Souter Supports ‘Right to Privacy’ as Hearings Open : Judiciary: But Supreme Court nominee stops short of saying if principle protects a woman’s decision to end a pregnancy. He declines to comment on Roe vs. Wade.

Supreme Court nominee David H. Souter told the Senate Judiciary Committee Thursday that the Constitution gives married couples a “fundamental right to privacy” in matters involving contraception and childbirth, but he refused to say whether this right also protects a woman’s decision to end an unwanted pregnancy.

Speaking in a calm, confident manner, the New Hampshire jurist quickly spelled out a position for himself that differed sharply from that of strict conservatives such as Judge Robert H. Bork, whose nomination to the high court was rejected in a bitter 1987 confirmation battle.

Since the words “privacy” and “abortion” are not mentioned in the Constitution, Bork asserted the Supreme Court has no business striking down laws forbidding the sale of contraceptives or making abortion a crime.

In his first response during the hearing, Souter disagreed with Bork’s approach. “I believe that the due-process clause of the 14th Amendment does recognize and does protect an unenumerated right to privacy,” Souter said. “My concept of an enforceable marital right of privacy would give it fundamental importance.”

But when pressed further by Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), Souter demurred, saying it would be “inappropriate” for him to comment on any aspect of the landmark 1973 Roe vs. Wade abortion ruling and its underlying rationale.

Souter’s comments on privacy highlighted a first day of confirmation hearings during which President Bush’s nominee basked in praise and deftly fended off the few critical inquiries.

Prior to the hearing, Democrats on the panel had said that Souter would win confirmation unless he blundered badly or unless damaging new information was revealed. Neither happened Thursday.

Seated alone at the witness table through the morning session, Souter had the appearance of a shy, diminutive figure who might have been intimidated by the television lights, the huddled photographers before him and the imposing line-up of senators glaring down at him.

But when finally given a chance to talk after the lunch break, Souter handled himself with assurance. Speaking only from three note cards, he told of his small-town boyhood, his education at Harvard and Oxford, his days as a young lawyer aiding clients who could not pay and his years as a trial judge hearing all manner of disputes.

Souter said these experiences showed him that the law deals with real human beings, not just abstract principles. If confirmed to the Supreme Court, he said he will “undertake the greatest responsibility that any judge in our republic can undertake . . . to make the promises of the Constitution a reality for our time and to preserve that Constitution for the generations that will follow us after we are gone from here.”

On several occasions, Souter displayed a quick, dry wit. Hurrying to ask more questions, Sen. Strom Thurmond (R-S.C.) twice cut off Souter after he had delivered a one-line answer. “You are going to turn me into a laconic Yankee,” Souter commented.

The hearing was briefly disrupted when 12 demonstrators, sporting “ACT UP” T-shirts, stood up shouting that Souter would “kill women” and that a “gay or lesbian” should be put on the court. ACT UP is an AIDS advocacy group.

Capitol police said the six men and six women were charged with disrupting a congressional hearing, an offense that can be punished with a six-month prison sentence and a $500 fine.

Much of the questioning stressed the importance of Souter’s nomination and its potential significance for the nation.

Souter would replace the court’s liberal leader, Justice William J. Brennan Jr., and could cast a deciding fifth vote to overrule Brennan decisions on abortion, civil rights, civil liberties, free speech and religion. If Souter serves as long as Brennan, the senators noted, he will leave the Supreme Court in the year 2024.

With Brennan’s departure, the 1973 Roe vs. Wade ruling creating a constitutional right to abortion is clearly in jeopardy, since four of the court’s nine justices already have voted to overrule it. Souter conceded that the abortion case “has been on everyone’s mind and everyone’s lips since the moment of my nomination.”

But to no one’s surprise, he refused to state a clear view on the issue. Instead, Souter took a position that endorses part of what a more liberal Supreme Court decided in earlier rulings, but leaves in doubt his ultimate view on Roe vs. Wade.

In 1965, the court in Griswold vs. Connecticut struck down an archaic state law forbidding the sale of contraceptives on the grounds that the Constitution creates a “fundamental” right to “privacy” for married couples. Conservative scholars complained that the liberals had simply made up a new constitutional right.

In 1973, the court used the Griswold precedent as a basis for declaring that the Constitution also protects a woman’s decision to terminate a pregnancy, a ruling that struck down anti-abortion laws in 37 states.

On Thursday, Souter endorsed the Griswold ruling, but refused to say whether this fundamental right to privacy extends to abortion.

Souter spoke of the Constitution creating “a core of privacy” that puts many intimate decisions off-limits from government control. But he would not say whether he would apply this notion to a situation of unwanted pregnancy.

The significance of the remarks is unclear. Souter’s position appears to differ from Chief Justice William H. Rehnquist, who said in the Webster case that the Constitution did not contain a “fundamental right to privacy.”

But other conservatives, such as Ronald Reagan Administration lawyer Charles Fried, endorsed the “right to privacy,” but said the abortion ruling was wrong. Since abortion involves the killing of an “unborn child,” it is not a privacy matter, Fried argued.

In response to other questions, Souter said he would be reluctant to overturn established court precedents. Before making any such decisions, Souter said he would carefully consider the impact of such a move if millions of Americans have come to rely on a ruling.

After the hearing, women’s rights groups said they were not reassured by Souter’s comments.

“I think he was evasive and elusive on the key issues,” said Judith Lichtman, director of the Women’s Legal Defense Fund. “How do you know what this fundamental right to privacy covers?”

Aides to Biden said the Delaware senator would press Souter further on the privacy issue during today’s hearing.

Meanwhile, in response to other inquiries, Souter said:

--That he was “representing a client,” the conservative governor of New Hampshire, when he challenged federal civil rights regulations in the 1970s. The views expressed in legal briefs were not necessarily his, Souter said, but arguments made on behalf of the state.

--That New Hampshire officials questioned federal civil rights decrees because the state had no history of racial discrimination. In 1973, for example, Souter as an assistant attorney general fought a federal regulation requiring the state to reveal the racial makeup of its work force. Souter said he then believed the regulation was unwarranted and unconstitutional because the state had never been accused of racial bias.

--That the Miranda ruling was a “very pragmatic decision” that spared courts the difficult duty of trying to discern whether confessions were voluntary. Since the high court in 1966 decreed that police officers must inform suspects of their right to remain silent, many conservatives have said the ruling was uncalled for and hindered law enforcement. But Souter said he has not heard any strong argument for overruling the decision.

--That he found “great wisdom” in the move to limit appeals by Death Row inmates. The “seemingly endless appeals” of death sentences in the federal and state courts are a serious problem, Souter said. But he also agreed that states must provide murder defendants with competent lawyers to defend themselves and to file timely appeals.

--That he did not believe in the strict “original intent” style of interpreting the Constitution. Souter said he believes judges should be guided by the “original meaning” of the phrases in the Constitution, but not by the “specific examples” that were considered at the time. For example, the 14th Amendment of 1868 guarantees all Americans “equal protection of the laws.” Souter said he interprets this to mean that blacks cannot be excluded from segregated, public schools, even though segregation was legal in 1868 when the amendment was written.