Panel Approves Souter; Kennedy Only Dissenter


The Senate Judiciary Committee voted 13 to 1 Thursday to recommend confirmation of New Hampshire Judge David H. Souter to a seat on the Supreme Court, where he is expected to cement a new, more conservative majority.

Only Sen. Edward M. Kennedy (D-Mass.), frustrated by the court’s recent cutbacks in civil rights, voted against Souter.

“I am troubled that, if Judge Souter joins the current closely divided Supreme Court, he will solidify a 5-4 anti-civil rights, anti-privacy majority inclined to turn back the clock on the historic progress of recent decades,” Kennedy said.


Other committee Democrats said that they were troubled by Souter’s refusal to endorse the constitutional right to abortion but concluded that the abortion issue alone was not sufficient reason to oppose him.

Souter “is about the best we are going to get from this Administration,” Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) said.

The full Senate is expected to approve the nomination next week.

Once confirmed, Souter will replace retired Justice William J. Brennan Jr., the architect of many of the court’s liberal rulings on civil rights, abortion, free speech and the separation of church and state.

No one expects Souter to follow in Brennan’s path. He is certain to move the court at least somewhat to the right, and the only question is how far and how fast.

During his three days of testimony earlier this month, Souter impressed the committee as being thoughtful, moderate and well-schooled in the law. He distanced himself from several controversial stands he had taken as New Hampshire’s attorney general and disagreed with the strict brand of conservatism voiced three years ago by failed Supreme Court nominee Robert H. Bork.

Souter, who monitored the committee debate from his New Hampshire home, issued a statement saying that he was “gratified” by the vote. “I will await the decision of the full Senate,” he said.


President Bush, campaigning in Cleveland, called the vote “good news for all who are committed to the Constitution,” and he urged the Senate to approve his nominee quickly.

Souter’s nomination now moves to the Senate floor, where his confirmation is virtually assured. Including Kennedy, only five senators--all Democrats--have said that they will oppose him. Under Senate rules, the nomination may not be called up for a vote until 48 hours after the committee report is filed. Staff aides said that the report probably will be filed Monday.

This means that Souter will miss the Monday start of the new Supreme Court term.

The justices will hear arguments in 12 cases next week and in eight cases the following week. They include closely watched cases on school desegregation, the constitutionality of huge punitive damage awards and the legality of a corporate “fetal protection” policy that excludes women from high-paying but potentially dangerous jobs.

If Souter misses the arguments, he will not be permitted to vote on the cases. However, if the justices split 4 to 4 in any case, they can schedule a second argument later in the year so that Souter can cast the deciding vote.

Souter will join a nine-member court that already has five conservatives: Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, Byron R. White and Sandra Day O’Connor.

Rehnquist, Scalia and Kennedy have supported staunchly conservative positions that could, if endorsed by a court majority, overturn the right to abortion established in the 1973 Roe vs. Wade decision, ban affirmative action in favor of blacks and other minorities or declare that the First Amendment does not require a “separation of church and state.”


But, on occasion, O’Connor and White have balked. For example, O’Connor in 1989 voted with the conservatives to allow states more authority to restrict abortion but refused to join an opinion that would have essentially reversed Roe vs. Wade. White earlier had voted against affirmative action programs created by cities and states, but in June he joined Brennan in upholding a federal policy that gives preferences to blacks and other minorities in awarding contracts.

If Souter aligns himself with Rehnquist, Scalia and Kennedy, he could cement a conservative bloc that could dramatically reshape the law on abortion, religion and civil rights. However, if he follows the more moderate course laid down by O’Connor, the high court probably will continue on a wavering, uncertain path on difficult issues such as religion, abortion, free speech and affirmative action.

Although Souter is likely to be confirmed with more than 90 votes in the Senate, his record will not match those of his recently confirmed colleagues. Scalia was confirmed on a 98-0 vote in 1986, and Kennedy on a 97-0 vote in 1988. Because those two justices have been so staunchly conservative, liberal activist groups in Washington have urged liberal Democrats to vote no on Souter, but his confirmation is not in doubt.