Public Papers - 1990 - July
Remarks Announcing the Nomination of David H. Souter To Be an Associate Justice of the Supreme Court of the United States and a Question-and-Answer Session With Reporters
The President. My oath to the Constitution charges me to faithfully execute the Office of President and, to the best of my ability, preserve, protect, and defend the Constitution of the United States. Few duties are more important in discharging that obligation than my responsibility, under article II, section 2 of our Constitution, to select from among all possible choices one nominee to fill a vacancy on the Supreme Court of the United States.
The task of narrowing the selection to one highly qualified jurist, committed to the rule of law and faithful to the Constitution, could never be easy; but I have found it enormously satisfying. My choice will serve the Court and the Constitution well.
I am most pleased to announce that I will nominate as Associate Justice of the United States Supreme Court a remarkable judge of keen intellect and the highest ability, one whose scholarly commitment to the law and whose wealth of experience mark him of first rank: Judge David Souter of the United States Court of Appeals for the First Circuit.
Judge Souter, I believe with all my heart, will prove a most worthy member of the Court. His tenure as an Associate Justice of the Supreme Court of the State of New Hampshire, as Attorney General of that State, and more recently as a Federal appeals judge unquestionably demonstrates his ability, his integrity, and his dedication to public service. And he has a keen appreciation of the proper judicial role rooted in fundamental belief in separation of powers and the democratic principles underlying our great system of government.
Let me pay tribute, too, to the Justice whose retirement from the Court created the vacancy: Justice William Brennan. His powerful intellect, his winning personality and, importantly, his commitment to civil discourse on emotional issues that, at times, tempt uncivil voices have made him one of the greatest figures of our age. No one can question his dedication to the Nation and the energy that he has brought to his high office. His retirement is marked by the dignity and honor that characterized his 34 years of service on the bench. And I told him the other day when I talked to him of the respect that Mrs. Bush and I have for him, for his wonderful service. In choosing to nominate Judge Souter -- who, like Justice Brennan, is largely a product of the State court system -- I have looked for the same dedication to public service and strength of intellect exemplified by Justice Brennan.
My selection process was not geared simply to any legal issue. It is not appropriate in choosing a Supreme Court Justice to use any litmus test. And I want a Justice who will ably and fairly interpret the law across the range of issues the Court faces. Our country serves as a model for the world at a time of special significance, and I stress within the White House and to the Attorney General that our process could not be dominated by politics or special interests. And I believe that we've set a good example of selecting a fair arbiter of the law.
Judge Souter will bring to the Court a wealth of judicial experience on the Supreme Court of his State, and before that as a State trial court judge. Prior to his appointment to the State bench, he was Attorney General of the State of New Hampshire. Judge Souter is a graduate of the Harvard Law School, Phi Beta Kappa graduate of Harvard College. He was also a Rhodes scholar.
My respect for his outstanding record led me earlier this year to nominate him to his present position on the court of appeals. The Senate unanimously confirmed him to that position because of his exceptional qualities and his experience. His opinions reflect a keen intellect as well as wise balance between the theoretical and practical aspects of the law. Judge Souter, committed to interpreting, not making the law -- he recognizes the proper role of judges in upholding the democratic choices of the people through their elected representatives with constitutional constraints.
Judge Brennan's retirement took effect last Friday. The Court is now reduced to eight members. It is important to restore the bench to full strength by the first Monday in October, when the Court begins its 1990 term. I look forward to presenting Judge Souter's nomination to the Senate as quickly as possible, and I look forward, as well, to a fair and expeditious confirmation process.
Helen [Helen Thomas, United Press International]?
Q. Did you ask Judge Souter his views on abortion? Do you know what his views are? And affirmative action -- all of these things that have become so controversial, the major issues of the day.
The President. No. And I had one meeting with Judge Souter. I was very impressed. But in my view, it would have been inappropriate to ask him his views on specific issues. This process has been going on -- this selection process -- not with any specific seat in mind but just being prepared for a long, long time. Judge Souter was considered for the High Court back when Mr. Justice Kennedy was selected, and so there's a lot. And then, of course, his name was very much in the forefront when he was nominated and subsequently confirmed for the appeals court. So, I am familiar with him, with his general views; but I did not and would not, as I think I've said before when I talked about -- not just here but at other times -- the litmus test approach -- I wouldn't go into that with him.
