Liberals Leery as New Clues Surface on Souter’s Views : Judiciary: But conservatives are comfortable with the nominee’s positions. Senate hearings begin this week.
While many Americans have been on vacation, George Kassouf, an investigator for the liberal Alliance for Justice, has spent the summer scouring courthouses in New Hampshire, looking for footprints of David H. Souter, President Bush’s nominee to the U.S. Supreme Court.
After weeks of poring through judicial files, Kassouf has found the record unrevealing: Although Souter was a trial judge for five years, his decisions rarely contained written opinions. “There’s not much you can glean from these,” Kassouf said.
This week, as the Senate Judiciary Committee begins confirmation hearings on the Souter nomination, Democrats and liberal activists concede that they have not found a fiery speech or a provocative comment in Souter’s past that could fuel a fight against him.
Unlike Judge Robert H. Bork, whose nomination was defeated following contentious Senate committee hearings, Souter has avoided writing law review articles and giving speeches. His court opinions are terse and dry. “There’s not much you can grab onto,” says a Senate staffer who has spent weeks examining Souter’s decisions in New Hampshire.
However, those who have studied Souter’s record no longer are calling him a “blank slate.” Enough bits and pieces of evidence about the nominee’s views have emerged to make liberals leery and conservatives comfortable.
For example, Souter has voiced opposition to many forms of abortion. He dislikes affirmative-action programs, contending that they amount to reverse discrimination. Also, he has vigorously defended New Hampshire’s effort to use the Lord’s Prayer in its public schools.
If Souter proves to be the consistent vote on the right that liberals fear and conservatives relish, his appointment could prove a watershed.
By naming a relatively young conservative to replace the court’s leading liberal, Justice William J. Brennan Jr., the right could put a lock on the Supreme Court for a decade or longer.
Because the 50-year-old Souter has written and said little on constitutional issues, the Senate hearings, which begin Thursday, will see the two parties sharply divided.
Democrats will be pressing Souter to elaborate on his views on privacy, abortion, civil rights, free speech and the role of federal courts. Committee Republicans will argue that the hearing should focus on the nominee’s competence and integrity, not his legal views.
Here are a few, sometimes revealing samples of the new nominee’s views:
ABORTION: In 1977, Souter as state attorney general spoke out against a proposed repeal of an 1848 state law that made abortion a crime--even though the measure had been largely invalidated by the Supreme Court in Roe. vs. Wade.
“Quite apart from the fact that I don’t think unlimited abortions ought to be allowed . . . I presume we would become the abortion mill of the United States,” Souter told the Manchester Union Leader. He warned that women seeking late abortions, which were illegal in several states, would come instead to New Hampshire for their operations.
--The year before, Souter had filed a legal brief arguing that the state should not have to pay for abortions for poor women. Abortion was referred to as “the killing of unborn children” and the “destruction of fetuses.” An assistant attorney general has said that he, not Souter, wrote the brief.
--In 1986, the New Hampshire Supreme Court upheld a woman’s right to sue her doctor because he did not test for potential birth defects and advise her of the option of abortion. In a concurring statement, Souter referred to abortion not as a fundamental right, but as being “necessarily permitted under Roe vs. Wade,” adding that doctors with “moral scruples” against abortion are certainly not required to perform such operations.
CIVIL RIGHTS: In a May, 1976, speech reported in a newspaper account, Souter said he opposed affirmative action, calling it “affirmative discrimination.”
--The same year, New Hampshire was the only state to oppose a U.S. Equal Employment Opportunity Commission rule requiring agencies to report on the race and ethnic makeup of their work force. Appealing to the federal courts, Souter said the EEOC rule could lead to quotas and contended that it was “contrary to constitutional principles.” His appeals were turned down without a hearing.
RELIGION: In 1978, Gov. Meldrim Thomson exhorted state employees to “reverently observe Good Friday” and ordered flags flown at half staff to “memorialize the death of Christ on the Cross.” A federal judge struck down the order as a violation of the First Amendment’s ban on an “establishment of religion.” Souter appealed, arguing that Jesus Christ is a “historical” figure.
