BY THE time the hearings on Judge Robert Bork's nomination to the Supreme Court began three years ago, opponents had compiled extensive memoranda on his views, put together thick loose-leaf binders of proposed questions for the nominee and assembled an impressive list of opposing witnesses. On the eve of hearings on the nomination of Judge David Souter to the court, there is little evidence that a confrontation on such a scale is about to begin. Unlike Judge Bork, Judge Souter does not have an extensive written record of views on controversial constitutional issues. But he does have a substantial record of public service and some 200 opinions written while he served on the New Hampshire Supreme Court, and this record, along with his general views on constitutional questions, is certainly fair game for the Judiciary Committee inquiry.
Even those who feel uneasy about the nomination -- if not yet firmly opposed -- and who demand rigorous questioning of Judge Souter realize that he cannot be asked to promise a vote one way or another on a case that is likely to come before the court. This kind of question cannot even be asked obliquely -- Do you think Roe v. Wade was decided correctly? At what point in the desegregation of a school system can busing be discontinued? -- for these are matters still under challenge. But more general questions are certainly proper. What are the nominee's views on the concept of implied privacy rights in the Constitution? What does he have to say about overruling precedents of long standing even if he disagrees with the ruling that set the precedent? What is his understanding of the concepts of separation of church and state, search and seizure and affirmative action?
More specific questions should be raised about the judge's own writings and decisions. He should be asked to explain his reasoning in a case where he allowed the admission of evidence about a rape victim's allegedly provocative conduct shortly before the crime. He can be questioned about his own view of flying state flags at half-mast on Good Friday -- a position taken by New Hampshire's governor, which he defended as attorney general. He should be reminded of a speech he gave in 1976 in which he criticized affirmative action and asked to comment on it now.
Those who are skeptical about the nomination should not feel bound to drag out the process in the hope of finding some premise, some flaw on which to base a negative vote. That said, however, we believe there is plenty of material on the record that must be examined and plenty of time for a thorough examination of the nominee's qualifications, his personal and judicial history and the understandings and sensitivities he would bring to the court. The appointment is a lifetime trust of surpassing importance to the nation. There is no need to rush, and there are few questions that cannot be asked.