Souter insists his mind is open on Roe vs. Wade

September 15, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court nominee David H. Souter promised senators yesterday that he would keep an open mind on whether the 1973 abortion ruling should be overruled and that he would take a broader view than some conservative justices about recognizing new constitutional rights.

He also seemed to repudiate a statement he made in a speech 14 years ago in which he denounced "affirmative action" -- the civil rights remedy that gives minorities and women special access to jobs and public benefits.

Reminded that he had called that remedy "affirmative discrimination," Judge Souter commented yesterday: "I hope that is not an exact quote, because I don't believe that."

In his second day before the Senate Judiciary Committee, the New Hampshire jurist took a number of increasingly moderate -- and sometimes even liberal -- positions on constitutional issues, surprising some of the senators.

Throughout the day, he repeatedly gave answers that suggested clear contrasts with the strong conservative image that had emerged from his 12 years as a state judge. Sen. Arlen Specter, R-Pa., a committee member, said during a recess that Judge Souter's answers had been "160 degrees away from his opinions" written for the state courts.

The seeming development of a new image for a nominee whose constitutional views were little known before this week was not enough to head off the first efforts at an organized campaign to defeat his nomination -- a campaign that, at this stage, appears to be a long shot.

At the close of yesterday's hearing, several women's rights groups that had held back a decision on his nomination announced that they now were opposed, primarily because he did not endorse abortion rights as a settled constitutional issue.

Dr. Kenneth C. Edelin, chairman of the Planned Parenthood Action Fund, declared to reporters outside the hearing room: "It is unconscionable that Judge Souter considers Roe vs. Wade an open question." Added Kate Michelman, executive director of the National Abortion Rights Action League: "Judge Souter has indicated he believes it [the Roe ruling] is wide open for re-evaluation." The National Women's Political Caucus also joined the opposition movement.

Leaders of those groups vowed to get in touch with their followers around the country, to set in motion plans to lobby senators to vote against the nominee when a final tally is taken late this month or next.

Privately, representatives of the broad civil rights coalition that has been following the Souter nomination expressed doubts that any anti-Souter campaign could succeed, especially in the face of a public televised performance by the nominee that his promoters said yesterday had left senators "stunned" by its warmth and intellectual strength.

The nominee refused many times, as he had Thursday, to say what he thinks of the constitutional principles the Supreme Court had used in 1973 in establishing a constitutional right to abortion. He had a lengthy and at times tense sparring match with Judiciary Committee Chairman Joseph R. Biden Jr., D-Del., but when it was over, he had not revealed his position, and Mr. Biden said he would not bring it up again.

Judge Souter refused even to tell Sen. Edward M. Kennedy, D-Mass., what the nominee's own personal views were about whether abortion was moral or immoral. He said anything he said on the subject would be misunderstood as a signal of how he would vote if the Supreme Court should ever face the issue of overruling or retaining the Roe decision.

Sen. Herb Kohl, D-Wis., also tried to draw him out on the issue, asking whether it was "fair to say" that Judge Souter did have some opinion on Roe vs. Wade. The nominee said, "It would be misleading to say that."

Then, Judge Souter added: "I have not got any agenda on what should be done with Roe vs. Wade, if that case is brought before me [on the Supreme Court]. ... I do not sit here, under oath, having any commitment as to what I would do on the court if that case were brought before me."

Judge Souter revealed for the first time that he was likely to part company with the court's two most conservative members -- Chief Justice William H. Rehnquist and Justice Antonin Scalia -- on the question of when the court should interpret the Constitution to embrace new rights not expressly spelled out in constitutional language.

He said he "could not accept" a position staked out by those two justices in a significant individual rights case last year, where they had declared that no new rights should be accepted if the nation's social traditions did not already establish them in very specific form. Judge Souter said that any "reliable" evidence -- even if quite general -- to support a right as part of the nation's heritage should be enough to support its existence as a part of the Constitution.

In discussing "affirmative action" with Sen. Paul Simon, D-Ill., Judge Souter remarked that, if the nation were ever to have a kind of society in which there were no discrimination, "there will be a need for affirmative action" for a good many years so that victims of discrimination "can take their place in the mainstream."

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