The Magazine

Souter-phobia

From the August 1, 2005 issue: Remembrance of nominees past shaped Bush's decision.

Aug 1, 2005, Vol. 10, No. 43 • By FRED BARNES
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IN THE DAYS BEFORE PRESIDENT Bush picked a Supreme Court nominee, the White House was gripped by Souter-phobia. Bush and his aides desperately wanted to avert the disaster that befell his father's White House in 1990. The elder Bush, on the advice of his chief of staff John Sununu and Senator Warren Rudman of New Hampshire, picked an unknown judge, David Souter, for the Supreme Court, thinking he was a conservative. Souter turned out to be a flaming liberal, so much so that Senator Ted Kennedy now regrets having voted against confirming him. In naming Souter, Bush had passed over another judge he'd interviewed for the job, a real conservative from Texas named Edith Jones. The reason: Confirmation of Souter looked easier and probably was. For conservatives, however, his elevation to the High Court was a mistake for the ages.

Fear of another Souter led George W. Bush to seek the answer to a single question when he interviewed five potential nominees. All five were deemed to be conservatives. The question was whether they'd be the same 25 years from now as they are today--in other words, just as conservative. The interviews lasted from one hour to nearly two. Bush found John Roberts the most impressive. He decided Roberts would not lurch to the left as Souter had or even drift in that direction as other Supreme Court appointees of Republican presidents have. A White House official said Bush doesn't expect Roberts to "grow in office."

Bush advisers studied how the nomination of Souter came about. It wasn't that Souter, who'd served on the New Hampshire Supreme Court and, briefly, as a federal appeals court judge, misled his interrogators on the staff of the elder Bush. The problem was that the White House "didn't ask, 'Are you a conservative, why, or when did you become one?'" an aide to the current president says. "They didn't ask any of those questions." Those questions were asked of Roberts. "I'm glad we had Souter-phobia. If we hadn't asked these questions about judicial philosophy and the view of the court's role, the nominee wouldn't have been John Roberts."

Roberts is not a "stealth" nominee in the Souter mold. "We know a lot more about Roberts than was known about Souter," a Bush aide says. Roberts went through the confirmation process before, when he became a judge on the U.S. Court of Appeals for the District of Columbia. He was endorsed by much of the Washington legal community and by colleagues from the Reagan and first Bush administrations. The president received messages through intermediaries that conservative Justice Antonin Scalia felt Roberts would be a great addition to the High Court. At least Bush aides thought the messages were from Scalia.

Besides the Bush interview, Roberts had to pass another test, the Rove interview. Karl Rove, Bush's deputy chief of staff, and legal counsel Harriet Miers talked to the candidates for the court at length. Rove, too, was interested in finding out if Roberts was really a conservative and would remain one on the court. He came away convinced Roberts is no Souter.

But Roberts didn't have as vigorous a backer as Judge Edith Brown Clement did. Senator David Vitter of Louisiana and his wife Wendy attended a small dinner at the White House on June 30. They both recommended Clement as the type of conservative justice Bush was committed to nominating. Several weeks later, Vitter returned to the White House to meet with Rove and Miers. By then, Miers had already checked with the other senator from Louisiana, Democrat Mary Landrieu, to see if she would support Clement. She would, Miers said. But it wasn't enough. Roberts outshined Clement in the Bush interview.

Absent a startling revelation, Roberts should win confirmation with relative ease. Still, he has to prove himself to several conservative Republican senators worried about a repeat of Souter. "I just don't know him," says Sen. Tom Coburn of Oklahoma. "I don't have any enthusiasm until I know someone. Personal integrity is the most important issue. If they don't have that, what they say doesn't matter."

Sen. Sam Brownback of Kansas says Roberts "doesn't seem to be a Souter." But he wants to be certain. "He'll be a free agent once he's on the court," Brownback says. He intends to question Roberts in Judiciary Committee hearings on "his view of the Constitution and the role of the courts." He has no doubt about Roberts's skill as a lawyer. Roberts has argued 39 cases before the Supreme Court. Brownback says a Democratic senator told him, "I may not vote for Roberts, but I'd hate to argue a case against him."