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- <text id=90TT2517>
- <title>
- Sep. 24, 1990: Supreme Confidence
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1990
- Sep. 24, 1990 Under The Gun
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- NATION, Page 46
- Supreme Confidence
- </hdr>
- <body>
- <p>Souter takes the stand, but declines to state his views on
- abortion rights as foes search in vain for reasons to reject
- his high court nomination
- </p>
- <p>By Hays Gorey/Washington--With reporting by Jerome Cramer/
- Washington
- </p>
- <p> In New Hampshire legal circles, David Souter is renowned for
- getting to the bottom line faster than any other judge in the
- state's history. In Washington last week, Souter provided
- convincing evidence that the accolade is richly deserved. After
- two days of sometimes tedious give-and-take between Souter and
- the Senate Judiciary Committee, a bottom line was clearly
- visible to all: barring unexpected revelations, the committee
- lacks a cogent rationale for rejecting President Bush's first
- nominee to the U.S. Supreme Court.
- </p>
- <p> Although women's groups have announced their opposition to
- Souter for his refusal to answer specific questions about
- abortion rights, the unassuming, reclusive New Englander seems
- to have disarmed most of his committee foes. In a baritone
- voice, the strength of which belies his slight physique and
- reticent demeanor, Souter movingly deflected insinuations that
- he is a legal automaton with little regard for the human
- condition. As a trial judge, he said, "I learned two lessons:
- one, some human life is going to be changed in some way by what
- we do...and two, therefore, we had better use every power
- of our minds and our hearts and our beings...to get those
- rulings right."
- </p>
- <p> But the bachelor from Weare, N.H., keenly senses that he has
- been chosen by Bush and history to cast perhaps the deciding
- vote on whether to overturn Roe v. Wade, the landmark 1973
- decision that made abortion legal in all states. He gave scant
- comfort to either side on that issue, flatly refusing to
- discuss Roe even in the wake of lengthy grilling by committee
- chairman Joseph Biden. Though he acknowledged the right of
- married couples to privacy, he refused to budge further in
- discussing either privacy or abortion rights. When asked whether
- he could understand the anguish of a woman facing an unwanted
- pregnancy, however, he revealed a personal incident from his
- days as a dorm counselor while attending Harvard Law School.
- Souter told the committee of spending two hours advising a
- student's pregnant girlfriend who was considering a
- self-induced abortion. Souter did not say what he recommended,
- but indicated that he was fully aware of the human dilemma
- posed by such situations. "I remember that afternoon," he said.
- </p>
- <p> Senate Democrats and abortion-rights advocates in the jammed
- hearing room were dismayed when Souter dodged all questions
- that might tip his hand on abortion. "It is deeply troubling
- that Judge Souter has refused to address the reasoning and
- legal approach to the fundamental right of privacy," complained
- Kate Michelman, executive director of the National Abortion
- Rights Action League.
- </p>
- <p> Although there was little suspense surrounding the
- confirmation process, the stakes could not have been higher.
- The departure in July of Justice William Brennan, an
- influential liberal, has left the court with a preponderance
- of conservatives. Last term, Brennan's vote and persuasive
- powers helped the liberals win a number of 5-to-4 victories in
- such areas as flag burning, affirmative action, desegregation
- and free speech. But if Souter proves to be as rigidly
- conservative as some fear, he could swing the court's balance
- to the right for perhaps the next quarter-century. His cautious
- testimony before the committee last week shed little light on
- how he might vote on specific issues. But if he joins the court
- for the session beginning Oct. 1, as expected, he will
- immediately confront several key cases that will give a clearer
- idea of what his career on the high bench portends. Among
- them:
- </p>
- <p> Rust v. Sullivan. A free-speech case, testing whether
- federal regulations can prohibit doctors and health-care
- providers from discussing abortion as an option for patients.
- </p>
- <p> United Auto Workers v. Johnson Controls, Inc. An employment
- case involving a company's right to prohibit women of
- childbearing years from being hired for jobs that could pose
- a danger to a fetus.
- </p>
- <p> Board of Education of Oklahoma City Public Schools v.
- Dowell. A desegregation case examining whether a school system
- can adopt a neighborhood attendance plan that might result in
- resegregation.
- </p>
- <p> The most pointed questioning during the first day of
- hearings came from Massachusetts Democrat Edward Kennedy, who
- was harshly critical of Souter's performance as attorney
- general of New Hampshire from 1976 to 1978. In that role,
- Souter had maintained that the state had no obligation to
- provide data on racial discrimination in employment to the
- Equal Employment Opportunity Commission, an argument that was
- later rejected on appeal and one that the U.S. Supreme Court
- refused to review. On behalf of the Governor of New Hampshire,
- Souter had also defended a literacy test for voters and argued
- that Congress had no authority to invalidate it. In another
- case cited by Kennedy, Souter had defended the state's right
- to require that flags fly at half-staff on Good Friday, a
- practice that was later struck down by a federal judge as a
- violation of the separation of church and state.
- </p>
- <p> But Kennedy's misgivings fell far short of providing a basis
- for rejecting the nomination. Souter explained to the panel of
- 14 Senators that he had served in all these cases as the
- Governor's advocate, a role required of the attorney general.
- At one point, the hearing room burst into laughter when it
- turned out that the argument in one of the cases cited by
- Kennedy was signed not by Souter but by his predecessor as
- attorney general, Warren Rudman. Now a Republican Senator from
- New Hampshire, Rudman has been Souter's foremost supporter and
- sat behind him throughout the hearing.
- </p>
- <p> With his pasty complexion, protruding ears, receding
- hairline and somewhat doleful expression, Souter, 51, was as
- deceptive in appearance as he was unshakable under pressure.
- Alabama Democrat Howell Heflin called Souter a "Stealth
- nominee" because so little was known about his views. But other
- questioners commented on the variety of his experience--as
- attorney general, trial judge, state supreme court justice,
- federal appeals court judge--and the ample record, including
- 220 state supreme court opinions, that was available for
- scrutiny. Unlike failed nominee Robert Bork, however, Souter
- had left behind no trail of speeches or law-review articles
- that might betray a strong ideological bent.
- </p>
- <p> Comparisons with the contentious Bork hearings of 1987 were
- inevitable. Observed a committee Democrat: "Bork came before
- this committee with enough votes to be nominated. Then he got
- people mad. David Souter hasn't made that mistake." It was
- clear after the first few hours of testimony that he almost
- certainly would not. Biden, at one point, seemed to acknowledge
- that confirmation was a foregone conclusion when he referred
- to the "eight Justices, whom you'll be joining." The chairman
- saw no need to qualify this declaration.
- </p>
-
- </body>
- </article>
- </text>
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