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There are many reasons President George W. Bush could have decided not to pick White House Counsel Harriet Miers, a Dallas commercial litigator with a limited trial background and no judicial experience, to serve on the Supreme Court. But there is at least one compelling reason he did: the 15-year shadow cast by Justice David Souter, a nominee touted by Bush’s father as a staunch conservative — who has turned out to be anything but. “Miers is not going to ‘go Souter’ on him,” notes Earl Maltz of the Rutgers University School of Law-Camden, using a pet phrase conservatives have coined for a justice who breaks left after joining the Court. President George H.W. Bush never knew Souter; he relied on his chief of staff, former New Hampshire Gov. John Sununu, to vouch for his fellow New Hampshirite’s conservative credentials. Sununu’s perception of Souter, whose constitutional paper trail was skimpy and who was viewed as the ultimate stealth candidate, was apparently blurry as well. So intent is Bush on not repeating the sins of his father that he has risked accusations of both cronyism and political ineptitude in making his selection. “I’ve known Harriet for more than a decade,” Bush explained while introducing Miers to the world, on Oct. 3. “I know her heart, I know her character,” he added, about as sharp a reference to his father’s choice of Souter as he could make. He didn’t stop there. The next day, in a Rose Garden press conference, Bush emphasized once again how long he’d known Miers and how their “closeness” allowed him to divine not just her character but, more important, her “strength of character,” which Bush defined as “somebody who shares my philosophy today and will have that same philosophy 20 years from now.” That followed an even more explicit reference to Souter just seconds before, with Bush declaring, “I don’t want to put somebody on the bench who is this way today and changes.” In all, Bush hit this point seven times, adding, near the end of his 55-minute briefing, that he didn’t “have to guess and speculate about Harriet. I know her character, I know her strength.” But do “strength of character” and a few years together in the White House substitute for a conservative track record on the bench? Not to Gary Bauer, who for years ran the influential Family Research Council and is now president of the nonprofit American Values. “Bush is trying to avoid the Souter mistake by relying on a personal relationship, which the first President Bush did not have,” says Bauer, who has said he is disappointed by Miers’ nomination. “But that, many of us would argue, doesn’t get you to where you need to be. Just because you know her heart doesn’t tell you her judicial philosophy.” EYE OF THE BEHOLDER It is an article of faith among doctrinaire conservatives that the Souter nomination was a bait-and-switch operation by the first Bush administration. But was it? There are many who watched Souter’s 1990 confirmation hearings, including his mentor and champion for the Court, former New Hampshire Republican Sen. Warren Rudman, who say his Supreme Court record is entirely in keeping with his Senate confirmation hearings. “I’ve never figured that one out,” says Rudman, now a partner in the D.C. office of Paul, Weiss, Rifkind, Wharton & Garrison. “Anyone who ever listened to his testimony would know that he was a judge in the model of [John Marshall] Harlan or [Felix] Frankfurter. He certainly wasn’t in the mold of a real conservative.” That’s not how John Sununu sees it. “Souter is absolutely different from what Souter and Souter supporters represented he was, not only during the vetting process but during his whole career,” says Sununu, in a telephone interview from Salem, N.H., where he is an engineering consultant. “There is no question in my mind that [then-White House Counsel] C. Boyden Gray and [then-White House Associate Counsel] Lee Otis, both of them die-hard conservatives, vetted Souter’s credentials,” Sununu says. “All the questions were asked of Souter relative to the interpretation of the Constitution. They probed around specific issues as much as was perceived to be good custom. And every answer was indicative of what the president wanted. Everybody is disappointed, and with all due respect to those who were not, they were part of the deception.” Gray, who has recently been nominated as U.S. ambassador to the European Union, declined to comment. Otis could not be reached. That Souter was not the man Sununu had portrayed to conservatives was most vividly illustrated just two years after he was confirmed, when Souter co-authored, along with Justices Anthony Kennedy and Sandra Day O’Connor, one of three plurality opinions in Planned Parenthood v. Casey. That case, which conservatives had dearly hoped would overturn Roe v. Wade, instead reaffirmed it while imposing a new, “undue burden” standard to determine an abortion law’s legality. Says Tinsley Yarbrough, a Souter biographer and political science professor at East Carolina University: “Souter was the key person writing that part of the opinion emphasizing the need