An 18th Century Man

By MARGARET CARLSON WASHINGTON

In this the age of shameless self-promotion, Supreme Court nominee David Souter comes onto the national stage as an oddity. No one knows quite what to make of a man who has a life, not a life-style, who lives modestly, works hard, spends inconspicuously, attends church, enjoys solitude, honors his mother, and helps his neighbors. While part of being a public official these days is vying for an appearance on Nightline, Souter is extremely publicity shy, pursuing a life of quiet introspection.

When he was named attorney general of New Hampshire in 1976, Souter decided not to move into the office that went along with the job. Instead, he stayed put in the adjoining office he had occupied as the department's No. 2 man and gave the more prestigious quarters -- and the attention of the press -- to his deputy, Tom Rath, who welcomed it. Souter labored behind the scenes and spread the glory around. Then assistant attorney general Bill Glahn recalls, "If you screwed up, David took the blame. If you did well, you got the credit."

That self-deprecating style has made Souter the Nowhere Man, a tabula rasa in the cult of personality -- and so the perfect post-Bork appointment. Law- review articles asserting opinions on controversial subjects? There are none. Sweeping court decisions? Souter, as a trial and appellate judge, narrowly ruled on the facts at hand. In Souter, Bush may have found the last person in America who does not think in opinionated sound bites. Souter, with his Yankee reticence, does not presume anyone would be interested in what he thinks if legal scholars have already thought about it. In that, he may be the answer to the President's secret moderate dreams: someone conservative enough to allay right-wing suspicions that he has been insufficiently sympathetic to their causes but at the same time unknown enough to keep liberals from finding anything on which to hang another bruising confirmation fight.

As it turns out, Souter, like everyone, has a personality, if not strong personal opinions, and a rich inner life, which he was able to keep to himself until last Monday. Friends describe him as a combination of the intellectual, scholarly, never married Justice Benjamin Cardozo and a tightfisted solitary cleric. In looks and wit, he resembles comedian Pat Paulsen; in his 5 o'clock shadow, Richard Nixon. He favors well-worn suits (black robes are said to add color to his wardrobe), cheap cars (a 1987 Volkswagen), non-power lunches (cottage cheese and an apple) and classical music. His main indulgence is to go off with his small circle of friends to Boston for the symphony, with a stop at Goodspeed's, a rare print-and-book shop in the city. There he purchased the 1850s print of the Merrimack River and Concord that hangs above the stereo in his living room. He is an accomplished mimic, doing a wicked imitation of Meldrim Thomson Jr., the archconservative former Governor who named him attorney general.

To call Souter bookish would be like describing the Grand Canyon as a hole in the ground. In the ramshackle farmhouse nine miles outside Concord where he has lived since he was 11, groaning shelves of books on philosophy, history and the law have won the battle for space. Souter jokes that the room looks like "someone was moving a bookstore and stopped." Vacations are devoted to rereading as much of the work of a particular author as he can; he has plowed through Dickens, Proust, Shakespeare and Oliver Wendell Holmes, the legendary Supreme Court Justice. When he is not reading, Souter is hiking, often alone. He has climbed all the White Mountains 4,000 ft. or higher, and in one day hiked the 25-mile-long trail that crosses over the Presidential Range. His habits include attending services at St. Andrew's Episcopal Church in Hopkinton, where he prefers the 1928 prayer book to the 1970s modernized version. His close friend from Oxford, Dr. Melvin Levine, who now teaches pediatrics at the University of North Carolina Medical School at Chapel Hill, says of Souter, "You really feel as if you are with one of our Founding Fathers."

Like other aspects of his life, the unmarried Souter's social activities resemble those of an 18th century gentleman, when an unmarried relative was often the backbone of the community, with the leisure to do what those with children did not have time for. Like Henry Higgins, Souter may be happiest spending "his evenings in the silence of his room; ((in)) an atmosphere as restful as an undiscovered tomb."

