The Lowdown on High Court Nominee

Here are some of the things we are allowed to know about David Souter, President Bush’s Supreme Court nominee:

He drives a 1987 Volkswagen Golf.

He has an apple every day for lunch.

He is an Episcopalian.

He likes Tennyson.

He was an only child.

His suits are drab.

He was briefly engaged to the daughter of a judge, but never married.

He is a good storyteller and does imitations.

He is very lax about mowing his lawn, which has a lot of weeds.

He weighs about 135 pounds.

He was editor of his high school yearbook.

He is “a classic workaholic.”

He is “humble.”

He has wonderful handwriting.

He jogs.

Now here are some of the things we are not allowed to know about David Souter:

How he feels about abortion.

How he feels about civil rights.

How he feels about the death penalty.

How he feels about the separation of church and state.

How he feels about obscenity.

How he feels about any of the major constitutional issues of our times.

In fact, not only are we not allowed to know these things, but Souter was picked specifically because nobody knew these things.

He was picked because he is an unknown quantity.

George Bush is no fool and neither are the men around him. With off-year elections only a few months away, this is no time for a huge controversy or a presidential defeat. Bush saw what happened when Ronald Reagan tried to put Robert Bork on the Supreme Court.

Bork, like him or not, was a legal scholar of note, one who had written widely on the important legal matters of our day.

Some say that doomed him and is why the Senate rejected him. But that misses the point a little. The senators rejected Bork not because they knew so much about him, but because they knew so much about him that they didn’t like.

So to avoid this, Bush has purposefully selected a man about which almost nothing significant is known.

The New York Times profile of Souter began by saying that in the 22 years since he left private practice, Souter “has not given a speech, written a law review article or, as far as anyone knows, taken a position on the correctness of the Supreme Court precedents on abortion or any other issue.”

In other words, from Bush’s point of view, he was perfect.

As Sen. Orrin Hatch (R-Utah) said, Bush was wise to nominate someone “who doesn’t have a big, wide record out there that could be attacked.”

That is only half the battle, however. Given that nobody knows much about Souter. But what happens when senators start asking him how he feels about certain important and controversial issues?

Well, they can’t. That’s what the White House is saying. Although Souter was by all accounts a fine judge at the state level, he has virtually no federal experience. And Bush spoke to him for only 45 minutes before deciding that he should be on the Supreme Court and did not ask him a single question about abortion or any other specific issues.

This was tactical. Bush is now saying that because he did not ask Souter about abortion or any other specific issue, the Senate should not ask him either.

To do so is to create a “litmus test,” Bush said, which is a bad thing and should not happen.

In other words, Bush is saying to the Senate Judiciary Committee, which must vote on Souter: Go ahead and ask Souter anything you want, just as long as it’s not significant.

Although Bush was privately assured that Souter was a good conservative, Bush went for a candidate with no footprints.

That is what Bob Dole accused Bush of in 1988 when they were in a bruising primary fight for the Republican presidential nomination. Dole had been in Congress for 27 years and had cast more than 10,000 votes. Bush’s record was paltry by comparison.

But it was precisely because Bush had no real record or background or image that his handlers were able to shape a new, winning image for him. What looked like a drawback was Bush’s greatest asset.

Bush learned that leaving no trail can be of great value. And he believes it will be of great value to Souter: Let the nominee have no record on the key constitutional issues and there will be nothing to fight over, no reason to reject him.

David Souter may be well qualified to serve on the nation’s highest court. But how will we know that unless we ask him about those very issues that the White House wishes him to keep silent on?

The nail that stands up, the Japanese say, is the first to be pounded down. For 22 years, David Souter has kept his head down.

Now, it’s time for him to stand up and speak out regardless of the consequences.

No one deserves a seat on the Supreme Court for playing it safe.