The Obscure Nominee : Abortion: By picking a judicial--as opposed to a political--conservative, Bush may have preserved some elements of Roe vs. Wade.

Not surprisingly, abortion has come to the fore as the test of President George Bush’s Supreme Court nominee, David H. Souter.

Louisiana recently passed a statute banning abortions except in the case of rape, incest, or to save the mother’s life. Although Gov. Buddy Roemer vetoed it, the statute could resurface in another form and could end up on the Supreme Court’s docket in 1992--the eve of the presidential election. Whatever the fate of the Louisiana or any other statute limiting abortion, it is certain that the next court will decide the abortion question for years to come.

Some polls show support as high as 70% for some degree of abortion rights, but the lingering power of “values conservatives” has prevented Bush from endorsing a nominee who holds that view. The challenge to the President was to head off a bruising fight in the U.S. Senate without alienating his base.

The solution was Souter, a New Hampshire State Supreme Court Justice for seven years and a federal judge on the First Circuit for a bare four months. He had not yet participated in any of the circuit’s decisions. His years in New Hampshire provide only the most general hints of his constitutional views, since the New Hampshire court tends not to divide along ideological grounds.

So what are we to make of Souter? By all accounts, he has sterling intellectual credentials and seems to have bipartisan respect, if not support. He is clearly conservative, but apparently not dogmatically so. Indeed, he seems a quaintly old-fashioned sort of judge, free of ideological pre-commitments, conservative with a small “c” in his dedication to tight legal reasoning and scrupulous, rather technical readings of the law.

Souter was apparently deeply influenced by Justice Oliver Wendell Holmes’ philosophy of legal positivism, which held that there was no natural law--law was only that which was handed down by the lawgiver. The role of the judge was to interpret the decrees of the lawgiver, rather than refer to abstract moral principles. The result of such a view is deference to the legislature.

Of course, Souter is a conservative in a conservative era. It may be that like Holmes, a liberal in a progressive era, Souter’s politics are well-served by his philosophy. But his temperament, too, seems to be a cautious one, said to be given to listening carefully to all sides of a conflict. He once answered a question about his views on judicial activism by essentially saying that activism was appropriate in those cases that called for it, and not in those cases that didn’t.

Finally, Souter seems to have an inherent sense of the limits of his power--he primarily seeks to solve the concrete problem in front of him, with a minimum of additional discussion. He is not a man who will aim his rhetoric at posterity. One law professor was quoted as saying of Souter: “He’s against abortion, and I’m sure he thinks Roe vs. Wade was wrongly decided. What is impossible to measure is whether he’s prepared to overturn a Supreme Court precedent. I think his thinking would be that he would not, unless he felt it was egregiously wrong.”

In a 1986 medical malpractice case, Souter joined a unanimous opinion allowing a woman to sue her obstetrician for failing to warn her that a case of measles during her pregnancy had put her in substantial risk of bearing a child with severe birth defects. Had she known, the woman asserted, she would have had prenatal testing and perhaps an abortion. In allowing the suit, the court held that the physician may have violated his duty to his patient.

Souter also submitted a separate concurring opinion, expressing concern over how a physician with moral scruples against abortions could discharge his duty properly. He implied that “timely disclosure of professional limits based on religious or moral scruples, combined with timely referral to other physicians not so constrained” could possibly provide a valid defense.

But because the question of physician’s scruples was not raised in the case before him, Souter made no definite statement on the issue, saying only that it was “a question open for consideration in any case in which it may be raised.”

Clearly, the posture of the abortion cases that come before a Justice Souter will be crucial to the outcome of his decision. He will not decide more than what is there; he will not reach beyond the specific legal question presented in the case.

Souter seems less a man who would overrule Roe than one who will interpret it, in every sense of the word “interpret”--chipping away in some places, and just possibly expanding in others, all depending on the precise constitutional question of the case before him at that time.

If Souter does participate in overruling Roe, it will not be because he himself is opposed to abortion, or because he is a conservative in the voting booth, but because he views Roe as a violation of his strict constructionist ideas. Paradoxically, it is not his politics that liberals should fear, but his legal philosophy. Even Roe proponents concede the legal weaknesses of the decision, and those legal weaknesses would make Roe vulnerable to Souter’s hyper-logical approach.

Alternatively, though less likely, Souter may even be such a strict constructionist that he will be loath to overturn any precedent. The most genuinely conservative aspect of Souter seems to be his steady refusal to exercise judicial power beyond what he deems its proper limits. Curiously, by selecting a judicial conservative--as opposed to a merely political conservative--Bush may have, wittingly or not, preserved at least some elements of the right to abortion.

It may be, of course, that Souter will turn out to be a revolutionary on the court. William J. Brennan Jr., after all, was an appointee of Dwight D. Eisenhower. But the assessment here is based more on Souter’s character than on his politics; after a monastic lifetime of scrupulous caution, it seems unlikely that he will be transformed overnight into a Robespierre.

In one sense, Bush is right in saying that abortion should not be the sole litmus test for a Supreme Court nominee. The more fundamental concern is the importance of the process itself, by which ideas are formed and given their hearing. Souter’s hero Holmes saw this, stating: “A Constitution is made for people of fundamentally differing opinions.” Brennan, when interviewed about the possibility of conservative appointments to the Court, replied, “We’re a democracy. The only way the citizens can have their views felt nationally is through the Congress and the President. That’s our system.”

Souter, it is said, has a true conservative’s deep respect for precedent and institutional integrity. Given the restraint that marks his character, one hopes his hand will not weigh too heavily on any one side of the scales of justice.