Tough Senate Questioning of Souter Urged

Both sides on the volatile abortion issue began to position themselves Tuesday for the upcoming confirmation hearings on the nomination of Judge David H. Souter to the Supreme Court.

Anti-abortion forces were choosing to maintain a low profile, but abortion rights advocates plan to try to persuade the Senate Judiciary Committee to question Souter closely on his position on the issue.

President Bush, meanwhile, told an audience in Philadelphia that “there should be no litmus test in the process of confirmation.”

He added: “My sole priority was to appoint a justice true to the life and the spirit of the Constitution, a priority that I’m confident will also guide the Congress in the confirmation process.”

Douglas Johnson, legislative director of the National Right to Life Committee, said that his organization would not become involved in the confirmation proceedings and would not press senators to ask Souter to make his views on abortion known.

“President Bush has said he is a strict constructionist,” Johnson said. “If he is a strict constructionist, he will vote to overturn Roe vs. Wade.”

Joseph M. Scheidler, executive director of the Pro-Life Action League, a Chicago-based anti-abortion organization, agreed.

“If we do find out anything good, we’re going to have to be real quiet about it, “ he said. “We don’t want a repeat of Judge (Robert H.) Bork,” whose nomination was rejected by the Senate in 1987.

On the other hand, Kate Michelman, executive director of the National Abortion Rights Action League, said: “We feel very strongly that the appropriate line of questioning has to be instituted during the Judiciary Committee hearings so we can determine if Judge Souter openly recognizes the fundamental, constitutional right to privacy and the right to choose abortion.”

She said that her organization’s emphasis will be to convince members of the Senate committee “that it is not only appropriate for them to question this nominee in this area, but it’s their responsibility.”

The National Organization for Women took a similar position. “American women have the right to know where Judge Souter stands on abortion rights,” NOW President Molly Yard wrote in a message to members of the Judiciary Committee. “Our lives are on the line and, for once, in political decision-making, women’s lives must come first,” she wrote. “I urge you to take a leading role in this battle for American women.”

However, several members of the Judiciary Committee said that they doubt such questioning will take place. Specific questions on specific issues would be “inappropriate,” said Sen. Howard M. Metzenbaum (D-Ohio), one of the committee’s leading liberals.

Sen. Arlen Specter (R-Pa.) told his colleagues that it would be “inappropriate” for them to press the nominee on his abortion views because the answers to such questions would require Souter to make a “prejudgment” of the issue.

On the other hand, Majority Whip Alan Cranston (D-Calif.) stressed that the Senate had “a responsibility to the Constitution and to the future generations of Americans” to examine Souter’s record closely. In an apparent reference to the 1973 decision establishing the right to abortion, Cranston said: “A nominee’s views on important issues like not overturning clearly established precedents , the right to privacy and the limits on government powers over the lives of individuals will be key issues.”

Republican Sens. Phil Gramm of Texas and Don Nickles of Oklahoma each gave tentative endorsements to Souter. But Republican Sen. John McCain of Arizona expressed frustration that the President had nominated a low-profile judge, apparently to avoid the kind of blood bath triggered by the nomination of Bork.

“Any first-year law student would tell you his chance of an eventual appointment to the Supreme Court is directly related to the paucity of writing or speaking on controversial issues,” McCain said acidly. “It gives us a largely unknown quantity in appointments to the bench.”

Despite the ambiguity about Souter’s record, two prominent conservative spokesmen who recently had denounced President Bush for shifting to the left called a press conference Tuesday to give their support to Bush’s Supreme Court nominee.

“This is a political change of great consequence,” said David Keene, chairman of the American Conservative Union.

“Today, there’s a sigh of relief,” said Richard A. Viguerie, a right-wing direct mail specialist and head of United Conservatives of America, in summing up conservative reaction to Souter’s nomination. He described the prevailing attitude as “cautious, a little nervous, not quite sure, but generally pretty happy.”

