Career and Writing Give Few Clues to Positions on Day’s Major Issues : Record: Souter as a state judge seldom has been called on to handle the questions that form the major part of the U.S. Supreme Court’s work.

The record of Judge David H. Souter’s 24-year legal career to date shows a man with strong, generally pro-prosecution, views on criminal law but virtually no stated positions on any of the major issues currently dividing the Supreme Court.

Souter’s record is contained almost exclusively in his more than 200 published decisions from the New Hampshire Supreme Court. He has not yet written any opinions as a federal appeals court judge. And, in sharp contrast to Robert H. Bork, whose extensive writings were a fount of controversy during his confirmation hearings in 1987, he has written only one law review article--a eulogy to a former New Hampshire judge.

A preliminary review of Souter’s record indicates only one case that even touches on the abortion issue. The 1986 decision, written by one of the other judges on the court but joined by Souter, held that doctors have an obligation to test for birth defects if there is reason to consider the fetus at risk and to inform pregnant women of the results.

That information might lead the woman to abort the pregnancy, the court acknowledged, noting that “we recognize that the termination of pregnancy involves controversial and divisive social issues” but that “the Supreme Court of the United States has held that a woman has a constitutionally secured right to terminate a pregnancy.”

Having joined the opinion, Souter then wrote separately to express concern over how the ruling might affect doctors with moral or religious scruples against abortion. Those physicians, he noted, should not have to choose between “rendering services that they morally condemn and leaving their profession in order to escape malpractice.”

However, he added, doctors in that position might be able to fulfill their ethical obligations if they simply referred patients to another obstetrician.

As a state court judge, Souter seldom has been called on to handle the sort of federal constitutional questions that form the major part of the Supreme Court’s work. The one area in which there is substantial overlap between the two is in criminal law. There Souter, like nearly all the current members of the high court, generally has taken a narrow view of the protections the Constitution affords defendants.

In a 1985 case, for example, he was the only member of the New Hampshire court to vote in favor of the state’s use of random roadblocks to catch drunken drivers. All other members of the court ruled that the roadblocks violated the Constitution’s ban on unreasonable searches.

Earlier this year, however, the U.S. Supreme Court sided with Souter, ruling that roadblocks pass constitutional muster.

One of Souter’s more controversial criminal law decisions involved a New Hampshire state law designed to shield rape victims from questions about their sexual histories. Souter wrote a unanimous opinion that gave the shield law a narrow interpretation.

The defendant in the case argued that the woman accusing him of rape had, in fact, consented to sex after the two had spent much of the afternoon together in a bar. His lawyers wanted the jury to consider statements by witnesses who said the woman had repeatedly made sexual advances to other men in the bar that day.

The trial judge ruled that the state “shield law” barred the jury from considering that evidence. Souter disagreed, saying that barring the evidence would deny the defendant a fair trial. The decision was criticized by women’s organizations but praised by civil libertarians.

A second controversy involved Souter’s defense, as state attorney general in 1978, of former Gov. Meldrim Thomson’s decision to fly the flag at half staff over state office buildings on Good Friday. Souter argued that Thomson had ordered the flag flown to honor Jesus as a “historical figure” rather than as a religious one. The federal courts did not accept that argument and Thomson was barred from implementing his plan.

Whether Souter’s argument reflected his own views on separation of church and state or whether he was merely representing Thomson is unclear.

During his time on the state high court, Souter had few occasions to rule on civil rights issues. In one case involving gay rights, he struck a compromise--saying that the state could prohibit homosexuals from adopting children or becoming foster parents but could not bar homosexuals from running day-care centers.

Souter tangled with environmental groups--and may have endeared himself to Sununu--in the long-running controversy over the Seabrook nuclear power station in New Hampshire. In 1977, as attorney general, he vigorously prosecuted demonstrators who had occupied the Seabrook site in an unsuccessful attempt to keep the plant from being built.

Sununu was one of Seabrook’s strongest supporters. On the other side of that issue, however, as attorney general he challenged part of the federal government’s 1976 decision to grant Seabrook a license, arguing that federal regulators had not taken sufficient care to protect safety.

In 1986, he was part of a 3-2 state Supreme Court majority that allowed the main owner of Seabrook to sell bonds needed to complete the plant despite objections by the state’s consumer advocate and environmental groups.

NEXT STEP

Under the U.S. system of separation of powers, it is the President’s job to choose Supreme Court nominees and the Senate’s role to confirm or reject them. President Bush’s nomination of David H. Souter now goes to the Senate, where a simple majority vote is required for confirmation. Twenty-seven high court nominees in the nation’s history have failed to win Senate confirmation. Most recently, the Senate in 1987 blocked President Ronald Reagan’s appointment of Robert H. Bork to fill a vacancy created by the retirement of Justice Lewis F. Powell Jr. Reagan’s second choice, Douglas Ginsburg, withdrew after disclosing that he had smoked marijuana. The Senate then confirmed Reagan’s third pick, Anthony M. Kennedy.