In the End, Souter Fit Politically
Wednesday, July 25, 1990
It was late Monday afternoon and Edith H. Jones, the federal appeals court judge from Texas who had spent the night stashed in an administration "safe house," was hiding out once again in a second-floor office in the White House. Six hours earlier she had met with President Bush and now was waiting to find out if she had won the prize of a lifetime: a nomination to the Supreme Court.
Down the hall, David H. Souter, an appeals court judge from New Hampshire, was in another office, waiting for the same momentous decision that was being thrashed out in the family quarters on the other side of the White House complex by Bush and four top aides.
In the end, according to interviews with the participants in that debate or their top aides, the choice of Souter came down, as much as anything, to political timing, not qualification. Souter was judged the more scholarly and "brilliant" of two good judges, but more important, the candidate who would be less controversial in Senate confirmation hearings.
"In the political sense," said one White House senior official, "she would have generated more enthusiasm -- and more controversy." Said another senior official, "She has dealt extensively with federal issues, and he has not. That might sound like a disadvantage, but when you are not looking for a fight, it is an advantage."
Souter and Jones reached the finals of a process that began 18 months ago when Bush inherited what White House Counsel C. Boyden Gray called the "files and institutional memory" of the Reagan White House on potential high court nominees. A list of more than 50 names on Inauguration Day was winnowed to 18 names by the time Justice William J. Brennan Jr. announced his resignation last Friday, according to White House Chief of Staff John H. Sununu.
In the processs, Gray, Attorney General Dick Thornburgh and their aides looked closely at the records of those on the list, including the interviews some potential nominees, like Souter, had had before other judicial appointments. Several officials said no candidate was asked about abortion or any other specific issue. Several, including Souter, told the administration not to ask because such questions amounted to "litmus tests" and were considered improper.