Three Questions for Linda Greenhouse on Obama’s Supreme Court pick

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Linda Greenhouse is a Pulitzer prize winning reporter who covered the Supreme Court for 30 years for the New York Times. Now a professor at Yale Law School, I spoke with Greenhouse on her take on Justice David Souter’s retirement and the future of the Supreme Court.

Kate Klonick: You covered Justice Souter from his confirmation through much of his time on the bench. What are your thoughts about his role on the court and the legacy he leaves behind?

Linda Greenhouse: Well I think the notion that Souter was a stealth candidate has become falsified, and the historical narrative around that is inaccurate. It’s important to remember that that vacancy was unexpected. When [Supreme Court Justice William] Brennan had a stroke, it was late July in the middle of the Court’s cycle. It became imperative to get a nominee in place quickly. It was never that Warren Rudman [the former New Hampshire Republican Senator who was Souter's principle sponsor through nomination] wanted to put a stealth candidate on the court and thought that that Souter would be perfect. Souter was his [Rudman's] protege, and he just thought Souter was fabulous.

I remember walking the halls one night on the Hill [in 1987], because I had a deadline and needed something to write about, and nothing was really happening on the court. I ran into Warren Rudman and he says to me, “Have you heard of David Souter?”  The next day my piece appeared, “A New Contender is Seen For Court” and I think that was the first time Souter’s name ever appeared in the New York Times.  When that vacancy opened [in 1990], Rudman moved quickly.

People think John Sununu  [the former New Hampshire governor who was President George H. Bush's chief of staff and recommended Souter to the President]  suggested Souter as a stealth candidate. In fact, Sununu really liked Edith Jones — a conservative and a Republican  — but once Souter’s name was in play he had to support a New Hampshire Republican.

If you look at Souter’s confirmation hearing, he didn’t hold back, he laid it all out and gave very substantive answers. . .

As for abortion, I think Souter really didn’t have an opinion on Roe v. Wade, but what he had was a record of action. He was the head of a board of a hospital in New Hampshire when Roe v. Wade was decided and like all hospitals at the time, this one had the choice of whether or not they were going to provide abortions — and they decided they would. He had no written opinion, but I looked at that and said, “this isn’t a move made by someone who is anti-choice.”  So all these things were there, and you can see that this narrative of Souter as a surprise wasn’t entirely true.

KK: It seems like it’s being taken for granted that the next member to the bench will be a woman. Why is that?

LG: I think it’s highly likely that a woman will be the next person on the court. In this day and age you can’t have a Supreme Court of eight guys and one 76 year-old woman. As Charlie Savage said in his piece the other day, the Court is really an anomaly right now. It doesn’t represent the number of women that are in bench positions.

Pulitzer Prize-winner Linda Greenhouse

KK: The name Elena Kagan is on everyone’s lips for Souter’s replacement. What are your thoughts on her and and the administration’s general plans for finding a replacement?

LG: I think [Kagan]’s fabulous. As the Dean of Harvard Law School she really went in and turned around the school, and just has great leadership skills. But my expectation is that the administration is going to cast a wide-net for candidates and there’s not been enough discussion about the desirability of someone like another Sandra Day O’Connor. . .

Talking heads are too quickly jumping to conclusions on this and I really think there’s something to putting a politician in this spot — someone like Janet Napolitano who was just confirmed [as Secretary of Homeland Security], and has already been through a vigorous vetting process. . .

I foresee a bit of a struggle inside the Democratic coalition as to how persuasive a liberal a recommendation they want. Many think, “We need our Scalia” — which is to say a staunch ideological justice, but for the progressive side — but others think that’s not necessarily the only or most effective way to broker discussion on a conservative Supreme Court. Instead you need someone who will work towards the middle.