Nobody knows whether Judge David Souter on the Supreme Court will turn out less or more conservative than Judge Edith Jones would have been, but his quick and safe selection by President Bush costs Republicans a political opportunity.
Because of her outspoken views on issues that include the unmentionable abortion question, Judge Jones of the Fifth Circuit Court of Appeals would have been tougher to confirm in the Senate. But she also would have posed an agonizing political dilemma for southern Democratic senators: Would they show themselves to be so controlled by the abortion rights lobby as to oppose a law-and-order lady from Houston?
In picking Souter, the president chose the sure path to confirmation rather than to seek a political advantage he and his party may well need.
In the remarkable press conference he held to unveil his first Supreme Court justice, the president's caution made him look like a professor grading a law school exam. But in truth, from the moment Friday night that liberal Justice William Brennan stunned the capital with his retirement announcement, discussions at the White House recognized the profoundly political nature of the selection.
There never was any doubt that Bush would pick a conservative to alter the court's balance, not only on the raging political issues involving judicial power such as abortion and affirmative action but on criminal justice and even flag burning. The question was what kind of conservative would be sent up to the Senate to test whether the Democratic majority would repeat the kind of savage attack unleashed against Robert Bork.
The supposed front-runner, Solicitor General Kenneth Starr was never in the running this time. His name continued to be floated by Bush aides for a day after he actually had been passed over -- a smoke screen to obscure reality.
It was argued inside the White House that a southern nominee for a court with no southern members would put pressures on Dixie Democratic senators that Bork never did. Appeals Court Judge Frank Higginbotham of Dallas, seriously considered for the last Reagan vacancy, surfaced again.
But he was quickly eclipsed by another Texas judge, Edith Jones. Although more conservative than any others under consideration, she would be harder for southern senators to vote against than any other prospect. She would also mobilize the dormant conservative coalition.
Thus, Jones was seen as a win-win situation for the president. Bush would win politically whether she was confirmed or not.
But what if she were not confirmed? Bush's advisers discussed the best alternative. Topping the list was D.C. Appeals Court Judge Laurence Silberman, who delivered last week's reversal in the Oliver North case. A prominent conservative with wide government and diplomatic experience, Silberman has pro-choice inclinations that should make him confirmable. Also mentioned as a backup was Souter, who had been on the list for the last Reagan appointment but still was unknown. Bush's lawyers assured him that Souter was dependably conservative, but, new to the federal bench and Yankee-reticent in revealing his sentiments, he had made few footprints and none at all on the abortion question.
On Monday morning, those qualities pushed Souter from backup to first choice.
Souter will test whether the Democratic Party is so much in thrall to abortion rights that it will oppose any nominee who is not overtly pro-choice. But the White House is confident that if he handles himself sensibly during his confirmation hearing, any campaign against him will fail.
That's why the president went to such lengths Monday to deny the politicization of Supreme Court appointments that began not with Bork in 1987 but with the nomination and withdrawal of Abe Fortas as chief justice in 1968. By picking Souter, Bush's characteristic political move was to play it safe, forgoing risks -- but also rewards.