Q. Sir, does that mean you do not care what he thinks on these issues?
The President. It means that I have selected a person who will interpret the Constitution and, in my view, not legislate from the Federal bench.
Q. Mr. President, barely 3 days have passed since you learned of Justice Brennan's resignation. Why did you move so quickly on this appointment? And you also called the leaders of Congress and others over the weekend for their advice. When did you come to the choice of Justice Souter?
The President. I came to the choice this afternoon. And I think I told the leaders that I talked to over the weekend that I wanted to move very fast. As I've said, this isn't precipitous in the sense that we just started looking for names last Saturday. I remember meeting with the Attorney General and Boyden Gray [Counsel to the President] perhaps within the first month I was President -- at least the first 2 months. And I've had a couple of meetings with them, and they've been in discussion with each other for a long time on this. Just the prudence would dictate that one be prepared lest there be a vacancy. So, we've been talking about who I might want to appoint for a long time.
Q. Sir, if I could follow up: You're not certain in your own mind how Justice Souter will vote if Roe v. Wade comes before the Court next term?
The President. What I'm certain of is that he will interpret the Constitution and not legislate from the Federal bench.
Q. Mr. President, I believe Judge Souter is about 50 years old, as many of the candidates you've considered were younger than the current Justices. What kind of lasting legacy do you want to leave on the Supreme Court? Do you expect this to be a long-term shifting of the center of balance for the Court?
The President. I'm not looking -- he's in good health. I was looking over there to see how he's looking at 50 -- [laughter] -- but he seems to be in very vigorous health, and I would expect he'd serve a long term on the bench. But, Ann [Ann Compton, ABC News], I'm not viewing this as some personal Bush imprint on the Court. I've pledged to seek out excellence, and I've pledged to look for somebody who would interpret the Constitution, and I am satisfied I have found the very best in that regard.
Q. Do you expect the Court would shift to the right, philosophically?
The President. I haven't put it in terms of shifting left or right. I read a great deal of speculation about all that, but all I'm saying is that we've got a nominee here who is extraordinarily intelligent, has a record, has been confirmed by the Senate, and who has satisfied inquiry at the State and Federal level as to his objectivity and as to his judicial philosophy. And I'm satisfied as to all those counts.
Lesley [Lesley Stahl, CBS News]?
Q. Mr. President, as you know, the whole issue of abortion has, over this choice -- is major in all of this. Do you know if the judge has written on this issue? Does he have a record on this issue that either side can point to, to make it an even bigger issue; or is it unknown and, therefore, more difficult to get at?
The President. In the first place, I think it would be inappropriate, although I'll let him make up his own mind, for Justice Souter -- [laughter] -- to make any comments on any specific issue. Out of respect for the Senate, I would urge that he not do that. Any specific questions on specific issues should be addressed in an orderly confirmation process by the Senate. But beyond that, Lesley, you know, I think what I said earlier responds to your question.
Q. You said you hadn't asked him, but I wonder if he has a record, if it's in print or if he's made -- --
The President. Well, I don't know about that. I didn't consider that, as I thought I had made clear.
Q. Mr. President, if you've concluded that it's inappropriate to ask about a specific case like Roe versus Wade, do you also therefore consider it to be inappropriate for the Senate committee that'll do the confirmation to ask about a specific case like that?
The President. I would let the Senate do whatever they want. They're a separate and an independent body of our government, and there are certain precedents for how they approach these issues. But listen, I've got enough problems down here without trying to tell the Senate how to conduct its confirmation hearings.
I've been handed a protocol note. Marlin Fitzwater [Press Secretary to the President], who is not known for his protocol -- [laughter] -- he says it would be most appropriate to let Judge Souter respond at this juncture. So, with your permission, we'll proceed.
Judge Souter. Thank you, Mr. President. I'm really not sure how to do that. If it were possible for me to express to you the realization that I have of the honor which the President has just done me, I would try, and I would keep you here as long tonight as I had to do to get it out. But I could not express that realization, and I'm not going to try to do the impossible. Beyond that, I hope you will understand that I think I must defer any further comments of mine until I am before the Senate in the confirmation process.
