SOUTER, DAVID H. (1939–)

David Hackett Souter, who became Associate Justice of the Supreme Court of the United States in 1990, was born on September 17, 1939, in Melrose, Massachusetts. He was graduated from Harvard College in 1961 and was awarded a Rhodes Scholarship. From 1961 to 1963 he studied at Oxford University. He then returned to Harvard for his legal education and graduated from Harvard Law School in 1966.

Following law school, Justice Souter practiced law at a private firm in Concord, New Hampshire, for two years. This is the only time that Justice Souter spent in the private sector. In 1968, he accepted a position as assistant attorney general for the State of New Hampshire. During the next ten years he rose to the top of the state attorney general's office, becoming deputy attorney general in 1971 and attorney general in 1976.

In 1978, Justice Souter was appointed to the Superior Court of New Hampshire. Five years later, he was elevated to the New Hampshire Supreme Court, where he served until 1990. In early 1990 he was appointed by president george bush to the United States Court of Appeals for the First Circuit. He served on that court for only five months, participating in only one week of oral arguments and writing no opinions.

On July 20, 1990, Justice william j. brennan, jr. , resigned from the Supreme Court of the United States after thirty-four years of service. Five days later, President Bush nominated Justice Souter to be Associate Justice of the Supreme Court. Justice Souter's nomination was perceived by both supporters and opponents to be historically significant. This was true for several reasons, few of them related to Justice Souter himself.

First, during Justice Brennan's long and distinguished tenure, Brennan became the leading symbol of the "liberal" approach identified with the Supreme Court under Chief Justice earl warren—an approach concerned with promoting equality and protecting individual rights against the government. Supporters of that approach viewed with alarm the prospect that Justice Brennan would be replaced by the appointee of a Republican President who had made a campaign issue of Supreme Court decisions supported by the liberal wing of the Court.

Second, Justice Souter was the ninth consecutive Justice to have been appointed by a Republican President; no Democratic President had made an appointment to the Supreme Court for twenty-three years, since President lyndon b. johnson appointed Justice thurgood marshall in 1967. While there had been comparable periods in history—Democratic Presidents franklin d. roosevelt and harry s. truman, for example, appointed thirteen consecutive Justices—those were periods in which one party thoroughly dominated national politics. By contrast, Justice Souter was appointed at a time when Democrats held a majority in the Senate, as they had for all but six of the previous thirty-two years. This long-standing division of power in Washington, combined with the perception among Democratic senators that President Bush and President ronald reagan consciously sought to make judicial appointments that would change the political orientation of the federal courts, made partisan controversy over Justice Brennan's replacement almost inevitable no matter who the replacement was.

Third, both supporters and opponents perceived Justice Souter to be a crucial appointment in determining the direction of the Court. Senate Judiciary Committee Chair Joseph Biden, for example, asserted that no nomination had been so significant to the future of the Court since the 1930s. In particular, both supporters and opponents of the nomination expected that Justice Souter would cast the decisive vote on whether the Constitution permits the states to outlaw abortion. After the Supreme Court's 1989 decision in webster v. reproductive health services, which upheld significant state restrictions on abortion, supporters of the right to an abortion believed that four Justices were prepared to overrule roe v. wade (1973), the decision that first established that right. Partly in response to Webster, abortion was an important issue in several closely watched political campaigns in 1989. Justice Souter had made few significant public statements about Roe v. Wade or the constitutional right to an abortion, and his views on abortion were the subject of intense investigation, and speculation, in the period between his nomination and his eventual confirmation by the Senate in October 1990.

Finally, Souter's nomination to the Court occurred in the shadow of the rejection of President Ronald Reagan's nomination of Judge Robert Bork to the Supreme Court, in 1987. The nationally televised hearings on the bork nomination were the longest confirmation hearings on any Supreme Court nomination in history, and during the confirmation battle Bork's fate became a major national political issue. Bork had made extensive public statements on many issues of constitutional law and philosophy and was a nationally known, highly controversial figure in legal circles. Justice Souter, by contrast, had made virtually no public statements on broad issues of constitutional law and was unknown outside of New Hampshire. Those inclined to be suspicious of Justice Souter suggested that President Bush had deliberately sought out an unknown candidate who would pursue the President's agenda but who did not have the record that made Bork vulnerable. Others, including supporters of Bork, argued that the Souter nomination confirmed their fears that the treatment of Bork made it impossible for anyone except an undistinguished anonymity to be confirmed to the Supreme Court.

Souter's record was revealing in certain respects. Even among his opponents, few criticized the overall quality of the more than 100 opinions he wrote while a justice of the New Hampshire Supreme Court. Few questioned his general intellectual ability. His opinions as a state supreme court justice showed a tendency to favor the interests of the government over those of criminal suspects. Apart from that, however, his New Hampshire opinions revealed few clear patterns. Accordingly, reporters and investigators for concerned interest groups made extraordinary efforts to uncover information that might shed light on Souter's views, particularly on the abortion issue. Ultimately little such material was uncovered.

