Souter's Judicious Restraint
ROBERTS, STEVEN V.
Washington-USA SOUTER'S JUDICIOUS RESTRAINT BY STEVEN V. ROBERTS Washington After the Senate confirmed David H. Souter's Supreme Court nomination by the overwhelming vote of 90 to 9,...
...Perhaps including Souter...
...They got a nominee who would not automatically oppose Roe...
...was exactly right when he explained his backing of Souter by saying the nominee was "the best we can hope for from this Administration...
...Steven V. Roberts, who formerly covered Congress and the White House for the New York Times, is now a senior writer at U.S...
...If he is reasonable, Congress will reciprocate...
...Actually, his selection reaches back to a venerable tradition—the days when Court nominees were chosen for their character and judgment, not their views on specific issues...
...Ours...
...If realism was one reason for the Souter vote, uncertainty was another...
...Souter is a pretty accurate reflection of Bush himself—a free-thinking conservative who takes each issue as it comes, without an overarching philosophy...
...In the postwar era, Presidents of both parties have generally avoided rigorous litmus tests based on pressing cases...
...Reagan and his advisers were determined to do what they bitterly accused the Left of doing, using the courts to enact social policy that could never pass Co ngress...
...Just as Souter was coming up for a vote, many of the groups that buried Bork were negotiating with the White House over the civil rights bill, a measure designed to reverse six recent Court rulings that have weakened anti-discrimination laws...
...That only nine Senators voted against Souter vividly demonstrates how ineffective, and inappropriate, the two extremes turned out to be...
...Unlike Reagan, Bush does not see the Court as the repository of his ideological legacy, partly because he does not have one...
...He has a long legal history in his native New Hampshire, as attorney general and state court judge, and he testified at considerable length before the Senate Judiciary Committee...
...Then go double or nothing by asking: Who is President John F. Kennedy's only surviving nominee, and where does he fit on the spectrum...
...Special interest groups on both sides of the spectrum who assailed Souter were angry because he did not fit neatly into the political niche they had carved out for him...
...They won...
...News and World Report...
...Numerous interest groups that manned the barricades on the Bork nomination stayed on the sidelines this time, or voiced their opposition in timid and tepid tones...
...Howard M. Metzenbaum (D.-Ohio), one of the most ardent liberals in the Senate, called him a "fair and open-minded jurist...
...And I'm certain that he wants to avoid the political damage that would befall the Republicans should his nominee provide the decisive vote against Roe...
...But that has not happened yet...
...retired, how many members of the so-called liberal bloc were appointed by Democrats...
...They were within one vote of their goal when Reagan retired to his ranch and bequeathed the Oval Office to George Bush...
...The pro-choice community tried to argue that abortion rights were a settled, indisputable principle, like racial equality...
...True enough...
...Those who demanded certainty remain frustrated...
...Souter still bears the burden of being dubbed the " Stealth nominee" early on because of his low profile and reportedly meager record...
...The capital is ruled by a coalition government, with neither party able to impose its agenda on theother...
...The other three were Republican choices: Brennan by Dwight D. Eisenhower, Harry A. Blackmun by Richard M. Nixon, and John Paul Stevens by Gerald R. Ford...
...If we were perceived as coming down against every Bush nominee, our effectiveness would be muted," said Melanne Verveer, executive vice president of People for the American Way...
...Roe is not Brown, however, and abortionis not race...
...Even if he wanted to, Bush could not have pushed a more conservative choice through the Democratic Senate...
...Any nominee, they said, does have to pass a litmus test...
...if he is not reasonable and tries to impose an ideologue on the Democrats, he risks a serious confrontation...
...I think the choice reveals something more basic about the President...
...Until the mid-19th century, nominees declined even to appear before the Senate and answer questions, saying such an encounter would violate the separation of powers...
...In fact, I'm convinced neither Bush nor anybody else knows for sure how Souter will vote on that issue...
...People who know the President well have always suspected that his flip-flop on the abortion issue, his alignment with the pro-life cause, was a purely political decision designed to curry favor with the Republican Right-wing...
...Senator Joseph R. Biden Jr...
...The answer: Justice Byron R. White, who joins the conservatives more often than the liberals these days...
...When Bush and Reagan were selecting Court appointments, the abortion rights community insisted that abortion should not be the litmus test...
...What emerges from his record, and his testimony, is not a blank slate at all, but rather a thoughtful, pragmatic conservative...
...Someday a consensus may form around abortion and enshrine choice as a basic right...
...D.-Del...
...Bush should draw a clear lesson from the Souter nomination...
