Souter: Hopes and Fears

September 28, 1990

"We must fear the worst," Sen. Barbara Mikulski said of her decision to oppose the nomination of David Souter to the Supreme Court. "The lesson of the past decade is that we must vote our fears not our hopes," said Sen. Edward Kennedy, explaining his vote against the nomination in the Judiciary Committee.

With all due respect to these and other liberal Democratic senators who are going to oppose Judge Souter's nomination, we have to ask them if they are not, as Senator Kennedy really suggests, living in the past. This is the Bush administration, not the Reagan administration. The "past decade" is over. A number of President Reagan's nominees produced outrage and opposition because of their meager credentials as lawyers -- or their over-qualification as right wingers. Only one Bush appointee has been seriously challenged on ideological grounds in the past two years. These 74 nominees may not be the Democrats' idea of the best lawyers around, but they have not been a bad lot, even from the liberal perspective.

It is ironic that Democratic senators would base their objection to David Souter on an abortion litmus test, as Senator Mikulski, Sen. Bill Bradley and a few others are doing. In the past decade, the belief that Edwin Meese was subjecting prospective judges and justices to an abortion litmus test was denounced by senators, and properly so. The senators who did that usually said they objected to the idea of a "single issue litmus test." Now it appears some of them weren't so much opposed to the litmus test as to the results of the test. If a nominee favors abortions, then testing is okay.

We believe Judge Souter's overall qualifications are high and that he deserves to be confirmed. We also favor a woman's rights to an abortion as spelled out in Roe vs. Wade, and we hope a Justice Souter would not vote to overturn that decision. His testimony suggested that such a hope is reasonable. He said he believed the Ninth Amendment reserved many unenumerated rights to the people. He said he believed specifically in a constitutional right to privacy. He said he believed in conforming to past decisions in general, and he said he believed judges should consider the pragmatic effect of reversing rulings that had been law for a long time and affected large numbers of people. He said he believed courts must act to safeguard individual rights against legislative bodies.

A justice's vote on a particular issue is often unpredictable, a great unknown. But if we could vote on this nomination, we would have no trouble voting our pro-Roe hopes and not our fears.

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