Souter passes the test

September 14, 1990

Based on David H. Souter's testimony in his initial appearance before the Senate Judiciary Committee yesterday, we believe that Judge Souter should be -- and will be -- confirmed as the 105th justice of the United States Supreme Court.

Clearly this man is no Robert Bork -- the haughty ideologue so eager to become the judicial high priest who would give absolution to the social Darwinism that his patron Ronald Reagan pursued. Nor does Souter see the Supreme Court -- as Bork did -- as "an intellectual feast," as if judging were a parlor game to be played by professorial elites.

Rather, Souter comes across as articulate and composed, self-assured yet not arrogant, thoughtful and compassionate. In short, he has what is called "a judicial temperament" -- the mien and manner that would reassure an ordinary citizen caught up in the arcane world of the law that he or she would get a fair shake.

Granted, Souter's view on the burning question of the day -- whether he would uphold the right of a woman to secure a safe abortion at a reasonable cost -- still remains unknown. Nevertheless, based on what he said yesterday, we believe that there is a strong likelihood he would vote to uphold the 1973 case of Roe vs. Wade, which established a fundamental constitutional right of women to make their own decisions regarding reproduction without interference from the heavy hand the state.

Why do we believe this? We must follow the line of questions and answers carefully: First, Souter stated unequivocally that he believes there is a "fundamental right of privacy" in the Constitution which gives married couples the freedom to practice birth control. This signals his agreement with the 1965 case of Griswold vs. Connecticut, which nullified state anti-contraception laws -- and which provided the legal precedent for Roe vs. Wade eight years later. Pursuing the line of questioning, Sen. Joseph Biden then asked Souter: What if contraception fails? Should the woman then be permitted to seek an abortion?

Souter stopped at this threshold, declining to answer on the ground that this would compel him to state his view on whether Roe vs. Wade should be overruled -- in effect deciding, without hearing the arguments, an issue which is likely to come before him as a justice. Nevertheless, it logically follows that if he would uphold the Griswold case, he would also uphold the Roe case.

This analysis, of course, will not entirely reassure the millions of American women of childbearing age who regard access to safe, legal abortion as the overriding social and political issue of our time. These women could care less whether that right is established constitutionally, through the judiciary, or politically, through the legislatures, but they are determined to see that right established one way or the other. Until we recognize that these women are not going to give up that right, the intractable issue of abortion will continue to distort and skewer the political process to the exclusion of so many other issues that are more amenable to the traditional process of compromise that politics is all about.

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