The liberal coalition that mobilized to defeat Supreme Court nominee Robert H. Bork three years ago split yesterday over the nomination of David H. Souter, with women's rights and abortion rights groups urging the Senate to reject Souter and other key organizations taking no position.
In an emotional but almost certainly fruitless plea, veteran civil rights lawyer Joseph Rauh, speaking on behalf of the Leadership Conference on Civil Rights, asked the Senate Judiciary Committee to recall Souter to question him more closely on race discrimination issues.
"This is an insensitive man that you're foisting on us," Rauh said, citing Souter's assertion that there was no discrimination in New Hampshire and that the state attorney general's office in which he served was therefore justified in fighting federal efforts to obtain information about the racial breakdown of the state's work force and defending the state's literacy test for voters.
But the Leadership Conference, an umbrella organization that was a leader in the Bork battle, did not oppose Souter yesterday. People for the American Way, the Alliance for Justice, and the NAACP Legal Defense and Education Fund -- which all had issued highly critical reports on the Souter nomination and said the burden was on him to prove his fitness -- decided not to testify, although they left open the possibility of coming out against him. In the civil rights community, only the Mexican American Legal Defense Fund announced formal opposition to Souter yesterday.
But representatives of abortion rights and women's rights groups made impassioned presentations, asking the Senate not to confirm a man whose views on whether the Constitution protects reproductive rights remain a mystery and pointing out that Souter had been willing to discuss his views on some other topics likely to come before the court. The women's groups also said they remained troubled by Souter's approach to sex discrimination cases and his ruling in a rape case.
"American women, quite frankly, are quite tired of having our rights placed up for grabs," said Faye Wattleton, president of the Planned Parenthood Action Fund.
National Organization for Women President Molly Yard predicted that Souter would provide a fifth vote to overturn Roe v. Wade, the court's 1973 abortion ruling, and said confirming him would mean "ending freedom for women in this country."
The liberal groups' split followed three days of testimony during which Souter refused to state his views on abortion rights and gave potential opponents little to point to. He distanced himself from some of his controversial actions as New Hampshire attorney general and took what several senators said was a suprisingly moderate view of constitutional interpretation and the role of the federal courts.
That approach left organizations that had been poised to come out against Souter concerned about losing credibility and political capital by fighting a nominee who was being labeled a moderate. Although the groups said it was possible they would ultimately oppose Souter, their silence yesterday capped what Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) referred to Monday as Souter's "tour de force" performance.
While some Souter strategists had counted four votes against him on the 14-member committee going into the hearings, it was not clear yesterday that any senators would oppose him. The hearings are to continue today, and a committee vote could come as early as next Thursday.
Testimony on Souter's behalf yesterday reinforced the image of a judicial moderate. John T. Broderick Jr., president of the New Hampshire Bar Association, predicted that Souter would follow "in the tradition of" retired Justice Lewis F. Powell Jr., who often served as a swing vote on the court. The group's president-elect, Steven J. McAuliffe, said he expected Souter would be the "pivotal centrist justice."
Both men are Democrats who served as New Hampshire co-chairman of Biden's brief 1988 presidential bid and later supported the candidacy of another committee member, Sen. Paul Simon (D-Ill.)
Former attorney general Griffin Bell, Sen. Slade Gorton (R-Wash.), and former Virginia governor Gerald L. Baliles also testified on Souter's behalf.
A few senators lectured the abortion rights supporters for opposing Souter, telling them they were likely to do no better with any other Bush administration nominee.
"I really believe you are making a big mistake on this one . . .," said Sen. Alan K. Simpson (R-Wyo.), who supports abortion rights. "There are going to be on the Supreme Court choices when you are really going to need to be in the trenches. This is not one of those cases."
Sen. Arlen Specter (R-Pa.), who also supports the right to abortion, said the activists were being "totally unrealistic" to expect a nominee committed to upholding Roe v. Wade.
In prepared testimony, Howard Phillips of the Conservative Caucus opposed Souter because of his vote as a trustee of a Concord, N.H., hospital to allow doctors to perform abortions there.