THE SORRY TALE OF DAVID SOUTER, STEALTH JUSTICE
Nov 6, 1995, Vol. 1, No. 08 • By JEREMY RABKIN
David Souter, stealth candidate -- that was the soundbite in the summer of 1990, when President Bush announced the unknown New Hampshire judge's surprise nomination to the U.S. Supreme Court. "Stealth candidate" stuck to Souter throughout that summer and during his confirmation hearings. That tag has rarely been used since then. But it still fits.
The radar the "stealth candidate" successfully evaded, however, was not the system operated by the National Abortion Rights Action League, or the National Organization for Women, or the Mexican-American Legal Defense Fund, or other such groups sounding the alarm.
No, it was the (then) 44 Republican senators and the entire Washington conservative establishment whose tracking antennae he eluded. Five years later, the damage is glaringly obvious. Souter, supported by conservative groups and unchallenged by conservatives inside the Bush White House, is now one of the staunchest liberals on the court -- a more reliable champion of liberal causes than Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.
Indeed, Souter's positions are now almost indistinguishable from those of his predecessor, Justice William Brennan, the most relentless and effective champion of liberal judicial activism in the past half century. Souter has developed a warm feeling for Brennan, whom he has praised in lavish terms in public testimonials. The two have so much mutual trust that Souter routinely borrows the clerk Brennan himself recruits each year to help him in his work as a retired justice. Nor should Brennan's clerk feel at all out of place in the Souter chambers. Those who have served as clerks to other justices report that Souter's aides are among the most consistent leftists now working at the court. Souter picks them from a short-list of candidates prepared by the previous year's clerks, who in turn were picked from a short-list prepared by their predecessors, and so on back to the original set of clerks Souter inherited from Brennan.
Only one conservative organization, Howard Phillips's Conservative Caucus, raised its voice in opposition to Souter at the time of the confirmation proceedings (and then solely on the basis of doubts about Souter's personal views on abortion). Other conservative groups with wider agendas relied on assurances from the Bush White House -- "Souter," said chief of staff John Sununu, "will be a home run for conservatives" -- and were persuaded to issue statements of support for Souter.
How misplaced was this trust may be judged from the three policy fronts on which liberal advocacy groups directed the most fire against Souter in 1990. First and foremost was the issue of abortion. Critics worried that Souter would provide the crucial fifth vote to overturn Roe v. Wade. Instead, Souter, in a joint opinion with Justices Anthony Kennedy and Sandra Day O'Connor in 1992's Planned Parenthood v. Casey, celebrated Roe as a landmark that all sides in the abortion debate must now accept. In three cases since then dealing with the proper scope of federal protection for abortion clinics, Souter has always voted with the abortion-rights advocates, leaving more conservative justices to worry over the First Amendment claims of pro-life picketers.
On church-state issues, which also drew special concerns at the time of his confirmation proceedings, Souter has again shown a reliable liberal bent. In Lee v. Weisman, in 1992, he concurred in the court's ruling that even an innocuous non-sectarian "prayer," delivered by a reform rabbi at a high school graduation ceremony, was an impermissible "establishment of religion." In 1994, he broke new ground in religiophobia when he wrote in a majority decision that the village of Kiryas Joel in New York state could not be allowed to elect its own school board (in a normal, secret-ballot vote) because its residents, Hasidic Jews, were too devoted to their religion. Even O'Connor and Kennedy, while concurring with Souter's opinion, expressed misgivings about Souter's reasoning and argued for more accommodation to these American citizens of orthodox faith than the vigilant New Hampshire jurist would allow.
Last term, Souter was still so worried about any sign of governmental endorsement of religion that he argued (in contrast to Kennedy and O'Connor) against allowing the University of Virginia to fund a Christian student magazine, even while the university was funding student activities and publications of every other description, including those of Muslim and Jewish student groups. Souter also worried about permitting the Ku Klux Klan to set up a cross on a public square, since the permit for the Klan might seem to send a "message" of "public endorsement" -- of Christianity!
Concerns about Souter's likely votes on affirmative action were the third focus of critics at his confirmation hearings. Here, too, he has been every inch Brennan's successor. When the court voted this year to strike down racial gerrymandering of congressional districts, Souter took the opposite side. Kennedy and O'Connor voted this year to demand "strict scrutiny" of federal affirmative action programs involving explicit racial preferences; Souter again dissented.
Aides and advisers who participated in the selection of Souter in the Bush White House express disappointment and dismay -- with varying degrees of bitterness-at Souter's performance. All profess to be quite surprised. Why has Souter turned out so differently than his sponsors expected?
One camp believes Souter remains captive to the sort of jurisprudence that goes on in state courts like the one in New Hampshire for which he toiled. Says Thomas Jipping, who provided supportive legal analysis for a coalition of conservative groups endorsing Souter's nomination in 1990: "Souter has the mentality of a state court judge, working through the details of common-law cases. He sees his job as adjusting the details of precedents and has no feeling for the larger constitutional principles that have to be the main concern at the level of the U.S. Supreme Court."
