Senators, public weigh Judge Souter's expressed moderation at hearings

September 16, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Judge David H. Souter takes his seat in front of the nation again tomorrow as increasingly inquisitive senators and a TV audience try to settle whether they are watching a man likely to become a dominant -- and surprisingly moderate -- figure on the Supreme Court of the future.

Back for a third day before the Senate Judiciary Committee -- coincidentally, on his 51st birthday, Judge Souter already has emerged as a judicial nominee considerably different from what many senators had expected.

The word around the Senate and in much of Washington for weeks had been that he was so reserved as to be almost withdrawn, a figure as conservative in his constitutional philosophy as he was in his personal habits, a thin and obscure man who had made a mark only on the hamlets and smaller cities of New Hampshire -- a nominee, in short, who would take years to make a mark on the Supreme Court.

After two days of hearings, the senators have been revising the profile. Sen. Warren B. Rudman, R-N.H., Judge Souter's friend of 20 years who has sat right behind him throughout the senators' questioning (something a nominee's Senate sponsor ordinarily does not do), said of his colleagues' general reaction: "They're stunned."

What "stuns" them, according to Mr. Rudman, is the breadth of Judge Souter's knowledge about the law, the scope of his wit and sense of humor, and the daylong display of poise, control and self-confidence. Hour after hour, he sits alone at the witness table, answering questions with no briefing books in front of him (only a note pad he seldom uses), no one whispering answers into his ear.

Said an aide to a liberal senator, with undisguised admiration: "He is incredibly well prepared."

Senators, including some of the skeptical Democrats on the committee, have shown easily detectable fascination with the ease of his answers and the sweep of his legal scholarship.

Although on the stand for prolonged periods, he has seemed not to tire. Near the end of the hearings on Friday, however, his poise seemed to falter in an electric exchange with Sen. Edward M. Kennedy, D-Mass.

The nominee's seeming success in two days on the stand has created a corridor mood of spreading woe among the platoon of civil rights lobbyists who have been openly concerned that Judge Souter would not be sympathetic to their side in major constitutional cases -- no matter what position he has taken in his answers.

Some of the most significant members of the country's civil rights coalition -- the American Civil Liberties Union and the Leadership Conference on Civil Rights -- are split internally over how to react to the nomination and have been unwilling to join the slowly developing coalition of opposition.

With Judge Souter answering questions in the way he did frequently on Thursday and Friday, it appeared likely that the holdouts would stay on the sidelines -- thus deepening the impression that Judge Souter cannot be stopped, unless he somehow embarrassed himself or was embarrassed deeply in his remaining time as witness.

What appears to be "stunning" some of the senators, if not the civil rights lobbyists, is the degree to which Judge Souter has been separating himself from his strongly conservative image.

He has given the impression that the senators and the nation are seeing an intellectually ambitious judge who -- if he is in fact a moderate -- could be leading a new middle-road bloc on the court to rival the strong, deeply conservative leadership of Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Justices Anthony M. Kennedy and Sandra Day O'Connor are mostly conservative, too, but they have not been willing to follow the Rehnquist-Scalia lead routinely. Both of them appear likely to be attracted to a more independent bloc that could include Judge Souter, and perhaps even Justice John Paul Stevens. Justice Stevens often tends to be liberal, but lately has shown increasing signs of moderating.

Judiciary Committee member Sen. Arlen Specter, R-Pa., a philosophical moderate himself, watched with what he said was growingamazement on Friday as Judge Souter answered questions from committee conservative Sen. Charles E. Grassley, R-Iowa -- answers that, Mr. Specter noted, made Mr. Grassley noticeably uncomfortable.

"Some of this guy's answers," said Mr. Specter later, "make him more liberal than Bill Brennan!" Justice William J. Brennan Jr., whose retirement created the vacancy for which Judge Souter was nominated, for years had been the court's dominant liberal leader and philosopher.

No one since Justice Brennan's retirement has praised him more highly than did Judge Souter on Friday. He remarked: "Justice Brennan is going to be remembered as one of the most fearlessly principled guardians of the American Constitution we've ever had, or ever will have. No one following him -- absolutely no one -- could say anything to put himself in the league with Justice Brennan."

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