JUDGE DAVID H. Souter is well within the zone of acceptability to be a justice of the Supreme Court. The Senate Judiciary Committee should vote to confirm him at its scheduled session today, and the Senate should speedily follow.
A confirmation hearing such as Judge Souter has just had can never be an infallible indicator. Among other weaknesses, such hearings tend to be partly political theater on both sides. It's not possible to know how this nominee will actually perform.
But in his two days of testimony, Judge Souter:
1. Confirmed what was never seriously in dispute, that he has the intellectual capacity and professional competence to do the job. He is steeped in the law.
2. Usefully distanced himself from two caricatures, stage props in waiting. Some liberal groups had tried early on to portray him as a kind of hermit, a small-state bachelor judge who lived alone in the woods and could not be expected to have an appreciation of the enormous social problems that gust before the court. A lot of conservatives were meanwhile hoping aloud that he would prove a hermit, in the sense of sealing himself off from such problems and embracing the abstract theory of judging they venerate as strict construction.
The nominee disappointed both sides. He refused invitations to join in denouncing an activist judiciary -- itself a caricature -- or to swear allegiance to "original intent." Instead he had high praise for William Brennan, the quintessential "activist" he would succeed, and spoke of the fluid need "to make the Constitution a reality for our time." He described his career as trial attorney, state attorney general, trial and appellate judge, and said the abiding lessons he had learned had to do not with law but with fact: That "whatever court we are in . . . at the end of our task some human being is going to be affected. Some human life is going to be changed . . . and we had better use every power of our minds and our hearts and our beings to get those rulings right."
Is that a smokescreen for an agenda the nominee says he does not have? Judge Souter also denounced discrimination, endorsed affirmative action and said he agrees there is an "unenumerated right of privacy" in the Constitution. He seemed to suggest that he would favor stricter scrutiny than now in sex discrimination cases; the current test "is not a good, sound protection. It is too loose," he said. On Roe v. Wade he said he has not made up his mind.
Some women's and pro-choice groups still oppose him. On sex discrimination and abortion, they want a commitment to what they think either is or ought to be settled law. But the law is not settled on these issues, and Judge Souter seems to be well inside the current boundaries of debate. He is qualified, and the Senate should let him take his seat.