Q. Mr. President, conservatives recently have expressed some disappointment with what they call the flip-flop on no-new-tax pledge, your position on China, Lithuania, and the like. [Laughter] And since Governor Sununu [Chief of Staff to the President] is recognized as the champion of conservatives in the White House, is the Judge's connection to Governor Sununu -- is this meant as an appeasement to the conservative right? Do you think it will appease them?
The President. Sununu's got problems with his own credentials. I mean, he's not going to help on that. [Laughter] And that's not what this is all about. This matter, as I've indicated, was -- there was almost a certain recusal on the part of Governor Sununu on this. Clearly, he knows Judge Souter. He has great respect for Judge Souter. But this process, as I'm sure Boyden Gray and Dick Thornburgh will tell you, came up through a system. Excellence came to the top. And so, there is no politics of this nature in this kind of an appointment.
If I was looking to shore up one factor or another, there would be plenty of more visible ways to do it. Here, we are talking about excellence, judicial excellence, and the highest degree of qualification based on excellence to be on the Court.
Q. Mr. President, earlier today Marlin Fitzwater said that whomever you chose as your candidate, your nominee, would reflect your general philosophy of government. Is it still your philosophy that Roe versus Wade, the abortion law, should be overturned?
The President. Look, you all can keep trying all day long to get me to comment on abortion in relation to this nomination. And please stop trying, because I'm not going to respond in that vein. It would be unfair to Judge Souter. It would be untrue because I haven't looked at the nomination in that manner. And so, I simply cannot, and -- you get another question, though, instead.
Q. Well, my other question would simply be: Let's not respond in the connection of Judge Souter. How about just your own personal philosophy?
The President. I haven't changed my views, if that helps you any.
Q. Mr. President, I'm still not totally certain by why you feel it was inappropriate to ask the judge's views on issues.
The President. Because I understand that's the customary way of doing it, and that more important are the broad concepts of excellence: Is the man qualified? Does he share a broad view that what he ought to do on the bench is interpret the Constitution and not legislate? And so, that's all I need. And when you see the background of this man, I'm confident that the Senate will share my views. You're looking for fairness. You're looking for equity. I wrote down a bunch of words to help me make the determination, and I wish I had them because they're all along those lines -- experience. And I did say that I'd like somebody that will interpret the Constitution, not legislate.
Q. But to even be sure of that, sir, does that mean that you've at least studied some of his rulings?
The President. There's been a great deal of work done in the Justice Department at several levels, in our General Counsel's shop on all that kind of thing. But again, it would be inappropriate to go into those cases that he may have ruled on when he was on the State court or on the Federal bench. And I would simply leave that to the Senate. But, yes, there has been a thorough study of Judge Souter's tremendously impressive record.
Maureen [Maureen Dowd, New York Times]?
Q. Mr. President, given the reality of getting a person confirmed to the Supreme Court these days, are you braced for a big battle?
The President. I'm not going into this nomination or thrusting Judge Souter into the nomination expecting a highly contentious battle. The man was confirmed by the Senate unanimously -- and after testimony. So, I'm not suggesting there has to be or should be. I remember calmer days when there weren't. So, I would not anticipate a contentious battle. I would anticipate thorough questioning. I would anticipate each Senator having enough information to make up his or her mind based on the record or responses to questions. But, no, we're not bracing for some horrendous fight with the United States Senate. And given his record, I would expect that the chances of that are minimal.
Q. Do you think a President these days has to do more of a selling job than in the past?
The President. I don't know, Maureen. I don't think so -- if the record speaks for itself. If I had selected somebody out of the political arena that had never been on the bench and never had any experience but was in my view well qualified, there might well have been more intervention on my part. I'm prepared to do whatever is appropriate in not only defending but advocating this confirmation. But I don't believe there's going to be a lot of personal involvement necessary because I think his record and his standing will speak for itself.
Q. Mr. President, I'm going to make one more try. You say it's inappropriate to ask. But you also admit there is a lot of background paperwork on someone. Judge Souter was appointed to the New Hampshire court by Governor Sununu, whose feelings on abortion are well-known. Your feelings on abortion are well-known. Why should we not believe that that is a factor in your selection -- even in making a list?
The President. Because I've told you it's not, and because you ought to listen to the testimony on the Hill, and then you can make up your mind better when you've seen the evidence. And I expect people will be raising this question. I've seen a lot of speculation on it over the last 48 hours, or whatever it was, since Justice Brennan retired. But I'm telling you -- you asked me what my view was, and I've told you how I approached this matter. And that's all I can do.
