Souter concludes testimony for Senate, leaving impression he will be confirmed

September 18, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court nominee David H. Souter finished answering senators' questions yesterday, with no sign that what he said had made significant trouble for himself as the Senate prepares to move toward a vote in coming weeks.

In three days of calm, deliberate and sometimes wide-ranging testimony, Judge Souter apparently gained the probable support of a sizable majority on the Senate Judiciary Committee.

His critics, centered largely in the women's rights movement, conceded privately in hallway conversations that Judge Souter stood to get the votes of 12 or more members of the 14-member committee. No date has been set for a vote in the committee or in the full Senate.

The key to his chances reportedly lies in the reaction of moderate Democrats. One such committee member, Sen. Dennis DeConcini of Arizona, told Judge Souter yesterday:

"I am very impressed with your presentation. ... I believe you will be confirmed to sit on the court. You have been forthcoming."

Sen. Arlen Specter, R-Pa., told the nominee: "A lot of people have already decided that your nomination process is over." Judge Souter said diplomatically that he did not "necessarily have that feeling."

The judge's challengers have not yet had their chance before the committee. They are to appear in a series of panels today and possibly tomorrow. The theme expected to run through their testimony is that Judge Souter has not given assurances that he would vote as a justice to maintain women's right to abortion.

Among the witnesses will be Norma McCorvey, the woman whose case became Roe vs. Wade, the 1973 ruling establishing abortion rights. She was involved in that case anonymously, using the name "Jane Roe."

While Judge Souter answered almost all questions put to him by senators about any other issue, he refused throughout to give his reaction to the Roe decision or to offer any reliable hints of what he would do if the court were faced with the issue of retaining or overruling that decision.

He did comment yesterday on what it would mean if the decision were overturned -- but even that remark got him into instant trouble with abortion-rights supporters.

Asked by Sen. Patrick J. Leahy, D-Vt., about the practical consequences of casting Roe aside, Judge Souter said that that would shift the issue entirely to state legislatures, resulting in "a considerable variety in the scope of protection afforded or not afforded."

He said the resulting differences in laws could pose a new constitutional controversy, but he did not say what that might be.

Eleanor Smeal, president of the Fund for a Feminist Majority, promptly said that he had not answered about "the impact on real people. ... Souter saw it as a cold, detached and theoretical discussion."

Sen. Edward M. Kennedy, D-Mass., later asked Judge Souter directly what he thought the impact on women would be if the Roe decision were overruled. The nominee did not answer directly, saying that Mr. Kennedy's question suggested that no system of regulation could be enforced because women would insist on a complete "right to choose."

Earlier in the day, Judge Souter did give one hint of the complexity he foresaw for the court in making up its mind about Roe.

He told Sen. Gordon J. Humphrey, R-N.H., who had complained that the Roe decision gave rights only to pregnant women and none to fetuses, that the constitutional controversy required the court to engage in "weighing different interests." Thus, he indicated, the court in deciding abortion cases had felt obliged to deal with "the right of the mother" and implied that that would remain a key factor.

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