If anyone at the Bush White House is paying attention, I would like to recommend my son -- 18 years old and with a vague interest in the law -- for the next seat on the Supreme Court. He has some qualifications: a quick and nimble mind, a searching intellect and, on occasion, a sharp tongue. Best of all, he has no paper trail. To my knowledge, he has published nothing on the law.
These now seem to be the prime requirements for a Supreme Court justice. To the highest court in the land -- shapers of our lives and determiners of our fate -- Bush has just nominated David Hackett Souter, who, at age 50, seems to have burst from a cocoon. His views on just about anything are not known. Specifically, about the so-called unborn, he is unsaid.
The testimonials to Souter's brilliance are so numerous, and so bipartisan, that one has to take them at face value. He also seems to have a winning personality, a certain charm and an enormous capacity for work. A woman who worked for him in New Hampshire has nothing but wonderful things to say about him -- and she is a feminist.
But we are talking here of the Supreme Court. You would think that for such a post the president would have chosen someone of both towering intellect and vast experience. Such a person would, from time to time, have put his thoughts down on paper or rendered opinions from the bench that were so brilliant that they might have come from Olympus itself. Souter, for all his smarts, has written no such thing. At least, it has not yet been found.
My own paper trail reveals some reservations about the way the opponents of Robert Bork's nomination behaved. I now have another. It was apparently the Bork precedent that guaranteed Souter's nomination. Bork's writings were voluminous, not to mention controversial. Liberals found them disturbing, conservatives deemed them brilliant, but anyone, I think, would agree they were provocative. In appearance, the fleshy and hirsute Bork was no Supreme Court justice for the television age, but it was probably his writings that hurt him most. He foolishly said what he believed.
Where congressional or presidential candidates are asked if they ever committed adultery, Supreme Court nominees are asked if they ever committed scholarship. If they have, some group might take offense. This is particularly true if the subject is abortion, a moral issue of one-time consuming interest to Bush, but which has since been relegated to something called a "litmus test." By executive order, litmus tests are forbidden.
But why? If I were president (a chilling thought) I would damn well have litmus tests. I would ask a potential nominee about capital punishment, which I oppose. I would also ask about abortion, which I think ought to remain a constitutional right.
I would do so because these are issues relating not only to the quality of life but to life itself. Of course, abortion opponents make the same argument, yelling murder and infanticide (but lowering their voices when it comes to rape or incest). After years of being told by Ronald Reagan, George Bush and the entire Republican Party that few issues were more important, they are now being told they can't ask Souter where he stands. I can offer no explanation. They are entitled.
Harry Houdini died in 1925, and probably nowhere but in Washington is he still mourned. The town appreciates escape artists. What else can account for the hyperventilated praise beingshowered on Bush for offering a Supreme Court nominee who has no profile? Caught between opposing forces on abortion -- caught, indeed, between his own contradictory statements on the issue -- Bush pulled Souter from his hat.
As usual, his intention was to get over the next political hurdle. He has given us the stealth nominee. Souter is invisible on the radar of various interest groups, but we are told via Sunununian winks that he will bomb abortion right out of the box. This is what "strict constructionists" are supposed to do, although almost no one seems willing to say so. Here we may well have a back-alley ideologue.
Souter may be the man his boosters say he is. And if that's the case, he may turn out to be as unpredictable on the bench as some other "safe bet" judges. But there is something wrong, if not cowardly, about making an attribute out of silence and mystery. It's as if George Bush and all of Washington were doing a version of yet another Hollywood ghost movie: Robert Bork, having been rejected, comes back as David Souter.