Jan Crawford Greenburg

Supreme Conflict

In their session Monday morning, Gray and Thornburgh found Souter extraordinarily congenial, although they did worry that he had no life-defining cases, when he'd taken an unpopular stand and weathered the storm. Luttig was especially troubled and took the strongest stand against Souter of anyone in the administration. Souter simply did not have a sufficient record for the nomination. 'I cannot tell you who he will be as a Supreme Court justice,' Luttig told Thornburgh and Gray. 'On federal law, there's nothing. We're drawing the most specific inferences based on the most pedestrian state cases possible.'

But in the White House, Sununu was ready to make his case with Bush. when he nominated Souter to the state supreme court, he was looking for 'someone who would be a strict constructionist, consistent with basic conservative attitudes,' Sununu told Bush. 'I'm sure he would do the same thing when he encountered federal questions.' 'What he says and does is what he is. No pretense, no surprises.'

Sununu's characterization of Souter more accurately described Jones, a favorite of conservatives. She had been general counsel of the Texas Republican Party before becoming a judge, and she had a well-established track record after only five years as a federal judge. But she didn't have a forceful advocate to match Sununu.

After their meetings in the Justice Department, Souter and Jones went to the White House. Souter met with Bush in the residence early that afternoon for about forty-five minutes, talking about his judicial approach and general view of the court system.

Bush had talked earlier in the day to Jones about many of the same things, and he found himself liking her better than Souter. He could understand her views on the law. Where Souter was obtuse and indirect, Jones had been more straightforward and easier to understand. But Jones was young and almost brittle in appearance. She was just forty-one, and her slight frame made her appear even more youthful. And as a University of Texas Law School graduate, she lacked the Ivy League credentials—Harvard and Harvard Law—that lawyers in the White House counsel's office instinctively valued. Souter, the product of elite northeastern private schools, was seen as more scholarly. 'Brilliant,' the advisers all pronounced.

As Sununu was pushing for Souter, Gray and Thornburgh were worrying about Jones and how she'd handle the intense pressure of a Judiciary Committee hearing. Her conservative credentials would also mean more of a fight, and Bush didn't want that-even though he could have won it: Jones's nomination would have put southern Democrats in the impossible position of voting against a bright law-and-order woman judge at a time when the Supreme Court did not have one justice from the South.

For an hour, Bush sat alone with a yellow legal pad, making a list of pros and cons. The reclusive New Hampshire judge, cast as the more scholarly of the two, seemed more suited to have the title of justice. He was the kind of man who would devote his life to the Supreme Court.

At 4:15 p.m, Bush asked Souter into his private office, just next to the Oval Office, and formally offered him the job. Less than an hour later, Bush stood at the lectern in the White House briefing room and introduced the obscure judge to the Washington press corps. Souter stood quietly at his side with his arms crossed. He looked slightly stunned as reporters fired questions at Bush about abortion and whether Roe v. Wade was history.

Bush was pleased that reporters were surprised by how quickly he made the nomination. Advisers immediately characterized it as the mark of a forceful leader. Vice President Dan Quayle, who earlier in the day had argued that Jones was a better choice, told the College Republican National committee later in the week that the nomination 'is just the latest example of [Bush's] decisive executive style.' But the description of Souter as a brilliant legal scholar and deserving replacement for his friend Bill Brennan was too much for Thurgood Marshall. Three days later, Justice Marshall derisively told Sam Donaldson of ABC News that neither he nor Brennan had ever heard of Souter—even though Brennan was responsible for overseeing matters on Souter's court, the U.S. Court of Appeals for the First Circuit. He said he 'didn't have the slightest idea' why Bush had nominated him. 'I don't understand what he is doing,' Marshall groused of Bush. 'I don't understand it.'