Low-Key Style May Be Challenged
SUPREME COURT: SOUTER HEARING
SUPREME Court nominee David H. Souter heads into Senate confirmation hearings tomorrow barely any better understood than when President Bush plucked him from the somewhat obscure United States Court of Appeals for the First District and thrust him into the national spotlight two months ago. The LEXIS service (a data base on legal matters) was bombarded with a 600 percent increase in computer searches of New Hampshire court files in July as the media, legal community, and Senate staff began digging for clues to the workings of Judge Souter's legal mind.
But the Senate Judiciary Committee still finds itself having to craft questions it hopes are air-tight enough to force Souter to say what the record doesn't: how he might rule on controversial issues of the day - such as abortion, church-state separation, and civil rights.
Most observers say that if Souter and the Bush administration handlers who have drilled him in mock hearings have their way, he won't offer prejudgments on issues he hasn't confronted in court before.
``He's going to get confirmed,'' says Tom Korologos, a Capitol Hill lobbyist who was handled numerous court nominations for Republican administrations. ``But it's not going to be a piece of cake. They've got to dig deeper into who this person is.''
But both Republican and Democratic observers say the atmosphere for the Souter confirmation hearings, expected to last through next week, is already significantly more favorable than that of his immediate predecessors.
A drawn-out hearing is less likely than in other situations, since the Senate is facing a major budget battle as well as the the military crisis in the Mideast, suggests Ronald Collins, a visiting associate professor of law at the Catholic University of America.
Though many liberal groups have voiced concern about the Souter nomination, only the National Organization for Women has opposed him.
And last week, the American Bar Association's judicial screening panel gave Souter its unanimous top rating of ``well qualified.''
``We've all been frustrated by this type of nomination. ... He was chosen because he apparently had no record,'' says Kate Michelman, executive director of the National Abortion Rights Action League.
Ms. Michelman has pushed for Senate Judiciary Committee Democrats to ask Souter directly if he recognizes a woman's right to an abortion.
Souter's ``antiseptically bland and unedifying background on the fighting issues of the day'' is his ``out'' on such direct questioning, says Bruce Fein, a conservative constitutional scholar. ``He'll state he has an open mind on all issues that he hasn't confronted before and resist comment.''
Other than helping Souter ``bone up on constitutional law'' and review tapes of previous confirmation hearings, the Bush administration is not advising the nominee at all on how to respond to any legal questions, insists Fred McClure, assistant to the president for legislative affairs.
Souter had been a federal judge for only two months before being nominated for the Supreme Court, and thus had no significant record on the federal bench. His record as New Hampshire attorney general and state supreme court judge is full of work-a-day state court opinions on criminal law cases, wills, contracts and workers' compensation. He has left only the slightest of paper trails that would hint about his judicial philosophy on more telling legal issues of the day, say those who have studied his record.
Media dissection of his ascetic personal life - which suggests a provincial but well-read bachelor outdoorsman given to wry humor - has raised questions about the limited range of his human experience while indicating little about the way the man thinks legally.
Some often-cited signposts of Souter's conservative leanings include: his argument as state attorney general that the federal Voting Rights Act unconstitutionally abolished the state's literacy test; a 1976 speech in which he called affirmative-action programs ``affirmative discrimination,'' and an advisory opinion he signed while on the state supreme court that said the state would not violate the state or federal constitutions if it barred homosexuals from becoming foster or adoptive parents.