Souter's confirmation hearings were the third longest in history (after those of Bork and Justice louis d. brandeis). Justice Souter himself testified for almost twenty hours, the second longest time for any Supreme Court nominee (after Bork). The hearings were notable in several respects.

Perhaps most significant, senators asked, and Souter answered, numerous substantive questions about the nominee's views on specific issues of constitutional law. Justice Souter made specific statements about his views on racial discrimination; affirmative action to aid racial minorities; sex discrimination; legislative reapportionment and the principle of one person, one vote; congressional power to enforce the fourteenth amendment's guarantees of due process and equal protection against the states; the enforcement of the bill of rights against the states through the Fourteenth Amendment's due process clause; the free speech clause, free exercise clause, and establishment clause of the first amendment; and the decision in miranda v. arizona (1966), which required police officers to warn suspects in custody before interrogating them. Souter commented specifically on several Supreme Court decisions—endorsing, for example, the landmark expansions of free speech rights in new york times v. sullivan (1964) and brandenburg v. ohio (1969), but criticizing the standard for judging establishment clause issues specified in the lemon test and the approach that Justice antonin scalia took to the role of tradition in determining the rights protected by the due process clause. Justice Souter also engaged in broad-ranging discussions with members of the senate judiciary committee on the significance of the intentions of the Framers of the Constitution and on a Supreme Court Justice's obligation to follow precedent.

Souter's extensive substantive answers were significant principally because, before the Senate hearings, there had been considerable controversy over whether it was proper for Senators to ask Supreme Court nominees their views on specific issues, and whether it was obligatory, or even appropriate, for the nominee to answer. Some recent nominees (notably Justice Scalia) had refused to answer substantive questions about constitutional issues, and many thought that Bork's uninhibited willingness to answer contributed to his downfall. Souter's extensive answers buttressed the position of those who maintained that nominees should be expected to give their views on constitutional issues in detail to the Senate committee.

Souter's hearings were also significant for what he did not disclose. Despite repeated questioning, he declined to state his views on whether the Constitution protected the right to an abortion and on whether Roe v. Wade should be overruled. Ultimately, many senators who believed that this issue was of the first importance, and that a Supreme Court nominee was obligated to disclose his views on it, voted to confirm Justice Souter despite his reticence.

Another conspicuous aspect of Souter's confirmation process was the role of groups of private citizens interested in specific issues. Those groups had played a significant role in mobilizing public opinion against the Bork nomination, and many—especially groups concerned about the possible overruling of Roe v. Wade—testified against Justice Souter and attempted, unsuccessfully, to rally public opinion against him. In this respect as well, the Souter nomination confirmed the trend toward the increased politicization of the Supreme Court nomination process.

Finally, Souter's confirmation hearings were significant because of the extraordinary degree of preparation that preceded them and the increasing tendency of confirmation hearings to take on the aspect of choreographed productions. The Bush administration assigned several officials to help Souter prepare for the Senate hearings, and Souter spent most of the period between his nomination and the hearings studying intensely and practicing his responses to anticipated questions from the senators. His preparation was manifestly successful: most observers considered his testimony at the hearings to be a virtuoso performance in which he demonstrated careful thought on a wide range of constitutional issues to which he had not been greatly exposed while on the New Hampshire Supreme Court. Justice Souter was confirmed by an overwhelming vote in the Senate despite the salience of the abortion issue and his refusal to indicate his views on that issue. This emphasis on careful preparation to defuse political difficulties is another respect in which it seems likely that Justice Souter's confirmation process established a lasting pattern.

The cases decided through April 1991 of Justice Souter's first Term on the Supreme Court revealed little about his orientation, and what they did reveal was not surprising. The most important cases during that period dealt with criminal procedure, and in each of them Justice Souter voted in favor of the government. Perhaps the most significant single vote was in Arizona v. Fulminante (1991), where a 5–4 majority of the Court (in an opinion by Chief Justice william h. rehnquist) ruled that the admission of a coerced confession in a criminal trial can be harmless error. Observers speculated, plausibly, that Justice Brennan would have reached the opposite conclusion and that Justice Souter's appointment determined the result on this issue. In McClesky v. Zant (1991), Justice Souter joined a six-Justice majority (in an opinion by Justice Kennedy) in adopting a rule that sharply limited the ability of prisoners to bring successive federal habeas corpus petitions. The ruling was issued in a capital case, and its most marked effect will be to cut off the avenues of federal judicial review available to defendants who have been sentenced to death. Finally, in California v. Hodari D. (1991), Justice Souter, with six of his colleagues, joined an opinion (written by Justice Scalia) that adopted a narrow construction of the term "seizure" in the Fourth Amendment: The Court ruled that a suspect who ran away when a police officer ordered him to stop was seized not at the time the order was given but only when he was finally restrained. In all of these cases, Justice Souter's votes confirmed the strong tendency he had shown in his opinions on the New Hampshire Supreme Court to favor the government in criminal cases.

David A. Strauss
(1992)

Bibliography

Nomination of David H. Souter to Be an Associate Justice of the United States Supreme Court, Senate Executive Report No. 101–32, 101st Cong., 2d Sess. (October 1, 1990).