Projecting which colleagues will influence Souter--and which he will influence

LAW IN PERSPECTIVE

September 23, 1990|By Lyle Denniston | Lyle Denniston,Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

It is common in Washington to think that the fight over David H. Souter as the next Supreme Court justice (if there was a fight) is over now, and that has given way here to a new parlor game, a game of "guess-who." The object: name the justice, among the present eight, who will try to capture Mr. Souter's mind -- and his vote -- when he gets there.

Not only would he be the newest; he also would be the youngest justice -- and thus, one might suppose, impressionable enough to be open to strong influence by someone among his more senior colleagues.

Although the process is not well understood, or very well known, outside the courthouse, some of the justices do try (mostly, behind the scenes) to shape one another's approach to major cases, and a brand-new justice is always considered fair game for that kind of blandishment.

Justice William J. Brennan Jr., whom Judge Souter would replace, made part of his reputation as a great justice through his often-effective efforts to "educate" a new member of the court. Since he has retired, there easily could be one or more remaining justices who would be eager to take on more of that role.

The first name that comes to many minds on that point is Justice Antonin Scalia, the bouncy, bright, voluble and committed conservative (and former teacher) who is known to have a passion for gathering votes to help him bring about sometimes startling turnarounds in constitutional doctrine. (On occasion, it is said, he has become rather unpleasant with a colleague who resisted his "teaching" too stubbornly.)

But also coming easily to mind is Chief Justice William H. Rehnquist, the conservative captain of the court, who some observers are sure would go to work energetically to build Judge Souter into a dependable fifth to make a majority for somewhat less bold conservative innovations than those Mr. Scalia might prefer.

It may well be a mistake, however, to speculate that the influence would all run toward Judge Souter, and none from him. The 51-year-old New Hampshire jurist showed himself, during three days of televised testimony before the Senate Judiciary Committee, to have a strong streak of Yankee independence to go along with an almost unshakable self-confidence.

From a man whose physical appearance can be called thin only as a euphemism, there emerged a remarkably resonant voice of command and authority. In this age of television sights and sounds, those tones added notably to the image of a future justice as fully capable of leading as of following.

And, for all of his refusals to spell out with precision just where he stands on some of the biggest legal and constitutional issues of the day (such as abortion), David Souter gave the distinct impression that he has thought about -- long, hard and seriously -- almost every one of those issues, and may already have well-developed inclinations on how to deal with them.

(Senators, incidentally, are quite easily impressed by a judicial nominee who is good at reciting the names of specific court precedents. But, putting that aside, even a seasoned legal scholar who knows those precedents well would have found it easy to admire Judge Souter's relaxed familiarity with the details of those rulings, and with the way they had fit into the patterns of legal history.)

As a witness, he tried over and over again to assure senators that he has no "agenda" of outcomes he wants to pursue if put on the court and that he would apply his self-described capacity to be a "good listener." But those comments hardly proved that he would have little if anything to say, that he would be so diffident toward his elders that he would wait to be spoken to.

As a member of the New Hampshire Supreme Court, it took Mr. Souter very little time to start staking out independent positions and to start "peddling" them to his colleagues. He teasingly told senators that the rise in unanimous opinions in his later years on that court might be a clue that he was becoming more persuasive. He made the point intending to be funny, but those who know him think that it may have been the reality.

In this sense, Judge Souter could, as a new justice, be another Sandra Day O'Connor. Some of her older male colleagues have said that she arrived on the court at a run, took no time to get used to the place and began "throwing her weight around" (as one colleague once put it) at the very outset.

Justice O'Connor, of course, had an advantage of uniqueness that Mr. Souter will not have. She was the first woman ever to sit on the court, and her colleagues respected that special rank in history from the beginning. At a minimum, that made it hard for them not to take her seriously as a new force within.

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