White House euphoria over the fact that Judge David Souter looked so much better than his inquisitors on the Senate Judiciary Committee overlooks the price paid for his apparently smooth path to confirmation.
For the short term, the Souter confirmation process probably guarantees continued clownish behavior by the senators and a presidential tendency to select nominees who will not confront them. For the long term, the effort to get the Supreme Court out of policy-making and revive it as a court of law may have been struck a severe blow.
The neglected question is whether Souter on the high bench will join or oppose Justice Antonin Scalia in fighting for a principled instead of a politicized court. That his hearings tend to put him in opposition to Scalia is the product of not merely the Judiciary Committee's Democratic majority but of the desire of the White House and David Souter himself to win confirmation at any cost.
This danger was never contemplated by the skilled Washington insiders who coached Souter prior to the hearings. He was told he was entering no judicial chamber but a television studio, where he must avoid the non-Emmy performance of Robert Bork in 1987. He was informed that he would be depicted as a Yankee recluse and must come across in the studio as a regular person.
He did, while avoiding all attempts to draw his opinions on the forbidden "litmus test" of abortion and Roe vs. Wade. Sen. Herbert Kohl of Wisconsin, junior member of the committee but senior in buffoonery, asked Souter his first reaction in 1973 when he heard the court had legalized abortion. The judge politely put him off, but Kohl persisted: "You had no opinion about it other than to say, 'wow'?" Souter responded that he did not say "wow" and declined to reveal anything more.
But apart from Roe vs. Wade, Souter was all too forthcoming. He did not risk collision with the senators by copying Scalia's rigid insistence in his 1986 hearings on revealing nothing. Instead, he furthered the precedent set in the Bork hearings a year later in opening the door to his judicial philosophy.
Souter had been informed he could not risk antagonizing liberal Republican Sen. Arlen Specter of Pennsylvania, whose opposition proved fatal to Bork. He played to Specter in seeming to undercut court decisions against a broad interpretation of the Constitution's prohibition of established religion. Souter also appeared to disagree with Scalia's restrictive interpretation of the due process clause. He came close to pandering in his unrestrained encomium for the famous liberal whose seat he will be taking, William Brennan.
This won high praise in Washington as superb gamesmanship. To astute court-watchers, however, Souter was playing into the hands of an effort by liberal legal scholar Laurence Tribe to separate the new justice from Scalia once he is on the bench.
Such nuances were easily overlooked by the way Souter withstood his tormentors with patience rather than retorts. He showed no emotion when Sen. Paul Simon, up for reelection in Illinois, grandiosely suggested that the judge might broaden his outlook by paying visits to Indian reservations and the West Side of Chicago.
When Kohl claimed that Souter had not turned around to look, along with everybody else in the hearing room, when homosexual demonstrators erupted, the judge calmly denied it. He submitted a list of his charitable contributions to Sen. Howard Metzenbaum of Ohio, a possible vote against him, and -- against his better judgment -- permitted the senator to make it public.
The tone was set in opening questioning when Chairman Joseph R. Biden Jr. appeared unable to follow Souter's answers.
But the price for Souter looking so good and Biden and his friends looking so bad will be paid in the future. Will Mr. Justice Souter, as a man of his word, remember what he told the committee and separate himself from Nino Scalia's crusade to get the court out of the policy-making business?