John McGinnis, in a recent article in Policy Review, characterized Souter as "a prisoner of legal process jurisprudence," which prompts judges to "avoid unprincipled decision making by focusing on the distinctive aspects of legal procedure such as stare decisis." Stare decisis is legalese for adhering to precedent.
At first glance, these suggestions seem plausible. For example, as McGinnis notes, Souter took pains to defend racial gerrymandering and racial set- asides in cases this past term not by offering some larger defense of racial balancing as the path to racial harmony, but by discussing the relevant precedents and simply offering a different interpretation from the majority.
Still, even a judge obsessed with precedent and process should tack right at times; Souter almost always bears left. And he is sometimes startlingly clear about his reasons. Souter's contribution to the joint opinion in the Casey abortion case, a long disquisition about precedent, approaches a level of judicial messianism beyond anything articulated by the Warren court. Souter argued there that the court had been right in 1937 to overrule previous decisions limiting government's regulatory powers, and in 1954 to overrule the old doctrine of "separate but equal," because, given new "facts," the "thoughtful part of the Nation could accept each decision to overrule . . . as a response to the Court's constitutional duty." But such a confession of error was not permissible in the case of Roe v. Wade. When "the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe," he wrote, "the Court's interpretation of the Constitution calls on the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." Overruling Roe would undermine "the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily" separable from their understanding of the Court invested with authority to . . . speak before all others for their constitutional ideals." Whatever else one might say of such self-serving bombast, it is not the rhetoric or the self-image of a humble legal technician. Rather, Souter presents the court as the nation's ultimate spiritual authority, as infallible in its sphere as the Bishop of Rome is in his.
In fact, this sort of pomposity leads other conservatives to interpret Souter's surprising record in Washington as the response of a small-timer, dazzled and made giddy by the vastly broader challenges of the Supreme Court. On the New Hampshire Supreme Court, he never had to deal with major First Amendment cases, with affirmative action, or other Solomonic problems. A Supreme Court clerk who has maintained a friendly relation with Souter reports his saying, "I never had to think about these things until I came to Washington. I just never thought much about them. I had no settled views." A Justice Department official who researched Souter's decisions on the New Hampshire Supreme Court disgustedly characterizes the bulk of them as "cow law."
But this explanation also fails, in the end, to account for Souter's performance. For even where he had much prior experience with issues before the court, Souter has still moved notably to the left. Nothing better illustrates this than his approach to criminal procedure cases -- those disputing whether police and prosecutors have played fair with the accused. Such cases, in fact, generate a continual stream of appeals to the New Hampshire Supreme Court, and Souter's rulings in this area gave him a reputation for being hardnosed. Liberal critics of his confirmation in 1990 accused him of being "pro-prosecution." In New Hampshire, Souter had voted " to uphold a state "sobriety check point" imposed at random on passing motorists. He also endorsed the use of a "pen register," providing information on phone calls placed by criminal suspects, without use of a search warrant. These were not, Souter held, violations of the Fourth Amendment prohibition against unreasonable "searches," because the defendants had no legitimate "expectation of privacy" in these matters.
That Souter is no more. This past year, Souter dissented from the court's decision upholding a school district's policy of mandatory drug testing for high school athletes. As Scalia noted, the athletes regularly stand naked in the showers with each other, so it is hard to understand how they can claim strong expectations of "privacy." Even Ginsburg and Breyer went along with the majority. But Souter found drug testing in this setting an intolerable intrusion.
As a New Hampshire judge, Souter was generally reluctant to overturn criminal convictions on technical grounds. Joseph Grano, a law professor commissioned by conservative groups to review his New Hampshire record for the confirmation proceedings, concluded that Souter "does not reverse criminal convictions lightly. . . . When he finds error [by the trial court] Souter is not willing to reverse convictions to achieve a speculative deterrent effect or merely to make a point. Rather, if the error is truly " harmless' . . . he will affirm the conviction."
Once again, we face a new Souter. In 1995, for example, Souter voted with a narrow majority to overturn the murder conviction of an Arizona man on the grounds that evidence potentially favorable to the accused had not been presented to the jury. Scalia, in a dissent joined by Kennedy, Clarence Thomas, and William Rehnquist, noted that two lower federal courts and all the state courts had rejected the claim at issue -- that excluded evidence could show that the accused was "the victim of a 'frame up' by the police informer and evil genius [known as] Beanie." When the court's liberal bloc recently sought to expand federal review of state-level capital-punishment convictions -- by liberalizing the standard for such appeals from "clear and convincing evidence" of "actual innocence" to the easier claim that wrongful conviction "has probably resulted" -- Souter joined them unreservedly.
In a case dealing with the operator of a laboratory making illegal drugs, Souter again displayed a remarkable solicitude for the accused, and in a way that is hard to square with the general stance he adopted on the state supreme court in New Hampshire. Prosecutors in the case had presented evidence to the jury that the accused had voluntarily offered in an earlier, unsuccessful plea-bargain negotiation. Even Breyer and Ginsburg agreed that the verdict should still be affirmed. Only Souter and John Paul Stevens found fault with the conviction under these circumstances.
