WASHINGTON -- For the past month, a report has circulated through political and legal circles that chills the souls of conservatives. The government lawyer who cleared David Souter for the Supreme Court in 1990 in the first Bush administration has been in line for judicial selection duties in the second Bush administration. The reaction to this news is to derail that appointment, an exercise exposing what Republicans fear most.
Ironically, the lawyer in question is no fuzzy-minded moderate. On the contrary, Lee Lieberman Otis is a member in good standing of the conservative movement and especially beloved by anti-abortion activists. Most recently, she was chief counsel of the Senate immigration subcommittee headed by her friend, then Sen. Spencer Abraham. Furthermore, she gets high grades for screening judicial appointments more than a decade ago.
All but one, that is. As a 34-year-old associate counsel to the president, she made an inexcusable error. She ratified Souter for the high court.
That looks like one mistake too many. It is impossible to measure the impact of the Souter fiasco on the Republican Party. Far more than his capitulation on taxes, the presidency of George Bush is damned by the lifetime tenure of one of the Supreme Court's most liberal justices ever -- shaping the nation's history. The conservative message to Bush the younger: No more Souters.
In 1990, Souter had only recently been named to a federal appellate bench after serving seven years on the New Hampshire Supreme Court. It was the second time that Souter was considered for the nation's highest court. In 1987, after the rejection of Robert Bork, Souter headed the possible replacements though his name was kept out of the newspapers. Reagan Justice Department officials carefully studied his New Hampshire record, were deeply alarmed by his judicial activism there, and killed him off.
Three years later, Souter had a powerful sponsor: White House Chief of Staff John Sununu, who in 1983 as governor of New Hampshire had named him to the state Supreme Court. With a wink, Sununu assured everybody that Souter was a stealth conservative. It would have taken a courageous judge-vetter to contradict the imperious Sununu.
But the White House lawyer checking judges, the former Lee Lieberman, had formidable right-wing credentials. A co-founder of the Federalist Society along with the future Sen. Abraham, she had been a law clerk of Justice Antonin Scalia. Instead, she went overboard for Souter. According to Justice Department sources, she predicted he would be another Scalia. That may have clinched his selection over the conservative favorite, U.S. Appeals Court Judge Edith Jones of Houston.
The results were staggering. Had Bush the elder named Jones instead of Souter, Roe v. Wade would have been overturned. The numerous 5 to 4 votes -- on abortion, school prayer, term limits and much else -- would have been reversed. Instead of another Scalia, Souter duplicated the justice he replaced, William Brennan, as the court's most automatic liberal vote.
That explains the alarm among conservative lawyers when newspaper accounts described Lee Lieberman Otis as George W. Bush's prospective judicial selector at the Justice Department. She pushed to be associate attorney general, the department's third-ranking official.
Her candidacy created a difficult situation for the new administration. Her support is unqualified from right-to-life activists, who ignore the Souter mistake as an aberration. When I asked an influential Bush official two weeks ago what job Otis would get, he replied: "Any job she wants."
That is no longer true. Such is the concern about her 1990 decision that Otis may end up with her old colleague, Secretary of Energy Abraham, as the department's general counsel. That's a long way from picking judges, an activity where there is no margin
Nothing has so stained the first Bush administration's legacy than the grim prospect of David Souter's lifetime on the bench. Nothing that Bush the younger does will extend farther into the future than his Supreme Court selections. Notwithstanding his campaign rejection of litmus tests for judges, he seeks a stealthy candidate who will be a Scalia rather than a Souter. That requires extra caution in picking the lawyers who screen judicial nominations.