Excerpted from the Miller Center’s George H. W. Bush Presidential Oral History Project

On June 8–9, 2000, a team of experts assembled by the Miller Center interviewed John H. Sununu about how David Souter's name rose to the top of George H. W. Bush's list of potential nominees for the United States Supreme Court. As governor of New Hampshire before serving as Bush's White House chief of staff, Sununu had firsthand experience with Souter's conservative record as a judge and later a New Hampshire Supreme Court justice.

To this day, any time I go to a conservative meeting 15 people come up and hit me with a Souter two by four across the forehead

Professor James S. Young: What about hearing a little bit more about the Souter nomination . . .

John H. Sununu, White House chief of staff: I think I mentioned yesterday that judicial appointments are the greatest nightmare any Governor or President has. I know of nothing you do where you are truly less informed in terms of the decision you are making. What I mean by that is that judicial appointments have a funny nature to them. You are usually selecting from a bunch of a people who have wanted all their lives to be a judge, or on the case we’re talking about, a justice of the Supreme Court, who have pretended they don’t and who implored all of their friends to put their name in. They have worked all their lives anticipating the time when they might be right for such appointment, and whether they admit it or not they have colored their judicial philosophy to fit what they think that coincidence or intersection is going to be. Then you make an appointment that has a lifetime tenure, and the chameleon changes.

You can ask Eisenhower about his appointment of Chief Justice [Earl] Warren, and you can ask about his appointment, is it [William J.] Brennan, did he appoint Brennan?—you can ask Nixon about his appointment of [Warren Earl] Burger’s dyed in the wool conservative Republican, hard-nosed conservative Justice [Harry] Blackmun. You can probably in two or three years ask Clinton about his appointment of his friend from Harvard, [Stephen] Breyer, who I think will end up being more and more conservative as he gets as he gets older. It happens.

It’s inherent in the character of what you’re doing and the process makes it worse because the accepted rule of the game is that you can not ask, or should not ask, the judge if such and such a case comes up, how would you rule. You ask these roundabout elliptical questions to discern whether or not you are getting somebody who has, at the very least, a general flavor of what you think the constitutional responsibility of that court is. That is really the bottom line equation, that if you are doing it correctly, you look at it as a President or a Governor, or a staff member to a President or a Governor.

Having said that, there is an added reality in that the confirmation process has become a very important political event. It started with a couple of other confirmations but came to a head with the [Robert] Bork confirmation process in which an effort, a very partisan effort I believe, was made to define party positions on political issues in the hearings, and then to use preferences one way or the other to either support or disapprove the confirmation. And as we know, Bork was rejected. That was the environment in which the next Supreme Court appointment came up for George Bush, and the President obviously wanted to make a positive impact on the court and yet, at the time, really did not want to go through a contentious hearing process on his first Supreme Court nomination.

At the starting point, Boyden Gray was in charge. He was the counsel to the President, and Lee—a really sharp lady—

Professor Erwin C. Hargrove: Lieberman.

Sununu: Lee Lieberman, thank you. Another senior moment erased. Lee Lieberman was really his chief aide in the vetting process, although two or three people in that office were involved. Lee and Boyden are really true blue, dyed in the wool conservatives and I don’t think the President had any question that he was going to get a very conservative set of names to select from.

The starting point was the old Reagan list that had been used in the past with a couple of names added to it. Let me pause at that point and give you a little bit of history on Souter as it relates to me because it will give a context of some of the things that happened and didn’t happen. or it might give a paradoxical context of some of the things that happened and didn’t happen.

I was Governor of New Hampshire. David Souter was attorney general under a predecessor, Mel Thompson. Mel Thompson was probably the most conservative Governor New Hampshire ever had, the most conservative Governor America ever had, and a great admirer of David Souter. An opportunity came for me to appoint a judge to the superior court. We have a municipal court, district court structure, a superior court structure and a state supreme court and I was lobbied very hard by Governor Thompson and by Warren Rudman, who is probably David Souter’s closest personal friend, and others. David had a very good record and I didn‘t have much problem in appointing him to the superior court. I appointed him. He did very well there. He became known as a very strong, for lack of a better term, law and order judge, a very academic judge in the sense that his decisions were not only a decision but he took great pains to create a legal structure for the decision that frankly a lot of the court admired.

