If schools of government ever offer courses in how to win a Senate confirmation, they might use David H. Souter as a case study.
The start of hearings last week on Souter's Supreme Court nomination illustrated why many viewed President Bush's choice of the little-known New Hampshire judge as a masterstroke. The hearings also demonstrated the lessons the Bush administration learned from Robert H. Bork's failed nomination three years ago.
When Bush tapped Souter in July to take the place of retired Supreme Court Justice William J. Brennan Jr., many observers thought one of his attractions was that he came without the extensive and damaging "paper trail" that dogged Bork and contributed to his defeat.
But in two days of testimony before the Senate Judiciary Committee, Souter was called on to do some explaining about his previous positions, particularly some he took while in the state attorney general's office.
Senators expressed concern about his defense of lowering state flags to half-staff on Good Friday, keeping the state's literacy test for voters, prosecuting Jehovah's Witnesses who obscured the state's "Live Free or Die" motto on their license plates and fighting federal rules requiring the state to supply information on the racial composition of its work force.
Bork, confronted with the controversial positions he had taken in academic writings, sought to modify some of his views and was immediately accused of a "confirmation conversion." Those accusations were at least as damaging as the positions themselves.
Souter, in contrast, distanced himself from controversial positions he had defended by pointing to his role as an advocate and asserting that he would have come out the other way had he been a judge in those cases.
Some Democratic senators tried to point out that Souter had taken an oath as attorney general to uphold the constitution and represent the public interest. But that line of attack drew little blood, in part because sitting behind Souter was his predecesssor as attorney general, Sen. Warren B. Rudman (R-N.H.) -- under whom a few of the controversial efforts had been launched.
Nevertheless, the differences between the performances of Souter and Bork went well beyond the question of how they handled their past positions -- both in style and substance.
During his hearings in 1987, Bork came off as gruff and -- by the close of five days of grueling testimony -- somewhat combative. The bearded judge and former law professor seemed to many viewers a detached legal scholar, an intellectual without feeling for the real-world consequences of his legal views.
Souter -- who has never married, lives alone and carries on an intellectual, somewhat sheltered existence -- faced some of the same skepticism going into the hearings. But he used an eloquent opening statement as a means of allaying doubts about his humanity and compassion, a way of conveying to senators and to the rest of the country that he was both an ordinary American and one to whom they could safely assign "stewardship of the Constitution," as Souter phrased it.
Bork had stumbled in explaining why he wanted to be on the Supreme Court, suggesting the job would be "an intellectual feast" for him. Souter, who as part of his preparation for the hearings watched videotapes of Bork's ordeal, answered the same question by describing his goal "to try to give the Constitution a good life in the time that it will be entrusted to me . . . and to preserve it for the generations that will be sitting perhaps in this room after you and I are long gone from it."
Prepared to deal with doubts about his compassion, Souter repeatedly made reference to personal experiences: to his understanding, stemming from a counseling session as a student adviser at Harvard University 24 years ago, of the anguish felt by a woman with an unwanted pregnancy; to his sense of the harm inflicted on members of minority religions by school-sponsored prayer, gained in conversations with a Jewish friend who felt ostracized as a schoolboy; to his concern for civil rights, sparked by his friend Thomas D. Rath's tales of how his Irish grandparents were shut out of jobs.
Perhaps the biggest difference between the two hearings involved issues of substance. Bork said he saw no general constitutional right to privacy; Souter said he believed there is a fundamental right to privacy protected by the Constitution.
Bork sounded the theme that judges "should interpret the law, not make it." Souter undoubtedly would agree with that proposition, but, asked about "activist" judges, noted that if the Constitution "speaks to" a "profound social problem" that the other branches of government have failed to address, "ultimately it does and must land before the bench of the judiciary."
But if Souter succeeded in distancing himself from Bork -- demonstrating who he is not -- he scored perhaps an even bigger triumph by escaping the first two days of questioning without offering any definitive picture of who he is.
His skillful answers left liberals and conservatives uncertain of where he stood, not just on the controversial abortion question that he specifically declined to discuss but on those topics he addressed.
In the civil rights area, for example, Souter said he supported "affirmative action." But he went on to talk about the topic in a way that just as easily could be taken as an endorsement of the Reagan administration's insistence on giving benefits only to specific victims of discrimination as it could be seen as consistent with arguments of civil rights groups that far-reaching affirmative action programs are necessary to eradicate the effects of discrimination.
At one point, he described a line of court decisions granting Congress broad power to adopt minority preference programs without saying whether he agreed with them.
In his opening statement, Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) urged the nominee to "open for us a window into your mind and give us a little bit of a glimpse into your heart." But it seemed Souter let the senators peek only at what he wanted them to see.