But Souter had barely left the podium in the press room of the White House before Republican Party officials were raising "the 50-year-old bachelor thing," which was widely interpreted as a way of introducing speculation that Souter is homosexual. In fact the question has been dealt with twice: once in 1978, when Souter was about to be appointed a superior court judge, and then again in 1983, before he was named a state supreme court justice by then Governor John Sununu. During law school, he went out with Ellanor Fink, a student at Wheaton College. After he became a superior court judge, he dated Anne Hagstrom, a lawyer in the attorney general's office. She said going out with Souter was like "knowing someone from another century." More recently, Souter has dated a woman who works at a Boston television station.

The more serious question about Souter's ascetic ways is whether a man who seems to prefer books to people can empathize with and understand the problems of ordinary people. Former state attorney general Steven Merrill says he once feared that Souter lacked "the social context" to serve as a judge, but that concern dissipated once Merrill got to know him. Former girlfriend Fink says, "Having never married, I know everyone is wondering does he have the empathy to understand women's issues. He's not all brain. He's a friendly, warm person and extremely considerate." His former colleague Rath says, "David is the kind of person who will visit a clerk who is in the hospital or attend the funeral of the mother of one of his employees." On Sundays, Souter wheels an aged churchgoer across the street to the general store to pick up her Sunday New York Times, and then goes off to visit his mother Helen, 82, who moved to a nearby retirement home 10 years ago.

Souter's belief system mirrors that of an aunt, a Simmons College professor and Cambridge dowager who swam Lake Winnipesaukee in her 70s, was conservative socially and politically but liberal in her concern for other people. Although she was an heiress of the Boston & Maine Railroad who didn't need the money, she became a pioneering medical social worker at Massachusetts General Hospital.

Souter's conservative philosophy alternately pleases and confuses both ends of the political spectrum and is a reminder that the label does not belong only to Jerry Falwell and Jesse Helms. Elizabeth Hager, who led the state's successful 1972 fight to pass an equal-rights amendment, points out that people outside the state "equate the word conservative with right wing. We don't do that in New Hampshire."

That philosophy led Hager to seek Souter's aid when she wanted to kill a parental-consent bill in the New Hampshire house of representatives in 1981. In response, he wrote a letter to lawmakers opposing the bill because it would have required judges to make "fundamental moral decisions about the interests of other people without any standards to guide the individual judge." Last week, as Sununu was hinting to right-to-lifers that Souter could be trusted, Hager was busy allaying the fears of members of the National Abortion Rights Action League. Hager kept repeating, "He has never associated with pro-life groups. His friends aren't pro-life." His closest political allies and friends -- Republican Senator Warren Rudman and Rath -- are pro-choice.

Souter is the son of an assistant bank manager and a mother who worked in a giftshop. He attended public elementary schools and Concord High School, where he managed to be well liked despite being something of a grind -- voraciously studious, fastidiously neat, with no time for organized sports.

At Harvard College, Souter joined Hasty Pudding and majored in philosophy. He wrote his senior thesis on Justice Holmes' belief that a judge should not be influenced by either politics or ideology. He graduated magna cum laude and Phi Beta Kappa. For a graduation gift, friends put together a scrapbook of made-up news stories featuring Souter as the lawyer he hoped to be. One headline read, DAVID SOUTER NOMINATED TO THE SUPREME COURT.

He won a Rhodes scholarship to Magdalen College at Oxford. His classmate Bill Bardel, now a managing director of Shearson Lehman Hutton, recalls that Souter belonged to a group that would return so late to their rooms after visiting the local pubs that they would have to climb a ladder to get over the locked gates. Back at Harvard Law School, Souter played the role of courtly gentleman, wearing a three-piece suit to parties and telling stories in his strong New England accent. Says Levine: "No one I've ever met is more fun at a party; he has that British satirical sense of humor, does wonderful impressions." That hardly qualifies him as a party animal, but it may have contributed to his failure to make law review.

After graduating, Souter returned home to Weare, N.H., and took a job at Orr & Reno, a Concord law firm. But he was not happy in private practice. In 1968 he took the turn in the road that would eventually land him in the White House chatting with the President, by joining the New Hampshire attorney general's staff. Shortly after Warren Rudman became state attorney general in 1970, he plucked Souter from a group of assistants to become his top aide. The thoroughly scholarly Souter soon became the perfect complement to the gregarious, politically wired Rudman. The two, along with Rath, who headed Bob Dole's losing presidential campaign in the 1988 New Hampshire primary, became best friends. Rath joked that his job in the office was to go to lunch and "explain to Warren what David had just said."

