SOME consternation greeted the president's announcement of his choice for the Supreme Court because not much was known about the man and he had been chosen over various other distinguished judges who were thought to be more worthy of the honor. Fifty years old, a Harvard graduate, the candidate was acknowledged to have broad experience as a practicing attorney and a judge on both the trial and appellate levels of his state court -- but only on state, not federal courts. And when senators, staffers and interest groups pored over his record of opinions, they found primarily assorted criminal, labor relations and land-use cases that are the stuff of state litigation. His supporters countered that the nominee had "a solid, rather than a spectacular record of hard work, painstaking preparation and independent judgment." This newspaper concurred, recommending confirmation of this "solid court worker" who was "an experienced judge with an excellent record." The nominee was William Brennan, and the year was 1956.
The burning political issue of the day related to Communists. Although Mr. Brennan had joined a unanimous opinion of the New Jersey Supreme Court upholding the constitutionality of the Communist Control Act of 1954, some senators sought reassurance of his reliability on the matter, because he had also criticized the activities of Sen. Joseph McCarthy. Sen. McCarthy, though not a member of the Senate Judiciary Committee, was allowed to sit with the committee during the confirmation hearing and question the nominee. Did he believe, the Wisconsin senator asked, that the Communist Party is a conspiracy aimed at overthrowing the government? Mr. Brennan refused to reply, observing only that international communism was a threat to all free governments. In an editorial, this paper criticized the committee for quizzing the nominee about matters that were sure to come before the Supreme Court, and even chastised Mr. Brennan for answering in a limited fashion.
We review these historical facts not because we believe Judge David Souter is another Justice Brennan but because in some respects their situations at the time of nomination are similar. Both were little known nationally, and neither had a clear record on one side or the other on an important political matter. Combing state court decisions was not very productive in Mr. Brennan's case, nor was one apparently revealing opinion -- on the Communist Control Act -- a precursor of his Supreme Court opinions later. Imagine the consequences for liberal causes if Mr. Brennan had been denied his seat on the Supreme Court because this earlier ruling had not been liberal enough. The threat that seemed so important in 1956 receded quickly, and Justice Brennan served another 30 years deciding cases on other new and perplexing matters.
Judge Souter's record is now being combed for hints of a philosophy that might predict his future on the court. That's fine. But it will not be unprecedented if no clues are found in his state court opinions, and it would be a shame to jump to conclusions about his view of Roe v. Wade because of a limited and tangential aside in a New Hampshire case. More is at stake, and little is predictable.