David H. Souter spent the summer preparing for his confirmation hearings like a nervous freshman cramming for his first big college exam. Today, the test begins for real before the Senate Judiciary Committee, and the odds are high that President Bush's first nominee to the Supreme Court will pass.
The federal appeals court judge from New Hampshire, nominated in July to take the place of retired justice William J. Brennan Jr., is expected to face at least two days of questioning by the eight Democrats and six Republicans on the committee eager to learn more about the constitutional philosophy of someone who could cement conservative domination of the court into the next century.
In addition to questioning his position on abortion and the right to privacy, committee members will try to elicit Souter's views on affirmative action, civil rights and separation of church and state, as well as his overall theory of constitutional interpretation.
The hearings do not promise to be the no-holds-barred brawl that ended three years ago in the defeat of another, more controversial appeals court judge, Robert H. Bork. But neither will they be the light glossing over that many thought characterized the exhausted committee's inquiry into the next nominee, Justice Anthony M. Kennedy.
Unless Souter makes an unexpected blunder, it is unlikely the committee will oppose his confirmation. Democrats -- particularly Chairman Joseph R. Biden Jr. (Del.) and Sen. Edward M. Kennedy (Mass.) -- instead appear committed to obtaining meaningful information about his views, making clear that a nominee without an extensive written record on controversial legal issues does not ensure easy confirmation, and sending a signal to the Bush administration about the risk of selecting a more controversial nominee to fill any future vacancy.
The groups that mobilized to defeat Bork have taken a wait-and-hear approach to Souter's nomination, but are poised to oppose him unless his testimony offers evidence of a strong commitment to civil rights and civil liberties.
Abortion rights groups say they will oppose Souter unless his testimony endorses abortion rights -- a step about as likely as announcing his disagreement with Brown v. Board of Education.
With attention diverted by the crisis in the Persian Gulf and Souter facing little serious opposition so far, the administration has taken a generally low-key approach to the nomination. Yesterday Bush had Souter to the White House for lunch and afterward praised him as a "tough, a fair-minded, intellectually brilliant judge" and called on the Senate to "act swiftly" to confirm him in time for the start of the court term, Oct. 1.
In speech on the Senate floor, Sen. Orrin G. Hatch (R-Utah), a Judiciary Committee member, sounded what is likely to be the Republican theme in the hearings: that the panel should confine itself to determining the nominee's general views about "the role of the Supreme Court in our federal system," rather than questioning him on particular legal issues -- exactly the opposite of what Biden has said he wants to do.
Souter has spent most of his time since he was nominated in New Hampshire getting ready for just such inquiries. He boned up on constitutional law. He reviewed his own writings as a judge and in the state attorney general's office. He pored over transcripts of previous confirmation hearings.
Every few days, said Thomas D. Rath, a close friend, Souter would troop over to Rath's Concord law office to pick up the latest Federal Express package of material assembled by White House and Justice Department aides into 25 black loose-leaf notebooks.
And in sessions at Rath's lake house, Souter watched videotapes of the Bork and Kennedy hearings with a team of advisers, "taking notes like a college student," Rath said.
The group -- Rath, Sen. Warren B. Rudman (R-N.H.), a friend and longtime mentor, White House congressional liaison Frederick D. McClure and former White House counsel A.B. Culvahouse -- would freeze the frame, Rath said, and discuss the nominee's answers: Where did he go wrong in answering that question? How would Souter parry that sort of inquiry? How could he do better?
Now, Rath said, "he's anxious to get through this. He views this as the doorway to some degree of normalcy in his life."
An advantage for Souter is that his strongest supporter is Rudman, who will introduce his close friend to the committee.
But Souter has a tricky path to walk between giving answers that could get him in trouble and appearing evasive. While he is expected to decline to answer questions on issues that could come before the court -- especially the critical question of his view on abortion rights -- Democrats have been brainstorming about the best way to draw him out.
As the nominee has endured a series of "murder boards" -- the confirmation equivalent of a moot court -- Biden has practiced honing his follow-up questions with law professors and staff.
Specific areas of questioning are expected to include:Abortion. As attorney general, Souter filed a brief opposing the use of public funds to finance "the killing of unborn children." He also opposed legislation to repeal New Hampshire's outdated antiabortion law, saying it would make the state "the abortion mill of the United States."
As a superior court judge, Souter wrote a letter opposing a bill that would have required minors to obtain parental or judicial consent before having abortions. He said it would force judges to make "fundamental moral decisions." The letter was used by abortion rights forces to block the legislation.
Later, on the state supreme court, Souter wrote a concurring opinion in a medical malpractice case, expressing concern about its consequences for doctors who were morally opposed to abortion. Women's rights. Defending New Hampshire's statutory rape law, which covered underage women but not underage men, Souter submitted a brief to the Supreme Court as attorney general criticizing the concept of "intermediate scrutiny" -- the heightened degree of constitutional protection that is given to gender discrimination.
On the state supreme court, Souter said a rape defendant should have been allowed to present evidence that his victim engaged in "sexually provocative behavior" toward other men at a tavern earlier in the evening. Affirmative action and civil rights. As New Hampshire attorney general, Souter gave a speech attacking affirmative action as "affirmative discrimination."
The same year, Souter asked the Supreme Court to hear New Hampshire's objections to federal requirements that the state submit breakdowns of the racial makeup of its employees. Civil rights lawyers say such figures are essential tools for combating race discrimination. Religious freedom and separation of church and state. As attorney general, Souter filed briefs on behalf of Gov. Meldrim Thomson Jr.'s efforts to lower state flags to half-staff on Good Friday and to prosecute two Jehovah's Witnesses who obscured the state motto on their license plate, "Live Free or Die," because it violated their religious beliefs.
Souter also said his office would "do everything we can to uphold" a law allowing school districts to have elementary school students recite the Lord's Prayer, and offered to file a brief on behalf of a school district that took advantage of the law. A federal judge struck down the statute as "patently and obviously unconstitutional."