Affirmative Action Needed, Souter Testifies

Sounding more like an open-minded moderate than a strict conservative, Supreme Court nominee David H. Souter told senators Friday that he supports affirmative action to aid blacks and other minorities and that he has not made up his mind on the abortion issue.

The New Hampshire jurist also called it “appalling” that public schools once offered daily Christian prayers in a way that excluded Jewish children.

Souter’s performance, which President Bush labeled “masterful,” appeared to quiet most of his critics on the Senate Judiciary Committee.

Several senators said they were surprised that Souter hardly sounded like the dyed-in-the-wool conservative they expected.

“Some of these answers sounded more liberal than Bill Brennan,” said Sen. Arlen Specter (R-Pa.), a reference to Justice William J. Brennan Jr., the liberal justice Souter would replace. “But he’s smart. He knows this stuff cold,” Specter added.

Such comments were among the increasing indications that Souter is likely to overcome objections to his nomination. Democratic Sen. Joseph R. Biden Jr., the Judiciary Committee chairman, seemed to anticipate Souter’s confirmation when he said that “there are a number of issues you’re going to have to confront” as a member of the court.

For the second day of his confirmation hearings, Souter appeared in the same gray suit, to match his gray hair and grayish pallor. Again, he calmly offered detailed legal responses to the committee’s questions. And again, he refused to state a personal or legal view on abortion.

He stumbled only once, near the end of the long day of testimony.

Sen. Edward M. Kennedy (D-Mass.) pressed Souter to admit that he had been wrong, as New Hampshire attorney general in the 1970s, to resist federal moves to abolish a literacy test for voting and to defend the governor’s order to lower flags on Good Friday to honor Jesus Christ.

With some reluctance, Souter conceded his loss in those cases was “the right result for the nation.”

But Kennedy pressed further, wanting Souter to state that he believed the state literacy test should have been abolished. The senator, looking irritated, quoted from a Souter brief saying that allowing illiterates to vote would only “dilute” the votes of the literate.

“That’s a mathematical statement,” Souter replied.

“It’s a what? A statement of math?” said Kennedy, his voice rising. “Poor people, people who work with their hands” should not be denied the right to vote because they cannot read, Kennedy said. “If this is a matter of math with you . . . I find that troubling.”

On that note, the committee adjourned until Monday.

After the hearing, several women’s rights groups announced that they were officially opposing Souter’s confirmation because he had refused to support a right to abortion.

“We strongly urge senators to safeguard the health and lives of millions of American women by withholding their consent,” said Kate Michelman, executive director of the National Abortion Rights Action League.

The Planned Parenthood Federation, the National Women’s Political Caucus and the Alliance for Justice joined in opposition, all citing Souter’s refusal to support a woman’s right to choose abortion.

Because Bush ran for President as a foe of legal abortion, women’s rights activists have assumed that Souter, Bush’s first nominee to the high court, also will oppose a right to abortion. If so, the 50-year-old bachelor could cast the deciding fifth vote to overturn the Roe vs. Wade ruling that grants a woman a right to abortion.

But, despite such widespread speculation, Souter told senators Friday that he had not come to a conclusion on the issue.

“I do not sit here before you under oath having any commitment in my mind as to what I would do if I were on that court and that case (to reconsider Roe) were brought before me,” Souter told the committee. “I have not got any agenda on what should be done with Roe vs. Wade . . . . I would listen to both sides of that case. I have not made up my mind.”

After the 1973 ruling legalizing abortion, Souter sat on the board of a Concord, N.H., hospital that performed abortions. When asked why the board members did not forbid these abortions, Souter replied: “We did not believe it was appropriate to impose those views on the hospital.”

On civil rights and religion, Souter distanced himself from several controversial statements and actions from his years as New Hampshire attorney general.

In 1976, he was quoted as opposing “affirmative discrimination” in favor of racial minorities. On Friday, Souter said that did not reflect his true view.

“There will be a need--and I am afraid for a longer time than we would like to say--a need for affirmative action which seeks out qualified people who have been discouraged by generations of societal discrimination from taking their place in the mainstream of America,” Souter said.

He called it “the obligation of government” and the courts not only to stop discrimination but “to undo it” by giving extra benefits to the “class of individuals” who were harmed.

“That is the judicial obligation to make good on the 14th Amendment,” Souter said of the post-Civil War amendment intended to guarantee equality for blacks.

As a state lawyer, he defended Gov. Meldrim Thomson’s 1978 order to require that flags be lowered to half staff on Good Friday to honor Jesus Christ. Souter said that, if he had been a federal judge, he would have voted to strike down the governor’s order as a violation of the First Amendment.

“It was clear it was an unconstitutional action,” he conceded, adding, however, that he believed it was his duty to defend the state “with utmost vigor.”

In response to a question on school prayer, Souter said it was “an appalling fact” that Jewish children felt excluded when Christian prayers were offered in the public schools. Speaking of a childhood friend from the 1950s who was Jewish, Souter said that “he was cut apart from the rest of his class when the Christian Lord’s Prayer was recited.”

In 1962, the Supreme Court abolished such prayers in the public schools as an unconstitutional “establishment of religion.”

When asked to explain his views on religion and the Constitution, Souter gave a long but somewhat vague response. He refused to endorse Thomas Jefferson’s view that the Constitution requires “a separation of church and state,” noting that this view is disputed by Chief Justice William H. Rehnquist.

The Constitution says also that the government may not infringe on an individual’s “free exercise of religion.” Souter refused to be pinned down on whether the government must have a “compelling reason” before abridging religious activity. For the last 30 years, the Supreme Court had taken that view, but, in March, the justices ruled that religious minorities do not have a constitutional right to violate general laws or government policies.

On other topics, Souter said the following:

--He praised Justice Brennan “as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have. No one following Justice Brennan, absolutely no one, could possibly say a word to put himself in a league with Justice Brennan.”

--When asked if he had ever undertaken a “crusade,” Souter described his efforts to keep casino gambling out of New Hampshire. He said he believed gambling would destroy the special character of the small state and bring in organized crime.

--Said that the individual “liberty” protected by the Constitution is far broader than the specific liberties cited in the Bill of Rights. Most conservative scholars say the Supreme Court should not “create” rights which are not mentioned in the Constitution or the Bill of Rights, but Souter again went out of his way to say that he takes a broader, more liberal view of individual rights.

Committee Chairman Biden, though frustrated by Souter’s refusal to discuss the abortion issue, said the hearings were “going smoothly” for the nominee.

After watching the proceedings on television, Bush told reporters he thought Souter looked “magnificent.”

“My admiration for Judge Souter and respect for him is even higher,” Bush said of his nominee.