Q. Mr. President, you said a moment ago that there are Senate precedents on how questioning happens in the Judiciary Committee. In fact, there are two very contrasting precedents. There was the Bork precedent where the nominee answered all sorts of questions, and there was the Justice O'Connor-Justice Kennedy precedent, in which the nominee declined to answer a lot of specific questions about how the nominee felt. Do you have any preference about how your nominee handles these questions?
The President. No, but I have confidence my nominee will handle it properly. Look, the man is a judge on appeals court. He knows how to treat with this. And the Senate is a free Senate, and they know how to treat with it. I'm not going to get into that. I think it's inappropriate for a President to do that kind of thing.
Q. If I could follow up: Do you think it's appropriate for a nominee to answer specific questions about how he might rule on cases?
The President. I would leave that to the nominee and let the Senate make the final determination.
Q. Were there one or two aspects of the judge's background, his qualifications, that particularly brought him to the top of the list?
The President. Being bright -- extraordinarily bright -- and then a record for fairness -- extraordinarily fair.
Q. Surely -- [inaudible] -- who were bright and fair, though.
The President. Well, I've made my judgment based -- you've asked me what I decided it on, and these are some of the qualifications that I think are essential. Plus I gave you the underpinning, which I want somebody that is not going to be a legislator sitting on the Supreme Court.
Q. Did you meet Judge Souter before you made this decision within the last couple of days?
The President. Yes. Just within the last couple of days.
Q. Is this the first time you had seen him?
The President. First time I had met him. And who knows? The amount of time I've spent in New Hampshire, I might well have seen him. [Laughter] We've been -- as I have indicated -- been talking to our Attorney General and Boyden Gray on resumes or on records for a long, long time. And the man is very highly regarded. I just had a short visit with Judge Souter today and obviously was quite impressed.
Q. You had already decided at that point?
The President. No, I had not decided, and that's the truth, as is everything else I've said here.
Q. In speaking to your advisers about resumes and records, as you say, did you ask your advisers to produce only nominees who had no extensive written record on the abortion issue, that is, Trojan Horse candidates who would not provoke a large debate over -- --
The President. No.
Q. Can you tell me how is it possible to make the selection without reviewing the judge's record or a summary of his record that dealt with specific cases -- if not abortion, affirmative action, civil rights issues, free speech, a lot of the emotional issues that the country is very concerned about?
The President. Most of his writings have been at the State level, and I made the decision based on the criteria that I gave you.
Q. So, you're telling us that you have no idea what his judicial opinions are on abortion, affirmative action, civil rights, flag burning?
The President. I'm telling you that you should stay tuned and let the testimony before the United States Senate determine whether he's confirmed or not and that that will bring out all the questions that you are asking here. And the answers -- that's up to the judge to see how he should handle that, as one who is going to have to deal with a lot of issues in the future.
Q. Mr. President, has Governor Sununu, who is well-acquainted with the nominee, given you his reading on the judge's views on controversial issues such as -- --
The President. No.
Way in the back. One, two, three, and then I'm leaving.
Q. Am I back far enough?
The President. One, two, three, four -- you're in the middle.
Q. Mr. President, I wonder if you can tell me, sir -- you extolled the judge's virtues and pointed out more than once that he was unanimously confirmed by the Senate for his present position. Can you think of any reason, any possibility, the Senate would not confirm the judge for this post, other than ideological grounds?
The President. No. I can think of none why they would not confirm him. None. Period.
Q. And would you object strenuously to a confirmation battle over ideological grounds?
The President. Look, I have nothing to say about that. This is a separate body. I don't control the Senate. I would hope they would accept the -- when they've had a chance to ask questions and they've had a chance to review his record -- would conclude, as I have, that he is outstandingly well-qualified for the Federal bench, a judgment that was given to him not too long ago by the ABA [American Bar Association] itself -- well-qualified, which I gather is the highest rating a judge can have.
Q. You have said you're not interested in making a Bush imprint on the Court. But you may also -- --
The President. I have to, I guess, but I'm not interested in having this known as a Bush Court or something of that nature.
