THE SORRY TALE OF DAVID SOUTER, STEALTH JUSTICE
Nov 6, 1995, Vol. 1, No. 08 • By JEREMY RABKIN
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.