Projecting which colleagues will influence Souter--and which he will influence


It is common in Washington to think that the fight over David H. Souter as the next Supreme Court justice (if there was a fight) is over now, and that has given way here to a new parlor game, a game of "guess-who." The object: name the justice, among the present eight, who will try to capture Mr. Souter's mind -- and his vote -- when he gets there.

Not only would he be the newest; he also would be the youngest justice -- and thus, one might suppose, impressionable enough to be open to strong influence by someone among his more senior colleagues.

Although the process is not well understood, or very well known, outside the courthouse, some of the justices do try (mostly, behind the scenes) to shape one another's approach to major cases, and a brand-new justice is always considered fair game for that kind of blandishment.

Justice William J. Brennan Jr., whom Judge Souter would replace, made part of his reputation as a great justice through his often-effective efforts to "educate" a new member of the court. Since he has retired, there easily could be one or more remaining justices who would be eager to take on more of that role.

The first name that comes to many minds on that point is Justice Antonin Scalia, the bouncy, bright, voluble and committed conservative (and former teacher) who is known to have a passion for gathering votes to help him bring about sometimes startling turnarounds in constitutional doctrine. (On occasion, it is said, he has become rather unpleasant with a colleague who resisted his "teaching" too stubbornly.)

But also coming easily to mind is Chief Justice William H. Rehnquist, the conservative captain of the court, who some observers are sure would go to work energetically to build Judge Souter into a dependable fifth to make a majority for somewhat less bold conservative innovations than those Mr. Scalia might prefer.

It may well be a mistake, however, to speculate that the influence would all run toward Judge Souter, and none from him. The 51-year-old New Hampshire jurist showed himself, during three days of televised testimony before the Senate Judiciary Committee, to have a strong streak of Yankee independence to go along with an almost unshakable self-confidence.

From a man whose physical appearance can be called thin only as a euphemism, there emerged a remarkably resonant voice of command and authority. In this age of television sights and sounds, those tones added notably to the image of a future justice as fully capable of leading as of following.

And, for all of his refusals to spell out with precision just where he stands on some of the biggest legal and constitutional issues of the day (such as abortion), David Souter gave the distinct impression that he has thought about -- long, hard and seriously -- almost every one of those issues, and may already have well-developed inclinations on how to deal with them.

(Senators, incidentally, are quite easily impressed by a judicial nominee who is good at reciting the names of specific court precedents. But, putting that aside, even a seasoned legal scholar who knows those precedents well would have found it easy to admire Judge Souter's relaxed familiarity with the details of those rulings, and with the way they had fit into the patterns of legal history.)

As a witness, he tried over and over again to assure senators that he has no "agenda" of outcomes he wants to pursue if put on the court and that he would apply his self-described capacity to be a "good listener." But those comments hardly proved that he would have little if anything to say, that he would be so diffident toward his elders that he would wait to be spoken to.

As a member of the New Hampshire Supreme Court, it took Mr. Souter very little time to start staking out independent positions and to start "peddling" them to his colleagues. He teasingly told senators that the rise in unanimous opinions in his later years on that court might be a clue that he was becoming more persuasive. He made the point intending to be funny, but those who know him think that it may have been the reality.

In this sense, Judge Souter could, as a new justice, be another Sandra Day O'Connor. Some of her older male colleagues have said that she arrived on the court at a run, took no time to get used to the place and began "throwing her weight around" (as one colleague once put it) at the very outset.

Justice O'Connor, of course, had an advantage of uniqueness that Mr. Souter will not have. She was the first woman ever to sit on the court, and her colleagues respected that special rank in history from the beginning. At a minimum, that made it hard for them not to take her seriously as a new force within.

But, if the impressions that Mr. Souter created before the Judiciary Committee were a reflection of what he is like, really, it may well be that he will get a respectful hearing of his own even though he will be new. Being very sure of oneself as a judge, and having a store of intellectual power to back up that confidence, can be real draws to one's bench colleagues.

And, perhaps just as important in Judge Souter's case, he is a judge who does so little else in his life beyond his work that he may have a good deal more energy than a majority of his colleagues for maneuvering to "mass" the court behind him.

It is, though, quite likely that he will act the "good listener," too. But one of the more fascinating parts of the new Washington parlor game about the Supreme Court is guessing to whom he would listen most sympathetically.

One thing is certain: There will be no one likely to whisper liberal thoughts into his ear. With Justice Brennan off the court, that leaves only Justices Harry A. Blackmun and Thurgood Marshall (and, some of the time, Justice John Paul Stevens) as the liberal remnant. Justice Blackmun has never shown very much interest in behind-the-scenes maneuvering, and Justice Marshall has absolutely no taste for it. Justice Stevens is known as a maverick, going his own way and liking things that way.

Thus, Judge Souter, when he is listening, probably will be hearing only gradations of the conservative: the strongest strains from Justice Scalia, nearly as strong from Chief Justice Rehnquist, and more moderately conservative from Justices O'Connor, Anthony M. Kennedy, and Byron R. White.

There is enough lack of solidarity among the court's dominant conservative bloc, however, that there may well be an opening for a new leader within the bloc -- tending somewhat more toward moderation.

And that, the Senate Judiciary Committee's hearings suggest, might just be David H. Souter.

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