Q. Well, you may be called upon throughout your term to actually name one or two others. Do you have those in mind?
The President. Yes.
Q. And also, if by -- --
The President. Yes, right there.
Q. Who are they?
Q. -- -- by having those names in mind of who you would appoint, are you doing the same thing like in foreign policy, saying that you want to choose a prudent man, or that the imprint would be something peculiar to you?
The President. Look, I'll tell you how I look at this -- not in terms of some specific imprint but I want it said when I'm about 90, 24 years from now, that I made a superb choice. And I think it will be so writ.
Q. Mr. President, I'd like to ask you about the phrase you're using -- you're opposed to somebody who would legislate from the bench. You're on record as wanting Roe versus Wade overturned. You're on record as favoring a flag burning amendment to the Constitution. Aren't those sorts of issues tantamount to legislating from the bench as well?
The President. You'd have to tell me the case and advise me as to how -- I don't think so. I don't think when called upon to answer a constitutional question that that has to be legislating from the bench.
Q. You would not be upset if the Court overturned Roe v. Wade, or if the courts upheld the flag burning law?
The President. No, and a lot of other things, too. I believe in the separation of powers, and I happen to think that there's been many, many things that trouble me -- encroachment of micromanagement by the United States Congress on the Presidency. But I haven't asked this able judge about those things. But I could cite -- you cite two -- you cite one that's been on everybody's lips ever since Justice Brennan retired. Listen, I never heard such coverage on the television. You might think the whole nomination had something to do with abortion. And it's far broader than that. I have too much respect for the Supreme Court than to look at one specific issue and one alone.
I've got time for one. Yes, Kathy [Kathy Lewis, Houston Post]?
Q. Mr. President, there had been some speculation you might name an Hispanic this time and make history in doing so. You went a different route. What do you say to those who might be disappointed that didn't happen, and what is the likelihood you might name a Hispanic should another vacancy develop?
The President. First, I say to whoever it is that inquires: I've made the best choice I possibly could make in terms of qualifications, ability, background, and temperament to serve on this Court. And then I say: look, the great thing about this country is you can achieve anything. There's a lot of time down the road in which I'm sure you'll see a different makeup on the Court. But I'm not going to deal in any one specific group vis-a-vis another one. That's what I would say.
I just would ask the American people to understand I looked at a wide array of names prior to my getting into it in as much depth as I have very recently. The Attorney General, his staff, Boyden Gray, and his staff went through this process. It's a process that's been going on for some time, and the excellence was just there at the top. And so, I would not cite this as something discouraging for anybody that aspires to the Supreme Court or any group that would aspire to have representation on the Supreme Court.
Listen, I really do have to go.
Q. What did you ask him when you interviewed him?
Q. Did he win in the interviews?
The President. He did very, very well.
Let me get one. I failed to -- --
Q. Two or three of the candidates that were mentioned were from your home State, and there was talk that you perhaps would choose somebody from the South because you felt the South had been underrepresented since Justice Powell resigned. Wasn't anybody qualified in the South, or -- --
The President. Plenty of people qualified. And you raise a good point, because there is nobody from what I would call the Southeast Conference South, but the South excluding Texas, that is on the bench now. And there's about a quarter of the people from there. So, this is a consideration and was a consideration that was forcefully brought home to me by key Members of Congress. And yet I determined that Judge Souter, given the qualifications I've tried to extol here, the virtues, is the choice for the Supreme Court at this time. But, no, these calls are not easy. And Kathy asked about different ethnic groups. You asked about regional distribution. And I think one considers all these criteria. I think it's fair to say that New England, which is not represented on the bench now that Justice Brennan is retired, might look at it if I had gone with another nominee as, why were they excluded. So, I can understand regionalism. But please believe me, as a proud Texan I tried to look at it in a national sense. And I think I've come up with the best nominee.
Jessie [Jessica Lee, USA Today], I'm sorry to disappoint you.
Q. A very quick followup if I could: Senator Simpson suggested that you follow the counsel of Mrs. Bush. Did you in any way on this decision?
The President. How did he know? He doesn't even know who I nominated. How could he have said that?
Q. He said that he hoped that that would be what you would do.
The President. Oh, I see. Wonderful fellow, Al. [Laughter]
Note: The President spoke at 5:04 p.m. in the Briefing Room at the White House.