BASED ON two days of impressive testimony Thursday and Friday before the Senate Judiciary Committee, Judge David H. Souter seems to have pretty conclusively established that he should be -- and will be -- confirmed as the 105th justice of the United States Supreme Court.
He established, especially, that he is no Robert Bork -- the haughty ideologue who seemed so eager to become the nation's judicial high priest who would give absolution to the sins of social Darwinism that his patron Ronald Reagan committed for eight years. Nor does Judge Souter see the Supreme Court -- as Judge Bork did -- as "an intellectual feast," as if judging were a parlor game reserved for the professorial elites.
Rather, Judge Souter comes across as sincere, articulate and composed, self-assured yet not arrogant, thoughtful and compassionate, committed to justice. In short, he has that evanescent quality 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 at the bar of justice. I would guess that he will turn out to be a justice in the mold of the second John Marshall Harlan, who, except for some dubious decisions during the McCarthy hysteria of the 1950s, rates among the best justices ever to sit on the court.
Granted, Judge Souter's position on the question of the day -- whether he would uphold the right of a woman to obtain a safe abortion at a reasonable cost -- still remains a mystery. Nevertheless, based on his testimony this week, it seems likely that he would 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 of the heavy hand of the state.
What is the evidence for this expectation? We must follow the line of questions and answers carefully: First, Judge 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.
Pressing on, Sen. Joseph Biden asked the nominee, but what if contraception fails? Should the woman then be permitted to seek an abortion? Judge Souter drew the line here, declining to answer on the ground that this would compel him to state his view on Roe vs. Wade -- in effect deciding without hearing the arguments on an issue that is certain 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 child-bearing age who regard access to safe, legal abortion is the overriding issue of our time. These women could not 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 in one way or the other.
It seems scarcely debatable that it would be best to extend that right through judicial action in order to avoid a patchwork of confusing abortion laws from state to state. If the right must be secured through the legislative process, then so be it. But just remember, there will be many casualties along the way as those 50 battles are fought. It is virtually certain that if Roe vs. Wade had been allowed to stand as settled policy, rather than undermined by a wavering Supreme Court, Frank Kelly would not have lost his seat in the Maryland state senate this week.
Until we accept that women will never give up that right, the intractable issue of abortion will continue to distort and skewer the political process to the exclusion of other issues that are more amenable to the traditional process of compromise, which politics is all about.