Dispatches from the Culture Wars

The chapter on David Souter is particularly fascinating, not least because it includes many other names that later became familiar to us in legal battles. Souter replaced William Brennan, one of the longest serving and most influential justices in the history of the court. Brennan was known as the liberal lion of the court and he was a major player behind the scenes because of his ability to cajole and persuade.

When Brennan retired, the expectation inside the (first) Bush administration was that the nominee to replace him would be none other than Ken Starr. Starr had been placed on the D.C. federal appeals court, but then was asked to step down from that lifetime position to become Solicitor General, representing the Bush administration before the Supreme Court. He had essentially been promised that he would be on "the shortest of short lists" for any upcoming opening on the high court.

When Brennan retired, White House counsel C. Boyden Gray told Bush Chief of Staff John Sununu that Starr was the obvious choice and he immediately called a meeting of his staff to put together biographies on those on their list of potential nominees. At the same time, Attorney General Dick Thornburgh was holding a similar meeting with his top advisers, one of whom was J. Michael Luttig, who would later serve on the same court Starr had served on and be on the short list for a nomination in the 2nd Bush administration.

Luttig and Bill Barr, a deputy AG, were staunchly opposed to putting Starr on the court. They believed he was too "squishy" and would likely drift to the left if put on the court (and they were probably right). They wanted another Scalia, a justice with the ego and defiance to ignore criticism from the media and academia, rather than yet another allegedly conservative justice who turned into a moderate or even outright liberal on the court. Starr, they thought, was clearly in the latter category, particularly when it came to issues of executive power.

When Thornburgh, Gray and Sununu met with Bush 41 the next day, Thornburgh bluntly declared that Starr was unacceptable, shocking everyone else in the room. Thornburgh trusted Barr and Luttig so much that he told Bush he would be willing to resign over it, which effectively ended any chance Starr had of getting the appointment. They considered Clarence Thomas for that spot, but decided it was too soon; Thomas had only recently been put on the appeals court and needed some time to establish himself there.

That's when Sununu, the former governor of New Hampshire, suggested Souter, who was strongly advocated by his close friend, NH Senator Warren Rudman. When New Hampshire gave Bush a comeback win during the 1988 Republican primary, he rewarded Sununu's help by placing Souter on the federal appeals court in Boston. Now Sununu wanted him put on the Supreme Court, assuring Bush that he would be reliably conservative.

There's a great story in the book about Rudman taking Souter to the airport to fly to Washington and meet with Bush to be interviewed for the nomination. When they got to the airport, Souter, carrying a battered old suitcase, "opened up his wallet and showed Rudman that he had only three dollars, so Rudman gave him a hundred dollars." Rudman then joked that he ought to put a tag on Souter saying, "Please take this boy off the plane in Washington."

Souter is a very unusual man who lives a virtually monastic lifestyle. He's never been married, or even dated so far as anyone knows. He still lives in the same farmhouse he was raised in. He once took a copy of a $30 electric bill to the New Hampshire supreme court to complain to his fellow justices about how outrageous it was.

When he was nominated for the court, he was presumed by everyone to be a conservative. The liberal interest groups responded predictably. Eleanor Smeal, president of the Fund for a Feminist Majority, called him a "devastating threat." One flyer put out against his nomination declared, "STOP SOUTER OR WOMEN WILL DIE."

All of this turned out to be nonsense. At his confirmation hearing, Republicans were alarmed when he answered questions sounding like the 2nd coming of Thurgood Marshall. He lavished praise on William Brennan, defended the Warren Court repeatedly and told one Republican that "the courts, rather than the elected branches, should take the lead in creating a more just society."

In the end, however, no Republican would vote against him and buck a Republican president. He was confirmed 90-9, with nine liberal senators, including Ted Kennedy and John Kerry, voting against him. On the court, he has been one of the most reliably liberal justices almost from the start.

Which makes him perfect to replace William Brennan, who was nominated by Eisenhower, who thought he was going to be a conservative as well. Brennan, like Souter, was opposed by liberals and turned out to be one of them.