All That Anyone Can Ask For

The Senate Judiciary Committee is expected Thursday to approve the nomination of Judge David H. Souter to the U.S. Supreme Court and send it to the Senate floor. There, his confirmation seems virtually assured.

Thus far, the only serious opposition to Souter’s nomination has come from feminist and other civil rights groups concerned over his refusal to declare his position on any challenge to Roe vs. Wade. To those who hold that reproductive rights are a fundamental human liberty--and The Times is among them--Souter’s reticence on this question is troubling. But, in this instance at least, such anxiety should not be decisive.

Americans invest more confidence in their judges, particularly those on the Supreme Court, than any other people on Earth. We expect them to exhibit “the wisdom of Solomon,” forgetting that in the most celebrated of the cases Solomon adjudicated, he got lucky. If the mother in that famous dispute had been half as lacking in conscience as her opponent, king and litigants would have been left looking at a dismembered baby. But Solomon, having thought deeply on the nature of maternal love, trusted that, at the moment of truth, it would reveal itself.

Historical experience suggests that the selection of Supreme Court justices entails just such an informed leap of faith. Senators must determine whether the nominee holds to humane and legally sound principles of constitutional and human rights, then trust that the future justice will apply them in an intelligent, unbiased and open-minded fashion. To do otherwise would be to return the court to the turbulent days of the 19th Century, when the Senate rejected more than one in four nominees, often for vindictive and venal reasons.

Judge Souter has affirmed his basic belief that “the due process clause of the 14th Amendment does recognize and does protect an unenumerated right to privacy” to which he attaches a “fundamental importance.” Similarly, his other responses mark him as a well-qualified and pragmatic centrist, fully in the mainstream of American legal thought.

At this moment, that is all a Senator, or anyone else, has a right to ask.