Bush and Souter

With his nomination of David Souter, a federal appellate court judge, to the U.S. Supreme Court, President George Bush again has proved himself a shrewd politician, if not an astute judge of judicial quality.

The jury will remain out on Souter until after his confirmation hearings before the Senate Judiciary Committee. There is much that is unknown about this former member of New Hampshire’s highest court. The Senate is obligated to probe his views on important constitutional issues and to assess his temperament and previous record.

Politically and procedurally, a strong case can be made for careful analysis and deliberation on Souter’s credentials. The country and the appointment process were dragged twice through the wringer during the Reagan administration, once on the nomination of Robert Bork, whose outspokenness and ideology made him unacceptable to some Americans, and Douglas Howard Ginsburg, who was withdrawn from consideration as the first baby boom justice when it was revealed that he had smoked marijuana as a young man.

By quickly bringing Souter before the public for scrutiny, President Bush averted a prolonged period of speculation on who should be appointed, and obviated inevitable comparisons with his eventual nominee. Today, Souter stands alone and will be considered on personal merit.

Souter’s relative obscurity is a partial liability, but also is an asset in that the president can appear to comfort increasingly estranged conservatives while not inciting liberals with a reprise of the Bork affair. By wisely refusing to apply a litmus of any kind to Souter, the president didn’t type-cast him. Judge Souter has the political luxury and the intellectual burden of defining his judicial philosophy for the committee.

As the Bork and Ginsberg episodes illustrated, a successful appointment to the high court requires credentials, proven competence and intellectual integrity in the nominee, but it also demands a basic political consensus that the nominee can function as a justice of all the people, not just its liberal or conservative elements.