A Blank Slate

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If there is anything George Bush dislikes more than eating broccoli, it is taking risks. Thus when he learned on July 20 that Justice William J. Brennan was retiring from the Supreme Court, Bush immediately recognized that in selecting someone to fill the vacancy he could be facing one of the biggest risks of his presidency. He quickly sought to defuse it.

With the high court poised to tilt decisively to the right on several inflammatory issues, a nominee publicly committed to overturning Roe v. Wade, the 1973 ruling that established the right to abortion, would provoke an outcry from the liberal forces that derailed Robert Bork's nomination in 1987. But if the President picked a Justice less inclined to overturn Roe, right-to- life activists and conservative Republicans already angered by Bush's retraction of his "no new taxes" pledge would be enraged. Facing these polarized options, the President deftly reduced the risk by selecting a Stealth candidate. Federal Appeals Court Judge David Souter, the President's choice for the court, has said and written so little about major constitutional issues that it is almost impossible to determine how he might rule on them.

Bush is gambling that the liberal coalition that launched the fight against Bork will be stymied by a paradox: nothing could be more difficult than to draw battle lines on a blank slate. While there is ample evidence of the quality of Souter's intellect -- magna cum laude Harvard graduate, Rhodes scholar, Harvard law -- most of his judicial experience has been on New Hampshire's state supreme court, which is more likely to consider auto- insurance cases and commercial litigation than divisive social issues like abortion and affirmative action. Elevated to the U.S. Court of Appeals in Boston only last April, Souter has not yet participated in any of its decisions.

Unable to get a fix on Souter from that sparse record, activists from both sides of the political spectrum began combing through what little was known about his personal life in search of evidence to either calm their fears or justify their suspicions. Some wondered if the 50-year-old lifelong bachelor might be gay. (Friends assured them he is not.) Others speculated that Souter's streak of Yankee independence would make him a less than reliable vote for either side of the abortion issue. In a rambling television interview last week, Justice Thurgood Marshall, a last vestige of the high court's liberal wing, took the unusual step of sizing up in public a man who may soon sit alongside him on the bench. Harrumphed Marshall: "Never heard of him."

Nor had many on the G.O.P.'s right wing. They would have preferred an outspoken champion of their cause, like Federal Appeals Court Judge Edith Jones of Texas, a law-and-order advocate who was the President's second choice. But they take comfort from the fact that Bush's pick has the strong backing of White House chief of staff John Sununu, a former Governor of New Hampshire who appointed Souter to the state supreme court in 1983. Says one senior Republican: "There's been a lot of wink-wink, nod-nod among conservatives who think Souter is Sununu's guy and therefore can be trusted."