was on Air Force One, preparing to head back to Washington after a few days of politics and fishing out west, when he got the news that Brennan was stepping down. After calling Brennan to accept his resignation, Bush was on the phone again with Sununu, arranging to round up other senior advisers for a White House meeting at 8 a.m. the next day.

At that meeting Bush huddled with Sununu, Vice President Dan Quayle, White House Counsel C. Boyden Gray and Attorney General Dick Thornburgh, looking over dossiers on about a dozen possibilities whom the Administration had singled out over the past 18 months. Sununu held back during the discussions, letting Gray and Thornburgh make the case for Souter. After the group had narrowed the list to about eight candidates, Bush asked for further specifics on several of them, then retired to Camp David for the weekend. Sununu went to work behind the scenes on Souter's behalf.

His first step was to phone Republican Senator Warren Rudman, a fellow Granite Stater who is among Souter's closest friends. According to Rudman, Sununu told him he was "trying to keep a low profile" on the nomination. He asked the Senator to fax to Washington a letter on the judge's behalf. It was included in materials delivered to Bush at Camp David.

On Sunday Bush narrowed the field to five. They included Souter, Jones, Solicitor General Kenneth Starr and two judges on the federal appeals court in Washington -- Lawrence Silberman, who two weeks ago joined in a ruling that threw out one of Oliver North's convictions in the Iran-contra scandal, and Clarence Thomas, the black former chairman of the Equal Employment Opportunity Commission. Not having met Jones and Souter, the President asked to have them invited to Washington.

After Souter was contacted at his office in Concord, he made three calls in quick succession to Rudman. The first was to tell Rudman the news. Then Souter quickly phoned again, inquiring whether it was possible to fly to Washington directly from Manchester, N.H. ("This is not a guy who travels a lot," says Rudman.) Souter called a third time to add that at the White House he would not discuss how he might rule in future cases. "They ought to know that beforehand," Souter insisted. "It might save all of us a lot of time."

Rudman passed on Souter's message to Sununu, who assured him that the President could learn what he needed from testimony at the judge's earlier confirmation to the federal appeals court and the record of his decisions. After separate interviews with Jones and Souter at the White House on Monday, Bush opted for the New Hampshirite, hoping that the judge's intellect and blue-ribbon resume would offset concerns about his sparse written record. "I have looked for the same dedication to public service and strength of intellect exemplified by Justice Brennan," said Bush. By putting forth a candidate with such a low profile, the President has shifted the debate from Souter's record to the matter of what questions it is appropriate for the Senate to ask him when his confirmation hearing gets under way. Pro-choice groups were already pushing last week for a full inquiry into Souter's philosophy. "Our whole focus now is to ensure ((that the necessary)) questions are asked," says Kate Michelman, executive director of the National Abortion Rights Action League. In the end, says Kathleen Sullivan, a law professor at Harvard, "the Senate can probe as much as it wants; Souter is entitled to stonewall as much as he wants."

Souter promises that when he faces the Senate Judiciary Committee at his confirmation hearings in September, he will reply to their questions with "constitutionally appropriate candor." When he introduced the judge last ) week, Bush insisted that even he did not know the nominee's views on abortion -- a claim that would allow the President to accuse opponents of subjecting Souter to an unfair "litmus test" if they try to pin him down.

Both Republicans and Democrats have contributed to the deterioration of judicial appointments into political tests of strength. While the campaign against Bork was the most highly politicized in this century, it took place only after Ronald Reagan had loaded the lower federal courts with judges who met his own tests on abortion, prayer in school, affirmative action and the separation of powers. Both sides can also point to history to support their arguments about how Senators should interpret their constitutional mandate to "advise and consent" in the process of choosing Justices. Over the years 29 presidential nominees, about a fifth of the total, have failed to win Senate approval, many of them over questions of philosophy, not competence.

Whatever Souter's fitness for the court, his relative obscurity has prompted many to reflect unhappily that the path to the high bench may now be open only to candidates who leave few footprints on the way. A large and respected body of commentary on constitutional law -- the very thing that used to be considered an important qualification for any would-be Justice -- appears to have become a disadvantage instead. Asks Arizona Senator John McCain, a Republican: "Should law students in America now be saying to themselves, 'I better not write or speak on controversial issues if I aspire to the highest position in the judicial system of America'?"

Whenever they choose candidates for the Supreme Court, Presidents must decide whether to select known quantities whose votes they believe they can reliably predict or to go with gifted independents, putting faith in their judgment if not their loyalty. Americans will learn which category Souter fits into only if they see his rulings on the court. For that matter, Souter himself may not know until then.

With reporting by Jerome Cramer and Dan Goodgame/Washington and Andrea Sachs/New York