The Price of Independence : Why Souter seems headed for confirmation

Judge David H. Souter has so far failed to inspire either widespread fear or passionate enthusiasm for his candidacy for the Supreme Court of the United States. This means, of course, that he will most likely be approved by the Senate Judiciary Committee, probably as soon as this week. Should final Senate confirmation come as quickly, and as easily, as now expected, it will be a tribute not only to how well this little-known New Hampshire jurist has handled himself at his confirmation hearings but also how well the Bush Administration’s political operatives have handled this nomination. In every sense their operation has been a textbook classic of how to “work” Washington.

Faced with congressional elections in the fall, the Bush handlers did not want another Bork-barrel fiasco on their hands. So they did their homework and found, in Souter, a kind of Stealth candidate with a profile so low that he could scarcely be sighted on enemy political radar. Pro-choice and anti-abortion groups were lying in wait, but Souter wasn’t one for walking into political traps.

On one level Souter’s escape from easy political characterization raises questions that cannot be answered until he is sitting on the High Court, at which point it will be too late to decide whether his answers render him unsuitable for the honor. Some unease also arises over Souter’s socially reclusive bachelor lifestyle and its argued incompatibility with the broader, experienced compassion needed of today’s High Court justice. No doubt some unease also stems from the persistent recollection that, as nominees, Justices Antonin Scalia and Anthony Kennedy both refused to answer abortion questions--and were later to emerge as strong antagonists of the pro-choice ruling Roe vs. Wade. Will Souter do the same?

But please consider the risk of establishing single-issue litmus tests on judicial candidates. These days abortion is an issue of transcending importance. But 10 years from now, when Supreme Court Justice Souter, now 51, is still deciding cases, other issues may vie for the lead role. Moreover, the nation needs to value an independent judiciary in which judges decide cases on their merits and according to the dictates of law and conscience. Any single litmus test is incompatible with such independence.

There are rarely absolute guarantees in life. So as the Senate moves to confirm this nomination, as it should, we can only hope that the new justice will decide difficult cases before him without resorting to ideology, indifference or intolerance. The law should be his guide, but his conscience should be, too.

And so President Bush seems to have dodged another potential political bullet. But he must not push his luck. Should he face the task of nominating another Supreme Court justice some day, he must look farther and wider, not for a Stealth candidate but for a black, or a Latino, or an Asian-American, or a Jew or another woman. With the greatest respect for David H. Souter, who may very well turn out to be a superb jurist indeed, what the High Court needs most is more diversity, not more of the same.