Supreme Court nominee David H. Souter refused to say yesterday whether he believes the Constitution protects abortion rights, saying it would be "inappropriate for me to comment" on "the wisdom or the future" of the "one case which has been on everyone's mind and everyone's lips since the moment of my nomination."
Appearing before the Senate Judiciary Committee on the first day of his confirmation hearings, Souter refused to discuss his views of Roe v. Wade, the court's 1973 abortion ruling, or even to express a "specific opinion" on earlier cases that established a constitutionally protected right to privacy and culminated in Roe.
Souter did say he believes there is a fundamental right of privacy under the Constitution that protects the intimate relations of married couples, including the decision to procreate. But under questioning by Sen. Joseph R. Biden Jr. (D-Del.), the committee chairman, he repeatedly declined to discuss whether there was constitutional protection for abortion, saying, "Senator, that's the point at which I will have to exercise the prerogative" not to respond. Biden plans further questioning on the topic.
Souter's first extended public statements since President Bush nominated him July 23 to replace retired Justice William J. Brennan Jr. received a generally friendly reception from the committee, although a few senators privately expressed frustration that he had not been more forthcoming.
The New Hampshire judge, 50, who joined the federal appeals court in Boston last May, began his testimony with what both supporters and critics viewed as a masterful opening statement in which he vowed to "make the promises of the Constitution a reality for our time and to preserve that Constitution for the generations that will follow us after we are gone from here."
In the statement, Souter -- described by Sen. Howell Heflin (D-Ala.) as "a stealth nominee" -- sought to dispel any image of himself as remote or lacking compassion.
Looking serious but also showing flashes of dry wit, Souter seemed to be deliberately distinguishing himself in demeanor and philosophy from Robert H. Bork, whose nomination to the court was defeated after a bitter fight three years ago.
Souter said he did not believe in interpreting the Constitution purely according to the "original intent" of its framers and that judges should also look to the underlying "principles that were intended to be implied."
Speaking in a broad New England accent, Souter recalled "the first day that I ever spent by myself in a courtroom," a volunteer case in which he represented "a woman whose personal life had become such a shambles" that she had lost custody of her children.
He described his experience as a New Hampshire trial judge, when "I saw litigants in international commercial litigation for millions, and I saw children who were the unwitting victims of domestic disputes and custody fights which somehow seemed to defy any reasonable solution."
And he said he would not forget the lesson he learned on the court and took with him later to the state Supreme Court: that "at the end of our task some human being is going to be affected" and that judges therefore "had better use every power of our minds and our hearts and our bodies to get those rulings right."
If the hearings -- what Souter described as "our dialogue together" -- were in part a contest over whether the committee would be able to obtain the "rather specific answers" Biden had said the panel deserved, it was clear by day's end that Souter had triumphed handily in the first round.
His answers tended to be long and discursive, often turning into a discussion of such topics as "the New Hampshire constitutionalists of 1780" or a footnote by retired Justice Lewis F. Powell Jr.
Questioned by Sen. Edward M. Kennedy (D-Mass.) about his actions in several civil rights cases while serving in the New Hampshire attorney general's office, Souter sought to draw a distinction between "me today as opposed to me as an advocate" for the state.
He defended his brief in a case challenging the federal government's right to obtain information about the racial composition of the state's work force as a "legitimate position" because the state had no history of discrimination. But he said it was "not an argument that would be made today."
Souter offered a similar defense to his argument challenging the Voting Rights Act's elimination of New Hampshire's literacy test for voters.
He said his suggestion to the Supreme Court in another case that it eliminate the increased scrutiny it had recently decided to use to determine whether sex discrimination had occurred was based on his concern that the "middle-tier" test "is not a good, sound protection. It is too loose."
Souter had urged the court to consider the constitutionality of the state's statutory rape law under an easier standard of review, a position that women's rights groups claim would eviscerate constitutional protection against sex discrimination.
He took the opportunity of the questioning about civil rights issues to say that he did not believe there was any social problem facing the country today that is "more tragic or more demanding" than efforts to eradicate discrimination.
Later, Souter pointed to the experiences of two of his closest friends sitting behind him at the hearings, Sen. Warren B. Rudman (R-N.H.) and Thomas D. Rath, a New Hampshire lawyer. He said he had heard Rudman describe being discriminated against as a child because he was Jewish, and Rath's tales of his Irish grandparents shut out of jobs.
"So if you want to know whether I have got the vision. . . . I'll be content to have you look to my friends," he said.
Several senators said they thought Souter had performed well. "I'm satisfied he's a man of sincerity, integrity and conscience," said one of the committee's leading liberals, Sen. Howard M. Metzenbaum (D-Ohio), adding he had not decided how to vote. Sen. Dennis DeConcini (D-Ariz.) told Souter he had a "good feeling" about the nomination.
But many of the groups that had expressed concern about Souter's record going into the hearings said he had done little to allay their worries as he skillfully sidestepped a full enunciation of his views.
Faye Wattleton, president of Planned Parenthood, which is urging that Souter be rejected unless he gives firm assurances that he will protect abortion rights, said "we do not think an evasive answer is an acceptable one."
"I was pretty disappointed on our issues and I think that's the general reaction," said Kerry Scanlon of the NAACP Legal Defense Fund, which said yesterday that Souter should not be confirmed unless new information emerges from the hearing.
The hearings occur at a moment when the court is at what Biden referred to as a constitutional "crossroad," with conservatives about to fortify a solid majority on such issues as abortion, civil rights, separation of church and state, and the rights of criminal defendants.
"You, you, Judge Souter . . . can affect in the near-term all of these issues," Biden said. "If confirmed, the fate of our private lives and our public responsibilities will be placed in your hands."
In perhaps the most dramatic moment of the session, Metzenbaum asked Souter if he could empathize with a woman agonizing over whether to have an abortion. Souter described his experience 24 years ago as a freshman proctor while at Harvard Law School, when an anguished student came for advice about his pregnant girlfriend. The young man said she was planning a self-abortion and was afraid to seek help from the college health counselors or others.
At the student's request, Souter said he spent two hours with the girlfriend, "trying to counsel her to approach her problem in a way different from what she was doing." Out of respect for the "privacy" of the individuals involved, Souter said that he would not divulge what advice he gave. But "I learned that afternoon what was at stake" in the abortion debate, Souter said.
Souter's account of the incident appeared to impress the panel and address concerns that he had not had the "real life" experiences that could inform his decisions on the bench. But some critics noted pointedly that Souter characteristically avoided saying what he told the woman.
Introducing Souter to the committee, Rudman offered an emotional tribute to his friend of 20 years, a man he says he thinks of as a younger brother.
"I know that David Souter, shaped by his experiences, knows that judges must understand that their decisions are not mere academic or scholarly exercises but rather the best hope of resolving human dilemmas," he added.
The morning session was taken up with opening statements from members of the committee which focused more on the proper bounds of their questioning than on the merits of the nominee.
Some committee members also expressed an initial "uneasiness," as Sen. Paul Simon (D-Ill.) described it, with Souter's qualifications. Kennedy said aspects of Souter's record, particularly in the attorney general's office, "raise troubling questions about the depth of his commitment to the indispensable role of the Supreme Court in protecting individual rights and liberties."