Académique Documents
Professionnel Documents
Culture Documents
“MOVEMENT CONSERVATIVES”
∗
RANDALL BALDWIN CLARK
I. WHO’S TO “BLAME”?............................................667
II. AN INCONVENIENT OPPORTUNITY......................670
III. PLANS FOR A TWO-FRONT BLITZKRIEG................672
IV. DESIGNING A TROJAN HORSE ..............................674
V. SOUTER’S PAPER TRAIL: TABULA
RASA OR ROSETTA STONE?...................................677
VI. FRUSTRATING THE LIBERAL OPPOSITION ............681
VII. CONVERTING THE CHOIR .....................................683
VIII.EXECUTING THE END GAME .................................686
IX. IS SPEED PLUS STEALTH A WORKABLE
MODEL FOR JUDICIAL SELECTION? ......................691
X. THE WAGES OF SELF-DECEPTION ........................695
I. WHO’S TO “BLAME”?
Most Court-watchers believe that President George W. Bush will
have the privilege of appointing two new Justices to the United States
Supreme Court during his 2001-05 term. As President Bush’s
supporters anticipate his future exercise of the Appointment Power,
some of them have turned renewed attention to their greatest
* Ph.D., A.M, University of Chicago; J.D., B.A., University of Virginia; author, THE
LAW MOST BEAUTIFUL AND BEST: MEDICAL ARGUMENT AND MAGICAL RHETORIC IN
PLATO’S LAWS (Lexington 2003). This Article has benefited from the comments and
advice of Henry J. Abraham, Lillian Riemer BeVier, Austin W. Bramwell, Glenn W.
Clark, Shawntel R. Fugate, Ian C. Jones, David H. Moore, and Jeffrey O’Connell. The
errors that remain, I regret, are mine alone. In the spirit of disclosure I should note that in
the summer of 2000 I was employed by Orr & Reno, the Concord, New Hampshire firm at
which Justice David H. Souter began his legal career. I also served as a law clerk in the
chambers of the Honorable Edith H. Jones, U.S. Court of Appeals for the Fifth Circuit, for
the 2002-03 term of that court. This work was written during the second year of my legal
studies under the supervision of Professor A.E. Dick Howard. In conceiving, drafting, and
publishing this essay I have consulted with neither Justice Souter, Judge Jones, nor any of
their friends or colleagues. Please direct comments and questions to
baldwin@randallclark.org.
668 Harvard Journal of Law & Public Policy [Vol. 26
1. See, e.g., Terry Eastland, Courting the Future, AM. SPECTATOR, Feb. 2000, at 28;
Robert Novak, Stumbling Over Souter, WASH. POST, Feb. 12, 2001, at A21.
2. Eastland, supra note 1.
3. Nomination of David H. Souter to be Associate Justice of the Supreme Court of the
United States: Hearings Before the Comm. on the Judiciary, 101st Cong. 223, 229 (1990).
4. See Jeremy Rabkin, The Sorry Tale of David Souter, Stealth Justice, WKLY.
STANDARD, Nov. 6, 1995, at 31-33.
5. Id. at 31.
6. See John O. McGinnis, Original Thomas, Conventional Souter: What Kind of
Justices Should the Next President Pick?, POL’Y REV., Fall 1995, at 24.
7. See Rabkin, supra note 4, at 31.
No. 2] The Selling of Judge David Souter 669
8. Id.
9. Id. at 32.
10. Id. at 33.
11. Id.
12. See Eastland, supra note 1.
670 Harvard Journal of Law & Public Policy [Vol. 26
13. See Linda Greenhouse, Vacancy on the Court; Brennan, Key Liberal, Quits
Supreme Court; Battle for Seat Likely, N.Y. TIMES, July 21, 1990, at 1.
14. See Ralph Z. Hallow, Court Vacancy Gives Bush a Chance to Mollify the Right,
WASH. TIMES, July 23, 1990, at A7.
No. 2] The Selling of Judge David Souter 671
15. See id. See also Ruth Marcus, No Clear Choice Emerges for Brennan’s Successor;
Solicitor General Starr, Trade Representative Hills on Short, Conservative List of
Potential Court nominees, WASH. POST, July 21, 1990, at A8.
In the Oct. 13, 1988, presidential debate, Bush was asked about what kind of
people he would appoint to the Supreme Court. ‘I don’t have any litmus test,’ he
said. ‘But, what I would do is appoint people to the federal bench that will not
legislate from the bench, who will interpret the Constitution. I do not want to see
us go to again—and I’m using this word advisedly—a liberal majority that is
going to legislate from the bench…. I won’t support judges like that.’”