Souter again sided with Stevens -- and against all other justices -- in holding that California had somehow done injury to a convicted murderer when it changed the parole law after his conviction in a way that would allow him to seek parole only once every three years rather than once every year.
This philosophical change lends credence to the third answer most frequently offered in Washington to the Souter Question. According to this interpretation, Souter is a master dissembler, who quite carefully hid his true views to secure his appointment in an era when the key to advancement lay through a Republican White House. Mincing no words, one White House aide in the Bush administration puts the point quite directly: "The guy lied; he just snowed everybody to get his appointment."
Souter was certainly quite careful about how he presented himself. Liberal advocacy groups pounced on little bits and pieces of his record in New Hampshire, which were supposed to confirm his conservative leanings. As state attorney general in the late 1970s, for example, he warned in a policy memo that a proposed state law liberalizing access to abortion would make New Hampshire an "abortion mill." He also defended some of the more oddball conservative policies of the very conservative Gov. Meldrim Thompson, such as the instruction that public buildings put flags at half staff on Good Friday in commemoration of the death of Jesus. When Senate Democrats questioned him on such actions, Souter passed them all off as the dutiful actions of a political subordinate, defending his "client," the governor.
It was, in fact, very hard to pin down Souter's actual beliefs. Souter had been a Rhodes Scholar at Oxford, a graduate of Harvard College and Harvard Law School -- an educational background that equipped him to reflect on current issues and express his views with clarity and force. He served for more than a decade in the New Hampshire attorney general's office (in successively higher positions), where he came in close contact with a whole range of issues that offered much occasion for comment. His predecessor as state attorney general, Warren Rudman, used such comments as a launching pad for a successful run for the United States Senate. Yet Souter managed to avoid saying anything in public that gave any hint about his own views on any contested issue of public concern. Critics not only found little to fasten on in Souter's public statements. They could find almost no one of any stature in New Hampshire who had much to say about Souter, except to praise his conscientiousness.
He was not, in fact, a particular conservative favorite. His chief mentor and patron in New Hampshire was Rudman, a liberal Republican on most social issues. When Rudman urged then Gov. John Sununu to appoint Sourer to be the chief justice of New Hampshire, Sununu passed up Souter for a more reliable conservative. Sununu himself, while promoting Souter to conservative groups after his nomination, was not a strong supporter of Souter in White House deliberations. The White House had no secret assurances from Souter intimates about his "true" convictions. Years later, in a hagiographic profile of Souter in the New York Times Magazine, author David Garrow claimed that he found no one among Souter's closest friends and associates in New Hampshire who was surprised either by the tone or the result in the Casey abortion decision.
But there were people in the Bush administration, and a number with considerable influence within the White House, who wanted to ensure that Bush's first appointee would take a conservative line on the court. Some Justice Department aides did raise strong objections to Souter, as not being a proven conservative. The striking fact, however, is that, within the White House, there was no strong opposition to Sourer. The appointment went forward because young aides at the White House did not seriously oppose it. C. Boyden Gray, Bush's counsel, recalls that his aides had supported Souter because they found his judicial philosophy reassuring. These were not Bushies -- two of Gray's deputies helped found the Federalist Society, the network of philosophically conservative law students and lawyers. Gray himself, impressed by a personal encounter with Souter, went along. What made Souter so impressive to people who did not know him?
Souter had been considered for an appointment to the First Circuit back in the Reagan administration and much impressed some Justice Department conservatives at the time. This gave him credibility. Then and in later encounters, Sourer talked about the need for judicial restraint and respect for "original intent" in interpreting the Constitution. One of Gray's aides recalls, "We may have erred by emphasizing judicial philosophy more than evidence of Souter's stands on concrete issues."
So, Souter talked a good game, and it was good enough to get him onto the Supreme Court. But it must be said that if he fooled people, he was fooling people who wanted to be fooled. In 1990, liberal advocacy groups denounced Souter as a "Bork without a paper trail." Many of his backers within the Bush administration hoped he would be precisely that. No one questioned Souter directly on how he would respond to a case urging that Roe be overruled. No one asked him directly how he would deal with contentious issues like affrmative action. But young conservatives, in the Bush administration as earlier in the Reagan administration, drew the inference that someone who spoke so well on constitutional philosophy would surely draw the same practical conclusions as they. And without any clear public record, Sourer seemed to be a conservative jurist who could actually sneak past Senate Democrats and get himself confirmed. It was a beguiling dream. And it came to nothing. As one aide puts it, "He who lives by stealth, dies by stealth."
The lesson is that a conservative who can be easily confirmed is probably not worth having on the court. That is worth remembering if a Republican president gets to make the next Supreme Court appointment. In all likelihood, Sourer will still be around, providing a constant reminder to the next Republican administration of what can happen when the White House ignores this lesson.
Jeremy Rabkin teaches government at Cornell University.