COLUMN RIGHT : How to Win a Seat on the Court : A successful nominee now espouses a little bit of privacy and lot of originalism.

David Souter’s confirmation testimony sheds light on the kind of judicial philosophy now likely to pass muster with a confirming Senate. And here the news is far better for conservatives than liberals.

Since the confirmation battle over Robert Bork, the great concern of Senate liberals has been judicial protection of an unenumerated right of privacy. So it was that the first question of the hearing on Souter’s nomination to the Supreme Court came from Sen. Joseph R. Biden Jr. (D-Del.) and went to the privacy issue. “I believe,” Souter immediately responded as though reciting a holy creed, “that the due-process clause of the 14th Amendment does recognize and does protect an unenumerated right of privacy.” A delighted Biden interrupted apologetically to say he liked “what you are saying.”

Robert Bork never said that, and that was one reason he was not confirmed. Anthony M. Kennedy, by contrast, embraced an unenumerated privacy right. That position paved the way for his confirmation, just as it did for Souter’s. Commitment to an unenumerated right of privacy is the Senate’s litmus test in the post-Bork era.

Conservatives nervous about a Supreme Court nominee’s acceptance of rights not found in the text or history of the Constitution ought to relax, especially after reflecting upon the nuances of Souter’s position. Souter took care not to accept the results in any of the modern privacy decisions, including those striking down laws prohibiting the use of contraceptives (Griswold vs. Connecticut) and restricting abortion (Roe vs. Wade). And the only kind of unenumerated right of privacy he specifically endorsed lies in the marital context. Souter, it bears noting, did not endorse privacy in the sense of “lifestyle” autonomy, the bedrock concern of many liberals.

Souter thus is positioned to line up with Justice Byron R. White, a prospect conservatives can hardly refuse to applaud. White was in the majority on Griswold in 1965 but dissented in and now is poised to overturn Roe. And he wrote the court’s opinion in a 1986 case, Bowers vs. Hardwick, declining to extend the right of privacy to homosexual sodomy.

One irony of the Souter hearings is that the amount of time spent on the unenumerated right of privacy is inverse to the amount of time the court devotes to the subject. The court has few such cases, outside of abortion. Once that troubled area of the law is healed, preferably through the demise of Roe, the court will be even less pestered by privacy claims. It helps, of course, that justices appointed by Reagan and Bush now dominate.

There is another irony of the Souter hearings, one that ought to delight conservatives. The vote against Bork, it used to be said by liberals, was also a vote against the approach to constitutional interpretation he espoused--original intent. But Souter accomplished nothing less than the rehabilitation of this philosophy.

Originalism has been rudely caricatured in a way Justice William J. Brennan Jr. helped encourage. In a 1985 speech, Brennan described original intent as the view “that justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case.” Brennan called this “arrogance cloaked as humility.”

Throughout his testimony Souter repeatedly characterized himself as an originalist, but took care to show that his was not the straw-man’s version. Souter plainly stated that he would repair to text and history to discern original principles but that the application of these principles cannot be confirmed to the specific objects in the minds of the Farmers.

Irony of ironies, this was Bork’s view. “It is the modern judge’s task,” he wrote in 1985, “to determine whether (a constitutional) right applies to circumstance that did not even exist in contemplation when the Framers acted. He cannot confine himself to the specifics they had in mind, for to do so would make rights dwindle when, for example, technology changed.”

It has become a cliche to say that Souter is about the best conservatives or liberals could hope for. But his testimony suggests that the politics of judicial nominations heavily favors conservatives. Other things equal, a little bit of privacy and a lot of originalism, in tension as those things may be, now constitute the judicial philosophy that make a nominee into an appointee.

Despairing liberals in and out of the Senate might respond to this by trying to impose more than a minimal privacy test on future nominees. They would be better advised to quit their unrewarding effort to leverage the court’s jurisprudence from the halls of the Senate. Strange as it is to have to state the obvious, if liberals do not want a conservative court, they are going to have to elect a liberal President.