16. Robin Toner, Vacancy on the Court; Court Vacancy to Challenge President on
Volatile Issues, N.Y. TIMES, July 21, 1990, at 1.
17. Id.
18. See Robin Toner, Vacancy on the Court; Two Sides Prepare for Hard Battle on
Court Nominee, N.Y. TIMES, July 22, 1990, at 1.
19. Ann Devroy & Ruth Marcus, Court Nomination is Expected Soon, WASH. POST,
July 22, 1990, at A1.
20. Hallow, supra note 14.
672 Harvard Journal of Law & Public Policy [Vol. 26
21. See Charles Fenyvesi, Washington Whispers, U.S. NEWS & WORLD REP., Dec. 25,
1989, at 18.
22. See Ann Devroy, In the End, Souter Fit Politically, WASH. POST, July 25, 1990, at
A1.
23. See id.
24. See DAVID G. SAVAGE, TURNING RIGHT: THE MAKING OF THE REHNQUIST
SUPREME COURT 350-51 (1992).
No. 2] The Selling of Judge David Souter 673
to seize the initiative from his opponents in the Senate and from his
antagonists on the right. And seize he did. In acknowledging
Brennan’s resignation on Friday evening, the President indicated that
25
he planned to act quickly. As announced, the President met first
thing Saturday morning with three top advisers: Chief of Staff John
H. Sununu, White House Counsel C. Boyden Gray, and Attorney
26
General Richard Thornburgh. After this seventy-five-minute
meeting, Bush reassured the press that no decision had yet been made.
Thornburgh and Gray then went to work with a team of Justice
Department lawyers, reviewing and updating the background files of
27
those on Gray’s list. Senators were polled regarding their
28
preferences and, perhaps more importantly, their willingness to
lobby their colleagues for confirmation. By Saturday evening or
Sunday morning, the list of eighteen candidates had been shortened to
29
eight: four top choices and four runners-up. On Saturday night or
Sunday morning, Bush met with Gray, Thornburgh, Sununu, and
Vice-President Dan Quayle, where they discussed the top four
candidates: Judge Edith H. Jones of the Fifth Circuit Court of
Appeals, Judge David H. Souter of the First, and Judges Clarence
30
Thomas and Laurence H. Silberman, both of the D.C. Circuit. After
eliminating Judges Thomas and Silberman, Gray was dispatched to
invite Judges Jones and Souter to come to Washington to meet with
31
the President.
Gray was able to reach Judge Jones without difficulty. Souter was
more difficult to find. Gray was eventually able to contact him at his
office, after persuading Judge Souter’s incredulous mother that the
call was not a prank. Both of them arrived in Washington later that
day, Jones going to the home of John P. Schmitz, Gray’s deputy, and
Souter to the residence of Michael Luttig, Acting Assistant Attorney
General in charge of the Office of Legal Counsel. Shortly after
arrival, Gray gave each of them the “do-you-have-any-skeletons-in-
your-closet interview” at their respective host’s home. The next
morning Schmitz slipped Jones into the White House, where she met
with Bush’s advisers and then the President in his private office for
approximately half an hour. Meanwhile, Murray G. Dickman, Special
Assistant to Thornburgh, brought Souter to the Department of Justice.
He spoke in the morning with Thornburgh et al. and, at 1:30 p.m.,
was escorted into Bush’s office, where the President and the judge
spoke for forty-five minutes. Bush then spent the next hour discussing
these two candidates with Sununu, Gray, Thornburgh, and Quayle,
after which he retired to his study to consider their advice. The
President settled upon Souter within an hour’s time and made the
public announcement a few minutes later. From start to finish, fewer
32
than seventy-two hours had elapsed.
33. Ann Devroy, Bush Names Appellate Judge to Brennan Seat; President Selects
Souter, 50, For ‘Intellect’ and ‘Ability’, WASH. POST, July 24, 1990, at A1.
34. Id.
35. Id.
No. 2] The Selling of Judge David Souter 675
36. See Greenhouse, supra note 13; Ruth Marcus, No Clear Choice Emerges for
Brennan’s Successor, WASH. POST, July 21, 1990, at A8; Devroy & Marcus, supra note
19; Toner, supra note 18; Dowd, supra note 30; Bedard, supra note 28. The names of
Clifford Wallace, Richard Thornburgh, Orrin Hatch, David Sentelle, Frank Easterbrook,
Richard A. Posner, and Alex Kozinski, found their way into the press, though I doubt that
Bush’s advisers gave them serious consideration.