to stand by precedent, especially when there’s public opposition.” But that was only the beginning. Souter, says Edward Whelan, head of the Ethics and Public Policy Center in Washington and a former clerk to Justice Antonin Scalia, “has been wrong virtually every time in closely contested cases of constitutional law.” Still, if Souter’s White House vetting was problematic, his confirmation hearings were revealing. Mark Gitenstein, former chief counsel to then Senate Judiciary Committee Chairman Joseph Biden, D-Del., says he remembers Biden quizzing Souter about how he would determine fundamental rights under the 14th Amendment. “The answer is, we cannot, as a matter of definition at the beginning of our inquiry, narrow the acceptable evidence to the most narrow evidence possible,” Souter said. That broad standard, and Souter’s expansive statements about unenumerated rights, reassured the Delaware Democrat. Says Gitenstein, “I remember talking to Biden and Biden said, ‘I have to vote for him as a result of that answer.’” Souter cleared the Judiciary Committee on Sept. 27, 1990, with Sen. Edward Kennedy, D-Mass., the only dissenting vote. He was confirmed by the full Senate 90-9. Another former Senate Judiciary Committee staffer, a Republican whose current job doesn’t allow him to talk on the record, also has a vivid recollection of the hearings, especially when Souter was asked to list the high court’s most important cases. “He specifically highlighted Baker v. Carr,” says the former Judiciary staffer, referring to a 1962 case that ruled that legislative redistricting cases could be heard by the courts under the equal protection clause of the 14th Amendment. “And I remember telling my Democratic colleagues, ‘I don’t know what you’re so worried about.’” Souter’s citing of that case, says the former staffer, “told me that this is not a guy who is at intellectual war with the left. Of course, I had no idea he’d turn out as liberal as he did, but he was definitely not a [Robert] Bork or a Scalia.” It wasn’t just at the hearings that Souter made clear his centrist thinking. His 200 or so opinions, written during a 12-year stint on the Superior Court of New Hampshire and the New Hampshire Supreme Court, and during his months as a judge on the 1st U.S. Circuit Court of Appeals, also made that evident. “Conservatives have been saying, ‘No more Souters, no more Souters,’” notes University of Chicago law professor David Strauss, who was a special counsel to the Senate Judiciary Committee during Souter’s confirmation hearings. “But I read all of Souter’s lower court decisions, and I predicted at the time of the hearings, in an internal memo, that Souter wouldn’t vote to overturn Roe,” says Strauss, who was then working for Biden. “If you read his opinions and ask yourself, how does this guy approach judging? Souter doesn’t just say he’ll go by precedent — precedent orients his legal universe.” Strauss’ view is not shared by everyone, however. According to one former high-ranking official from the first Bush administration active in judicial vetting, the problem with Souter’s judicial opinions was that they were not the types of cases that test broad constitutional principles. “They were pretty garden-variety type of issues,” he notes. Miers, of course, lacks even that kind of paper trail. But she did speak to the value of precedent in the questionnaire she submitted last week to the Senate Judiciary Committee — with one notable caveat: “Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary.” STEALTH BOMB Regardless of whether Souter’s confirmation hearings revealed him to be something other than a jurist in the mold of Scalia, he was sold that way by the White House. Bauer had his own doubts about Souter in 1990, and his Family Research Council never endorsed the nominee. As a result, he says, he was called into the White House for a private one-on-one with Sununu. “I thought it was extraordinary that I was getting this [personal message] from the person perceived as the top conservative in the White House, and that had some weight,” Bauer says. Sununu, he recalls, didn’t say Souter would vote to overturn Roe. “But he said, ‘Look, Gary, this guy is a conservative, and he’s going to be a reliable conservative on our side of the issues.’” He continues: “I remember I went back to the office and reviewed the information we had uncovered, and as a result, I still sat out the confirmation hearing, much to their chagrin.” “But I will not vouch for a judicial nominee with that thin of a record,” adds Bauer of Miers. “This stealth strategy ought to be dropped as a strategy, because over the years the only people it’s fooled are us.” Jay Sekulow, a Supreme Court advocate who argues for conservative causes and who supports Miers, says he believes Bush has learned the Souter lesson. “The way to avoid [another Souter] is to appoint someone you think is qualified and whose judicial philosophy you know. The answer with Harriet Miers is that there will be no surprises,” says Sekulow, adding, after a pause, “although you never really know.”

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