“The lowering of the flag to commemorate the death of Christ no more establishes a religious position on the part of the state or promotes a religion than the lowering of the flag for the death of Humbert Humphrey promotes the cause of the Democratic Party in New Hampshire,” Souter wrote.
An appeals court in Boston briefly lifted the order blocking the flag lowering, but Brennan, the man Souter has been nominated to replace, reinstated the order.
--In 1975, the New Hampshire Legislature gave elementary schools the authority to recite “the traditional Lord’s Prayer” each day, despite earlier Supreme Court decisions barring such activity. In a newspaper interview, Souter promised to “do everything we can to uphold the law,” but a federal judge struck it down as “patently and obviously unconstitutional.”
FREE SPEECH: New Hampshire’s auto license plates carry the motto “Live Free or Die,” and Souter argued that state residents “have no alternative” than to display that motto. He fought all the way to the Supreme Court against a Jehovah’s Witness couple who covered over the motto, contending that it violated their religious beliefs and their right to free speech.
The state’s “history, tradition and individualism” demand compliance with this law, Souter said in a 1977 legal brief. The Supreme Court disagreed and ruled for the couple on a 7-2 vote. Souter could take solace from a strong dissent by William H. Rehnquist, now the chief justice.
INTERPRETING CONSTITUTION: Souter has declared himself a believer in the strict “original intent” view of interpreting the Constitution. In 1986, Souter’s four colleagues on the New Hampshire Supreme Court ruled litigants could not be charged a fee by a probate judge because the state constitution says citizens are guaranteed the right to “obtain right and justice freely without being obliged to purchase it.”
Souter dissented alone. He said that phrase should be understood strictly “in the sense in which it was used at the time of its adoption” in 1784. Because private parties often paid judges in the 18th Century, the practice is constitutional now, Souter concluded.
Legal experts have noted that if this style of interpretation were followed by the Supreme Court, the 1954 Brown vs. Board of Education ruling striking down official segregation would be wrong. The decision was based on the 14th Amendment’s guarantee of the “equal protection of the laws,” but segregation was common in 1868 when the amendment was written and ratified.
How much either side will be able to make of these pronouncements remains to be seen, but it is clearly the liberals who are the most worried.
In reports issued last week, the Alliance for Justice and People for the American Way, a civil liberties group that fought the Bork nomination, said Souter’s slim record “raises serious and troubling questions.”
After reading Souter’s work and talking to lawyers during most of August, Kassouf said he formed a strong impression of the nominee: “He’s a technocrat who follows the law, but shows no compassion.”
Conservative legal analysts draw a similar conclusion, but state it differently. Souter’s record “paints a consistent picture of a conservative jurist passionately devoted to the rule of law,” said Thomas L. Jipping, spokesman for Coalitions for America, a conservative group.
“He is, after all, a judge, not a politician,” Jipping said.
Some critics contend that the Judiciary Committee--and the full Senate--should insist on more evidence before deciding whether to approve the nomination.
“Before voting to confirm Judge Souter, the Senate should be fully satisfied that the nominee has a firm commitment to basic constitutional principles,” the report of People for the American Way concluded.
“The record, as it presently stands, does not demonstrate such a commitment,” it said.
White House Chief of Staff John H. Sununu has given conservatives private assurances that Souter is in their camp. The President considered Souter as part of a list with other, more prominent conservatives, Sununu is quoted as saying. “It was a political judgment call on which one we’d be most likely to get through.”
Conservative activist Pat McGuigan, in a memo to his staff, said he complained to Sununu that the White House had passed over several well-known, solidly conservative judges in favor of the virtually unknown Souter. “You’ve hit a bloop single,” McGuigan said.
“Pat, you’re wrong,” Sununu replied. “This is a home run.”