37. See SAVAGE supra note 24, at 351.
38. See id.
39. See SAVAGE, supra note 24, at 351-52.
40. See Ruth Marcus, Caution Urged on Nomination; Bush Warned to Avoid Abortion
‘Litmus Test’ in Choice for Court, WASH. POST, July 23, 1990, at A1.
676 Harvard Journal of Law & Public Policy [Vol. 26
41
Constitution.”
There was some concern, however, that Judge Jones’s clear and
substantial record might provide Senate Democrats with too much to
chew on. Even though it was thought that, as a woman, it would have
been difficult to “hang the abortion issue around her neck,” Jones’s
more partisan background and relatively lengthy service on the
federal bench would make it easier for the Democrats to turn the
42
appointment into an issue in the fall mid-term elections. While in
private practice, Jones served as general counsel to the Texas
43
Republican Party. Moreover, her five years on the Fifth Circuit
Court of Appeals were sufficient for her to write extensively on a
44
number of contentious constitutional issues.
Judge Souter, on the other hand, was relatively free of such
liabilities. The reactionary arguments that he had made before the
state and federal courts as New Hampshire’s Attorney General could
plausibly be presented as dutiful service to Meldrim Thomson, the
state’s eccentric right-wing governor. Although he had spent twelve
years on the bench, most of them—save three months—were on New
Hampshire state courts, where a more or less conventionally
conservative record could be portrayed as having its genesis in a
reverential regard for stare decisis in the context of the storied
jurisprudence of a “small” state.
In spite of the marked differences between the two remaining
candidates, considerable debate between Bush’s top advisers still
ensued, even after Bush had interviewed both. Before retiring to his
study, the President spent approximately an hour debating the merits
and liabilities of the two candidates with Quayle, Sununu,
Thornburgh, and Gray. According to two senior officials, Sununu
argued for the selection of Jones, with Quayle in agreement, and
45
Thornburgh and Gray in equipoise. Boyden Gray’s own comments
to the press tacitly suggested the same. According to the White House
Counsel, the decision between the two was “very, very close. I think
in the President’s mind, in Thornburgh’s and my mind, it almost
46
didn’t matter because both were so good.”
41. Id. See also the opinion of Robert Billings, legislative director of the American
Conservative Union: “She would be my first choice.” Id.
42. See Devroy, supra note 22.
43. Paul Bedard, Souter Begins Wooing Senate, WASH. TIMES, July 25, 1990, at A1.
44. See Dale Russakoff, Hunting for Souter’s ‘Smoking Gun’, WASH. POST, July 26,
1990, at A25.
45. See Devroy, supra note 22.
46. Id.
No. 2] The Selling of Judge David Souter 677
47. See R.W. Apple, Jr., Read His Mind; Bush’s Enigmatic Choice for the High Court,
N.Y. TIMES, July 29, 1990, at 4-1.
48. Russakoff, Hunting for Souter’s ‘Smoking Gun’, supra note 44.
49. See WARREN B. RUDMAN, COMBAT: TWELVE YEARS IN THE U.S. SENATE 153-54
(1996); David J. Garrow, Justice Souter Emerges, N.Y. TIMES, Sept. 25, 1994, § 6
(Magazine), at 36.
50. See RUDMAN, supra note 49, at 154; Garrow, supra note 49, at 40.
51. See RUDMAN, supra note 49, at 157-58; Garrow, supra note 49, at 41.
678 Harvard Journal of Law & Public Policy [Vol. 26
52. See Nomination of David H. Souter, supra note 3, at 152-53; see also Maynard v.
Wooley, 406 F. Supp. 1381 (D.N.H. 1976), aff’d, 430 U.S. 705, (1977).
53. See Nomination of David H. Souter, supra note 3, at 164-68.
54. See id. at 146-51.
55. See id. at 215-17.
56. See id. at 163-64.
57. See Garrow, supra note 49, at 41.
58. See RUDMAN, supra note 49, at 159; Garrow, supra note 49, at 41.
59. See RUDMAN, supra note 49, at 159.
No. 2] The Selling of Judge David Souter 679
settled expectations—even when he did not have to, given that here
he was acting as neither lawyer nor judge!
In his more public role as a state-court trial judge, however, Souter
continued to act in a manner consistent (or so it seemed) with his
executive branch service. He was precise and demanding, earning a
60
reputation as a “hard-nosed” skeptic when criminal defendants
asserted their claims to imaginative and extravagant criminal and
“civil rights.” This was the Judge Souter that “movement
conservatives” wanted to believe in.
