Justice Brennan, Judge Souter and Supreme Court

Appellate Judge David H. Souter’s “little-knownness” came abruptly to an end on July 23, when President Bush chose him for the Supreme Court vacancy. Souter is now a public figure with all that that entails, and although he has much going for him, the sheer weight of which may see him through the Senate confirmation hearing, he also has two counts against him.

The first count is that the President asked congressional leaders for their views and suggestions, but before they could buzz their secretaries and say, “Take a letter,” the President announced his choice. This questionable haste will not sit well with those who took his request seriously, and it will fan the animus of the President’s adversaries.

The second count is more fundamental: Souter’s stand on abortion is known; there is nothing “fuzzed up” about it. He is anti-abortionist John Sununu’s choice rather than the President’s. Moreover, Judge Souter has made his position clear. He says that with respect to issues that have not been resolved “by black-letter authority or existing precedents, (a justice’s) decision must honor the distinction between personal and judicially cognizable values.” Which is to say, as Robert Bork once said, that if Roe vs. Wade were a new issue before him as a member of the court, he would not find in the Constitution, although he might or might not in his personal predilections, any ground for holding, as Roe vs. Wade holds, that the privacy of a woman ends, and the person of a fetus begins at the end of the second trimester of pregnancy.

Issues like abortion and affirmative action--indeed, school prayers, busing, flag burning--are not trivia. They are fundamental and divisive issues that sooner rather than later will find explicit definition in the Constitution. And if they are not put there by action of the Congress and the states, as prescribed in the Constitution, they will be put there by judicial fiat, as has happened too often in the past.

WILLIAM L. MOORE

Hemet