Whatever Judge David Souter's virtues, personal and legal may be (and they may well be many), at the moment his top card as a nominee for the Supreme Court is that he is a ''blank slate,'' a nullity and a question mark so far as the great issues of our time are concerned. And that, as everyone is aware, is emphatically the case with his views on the issue of abortion.
This strange state of affairs is conclusive proof, if any were needed, that it will be a happy day for the country and the court when the abortion precedent of Roe v. Wade gets an inevitable and long-overdue funeral.
The judicial and constitutional defects of that decision were obvious from day one, back in 1973. It was judicial legislation, and not very good legislation at that, with barely a fig leaf of legal reasoning to conceal its sheer arbitrariness. (What, for instance, is or ever could be ''constitutional'' about a division of pregnancy into three parts?) The Roe decision unwisely federalized and constitutionalized a political argument on which no consensus ever can or will be achieved -- the best imaginable argument for leaving it to the (real) legislative arena.
In 1973, the reform of abortion laws was proceeding, by debate and consent, in the states. That incremental process should never have been disturbed. Indeed, not one person in 1,000, even among the most vociferous defenders of the right of ''choice,'' could explain why it was disturbed -- how it was, in the utter absence of constitutional language, that a ''right of sexual privacy'' was proclaimed in a contraception case and how that inferred right was then extended, far less defensibly, to include a right of abortion.
But to the legal, constitutional and judicial case against Roe has now been added an unanswerable political argument. A national standard on the question has proved to be as unobtainable as an agreed standard on the status of slavery in 1857 (the year of Dred Scott). Like that terrible precedent, Roe v. Wade has distorted and poisoned judicial politics.
Abortion has become, in the words of Prof. Laurence Tribe, a ''clash of absolutes.'' And clashes of absolutes do not lend themselves to settlement by means short of bloodshed. Since the monomaniacs and fanatics on both sides of the argument cannot decently be shipped off to a desert island to fight it out, the next best thing is to send the abortion issue back where it belongs -- to the states and their legislative bodies. There, at least, this malignant and boring quarrel itself would not bar the appointment to the nation's highest court of anyone who ever had a provocative thought.
I speak, incidentally, as one who as a state legislator would vote to protect the medical privacy of any woman considering an early-term abortion and would vote to pay to make the ''right'' meaningful for poor women who might lack the means of exercising the choice. And perhaps, in any case, the French abortion pill will someday obviate the issue. Pending that welcome development, this dreadful, divisive and dimwitted controversy has been the dead mouse on the nation's doorstep for too long.