But was such belief anything more than a chimera? Perhaps not,
when one considers the truism that “in the kingdom of the blind, the
one-eyed man is king.” At this time New Hampshire courts were
enamored by the notion that—by purporting to base their “criminals’
rights” decisions solely on the state constitution, not at all on parallel
guarantees found in the U.S. Constitution—they could exonerate
defendants who would not have escaped conviction had they
committed the same offense across the street on a federal reservation
(e.g., a National Park or a U.S. military base) and thus faced trial
before a United States District Judge. In other words, Judge Souter
seemed conservative because so many of his colleagues were not.
After five years of service on the Superior Court, Souter was
61
promoted to the New Hampshire Supreme Court in 1983. This came
as the repayment of a political debt owed to Warren Rudman by the
62
newly elected governor of New Hampshire, John Sununu. Once he
sat on his state’s high court, would Justice Souter persist in his
principled opposition to that court’s facile evasion of increasingly
conservative federal standards of criminal procedure? A pair of cases
from his first two years on this court suggest that the answer is, at
63
best, a resounding maybe.
As a state court trial judge Souter had taken a position on a matter
of criminal procedure which, not unexpectedly, the New Hampshire
64
Supreme Court failed to sustain when it ruled in 1981. Still, Souter’s
position was accepted by two of the five sitting Justices. But the 3-2
vote established a judicial precedent. In 1984, in State v. Meister
(decided after Souter became a Justice) the New Hampshire Supreme
68. Joyce Price, Pro-lifers Demand Souter’s Views, Too, WASH. TIMES, July 27, 1990,
at A1.
69. See Dawn M. Weyrich, Enigmatic Souter Frustrating to Liberals, WASH. TIMES,
Aug. 17, 1990, at A3.
682 Harvard Journal of Law & Public Policy [Vol. 26
70. Id.
71. Id.
72. See Carleton R. Bryant, 3 Liberal Groups Open Fire Against Souter Nomination,
WASH. TIMES, Sept. 7, 1990, at A3.
73. Linda Greenhouse, Opponents Find Judge Souter Is a Hard Choice to Oppose, N.Y.
TIMES, Sept. 9, 1990, at 4-4.
74. See Dawn M. Weyrich, 10 Liberal Groups Gang up on Souter, WASH. TIMES, Sept.
12, 1990, at A1.
75. See Ruth Marcus, Souter Faces Questions in Senate Today; Panel Seen Unlikely To
Oppose Nominee, WASH. POST, Sept. 13, 1990, at A4.
No. 2] The Selling of Judge David Souter 683
They frankly admitted that he was not their first choice and that their
personal unfamiliarity with him and the lack of a “paper trail” of
written opinions setting out a judicial philosophy were forcing them
80
to carefully examine his record before stating a public position. As
one activist said, “They’re putting a lot of green on this shot. This is a
big, big step for a guy from a New Hampshire state court. You bring
in a guy like this, they have a tendency to pull a Harry Blackmun on
81
you.”
Apparently concerned by the volubly expressed discontent on the
right, Bush’s senior advisers initiated a series of moves to secure the
support of conservative activists. On Tuesday, the day following
Bush’s announcement, Chief of Staff John Sununu invited Patrick
McGuigan to his office to reassure him of Souter’s conservative bona
fides. McGuigan was at the time a senior scholar at the Free Congress
Center for Law and Democracy, was affiliated with the Coalitions for
America, and had served as an informal adviser to the Reagan White
House during the Bork hearings. Also present at the meeting were Bill
Kristol (Quayle’s Chief of Staff), Ed Rogers (a Sununu aide), and
John Schmitz (a Gray aide). Vice-President Dan Quayle arrived
82
later.
McGuigan was quite upset with Bush’s choice. As soon as he was
ushered into Sununu’s office, McGuigan pointedly expressed his
dissatisfaction: “Well, John, you guys could have hit a home run if
you had picked Edith Jones. Instead, you’ve hit a blooper single
which has barely cleared the mitt of the first baseman, who’s back-
peddling furiously and almost caught the ball.” Sununu offered the
following words of assurance: “Pat, you are wrong. This is a home
run—and the ball is still ascending. In fact, it’s just about to leave
83
earth orbit.”
McGuigan was willing to entertain the possible correctness of
Sununu’s claim: “Look, I don’t necessarily disagree on the merits.
Two years from now, our people will probably look back at Souter,
having written the key opinion overturning some outrageous decision,
and say, ‘It turned out that guy [Souter] did get to home base, after
84. Id.
85. Id.
86. Id.
87. Id.
88. Id.
686 Harvard Journal of Law & Public Policy [Vol. 26
95. Ralph Z. Hallow, Nomination Called Boost to Bush with Conservatives, WASH.
TIMES, July 24, 1990, at A10.