Conservative support was not quite unanimous, however. Peter Flaherty, chairman of the Conservative Campaign Fund, said that “too many unanswered questions” about Souter prevented him from endorsing the nominee.

In a related development, officials at Concord (N.H.) Hospital, where Souter once served as a trustee, said Tuesday that the Supreme Court nominee took part in a policy decision in 1973 to permit abortions at hospital.

Richard Warner, president and chief executive officer of the hospital, said that it was unclear what position Souter took when the decision was made but that the policy has stood unchanged for the 17 years.

The board’s decision was made in February, 1973, one month after the U.S. Supreme Court issued its controversial Roe vs. Wade ruling, which made abortion legal.

“The minutes (of the meeting) do not reflect any conversation, either pro or con, (from Souter) on the decision, and they also do not indicate what the vote was,” Warner said in an interview. “There’s no way to know from the minutes.”

David Rogers, a longtime friend of Souter who served on the board with him, said that he recalled no dissent when the policy was adopted. “I was intimately involved in the whole thing,” Rogers said. “If it had become an issue, I would know.”

Souter served on the hospital board until 1984, the last six years as the board’s president. Rogers was vice president during that period. At the time the abortion decision was made, Souter was 33 and the state’s deputy attorney general.

The fact that the board on which Souter served decided to permit abortions provides virtually no evidence of the nominee’s position on the legal issue of whether the Supreme Court should continue to block states from banning abortions.

Nevertheless, with abortion the leading issue in the debate over President Bush’s choice to replace retired Justice William J. Brennan Jr. on the Supreme Court, virtually any abortion-related event in which Souter played a role is likely to become grist for the confirmation mill. His role at the hospital offers the first clue from a nominee who has thus far remained silent on the issue.

“He and I have never discussed abortion,” Warner said. “The hospital allows a physician to perform an abortion in the hospital. The policy was in place when I got here in 1975. There was never an issue over abortion. Never a discussion. We never got picketed. The board could reverse the policy if it chose to do so. It hasn’t come up in 15 years.”

A second, equally ambiguous, connection between Souter and the abortion issue involves a letter Souter wrote in 1981 as a representative of a panel of state Superior Court judges. The judges had been asked to comment on a proposed state law that would have required girls under 18 to get consent from a parent before having an abortion.

The law would also have allowed a girl who did not have parental consent to seek permission from a judge, who would have the power to authorize an abortion if the judge decided that it would be in the “best interests” of the girl.

Souter told the sponsors of the bill in a letter that members of the judicial panel had asked him to express their opposition to the judicial consent part of the bill because it would force them to make “fundamental moral decisions about the interests of other people without any standards to guide the individual judge.”

Judges have no business making such decisions, he wrote. In addition, the fact that some judges oppose abortions on moral grounds would force women seeking the procedure to go “shopping for judges who would entertain such cases,” making a “consistent application” of the law “impossible.”

Souter’s concern about judges with moral qualms against abortion parallels a decision that he wrote five years later as a New Hampshire Supreme Court judge. In that decision, he concurred with the rest of the court that a woman could sue if a hospital failed to inform her that her child was likely to be born with birth defects, depriving her of an opportunity to consider abortion in such a case. But Souter further expressed concerns about the position of doctors who might object to abortions.

Souter spent part of Tuesday being briefed on Senate procedures by former White House Chief of Staff Kenneth M. Duberstein and White House legislative liaison Frederick D. McClure. Souter also appeared on Capitol Hill for a photo opportunity.

Presidential spokesman Marlin Fitzwater said the Administration had enlisted Duberstein, now a lobbyist, “to serve as a private adviser” to steer Souter through the confirmation process.

Today, when his nomination will formally go to the Senate, Souter will be meeting with key senators in the offices of Majority Leader George J. Mitchell (D-Me.) and Minority Leader Bob Dole (R-Kan.).

Thursday, he plans to make courtesy calls on Senate leaders before going home to New Hampshire for the weekend. He is expected to return to Washington next week to continue preparations for his hearings.

Staff writers John Broder, Paul Houston and David Lauter contributed to this story.