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Souter Conservative Mindset, Careful Jurist
Nominee's Legal Opinions Offer No Insight Into His Views on Abortion, Civil Rights

By Ruth Marcus
Washington Post Staff Writer
Thursday, July 26, 1990

During his seven years on the New Hampshire Supreme Court, David Hackett Souter wrote more than 200 opinions reflecting the grab bag of issues that are the staple of state supreme courts -- focused more often on mundane and technical legal issues than questions of sweeping constitutional magnitude.

When John and Margaret Ogonowski of Pelham tore down their one-car garage and put up a two-car structure in its place, Souter ruled in favor of their neighbors who claimed they had violated local zoning laws.

In a slip-and-fall case involving a building leased by the state welfare department, he said the state was not subject to being sued. He decided real estate disputes, contract fights, divorce battles and child-support cases -- for example, whether a laid off USAir pilot was responsible for paying his daughter's freshman-year expenses at Middlebury College.

His opinions offer neither ringing rhetoric about the importance of constitutional rights nor slashing attacks on current constitutional jurisprudence.

In that, President Bush's selection of Souter for the Supreme Court reflects a dramatic change from former president Ronald Reagan's failed nomination of Robert H. Bork, who in his judicial rulings and academic writings had expressed an opinion -- often negative -- on the state of nearly every aspect of modern constitutional law.

Souter, in contrast, has only one published law review article -- a tribute to a New Hampshire Supreme Court justice. His views on specific issues -- particularly abortion and civil rights -- are a cipher, and likely largely to remain so through the confirmation process.

Confronted with a nominee essentially unknown outside his home state, conservative and liberal activists alike were scrambling yesterday, speed-reading cases to glean a sense of the man tapped to take the place of retired Justice William J. Brennan Jr.

A rapid review of his legal opinions and other statements reveals a conservative mindset, especially in the criminal law area, and a careful jurist who painstakingly slogs through the precedents in order to decide each case.

Brennan has been an ardent advocate of state courts adopting expansive readings of their own constitutions as the Supreme Court cuts back on its interpretation of federal constitutional guarantees; Souter has shown little or no inclination to employ the New Hampshire Constitution to such ends.

Souter, appointed three months ago to the federal appeals court in Boston, outlined his legal philosophy in an interview in 1976, when he was serving as the state attorney general. "The more we allow language to be debased, the more free-swinging we are in our interpretation of legal language, the greater risk we run of having the public perceive our actions as arbitrary and personal, not grounded in the constitutional process," he said.

New Hampshire lawyers familiar with Souter's judicial philosophy said he would adopt a narrow reading of constitutional protections but predicted he would not be a firebrand on the court eager to overrule cases with which he disagrees.

"He does not come at a case from a strictly policy point of view," said James Duggan, the state's chief appellate defender. "His approach generally has been based on history and precedent, and he sort of takes those as sacred texts from which he moves forward in time to the present case."

Duggan, who has lost the vast majority of his cases before Souter, said the jurist is generally not "real impressed" with most arguments about illegal police conduct.

"If there's an established precedent around and if the cops have violated it, he'll throw the evidence out, but short of that he's not going to go out and create new rules to have evidence excluded at trial," he said.

A case in point is State v. Coppola, in which Souter refused to throw out a burglary defendant's incriminating statement to police.

"I'm not one of your country bumpkins," the defendant, Vincent Coppola, told Epsom, N.H., police, when they sought to question him. "I grew up on the streets of Providence, Rhode Island. And if you think I'm going to confess to you, you're crazy."

Souter rejected Coppola's argument that his "taunt to police" was tantamount to an invocation of his constitutional right to remain silent and therefore could not be used against him.

Last year, a panel of the federal appeals court in Boston -- including the judge whose seat Souter was soon to take -- effectively reversed that ruling.

The court said Souter's reasoning "amounts to a rule of evidence whereby inference of consciousness of guilt will trump a Fifth Amendment claim of the privilege {against self-incrimination}. Under the reasoning of the New Hampshire court, any pre-arrest invocation of the privilege, no matter how worded, could be used by the prosecutor."

At his confirmation hearings in April, Souter told Sen. Edward M. Kennedy (D-Mass.), who chaired the session, that he simply disagreed with the 1st Circuit's interpretation in the case.

For those mining Souter's record for evidence of his willingness to overturn precedents -- particularly the 1973 Roe v. Wade decision that legalized abortion, a 1988 ruling may offer some clue.

As state attorney general in 1977, Souter lost a case in which the New Hampshire Supreme Court ruled that proof "beyond a reasonable doubt" was required for involuntary civil commitment. The state argued in that case that such a high standard "weights the scale too heavily in favor of the individual interest in liberty, to the detriment of the state's interest in ensuring that dangerous persons receive treatment and do not harm others."

The court rejected that contention, saying, "We, however, perceive a beneficent impact on society flowing from the protection of individual liberty."

When the same issue came up in 1988, Souter was on the court and wrote the opinion overturning the 11-year-old precedent. He said he was bound to do so because of a 1984 amendment to the state constitution imposing a clear and convincing standard in cases involving commitment of criminal defendants acquitted by reason of insanity.

"Henceforth the petitioner's burden of proof in commitment proceedings . . . shall be that of clear and convincing evidence," Souter said.

But Souter in a 1989 case refused the state's invitation to overrule a decade-old case requiring proof beyond a reasonable doubt that a defendant had waived his rights against self-incrimination, saying the state had not properly raised the issue.

Conservatives scrutinizing Souter's record expressed what Richard Samp of the Washington Legal Foundation described as "cautious optimism that he will be all that he has been billed to be, which is a strict constructionist who's not going to read things into the Constitution that aren't there."

But conservative legal scholar Bruce Fein said Bush, by appointing "a question mark," was running a risk. "He sacrificed clear and certain conservative jurisprudential principles in exchange for an easy Senate confirmation that neither conservatives nor liberals can oppose," Fein said.

Criminal Law

State v. Coppola, 1987. Ruling that defendant's statement to police that he will not confess may be admitted into evidence: "By describing his choice as a refusal to confess, he implied that he had done something to confess about. It was this implication that took the defendant's retort outside the realm of allusion to the fifth amendment and affirmatively indicated his consciousness of guilt." State v. Koppel, 1985. Dissenting opinion from ruling finding drunk driving roadblocks unconstitutional: "Contrasting this significant public benefit {deterring drunk drivers} with the minimal private intrusion, I conclude that the roadblocks in question did not result in unreasonable seizures."

First Amendment Petition of Chapman, 1986. Concurring opinion on constitutionality of state bar's use of mandatory dues to oppose "tort reform" legislation: "A lawyer's interest in freedom to choose or to reject membership in a bar association parallels an employee's interest in freedom to decide whether to belong to a labor union. . . . I am left to conclude that use of the petitioner's dues for certain of the lobbying identified in the majority opinion violates his first amendment rights."

Abortion Smith v. Cote, 1986. Concurring opinion in "wrongful life" ruling allowing woman who contracted German measles during pregnancy and was not advised of potential for birth defects to sue for malpractice: "The trial court did not ask whether, or how, a physician 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. . . . "The court does not hold that some or all phsycians must make a choice between rendering services that they morally condemn and leaving their profession in order to escape malpractice exposure. . . . "

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