An anecdote. I told it last night at dinner. I will try and tell it quickly. I inherited a very large deficit as Governor. State employees had not had a raise in three or four years. The previous Governor, a Democrat that I defeated, had promised the state employees a 9% raise the previous year and reneged on it. Before he left office he said he would make it up by giving them a 9% raise in addition to a retroactive raise the next year if he was elected. It was part of his campaign rhetoric I think, and he lost. So I am negotiating a new contract with the state employees and they are demanding the 9% retroactive and 9% in the future and I said, “I am not going to give you anything retroactive and we will negotiate a fair number for the future and we will go from there.”

They threatened to strike. I said, “It is against the state law to strike.” They said, “Well, we may go on strike anyway,” and I told the leadership in the union that if they did that we would make sure the law was enforced and enforced expeditiously. At 9:00 one night I am driving home from an event. As you know Governors have a state trooper driving them, a radio in the car. We had a radio message to have the Governor stop and call the attorney general. We didn’t have cell phones in those days. I stopped. I called my attorney general. The attorney general says the state employees have called a strike for tomorrow and no one is going to show up for work starting at 7:00 a.m. tomorrow. I said, “Steve, meet me at my office.” We get there about 9:30-10:00. I said, “Now you go find a judge right now. Get him out of bed if you have to, get him into court, and get an injunction getting the state employees back to work without any losses. I don’t want to lose five minutes of state employee time.”

So Steve goes back to his office, prepares the documents that are necessary, rustles the judge out, gets the judge into court at 1:00 in the morning. The union officials are called in. They get there about 1:30 - 2:00. They plead before the judge that poor state employees have to go out because this crazy Governor isn’t negotiating fairly. The judge takes it under advisement, goes into his chambers, comes out 15 minutes later and rules that the state employees have to go work but not only do they have to go to work the next day, but in order to assure that they are there, the officers of the union—and there are 10,000 some odd employees in the union—have to personally call every state employee and keep a record of the phone call and deliver it to the judge before 9:00 the next morning to confirm that every state employee was personally called, notified and told to go to work. So the 20-some odd officers of the union split this list of 10,000 and go to work. The next day not an employee missed a minute and the judge that did that was David Souter.

So, the Supreme Court appointment in the state comes up and David manages to get that appointment and he is an excellent, excellent Supreme Court judge in New Hampshire. Again, very conservative in his decisions. He had one decision that went against the Governor on a tax issue, put me in an embarrassing political position, but frankly, it was the right decision and it was written well and it was written so damn well I had no way to avoid it and we solved it legislatively.

Now I am in Washington. They bring this list in and it has about five or six names and the names I remember on it are Edith Jones of Texas. I don’t remember the other very high contender, and David Souter is on this list—

Professor Philip Zelikow: I would like to interject. Was Clarence Thomas on the short list?

Sununu: Clarence Thomas was on the semi-long list. He was on the list of about five, six, or seven. He did not make the last three.

Professor Sidney Milkis: So there were three names on this—

Sununu: It started with a list of seven or eight and then got honed down to maybe five and then honed down to three, but by the time it got back down to three it was Souter, Edith Jones, and someone else whose name you would remember probably before I do. The one that was really pushing very strongly for David was Boyden. Lee had read his decisions and if anybody who is a conservative goes back and reads his decisions, in spite of his history adjustments to the contrary, David was a very conservative New Hampshire State Supreme Court judge. The issues were not the issues he would run into at the federal Supreme Court but on the issues that he did deal with, he was a strict constructionist.

Hargrove: That’s your definition of a conservative?

Sununu: Yes. No legislating from the bench and very meticulously tightly written, you know these are nice, classic—if you’re a historian of the law, David Souter’s decisions, even when you disagree with them, are written very nicely.

