High Court Moves Into a New Era : Is Nominee ‘Fuzzed Up’ Enough on Abortion Issue?

President George Bush’s nomination of New Hampshire Appeals Court Judge David Souter to succeed Justice William J. Brennan Jr. on the U.S. Supreme Court marks the beginning of a new and uncertain era in constitutional law.

If he is confirmed by the Senate, the 50-year-old Republican jurist is expected to solidify a youthful majority that probably will endure beyond the turn of the century--although once on the bench, justices can surprise ideologues of all stripes. But the tenor of his confirmation hearings--and what they reveal about the quality of the President’s choice--will be an important signal of whether the White House and the Senate’s leaders understand their responsibility to ensure that the country’s passage into a new era is no more dislocating than necessary.

The judicial epoch that came to an end with Brennan’s resignation--the era of the Warren Court--is something of a model in this regard. Because of its duration, people tend to forget just how gradually those justices asserted their views.

Brennan and the late Chief Justice Earl Warren had been together on the court for almost a decade before they handed down the majority of their many landmark decisions. In the interim, they not only had laid a legal foundation for their theory of constitutional interpretation, but also had witnessed the emergence of a social and political consensus that obliged the court to attack the mountain of unresolved issues that had piled up during the previous decades of self-imposed judicial passivity.

At present, no such consensus exists. The Republicans have controlled the Executive Branch for a decade, while the Democrats’ power over both houses of Congress appears unshakeable. In the unending controversies over the so-called social issues, public opinion polls reveal a deeply split, increasingly polarized polity; on the most contentious of these issues--abortion, for example--the President’s party is divided against itself.

Those were the plain facts that Senate Minority Leader Bob Dole had in mind Sunday, when he bluntly warned that if Bush sent the Senate a nominee “who wants to overturn Roe vs. Wade, it’s going to be a blood bath.” With the distasteful experience of Ronald Reagan’s failed attempt to put conservative ideologue Robert Bork on the court still fresh in everyone’s mind, Dole’s assessment seems on the mark.

On Monday Bush said he had felt it “inappropriate” to inquire about Souter’s views on Roe vs. Wade . In one case three years ago, Souter, then a New Hampshire Supreme Court justice, concurred in a ruling that doctors have a professional responsibility to test for birth defects and inform pregnant women of their option to obtain an abortion.

In his concurrence, however, Souter sought to delineate the decision’s impact on physicians opposed to abortion. “The court does not hold that some or all physicians must make a choice between rendering services that they morally condemn and leaving their profession in order to escape malpractice exposures,” he wrote.

Thus, the nominee may meet the criteria set by one White House aide, who said last weekend that the President was looking for someone whose position on Roe vs. Wade is “a little fuzzed up.”

But what the country requires in a Supreme Court justice is not fuzziness, but fairness. Whatever his principles, the country requires someone who, like Justice Brennan, can put the parochial predilections of creed and class aside in fidelity to the common good.