Souter Ends Testimony--Confirmation Likely : Supreme Court: Senators praise the nominee, but his views on key issues such as abortion remain a mystery.

Supreme Court nominee David H. Souter wrapped up his Senate testimony Monday after portraying himself as a judicial moderate and virtually assuring his confirmation to the high court.

Democrats and Republicans on the Judiciary Committee before which he appeared agreed on two points: Souter’s performance had been splendid and they had no idea how he would rule on most divisive questions, such as abortion.

“Many of us aren’t sure what you are going to do on these litmus test issues,” said Sen. Orrin G. Hatch (R-Utah), during the third and final day of the testimony. “You have walked a very fine line,” added Hatch, a conservative and a critic of the Roe vs. Wade ruling that made abortion legal.

Souter, who celebrated his 51st birthday Monday, talked about law and legal philosophy but did not tell the committee how he would rule on issues such as religion, free speech, civil rights or abortion.

Instead, in a series of carefully crafted answers, he portrayed what kind of judge he is and what kind he is not.

Simply put, Souter told the committee that he is not Robert H. Bork, a rigid ideological conservative whose nomination was rejected in 1987. In speeches and articles, Bork had contended that the high court was flatly wrong in dozens of rulings over the previous 30 years. By contrast, Souter voiced general support, or at least acceptance, for most of the prevailing doctrines.

And, on at least half a dozen occasions, Souter invoked the name of Justice John Marshall Harlan as his model. A highly regarded and scholarly moderate-conservative, Harlan served on the high court from 1955 to 1971.

During the 1960s, Harlan served on the liberal and path-breaking court and became its conservative conscience. He frequently dissented from innovative rulings such as the Miranda decision, which required police to tell criminal suspects of their right to remain silent. Harlan accused his colleagues of exceeding the bounds of their authority and making social policy.

However, in areas of individual rights and privacy, Harlan often joined his more liberal brethren. He cast the decisive fifth vote in 1965 to rule that a state may not forbid married couples to buy contraceptives. This decision in Griswold vs. Connecticut became the basis for the 1973 Roe ruling.

On Monday, Souter said that he would “follow Justice Harlan’s approach of looking to the history and tradition of the American people”--and not just to the strict language of the Constitution--before deciding whether an individual right should be protected.

Last week, Souter said that he believes the Constitution ensures married couples “a right to privacy” in matters involving child bearing. In response to a question Monday, Souter said that unmarried couples have the same right.

He refused again to talk of his personal views on abortion, but said that his opinions would not prevent him from ruling fairly on an abortion case. “I can deal with these issues,” he said.

Asked about the potential impact of overturning the Roe decision, Souter said: “Whatever the court does, someone’s life, thousands of lives, will be affected and that fact must be appreciated.”

By the end of the hearings, none of the 14 committee members had said that they would oppose Souter and most praised him. However, committee Chairman Joseph R. Biden Jr. (D-Del.) noted that he had not made up his mind.

On Tuesday, the committee will hear testimony from several panels of witnesses, including abortion rights activists who say that Souter should be rejected.

Souter will have to wait “two or three weeks” before a final decision is made, said Biden. First, the full Judiciary Committee will vote on Souter’s nomination, probably next week. Then, the nomination will be sent to the Senate floor.

Souter almost certainly will miss the opening of the Supreme Court’s fall term, which begins Oct. 1. If the eight current justices are evenly split on any of the 12 cases to be argued in the first week, those cases can be reargued after Souter’s presumed arrival at the court.

In answers to questions Monday, Souter made these points:

--He said that he does not agree with retiring Justice William J. Brennan Jr. that the death penalty is unconstitutional as “cruel and unusual punishment.” In his most definite response, Souter called that view “an insupportable constitutional conclusion. That is an opinion I could not join.” Among the current justices, only Justice Thurgood Marshall views capital punishment as absolutely unconstitutional.

--In an indirect way, Souter endorsed the court’s controversial ruling that upheld flag burning as an expression of free speech. He was asked if the court should uphold individual rights, even when they are as “unpopular” as the right to burn the American flag. It is the court’s duty to uphold constitutional rights of the minority, he replied. “If that were not the case, there would be no need to have a Bill of Rights,” he added.

--Asked about Bork’s statement that upholding the rights of one person necessarily takes away from the rights of another, Souter said he disagreed. “I’d rather have a right to do something, rather than a right to stop someone else,” he said.

--He pledged that he would not casually overrule civil rights precedents. The panel asked him about a series of 1989 rulings which reversed 20-year-old interpretations, thus making it more difficult to win job discrimination claims. Souter said that such long-held interpretations generally “have a very, very strong claim of precedent” and should not be overturned.