...A handful of Reagan's choices were rejected—most notably Supreme Court nominee Robert H. Bork—but most are now sitting on the Federal bench...
...that makes him a hypocrite, but not a stiff-necked zealot...
...spoke for many lawmakers—about many different groups—when he complained of the "tiresome arrogance" of witnesses who opposed Souter simply because he was not clearly committed to preserving Roe...
...In picking Souter, Bush had a single major qualification in mind, confirmability...
...No nominee who opposed Brown v. Board of Education could ever win confirmation, they argued, and they were right...
...Small wonder, then, that most lawmakers who strongly support the pro-choice cause could not accept the idea that abortion alone should determine the fate of a nominee who has to vote on hundreds of questions every year...
...You can win money with the following trivia question: Before Justice William J. Brennan Jr...
...Washington-USA SOUTER'S JUDICIOUS RESTRAINT BY STEVEN V. ROBERTS Washington After the Senate confirmed David H. Souter's Supreme Court nomination by the overwhelming vote of 90 to 9, Senator Herbert Kohl, a Wisconsin Democrat, summed up the mood in the capital this way: "If Judge Souter turns out to be a rigid ideologue and not the moderate he seemed to be, then the Senate and the American people will have been deceived...
...Moreover, Souter's ascension shows that in his heart Bush does not really care about overturning Roe v. Wade...
...Maybe they were being duplicitous and did not mean what they said...
...and the Democratic Senate could not have forced the Republican President to pick a liberal for the Court...
...That, it is now clear, is unfair...
...Senator Alan K. Simpson (R.-Wyo...
...Reasonableness by the Republicans is about the best they can expect...
...The Democrats, and the guerrilla bands who support them, should also face a blunt fact...
...But that is precisely what the pro-choice community did not want...
...Lacking such evidence, they decided to defuse the sort of irritation expressed by Simpson, while preserving their credibility for future battles...
...Capital insiders got a skewed view, seeing him through the prism of their own prejudices and vested interests...
...Indeed, I'm willing to bet that Bush really believes women should have a right to choose...
...As it happened, just one Right-wing group, the Conservative Caucus, opposed Souter because he was not totally committed against Roe...
...While all attempts during the Reagan years to overturn Roe v. Wade through legislation failed badly, the White House sought to reverse the legalization of abortion by stacking the court with pro-lifers...
...Washington is a city that lives on tradeoffs and compromises, and it's hard to maintain the trust of a negotiating partner in one room when you are berating him in another...
...David Souter is nobody's hero, and nobody's villain...
...For in the end the pro-choice community proved that George Bush had no corner on hypocrisy...
...Perhaps...
...Nevertheless, the prochoice lobbyists marched up to Capitol Hill and announced, that's not good enough...
...Some analysts theorize that if Brennan had resigned after the invasion, when Bush's ratings were rocketing back upward, he might have felt freer to pick a more hard-edged nominee...
...They were convinced, with some justification, that their greatest legacy would be a Federal judiciary crammed with hot-eyed conservatives, and they went about packing the courts with their ideological brethren far more effectively than Franklin D. Roosevelt ever did...
...For example, the Congressional Caucus on Women's Issues and the Leadership Conference on Civil Rights, two staunch and effettive proponents of women's interests in Washington, both avoid abortion because their own membership is so fragmented on the subject...
...A President who served in Congress, and who respects its members and mores, Bush hated the idea of a nuclear war with Capitol Hill over a Supreme Court nominee...
...If prolife groups had done the same thing en masse, the pro-choice forces would have been outraged...
...But ordinary members of groups like People for the American Way were much more impressed with Souter's basic impulses and values, and they flooded headquarters with pleas to support the nominee...
...A final factor helping Souter was the reaction to his testimony outside the Washington Beltway...
...The pro-choice forces were further undermined by a growing revulsion on Capitol Hill against all single-issue groups who insist that they are the center of the political universe, and that their concerns should dominate all others...
...The issue is still a violently divisive one in this country...
...The answer is one, Thurgood Marshall...
...Until they find a way to elect a Democratic President, they cannot pick Supreme Court justices...
...In addition, remember that he named Souter early in the summer, before Iraq invaded Kuwait, and at the time his approval ratings were dropping steadily...
...As an of ficial of one told me, Souter's testimony provided nothing "to get our teeth into," no obvious smoking gun that could prove conclusively he was either dangerous or unqualified...
...That tradition of independence was trashed by Ronald Reagan and his chief legal adviser, Edwin Meese...
Vol. 73 • October 1990 • No. 13
