The Souter Nomination

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Thursday, September 6, 1990; 12:00 AM

PRESIDENT Bush was accused in nominating Judge David Souter to the Supreme Court of trying to duck a political fight by naming a jurist with too little record on such issues as abortion even to assess, much less attack. That of course is precisely what the president did, though another, less pejorative way of putting the same thing could be that he tried to depoliticize a nomination and confirmation process that in recent years, through abuses on both sides, had gotten out of hand.

In any case, the tactic so far has seemed to work. The latest sign is that the committee of the American Bar Association charged with evaluating judicial nominees has given Judge Souter its top rating of well qualified and done so unanimously. This doesn't tell the whole story about the nominee, but it surely does speak well of Judge Souter. For all the stuffiness of the bar association, conservatives complained in the past that its committee of evaluation was a liberal redoubt for the ambushing of conservative nominees, and the committee split on Ronald Reagan's controversial nomination of Robert Bork. Judge Souter, less of a target, has aroused no comparable opposition.

This doesn't mean the Senate Judiciary Committee should fold its tent and confirm him automatically. There are lots of questions he not only legitimately can be asked, but should be, to fill out what is known about him -- not that much thus far -- and test his instincts and fitness for the job. On many issues, after all, he is likely to be a tipping vote in one of the branches of government. But so far the thing is happening in his case in a better way than it did with Mr. Bork, in part, we think, precisely because he is as the president wished him to be, a less provocative nominee.

No one should think that Mr. Bush would wittingly send up other than a conservative nominee. That by itself should be the basis neither for confirming the man nor denying him confirmation. The questions are rather whether he is within a zone of fitness and responsive to the claims of an ideology or the claims of the law. The bar association recommendation provides part of the answer. The hearings in the Senate should establish the rest.


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