TIME: Almanac 1993/TIME Almanac 1993.iso/time/092490/0924108.000

Text File | 1992-08-28 | 7KB | 160 lines

                                                                                NATION, Page 46

Supreme Confidence


Souter takes the stand, but declines to state his views on
abortion rights as foes search in vain for reasons to reject
his high court nomination

By HAYS GOREY WASHINGTON -- With reporting by Jerome Cramer/
Washington


    In New Hampshire legal circles, David Souter is renowned for
getting to the bottom line faster than any other judge in the
state's history. In Washington last week, Souter provided
convincing evidence that the accolade is richly deserved. After
two days of sometimes tedious give-and-take between Souter and
the Senate Judiciary Committee, a bottom line was clearly
visible to all: barring unexpected revelations, the committee
lacks a cogent rationale for rejecting President Bush's first
nominee to the U.S. Supreme Court.

    Although women's groups have announced their opposition to
Souter for his refusal to answer specific questions about
abortion rights, the unassuming, reclusive New Englander seems
to have disarmed most of his committee foes. In a baritone
voice, the strength of which belies his slight physique and
reticent demeanor, Souter movingly deflected insinuations that
he is a legal automaton with little regard for the human
condition. As a trial judge, he said, "I learned two lessons:
one, some human life is going to be changed in some way by what
we do . . . and two, therefore, we had better use every power
of our minds and our hearts and our beings . . . to get those
rulings right."

    But the bachelor from Weare, N.H., keenly senses that he has
been chosen by Bush and history to cast perhaps the deciding
vote on whether to overturn Roe v. Wade, the landmark 1973
decision that made abortion legal in all states. He gave scant
comfort to either side on that issue, flatly refusing to
discuss Roe even in the wake of lengthy grilling by committee
chairman Joseph Biden. Though he acknowledged the right of
married couples to privacy, he refused to budge further in
discussing either privacy or abortion rights. When asked whether
he could understand the anguish of a woman facing an unwanted
pregnancy, however, he revealed a personal incident from his
days as a dorm counselor while attending Harvard Law School.
Souter told the committee of spending two hours advising a
student's pregnant girlfriend who was considering a
self-induced abortion. Souter did not say what he recommended,
but indicated that he was fully aware of the human dilemma
posed by such situations. "I remember that afternoon," he said.

    Senate Democrats and abortion-rights advocates in the jammed
hearing room were dismayed when Souter dodged all questions
that might tip his hand on abortion. "It is deeply troubling
that Judge Souter has refused to address the reasoning and
legal approach to the fundamental right of privacy," complained
Kate Michelman, executive director of the National Abortion
Rights Action League.

    Although there was little suspense surrounding the
confirmation process, the stakes could not have been higher.
The departure in July of Justice William Brennan, an
influential liberal, has left the court with a preponderance
of conservatives. Last term, Brennan's vote and persuasive
powers helped the liberals win a number of 5-to-4 victories in
such areas as flag burning, affirmative action, desegregation
and free speech. But if Souter proves to be as rigidly
conservative as some fear, he could swing the court's balance
to the right for perhaps the next quarter-century. His cautious
testimony before the committee last week shed little light on
how he might vote on specific issues. But if he joins the court
for the session beginning Oct. 1, as expected, he will
immediately confront several key cases that will give a clearer
idea of what his career on the high bench portends. Among
them:

    Rust v. Sullivan. A free-speech case, testing whether
federal regulations can prohibit doctors and health-care
providers from discussing abortion as an option for patients.

    United Auto Workers v. Johnson Controls, Inc. An employment
case involving a company's right to prohibit women of
childbearing years from being hired for jobs that could pose
a danger to a fetus.

    Board of Education of Oklahoma City Public Schools v.
Dowell. A desegregation case examining whether a school system
can adopt a neighborhood attendance plan that might result in
resegregation.


    The most pointed questioning during the first day of
hearings came from Massachusetts Democrat Edward Kennedy, who
was harshly critical of Souter's performance as attorney
general of New Hampshire from 1976 to 1978. In that role,
Souter had maintained that the state had no obligation to
provide data on racial discrimination in employment to the
Equal Employment Opportunity Commission, an argument that was
later rejected on appeal and one that the U.S. Supreme Court
refused to review. On behalf of the Governor of New Hampshire,
Souter had also defended a literacy test for voters and argued
that Congress had no authority to invalidate it. In another
case cited by Kennedy, Souter had defended the state's right
to require that flags fly at half-staff on Good Friday, a
practice that was later struck down by a federal judge as a
violation of the separation of church and state.

    But Kennedy's misgivings fell far short of providing a basis
for rejecting the nomination. Souter explained to the panel of
14 Senators that he had served in all these cases as the
Governor's advocate, a role required of the attorney general.
At one point, the hearing room burst into laughter when it
turned out that the argument in one of the cases cited by
Kennedy was signed not by Souter but by his predecessor as
attorney general, Warren Rudman. Now a Republican Senator from
New Hampshire, Rudman has been Souter's foremost supporter and
sat behind him throughout the hearing.

    With his pasty complexion, protruding ears, receding
hairline and somewhat doleful expression, Souter, 51, was as
deceptive in appearance as he was unshakable under pressure.
Alabama Democrat Howell Heflin called Souter a "Stealth
nominee" because so little was known about his views. But other
questioners commented on the variety of his experience -- as
attorney general, trial judge, state supreme court justice,
federal appeals court judge -- and the ample record, including
220 state supreme court opinions, that was available for
scrutiny. Unlike failed nominee Robert Bork, however, Souter
had left behind no trail of speeches or law-review articles
that might betray a strong ideological bent.

    Comparisons with the contentious Bork hearings of 1987 were
inevitable. Observed a committee Democrat: "Bork came before
this committee with enough votes to be nominated. Then he got
people mad. David Souter hasn't made that mistake." It was
clear after the first few hours of testimony that he almost
certainly would not. Biden, at one point, seemed to acknowledge
that confirmation was a foregone conclusion when he referred
to the "eight Justices, whom you'll be joining." The chairman
saw no need to qualify this declaration.