In 1976 Rudman resigned as attorney general and four years later ran for a Senate seat. Thomson reluctantly went along with Rudman's advice to appoint Souter to the job. Over the next two years Souter became involved in several controversial cases, largely at Thomson's behest. In 1978 Souter's staff defended the Governor in a suit to prevent him from lowering the American and state flags over state buildings on Good Friday. In another Thomson crusade, Souter's staff unsuccessfully defended the state's attempts to prosecute residents who for religious reasons covered up the state motto -- "Live Free or Die" -- on their license tags.

In those cases, Souter seems to have been acting as a lawyer putting forth the best argument he could on behalf of his client. But friends still talk | about the zeal Souter brought to one of the few cases he personally argued as attorney general: whether the state or the Federal Government had jurisdiction over Lake Winnipesaukee. Combining his love of New Hampshire with his passion for history, Souter headed off to museums and historical societies to dredge up scraps of information. He spent weeks with ancient maps spread out over his office, scanning each meticulously to ferret out tiny differences. When Souter went to Washington to present his case, he went alone and without notes. His argument -- that since a boat could not get to the ocean from the lake, it was not a navigable waterway subject to federal control -- was so cogent and airtight that the Coast Guard withdrew its claim. This case added to the legal lore in the state that no one who is party to a case ever knows more about it than Souter. Says Merrill: "You can always count on David to have read relevant cases that you haven't heard of. He'll say, 'There's an interesting line of 17th century British cases that I'm sure you're familiar with.' "

But there are few dog-eared tomes from a hundred years ago to consult on the divisive issues of today. Liberals are worried that just as Souter spurns gold chains and Club Med vacations, he will also eschew the "penumbras" emanating from the Constitution that activist judges have used to find heretofore unknown protections -- like the guarantee of privacy, which underlies Roe v. Wade's right to abortion. New Hampshire Governor Judd Gregg predicts that "Souter won't graft current ideas or social concerns onto constitutional law." In a dissent he wrote in 1986, Souter said "the court's interpretive task is to determine the meaning of . . . ((constitutional language)) as it was understood when the framers proposed it." A judge cannot be more strict constructionist than that. On the other hand, Roe v. Wade does constitute precedent, another principle the conservative Souter holds dear. Says Fink: "He really reveres the law. He's not someone who's coming from his personal opinions and then twists the law accordingly."

It is this kind of on-one-hand, on-the-other-hand aspect of Souter's behavior that has thrown the likely combatants over a new Justice into disarray. Souter gave a commencement address at Daniel Webster College in Nashua, N.H., in 1976 in which he called affirmative-action rules "affirmative discrimination" and said the government has no place meddling in such initiatives. He flew across the state by helicopter to make ; sure protesters who were arrested for demonstrating against the Seabrook nuclear power plant were forced to serve actual jail terms rather than suspended sentences. He tends to rule in favor of the prosecution in criminal trials. But Souter is also a great supporter of environmental and consumer protection, of victims' rights, and of giving child abuse and neglect cases high priority. He let the government in the skinflint state of New Hampshire know at the end of a suit to recover $206 in mistaken payments from an indigent that he would not look favorably on similar suits in the future. At Concord Hospital, where he served on the board from 1971 to 1985, he did not object to abortions being performed.

As the week wore on and Souter came to life, he was transmuted from a dazed and gray-faced gnome standing awkwardly beside the tall and tanned Bush into a Yankee original in the mold of astronauts Alan Shepard and Christa McAuliffe and the last Supreme Court Justice to hail from the Granite State, Harlan Fiske Stone. By choosing someone so hard to pigeonhole, indeed, someone from another era, Bush may have created the kind of philosophical gridlock he felt he needed to get his nominee swiftly approved. If Americans are lucky, they will also get the kind of Justice they need -- someone who looks at the law of the land with reverence and the people it governs with respect.

With reporting by Dan Goodgame/Washington and Melissa Ludtke/Boston