Supreme Confidence

By HAYS GOREY WASHINGTON

In New Hampshire legal circles, David Souter is renowned for getting to the bottom line faster than any other judge in the state's history. In Washington last week, Souter provided convincing evidence that the accolade is richly deserved. After two days of sometimes tedious give-and-take between Souter and the Senate Judiciary Committee, a bottom line was clearly visible to all: barring unexpected revelations, the committee lacks a cogent rationale for rejecting President Bush's first nominee to the U.S. Supreme Court.

Although women's groups have announced their opposition to Souter for his refusal to answer specific questions about abortion rights, the unassuming, reclusive New Englander seems to have disarmed most of his committee foes. In a baritone voice, the strength of which belies his slight physique and reticent demeanor, Souter movingly deflected insinuations that he is a legal automaton with little regard for the human condition. As a trial judge, he said, "I learned two lessons: one, some human life is going to be changed in some way by what we do . . . and two, therefore, we had better use every power of our minds and our hearts and our beings . . . to get those rulings right."

But the bachelor from Weare, N.H., keenly senses that he has been chosen by Bush and history to cast perhaps the deciding vote on whether to overturn Roe v. Wade, the landmark 1973 decision that made abortion legal in all states. He gave scant comfort to either side on that issue, flatly refusing to discuss Roe even in the wake of lengthy grilling by committee chairman Joseph Biden. Though he acknowledged the right of married couples to privacy, he refused to budge further in discussing either privacy or abortion rights. When asked whether he could understand the anguish of a woman facing an unwanted pregnancy, however, he revealed a personal incident from his days as a dorm counselor while attending Harvard Law School. Souter told the committee of spending two hours advising a student's pregnant girlfriend who was considering a self-induced abortion. Souter did not say what he recommended, but indicated that he was fully aware of the human dilemma posed by such situations. "I remember that afternoon," he said.

Senate Democrats and abortion-rights advocates in the jammed hearing room were dismayed when Souter dodged all questions that might tip his hand on abortion. "It is deeply troubling that Judge Souter has refused to address the reasoning and legal approach to the fundamental right of privacy," complained Kate Michelman, executive director of the National Abortion Rights Action League.

Although there was little suspense surrounding the confirmation process, the stakes could not have been higher. The departure in July of Justice William Brennan, an influential liberal, has left the court with a preponderance of conservatives. Last term, Brennan's vote and persuasive powers helped the liberals win a number of 5-to-4 victories in such areas as flag burning, affirmative action, desegregation and free speech. But if Souter proves to be as rigidly conservative as some fear, he could swing the court's balance to the right for perhaps the next quarter-century. His cautious testimony before the committee last week shed little light on how he might vote on specific issues. But if he joins the court for the session beginning Oct. 1, as expected, he will immediately confront several key cases that will give a clearer idea of what his career on the high bench portends. Among them:

Rust v. Sullivan. A free-speech case, testing whether federal regulations can prohibit doctors and health-care providers from discussing abortion as an option for patients.

United Auto Workers v. Johnson Controls, Inc. An employment case involving a company's right to prohibit women of childbearing years from being hired for jobs that could pose a danger to a fetus.

Board of Education of Oklahoma City Public Schools v. Dowell. A desegregation case examining whether a school system can adopt a neighborhood attendance plan that might result in resegregation.

The most pointed questioning during the first day of hearings came from Massachusetts Democrat Edward Kennedy, who was harshly critical of Souter's performance as attorney general of New Hampshire from 1976 to 1978. In that role, Souter had maintained that the state had no obligation to provide data on racial discrimination in employment to the Equal Employment Opportunity Commission, an argument that was later rejected on appeal and one that the U.S. Supreme Court refused to review. On behalf of the Governor of New Hampshire, Souter had also defended a literacy test for voters and argued that Congress had no authority to invalidate it. In another case cited by Kennedy, Souter had defended the state's right to require that flags fly at half-staff on Good Friday, a practice that was later struck down by a federal judge as a violation of the separation of church and state.

But Kennedy's misgivings fell far short of providing a basis for rejecting the nomination. Souter explained to the panel of 14 Senators that he had served in all these cases as the Governor's advocate, a role required of the attorney general. At one point, the hearing room burst into laughter when it turned out that the argument in one of the cases cited by Kennedy was signed not by Souter but by his predecessor as attorney general, Warren Rudman. Now a Republican Senator from New Hampshire, Rudman has been Souter's foremost supporter and sat behind him throughout the hearing.

With his pasty complexion, protruding ears, receding hairline and somewhat doleful expression, Souter, 51, was as deceptive in appearance as he was unshakable under pressure. Alabama Democrat Howell Heflin called Souter a "Stealth nominee" because so little was known about his views. But other questioners commented on the variety of his experience -- as attorney general, trial judge, state supreme court justice, federal appeals court judge -- and the ample record, including 220 state supreme court opinions, that was available for scrutiny. Unlike failed nominee Robert Bork, however, Souter had left behind no trail of speeches or law-review articles that might betray a strong ideological bent.

Comparisons with the contentious Bork hearings of 1987 were inevitable. Observed a committee Democrat: "Bork came before this committee with enough votes to be nominated. Then he got people mad. David Souter hasn't made that mistake." It was clear after the first few hours of testimony that he almost certainly would not. Biden, at one point, seemed to acknowledge that confirmation was a foregone conclusion when he referred to the "eight Justices, whom you'll be joining." The chairman saw no need to qualify this declaration.

With reporting by Jerome Cramer/Washington