The Mind of David Souter

September 18, 1990

It was said at the time of his nomination that Judge David H. Souter was chosen for the vacancy on the Supreme Court because he was "a blank slate." A Republican president chose an unknown so that the Democratic Senate would have no grounds to reject him. A corollary to this theory was that George Bush's chief of staff, John Sununu, knew that fellow New Hampshireman Souter was in agreement with him in opposing abortion.

After three days of listening to Judge Souter before the Senate Judiciary Committee, we would like to offer another theory. President Bush nominated Judge Souter because he has a remarkable legal mind and the proper attitude about what it is that judges do. We believe he is the most deserving and promising nominee in at least a decade. And he is the right nominee at the right time.

In his answers to questions, Judge Souter often quoted with approval Justice John Marshall Harlan (1955-1971). He apparently thinks of himself as a justice in the Harlan mode. Justice Harlan was the intellectual leader of the court for most of his tenure, even though he was often in the minority. He was a brilliant advocate of conservatism's core belief about courts -- judicial restraint. Even though Judge Souter disagrees with some of Justice Harlan's opinions, the fact that he chose him as a role model should make reasonable conservatives comfortable with this nomination.

We see in Judge Souter another conservative jurist of restrained manner and intellectual stature: Lewis Powell (1972-1987). The court has missed Justice Powell the past three terms. That's why we say Judge Souter is the right man at the right time. The most outspoken conservative on the court today is Justice Antonin Scalia, a brilliant intellect whose arrogance and open desire to prevail rather than persuade harm the court's ststure. The David Souter on display in the Judiciary Committee would be a welcome, relatively moderate counterweight in style and jurisprudence. He is no reflex conservative, nor a cartoon conservative of the Ed Meese type, insisting that constitutional cases be decided only on the basis of what the Framers said, when that conforms to the right wing's own modern-day agenda.

Such conservatives are nervous about Judge Souter. Some liberals are even more nervous. That's because he refused to endorse Roe vs. Wade, though he endorsed other landmark decisions involving segregation and apportionment. Doesn't that mean that he doesn't believe having an abortion is a fundamental right? And therefore shouldn't those who value that right oppose him?

Not in our view (and we strongly favor Roe). The decisions Judge Souter endorsed are old and settled law. No one advocates overturning them. Abortion is another matter. The court will be asked to overturn it. A justice should have an open mind on such an issue. The mind on display in the Judiciary Committee is one that we can commend for its openness and its brilliance.

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