96. Id.
97. Price, supra note 93.
98. See Devroy & Marcus, supra note 19.
99. Comments by President On His Choice of Justice, N.Y. TIMES, July 24, 1990, at
A18.
688 Harvard Journal of Law & Public Policy [Vol. 26
100. See R.W. Apple, Jr., Bush’s Court Choice; Sununu Tells How and Why He Pushed
Souter for Court, N.Y. TIMES, July 25, 1990, at A12.
101. See George Will, What I Want to Know about Supreme Court Nominee, SEATTLE
POST-INTELLIGENCER, Sept. 13, 1990, at A11; Political Convenience and Blank-Slate
Souter, ST. LOUIS POST-DISPATCH, July 30, 1990, at 3B; David Souter: A Pig in a Poke?,
SEATTLE POST-INTELLIGENCER, July 26, 1990, at A11.
102. See Bruce Fein, Better to Avoid the Cobwebs?, WASH. TIMES, Aug. 28, 1990, at
G3; Souter’s Judicial Soul Facing an Early Test, WASH. TIMES, Sept. 14, 1990, at F1;
Maybe in Classic Mold—or Just Malleable, WASH. TIMES, Sept. 25, 1990, at G3.
103. For examples of articles in which Rudman is discussed, see Bedard, supra note 32;
David S. Broder & Helen Dewar, Bush Opens Drive For Court Nominee; Confirmation
Hearings Set for September, WASH. POST, July 25, 1990, at A1.
104. Bedard, supra note 32.
105. The President Proposes, N.Y. TIMES, July 24, 1990, at A20.
No. 2] The Selling of Judge David Souter 689
Wednesday, July 25
106. David Margolick, Ascetic at Home but Vigorous on Bench: New Hampshire View
of President’s Choice for Supreme Court, N.Y. TIMES, July 25, 1990, at A1.
107. The Souter Nomination, WASH. POST, July 24, 1990, at A22.
108. Devroy, supra note 33.
109. Bedard, supra note 43.
690 Harvard Journal of Law & Public Policy [Vol. 26
....
Sen. Dale Bumpers (D-Ark.) spoke for just about everybody when
he told the Arkansas Gazette last weekend that he thought Sununu
“would probably get his way” in President Bush’s first Supreme
Court pick.
But Rudman, a popular, pragmatic middle-of-the-road second-
110. Ann F. Lewis, Souter’s Blank Slate Just Won’t Do, N.Y. TIMES, July 25, 1990, at
A19.
111. Linda Greenhouse, An ‘Intellectual Mind’: David Hackett Souter, N.Y. TIMES,
July 24, 1990, at A1.
112. Paul Bedard, Souter ‘Looks OK’ in Senate, WASH. TIMES, July 16, 1990, at A1.
No. 2] The Selling of Judge David Souter 691
termer, 113
says he proposed Souter long before Sununu ever thought
of him.
114
Similar reports appeared for the subsequent several weeks, until
Sununu almost disappeared from the news reports. Rudman became
the source to which journalists invariably turned for information
concerning Bush’s nominee. The White House had won.
113. Mary McGrory, Nice Guy With Powerful Friends, WASH. POST, July 26, 1990, at
A2.
114. See, for example, the following report on July 31:
When George Bush tapped David H. Souter of Weare, N.H., for the U.S.
Supreme Court last week, cognoscenti thought it was the handiwork of John
Sununu, the president’s chief of staff and New Hampshire’s former governor.
“They were quite wrong,” says Sen. Warren Rudman with trademark bluntness.
The combative New Hampshire Republican these days is savoring his latest
coup. Once just a label on the deficit-busting Gramm-Rudman-Hollings bill,
more recently the bulldog vice chairman of the Senate ethics committee that
wrestled Sen. Dave Durenberger to denouncement, Mr. Rudman today is the man
who pushed David Souter to the brink of the land’s highest court.
And he doesn’t care who knows it was he, and not his good friend the White
House chief of staff, who pulled it off.
“I doubt if John Sununu and David Souter have been together six times, ever.
Never socially to my knowledge. In fact, never socially, period,” he says.
He is talking by phone from New Hampshire, where the president dropped him
and Judge Souter on the way to Kennebunkport, Maine, for the weekend.
Cathryn Donohoe, The Nation’s No. 1 Booster; Rudman Calls His Protégé ‘Most Brilliant
Intellect I’ve Ever Met’, WASH. TIMES, July 31, 1990, at E1.
115. See, e.g., Matthew Cooper, Colin’s K-Street Crowd, NEW REPUBLIC, Nov. 27,
1995, at 18.
692 Harvard Journal of Law & Public Policy [Vol. 26