By Ann Devroy
Washington Post Staff Writer
Tuesday, July 24, 1990
President Bush announced yesterday that he will nominate appellate court judge David H. Souter of New Hampshire to the Supreme Court vacancy created by the retirement of Justice William J. Brennan Jr.
Brushing aside questions about Souter's views on a range of issues from abortion to civil rights, Bush said the jurist, 50, who is considered an advocate of judicial restraint, was selected for his "keen intellect and highest ability." Souter, who was unanimously confirmed by the Senate three months ago for a seat on the 1st U.S. Circuit Court of Appeals, has 12 years of court experience, including five years on the New Hampshire Supreme Court.
The nomination drew a cautious response from liberal and civil rights groups, which began a scramble to examine Souter's record. Although Souter was not their first choice, conservative groups labeled him at least acceptable, but most said they were examining his record.
The reaction on Capitol Hill was also cautious as several lawmakers said they would reserve judgment until they learned more.
Souter, standing to Bush's side as his nomination was announced, said he would not comment on any judicial issues until his confirmation hearings. The White House quickly brought in Kenneth Duberstein, a White House chief of staff under President Ronald Reagan, to guide the nomination through the Senate.
Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) said that he did not expect hearings on the Souter nomination to begin until September but that there would be "plenty of time" for the Senate to act on the nomination before the high court returns in October for its next term.
Biden said he had "heard a lot of good things" about Souter and that "some very good friends of mine think very highly of him." But in a comment that was typical of the initial reaction to the nomination, Biden added, "I don't know enough about him to make a judgment."
It was clear that Souter's views on abortion would be a key focus of the confirmation process. The court is sharply divided on the abortion issue and abortion-rights advocates fear that the addition of one more conservative vote could lead to the overturning of Roe v. Wade, the landmark 1973 decision that legalized abortion.
In making the announcement, Bush sometimes testily rejected attempts to draw him out on whether Souter's views on abortion had been sought in advance of his nomination. Denying that he or White House Chief of Staff John H. Sununu had asked for Souter's views on abortion or any other issue, Bush said, "What I am certain of is that he will interpret the Constitution and not legislate from the federal bench."
Complaining that media coverage concentrated on abortion, Bush said, "I never heard such coverage . . . you might just think the whole nomination had to do with abortion . . . . I have too much respect for the Supreme Court than to look at one specific issue."
Virtually all the candidates on the original list of about 15 potential nominees that Bush considered, including Souter, fit into what one official called the "Trojan horse" category; that is, their writings on the issue of abortion were slim or nonexistent, providing little of a paper trail for abortion-rights advocates and other critics to leap on. One official said that advantage, along with Souter's recent Senate confirmation for the appellate court, made him "a strong choice for a president who wanted at least to minimize a fight" with Congress.
Asked what ultimately persuaded Bush to name Souter over other acceptable candidates on his list, an official familiar with the president's views said: "I think it fits into Bush's philosophy that if you are seen as governing well, that is the best politics. And the White House view was that Souter is a conservative but not an extra-chromosome conservative. They think he will get confirmed with a majority of the Senate and the American public will see a competent candidate named and approved and be pleased the system works."
Souter's relative anonymity in Washington produced a call from special interest groups that the Senate go slow on the nomination, and a cautious response from Democrats and even some conservatives unfamiliar with him. Sen. Orrin G. Hatch (Utah), senior Judiciary Committee Republican, said he was reserving judgment because he knew little of Souter. "His credentials appear impeccable to me," the senator said, adding he knew nothing of Souter's views on abortion or other major issues.
Sununu's ties to Souter were considered an important credential by some conservative Republicans, even though Bush, Sununu and other aides played down any suggestion that the chief of staff had a key role in Souter's nomination. Bush said Sununu, a Republican former governer of New Hampshire who has retained a strong hand and interest in that state's politics, had all but recused himself from the decision.
But Edward J. Rollins, co-chairman of the National Republican Congressional Committee who was pushing for a conservative nominee, said, "As far as I'm concerned, anyone who passes the John Sununu litmus test is good enough for me."
Bush and his aides insisted vehemently yesterday there was no "litmus test" of any sort, other than a record of judicial restraint or what Bush called "a keen appreciation for the proper judicial role" of "interpreting, not making the law."
The president said it would be "inappropriate" to question Souter on his views on specific issues because such questioning is not "customary." But he refrained from suggesting such questions would be inappropriate in the Senate hearings.
The president said he had never met or spoken with Souter before yesterday, when he had a brief interview in which Bush said the candidate impressed him with his intellect. Deputy Attorney General William P. Barr said Souter, who was also considered for the last Supreme Court nomination Reagan made, had been on a list of candidates assembled "early on."
"I think the attraction was that invariably his opinions appeared to be very scholarly, ably written and he appeared to be a believer in judicial restraint," Barr said.
An administration official said Attorney General Dick Thornburgh spoke at length with Souter over the weekend and also had interviewed him in connection with the appellate court position.
While several officials spoke of Souter's intellect, hard work, devotion to the court and educational credentials, it was politics that brought him to the attention of the Reagan White House and then kept his name alive. According to two senior officials in the previous administration, Souter's name appeared on court lists in the Reagan years because Rudman pushed hard for him. "It was a favor to Rudman to put him on the list and to leak his name out," one official said. "He was not the first choice, maybe the 10th choice, because we had better candidates and certainly more experienced ones."
Souter's lack of experience in broad federal issues such as civil rights and abortion bothered some conservatives who favored a candidate with more of what they call a "paper trail" of written opinions that set out a judicial philosophy.
One conservative activist noted, "They're putting a lot of green on this shot. This is a big, big step for a guy from a New Hampshire state court. You bring in a guy like this, they have a tendency to pull a Harry Blackmun on you," a reference to an appointee of President Richard M. Nixon who has disappointed conservatives by frequently voting with court liberals.
Liberal interest groups that mounted the successful 1987 campaign against nominee Robert H. Bork yesterday were cautious about the nomination and urged the Senate not to act precipitously.
"The civil rights community knows very little about Judge Souter," said Ralph G. Neas, executive director of the Leadership Conference on Civil Rights. "With so much at stake we will carefully examine his record and his judicial philosophy. . . . There should not be a rush to judgment."
Melanne Verveer of the People for the American Way, another group that worked strongly against Bork, said that while Bush "is clearly pressing for quick confirmation, the public interest lies in careful consideration" of the nomination. She said Souter's record "raises more questions than it answers. We hope the Senate will give close scrutiny to several troubling aspects of his record," such as his philosophy on separation of church and state, civil rights and civil liberties.
The National Right to Life Committee said it was pleased the president was nominating someone he says will not legislate from the bench, adding that this was a description of a nominee who would overturn Roe v. Wade.
"Since Roe v. Wade has no basis in the Constitution, the appointment . . . should continue the erosion of the tragic error" of Roe, the group stated.
Abortion-rights advocates called for a detailed questioning of Souter on the issue. "It would be a terrible injustice to confirm a nominee without knowing he is committed to protecting Americans' fundamental constitutional rights, including privacy and the right to choose," said Kate Michelman, head of the National Abortion Rights Action League.
Staff writers Helen Dewar, Ruth Marcus and John E. Yang and special correspondent Christopher B. Daly in Boston contributed to this report.