Why David Souter Was My Favorite Supreme Court Justice
I knew that Justice David Souter—who died last week at 85—was different from the moment I first met him. Federal judges dream of ascending to the highest court in the land, senators picture themselves as presidents, and Roman Catholic cardinals aspire to the papacy, but he seemed a reluctant member of what has been called "The Priestly Tribe."
My first conversation with the reserved New Englander occurred after a 1994 dinner in the Supreme Court's majestic Great Hall. The next morning, I was to be interviewed for a fellowship at the high court, and I expressed some anxiety over the stiff competition. He encouraged me to relax and let fate take its course. Souter recalled that he had been hesitant to interview with President George H. W. Bush for the Supreme Court's 1990 vacancy when Justice William Brennan suddenly retired from the bench.
A new U.S. appellate court judge for the First Circuit in 1990, Souter was skeptical of the nomination process for the highest court, having witnessed the vicious fight over President Ronald Reagan's unsuccessful 1987 appointment of Judge Robert Bork to the Supreme Court. Souter was perfectly happy with his secluded life in Weare, New Hampshire, living with his elderly mother in a ramshackle cabin in the woods. He was thrilled with the recent move from his state's Supreme Court to the federal bench. Why travel all the way to Washington to interview for a position he did not want and did not think he would get?
Judge David Souter with his right hand raised as Chief Justice of the United States William Rehnquist delivers the oath of office. Erin Rath (C) daughter of a family friend holds the Bible while President...
Judge David Souter with his right hand raised as Chief Justice of the United States William Rehnquist delivers the oath of office. Erin Rath (C) daughter of a family friend holds the Bible while President George H.W. Bush (R) looks on during a ceremony in the East Room of the White House on Oct. 8, 1990, (Photo by More
Mark Reinstein/Corbis via Getty Images
But, as Souter told me after the Judicial Fellows dinner, his friends encouraged him to accept the interview request, if for no other reason than it would generate a lifetime's worth of cocktail party anecdotes—not that the introverted intellectual attended many such soirees. His home-state senator, Warren Rudman, had urged Bush to consider Souter as Brennan's replacement. Driving the reluctant interviewee to the Manchester airport for the flight to Washington, Rudman discovered that his famously parsimonious friend had only $3 in his wallet. The senator loaned Souter $100 for spending money.
As Bush's chief of staff, another Granite State native, John Sununu noted in his oral history for UVA's Miller Center, "Souter came in, and as usual [he] in his own New Hampshire dry charm made the president feel very comfortable." Or as Bush's attorney general, Richard Thornburgh, put it, "Souter . . . rode easier in the saddle," a metaphor that may have appealed to a president who had sought his fortune in Texas. Bush and Souter—at heart two gentlemanly, Ivy League-trained, Episcopalian New Englanders—compared notes and philosophies.
The president recognized a perfect nominee for the times: a brilliant jurist who represented the best of American virtues and exhibited no vices or controversial positions on judicial issues (as had Bork three years earlier). Souter's very obscurity became the deciding factor in his favor, in addition to his state judicial experience and impeccable academic credentials—Harvard undergraduate (Phi Beta Kappa) and law degrees, along with one from Oxford, earned as a Rhodes Scholar.
Bush had his man. With a stunned candidate at this side, the president announced Souter's nomination on the same day he met him for the first time, a mere 72 hours after Brennan's resignation.
It all happened so quickly that a worried Souter called the president's legislative affairs director, Fred McClure, who recalled that the new nominee phoned to say, "Fred, I left so quickly to come down to do this deal that I don't have the slightest idea what people can see through the window into my house and what magazines and books are there." Drawing with the Right Side of the Brain came to mind. "They're going to think I'm weird," Souter told McClure. "You're just creative," McClure tried to reassure the nominee. "Oh, my God," the jurist responded when he thought that a "somewhat pornographic magazine" might be on top of his desk. McClure repeated that he thought the nominee would be fine, noting that a racy publication might actually "be good on this [conservative] side." Maybe it would make the staid New Englander seem less prudish.
McClure shepherded Souter through the confirmation process: "David's a very smart guy, and my biggest concern . . . other than the personal side [of being a confirmed bachelor] was to keep him from getting into an intellectual discussion . . . with members of the Senate," which had derailed Bork. Much more humble than the Reagan nominee, Souter was also "smart enough to listen to us, and so it worked out well . . . ." McClure reported.
Indeed, it did. Sununu recalled that the nomination "sailed through [90-9]. So, the president got what he wanted, a confirmation that was well received publicly, well received at the Senate level, and a well processed confirmation. From the needs that he [Bush] had at the time, it was the right decision."
Souter's nearly two decades on the U.S. Supreme Court proved Sununu's assessment. As a justice, he was much closer to the moderate Northeastern Republicanism of George H.W. Bush than Reagan's right wing of the GOP. And although a self-contained New Englander, he was not immune to the Irish charm of his predecessor, who maintained a chambers in the Court building after his retirement. A poignant photograph of the two shows Justice Souter tenderly supporting a feeble Justice Brennan by the arm as they attended the 1993 funeral of Justice Thurgood Marshall.
We may never know the extent of Brennan's jurisprudential influence on his successor, but Souter's moving eulogy to his friend "Bill" at the latter's 1997 funeral spoke volumes about their close personal relationship. The reserved, formal, Yankee jurist revealed how the gregarious Brennan would embrace him in a warm bear hug, call him "pal," and always make him feel "great" during visits to his chambers. Tongue in cheek, Souter also remembered how Brennan, a renowned master at mustering majorities on the nine-person court, taught him "how to count to five." Here's hoping the two are reuniting in the Great Beyond.
Barbara A. Perry is J. Wilson Newman Professor in Presidential Studies at UVA's Miller Center and a 1994-95 Fellow at the U.S. Supreme Court. Most of the quotes in this column can be found on the Miller Center website's George H. W. Bush presidential oral history pages: www.millercenter.org.
The views expressed in this article are the writer's own.
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