So we are going back and forth and the issue that kept coming up was how was this going to be received in the confirmation process. The President was clearly concerned about another Bork type effort. It finally came down to the President, myself, I think the Vice President was in on this meeting, and Boyden, and I’m not sure if Lee was there. The President said, “Okay, I’ve got to make up my mind. I want everybody to go around the table and give me their views of all of the individuals that are there.” I had gone back to New Hampshire and called Mel Thompson. As I say, a very conservative Governor and Mel gave a wholehearted endorsement to David Souter, and I raised all the specific issues that you like to have an inkling of how the judge will go on and amongst them was the abortion issue, issues associated with the prerogatives of the executive branch in particular, issues associated with the roles of the executive and legislative and all that and Mel said that he had known David as an attorney general. He had watched what he had done in court and was absolutely convinced that he would be right.

Milkis: But he wasn’t on the record on these certain issues, right?

Sununu: No, no not on the record because—the closest was the tax issue that he came down against me on in the state and frankly it was a very strict interpretation of the law and the constitution and so, in an odd way I may not have liked his decision as Governor but it was the right decision.

Then I called Steve Thayer. Steve Thayer was another judge I had appointed to the state supreme court, extremely conservative. Steve said that he had had brown bag lunches with Souter 90% of the time for the last two, three, four years, whatever the time that they had both been on the court. They had talked judicial philosophy all the time and so Steve didn’t mind giving an extremely strong endorsement to Souter. Now Steve, again, let’s talk about the issues that have the conservatives set and there are these interpretations—strict interpretations of the constitution type of issues, certainly the right to life issue. I asked Steve specifically about a list of three, four, or five issues and he says, “Look, we have talked about all of those and he is absolutely right on every issue.” I said fine. I said, “May I tell the President that you said this?” and he said yes.

So we go back and now we’re sitting at this meeting and he comes around. Frankly I was leaning slightly towards the advantage of appointing a woman to the Court because I didn’t want the President to have to appoint a woman to replace a woman; it was possible that the next one who was going to leave was Sandra Day O’Connor and I did not want the President to be looking like he was slotting seats. Also Thurgood Marshall was about to leave, and I knew that there was going to be a strong pressure for the President to appoint a black. It was going to be Clarence and I didn’t want him to be stereotyped as a President who was slotting seats. I thought if he was going to appoint a woman it would be better to appoint a woman now and a man later rather than a man now and a woman later. So I had a slight instinctive preference for Edith Jones. As close as I felt to David I thought David was going to get his chance very quickly because Marshall was quite ill and who knows how the process would work.

We vote on the table. Boyden was very strongly in favor of Souter. I gave my arguments on Edith Jones first and then I gave the arguments on Souter, what I knew about Souter. I said, “He would be a great judge,” and then I mentioned what Thayer had said. The question came up again, which had come up many times before, as to whether or not Souter had any public positions on these issues and Lee said she had found none. I guess she was there. I have to be careful. Maybe she wasn’t there, and Boyden went out and got the information from her. I don’t remember but in essence, Lee was the source of the information that he had no public positions on these things. Boyden then made the point that, “Gee, that’s a plus because they can’t attack it in the confirmation process.” So the President then said, “All right, give me a few moments.” He thought a little bit, and I don’t remember whether he made the decision at the desk that we were at then or whether we went in his office and told me a little while later but he came down and said it’s going to be Souter. And we went from there.

Again, they had interviewed Souter. The President said, “It’s going to be Souter. Bring him in and let me meet with him and if the meeting goes well I will give you the final decision.” But he always did that that way on his judicial appointments. He made a 99% decision and then we brought them in.

Souter came in, and as usual Souter in his own New Hampshire dry charm made the President feel very comfortable and the nomination went up and sailed through. So the President got what he wanted, a confirmation that was well received publicly, well received at the Senate level, and a well processed confirmation. From the needs that he had at the time, it was the right decision.

Interestingly enough, the very first right to life decision came up rather quickly. I think it was a Pennsylvania case—

Zelikow: Case of Pennsylvania parenthood.

Sununu: Right, and Souter voted the right to life position in that case and then he has never again voted for the right to life position on any other case.

Milkis: Was Senator Rudman a big supporter of Souter?

Sununu: Yes, I got calls, I get calls. When something like that is done I get 30 calls a day from him. You know, we’re old friends and I love talking to him, we have a good time. But Rudman was trying to tell me how conservative David was, and David’s history was conservative. To this day, any time I go to a conservative meeting 15 people come up and hit me with a Souter two by four across the forehead.