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Bush Names Appellate Judge to Brennan Seat
Conservative's Slate Blank on Abortion

By Ruth Marcus and David S. Broder
Washington Post Staff Writers
Tuesday, July 24, 1990

In his first appointment to the Supreme Court, President Bush yesterday chose a little-known conservative jurist with impeccable credentials who is so new on the federal appeals court that he is still working out of a temporary office.

A Rhodes scholar and Phi Beta Kappa graduate of Harvard College and Harvard Law School, David H. Souter was confirmed as a judge on the 1st U.S. Circuit Court of Appeals in April, and has no published opinions so far.

But Souter is no stranger to important Republican officials -- including White House Chief of Staff John H. Sununu, the former governor of New Hampshire, and Sen. Warren B. Rudman (N.H.), a former state attorney general -- and his judicial philosophy generally appears to be that of the "strict constructionist" Bush said he would appoint to the court.

Souter served as Rudman's deputy, was appointed attorney general in 1976, and named a state superior court judge in 1978. When Sununu nominated him to the New Hampshire Supreme Court in 1983, Rudman described him as "the finest constitutional lawyer" he had ever known.

Sununu, for his part, said in administering the oath of office to Souter that "when I'm old and gray, people will say, 'This is one of the greatest things you did as governor.' "

Souter caught the attention of Attorney General Dick Thornburgh and other Justice Department officials brainstorming about possible nominees in the event of a high court vacancy when he was interviewed in connection with the 1st Circuit seat.

Later, Thornburgh telephoned a mutual friend, New Hampshire Republican State Sen. Susan McLane, and said "he'd never met anyone he liked so much, and thought some day he should go on the Supreme Court," McLane said yesterday.

Last weekend, after the resignation of William J. Brennan Jr. created the first Supreme Court vacancy of the Bush administration, Thornburgh's suggestion began to come true.

Rudman said yesterday that White House Counsel C. Boyden Gray tracked down Souter in his chambers in the federal courthouse in Concord Saturday and asked him to come to Washington.

"I suppose I should," Souter told Rudman afterwards, and the New Hampshire senator told him to pack a suitcase and he would drive him to the airport.

Rudman said that Souter's nomination "is like having your younger brother on the court, we're so close." He described his friend as "a brilliant intellectual, a classic conservative intellectual in the deepest sense of the word. He can't be classified as an ideologue in any way, shape or fashion."

He said Souter "does not have an agenda of his own. He is not someone who is coming to establish his viewpoint on a particular issue."

Tom Rath, another friend and former New Hampshire attorney general, said Souter "believes the words in the Constitution mean what they say. . . . He believes social policy should be made in the legislature, but he believes very much the judiciary should protect the rights of individuals."

But Rudman, Rath and other close friends interviewed yesterday said they had never discussed with Souter the issue that is certain to receive the greatest scrutiny during the nomination process: his views on the existence of a constitutional right to abortion and the legitimacy of the controversial Roe v. Wade decision in which the justices established such a right.

"I don't think anyone can tell how he feels on abortion," said Concord attorney Richard Upton, a former speaker of the state house and former president of the New Hampshire Bar Association. "I think it's known only to him and God."

During his years on the New Hampshire bench, Souter never ruled directly on the abortion question. In a 1986 decision involving a woman who sued her doctor for failing to advise her on the risks of birth defects when she was exposed to German measles during her pregnancy, Souter signed on to a majority opinion that described abortion as involving "controversial and divisive social issues" but said, "Nonetheless, the Supreme Court of the United States has held that a woman has a constitutionally secured right to terminate a pregnancy."

It followed from the Roe v. Wade decision, the court said, that the pregnant woman had the right to seek "information and advice that may affect the exercise of that right."

In his concurring opinion, Souter raised the issue of how a doctor "with conscientious scruples against abortion, and the testing and counselling that may inform an abortion decision, can discharge his professional obligation without engaging in procedures that his religious or moral principles condemn."

He suggested that doctors facing such a dilemma should be permitted to refer the case to other physicians without such moral reservations.

"I think he believes very much in stare decisis," the principle that the court should be reluctant to overrule its precedents, said Malcolm McLane, a Concord lawyer and the husband of Susan McLane, an abortion rights activist.

