While Supreme Court nominee David H. Souter sailed through confirmation hearings this week, future Republican nominees may not be so lucky in the Democrat-controlled Senate.
As Sen. Orrin Hatch, R-Utah, a member of the Senate Judiciary Committee said, "I think Souter is a special case. He came out of relative obscurity but clearly showed himself to be an outstanding nominee."That allowed Souter and President Bush to overcome lingering obstacles created by the failed nomination of conservative Robert Bork three years ago. But others may not have the unique characteristics that made Souter's nomination a master stroke.
While Bork's nomination was torpedoed by attacks on his long paper trail of scholarly articles and court decisions that expressed conservative views on abortion and other topics, Souter managed to be a judge for years without addressing such issues.
Neither side in the Senate claims to know exactly where Souter stands on abortion, but he threw out enough hints to somehow satisfy both.
For example, he told liberals how he believes an unwritten constitutional right to privacy exists, upon which pro-abortion cases have rested. He also voted as a trustee of a hospital to allow it to perform abortions.
He also told about when he was a counselor to freshmen at Harvard of counseling the pregnant girlfriend of one of his charges not to give herself an abortion, and how that helps him realize the trauma of such situations. He did not say whether he encouraged her to take the pregnancy to full term.
To conservatives, he questioned whether the right of privacy would even give unmarried people a fundamental right to use contraceptives. Of course, he was also nominated by conservative Bush upon recommendation by his conservative chief of staff John Sununu and conservative Sen. Warren Rudman, R-N.H.
Souter easily justified not giving a direct answer about abortion, saying it is not ethical to comment about cases that he will likely hear.
"Is there anyone who at some point made up his mind on some subject and then later found reason to change or modify? We all have," Souter explained. "It is much easier to modify an opinion if one has not already stated it to someone else.
"With that in mind, can you imagine the pressure that would be on a judge who had stated or seemed to have given a commitment in these circumstances to the Senate of the United states, and for all intents to the American people, and understand the compromise that would place on judicial capacities?"
Souter's pleasant personality and intelligence also allowed him to avoid another of Bork's mistakes: becoming gruff and combative during days of grilling by senators.
Instead of calling it grilling, Souter even referred to it as "a dialogue" and handled it much as he would an oral exam in graduate school. He joked and seemed to have fun under fire. Senators could not help liking him - which Hatch said is actually crucial to confirmation.
Souter is also a Rhodes scholar with a law degree from Harvard who can reason quickly and has a vast knowledge of case law. He used that to diffuse attacks by critical senators without belittling them - a rare quality.
Some senators tried attacking Souter claiming positions he argued as attorney general of New Hampshire were discriminatory. He merely said he was acting as a lawyer representing a client, and the system demands both sides of an issue have advocates to argue well their cause. He also said as a judge he would rule against many of the positions he advocated.
Hatch and committee Republicans also pointed out that all lawyers represent clients whose actions they may not like, and none would be left to serve on the Supreme Court if lawyers are disqualified for that.
Some senators also tried attacking Souter, saying the 51-year-old wealthy bachelor likely couldn't empathize with the needs of lower classes. So Souter told of his free legal work for the poor, his hospital work and the long list of charities to whom he contributes.
In other words, Bush found just the man needed to surmount problems that Bork could not: a pleasant, charity-giving legal genius who has been a judge for years without giving opinions on abortion. There may not be many like him.
That's why when questioned if he expects more little-known nominees such as Souter in the future, Hatch says, "I suspect that will not be the rule for future nominations. I feel that there will be some very controversial nominations made."
And they will not have hearings as easy as Souter's.