Deconstructing

A PRESIDENT who wants to avoid a battle like mine, and most Presidents would prefer to, is likely to nominate men and women who have not written much, and certainly nothing that could be regarded as controversial.” So wrote Robert Bork last year in The Tempting of America, proving himself a prophet. President Bush did not experience a Bork-like confirmation battle with David Souter in large part because Souter had written almost nothing, apart from his mostly unexceptional judicial opinions, and given little political offense. Coached to avoid conflict with liberals, and skilled at leaving his Senate interrogators in a state of intellectual confusion that they somehow found satisfying, Souter maneuvered his way through the Judiciary Committee, winning Senate confirmation by a 90 to 9 vote.

The Souter hearing did manage to focus on two main substantive is-sues-the unenumerated right of privacy and the interpretive philosophy known simply as originalism. As we await Souter’s first opinions from his new vantage point, his testimony on these matters deserves review.

About the Author

Terry Eastland

Mr. Eastland was a publisher of The Weekly Standard. His books include Religious Liberty in the Supreme Court (1993).

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A PRESIDENT who wants to avoid a battle like mine, and most Presidents would prefer to, is likely to nominate men and women who have not written much, and certainly nothing that could be regarded as controversial.” So wrote Robert Bork last year in The Tempting of America, proving himself a prophet. President Bush did not experience a Bork-like confirmation battle with David Souter in large part because Souter had written almost nothing, apart from his mostly unexceptional judicial opinions, and given little political offense. Coached to avoid conflict with liberals, and skilled at leaving his Senate interrogators in a state of intellectual confusion that they somehow found satisfying, Souter maneuvered his way through the Judiciary Committee, winning Senate confirmation by a 90 to 9 vote.

The Souter hearing did manage to focus on two main substantive is-sues-the unenumerated right of privacy and the interpretive philosophy known simply as originalism. As we await Souter’s first opinions from his new vantage point, his testimony on these matters deserves review.