THE MEDIA portrayal of Judge David Souter as a recluse from the back woods of New Hampshire raises a serious question about his fitness for the Supreme Court.
Previous Republican nominees brought to the court an acute sensitivity to the problems of the common people, acquired through years of membership in exclusive country clubs. They were exposed to the hurly-burly of American political life by serving as volunteer poll watchers to challenge the voting credentials of minorities. But Souter doesn't seem to socialize much at all, and apparently even avoids town meetings.
Most shocking of all, Souter does not watch television, listen to the radio or read any newspapers save the Sunday edition of the New York Times. While this might speak well for his intelligence, what does it say about his ability to function at Washington cocktail parties?
Having a justice on the highest court who doesn't read the daily newspapers presents grave potential for acute embarrassment. In fact, one of the most embarrassing moments in the life of the great Justice Oliver Wendell Holmes was directly attributable to his lack of attention to the morning papers.
Before his appointment to the high court, Holmes presided over a state court in Massachusetts, where he was called upon to rule on a motion for a continuance of a murder trial filed by a lawyer named Swasey. Twirling his mustache, Holmes began to pontificate:
"Mr. Swasey, the record shows that the trial of this case has at your request been continued once. Last summer, when I was in '' England visiting the law courts, Mr. Justice Stephen commented to me on the importance of speedy trials in the administration of justice, particularly in capital cases while witnesses were available, evidence fresh in the mind, and before suggestions could create false psychological memories."
As Holmes paused before ruling, Swasey inquired, "Has your honor read the morning papers?" An annoyed Holmes inquired what bearing the morning papers could possible have on the motion. "None," replied Swasey, "but they do report that yesterday Mr. Justice Stephen was judicially committed to an institution for the feeble-minded." Amidst harrumphs, Holmes granted the motion.
Souter will find little comfort in offering Holmes as his role model, however. Holmes was a bon vivant, and one of his letters to Sir Frederick Pollock suggests he did read what the newspapers had to say about his own nomination to the U.S. Supreme Court: "The New York Evening Post, I see, says that I have not been a great judge, being brilliant rather than sound." In fact, it was Holmes who also said, "The life of the law has not been logic; it has been experience."
Regular reading of newspapers is essential for a justice to be in touch with the pulse of the public. As Oscar Wilde put it, "By giving us the opinions of the uneducated, modern journalism keeps us in touch with the ignorance of the community."
We must also bear in mind that as a justice of the Supreme Court, Souter will be a guardian of the First Amendment, which protects freedom of the press.
Souter obviously needs to be reminded that the wisdom of our founding fathers gave newspapers an important place in American life. As Thomas Jefferson said, "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."
But he said that in 1787, before he ran for president. After he was president, and read what the newspapers had to say about him, Jefferson said, "The man who reads nothing at all is better educated than the man who reads nothing but newspapers."
In a speech this summer, Justice Antonin Scalia excoriated news reporters for their shallow coverage of court decisions. He concluded with the judgment: "No news is good news." If Judge David Souter is confirmed, there will be at least two votes on the Supreme Court for that late Jeffersonian viewpoint.
Gerald F. Uelmen, dean of Santa Clara University School of Law, is co-author of "Supreme Folly," a collection of judicial wit.