"By the time a clear Roe v. Wade case reaches him, it will have been 20 years, and I'd be surprised if he voted flatly to overturn a precedent of that age," said Malcom McLane, who interviewed Souter for the Rhodes scholarship.

Although Souter later joined his law firm, McLane said, "it turned out he really didn't want to practice law. I think even then he wanted to be a judge. The nitty gritty of the daily practice was a little disappointing."

The son of a Boston banker who chose the slower pace of New Hampshire life after developing heart trouble, Souter, 50, still lives on the family farm in rural Weare, near Concord. Friends describe him as a polite, reserved man who likes to hike the Appalachian Trail, study New Hampshire history, collect books and devour the volumes that clutter his living room.

"It looks like someone is moving a bookstore and has stopped," Souter told the Associated Press in a 1983 interview.

If friends are not available to hike New Hampshire's White Mountains, Souter said in the interview, "I'm very happy to go off alone."

Souter's fellow justices on the New Hampshire Supreme Court kidded him about his old, battered cars, and his complaints about costly electric bills, said Rep. Chuck Douglas (R-N.H.), a former justice.

"Do you have any electric lights at all, or are you still reading by candlelight?" he recalled Souter being asked.

During New Hampshire's bitter winters, McLane said, Souter eschews an overcoat and wears only a scarf, a practice since his Oxford days.

Souter is "reserved almost to the point of shyness, but it masks a delightful sense of humor," Rath said.

As attorney general under Gov. Meldrim Thomson, a frequently controversial conservative, Souter prosecuted anti-nuclear activists arrested for occupying the Seabrook nuclear power plant. Seeking harsh penalties for those convicted, Souter called the Seabrook occupation "one of the most well-planned acts of criminal activity" in U.S. history.

He also defended Thomson's order to fly flags on public buildings at half-staff on Good Friday -- blocked by a federal court on the grounds that it violated the separation of church and state. Souter, arguing against the court order, said Thomson sought to recognize Jesus as a "historical figure" without endorsing Christianity and that the order therefore had a "secular" purpose.

On the state supreme court, he generally voted against criminal defendants but in 1988 reversed a sexual assault conviction on the grounds that the trial court should have let the jury consider evidence about the rape victim's "sexually provocative" behavior in the hours before the assault.

He said the jury could have believed that evidence of the woman's "openly sexually provocative behavior toward a group of men" was "evidence of her probable attitude toward an individual within the group." In the case, the man accused of rape asserted that the woman consented to sexual intercourse.

Souter dissented when the court outlawed random police roadblocks to administer blood-alcohol level tests as a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures.

In an advisory opinion for the state house of representatives, he joined other members of the court in ruling that an ordinance to prohibit homosexuals from adopting children or providing foster care would not violate the Constitution. The court said the "provision of appropriate role models" for children was a legitimate government purpose.

But Souter also concurred in the court's finding that another provision barring homosexuals from operating child care agencies would violate the constitutional guarantee of equal protection. The court said the exclusion of homosexuals from that role was irrational because they are not with the children enough to justify excluding them as role models.

Mitchell Simon, a former lawyer at New Hampshire Legal Assistance, a legal aid group, said that although his side "didn't win in a whole lot" of cases before Souter, "my feeling was that he gave us a fair hearing."

Simon said Souter is an "aggressive" and well-prepared questioner on the bench.

"His questions are pointed, he knows what he wants to point out, and he demands that attorneys be totally prepared and conversant with the law," he said. "He doesn't tolerate any sloppiness."

Staff writers Helen Dewar and John E. Yang contributed to this report.

Born: Sept. 17, 1939, in Melrose, Mass.

Education: B.A., Harvard University, 1961, LL.B., 1966; Rhodes scholar, Oxford University, 1961-63.

Bar: New Hampshire.

Professional: Associate with the firm Orr & Reno in Concord, N.H., 1966-68; assistant attorney general of New Hampshire, 1968-71; deputy attorney general, 1971-76; attorney general, 1976-78; associate justice, Superior Court of New Hampshire, 1978-83; New Hampshire Supreme Court, 1983-90; U.S. Court of Appeals for the 1st Circuit, April 1990-present.

Religion: Episcopalian

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