Before his confirmation hearings, Supreme Court nominee David H. Souter was described as an enigma, a man whose views on a broad range of constitutional issues were essentially unknown.
When the Senate Judiciary Committee concluded its week-long inquiry last week, Souter remained a puzzle. Although Souter discussed his constitutional philosophy and his views on specific legal issues, with the exception of abortion rights, what remained unclear was how he would apply his philosophy and, even more important, how his moderate-sounding testimony squared with some of his actions during 22 years in the New Hampshire attorney general's office and on the bench.
As the Senate Judiciary Committee prepared to vote on the nomination, both Republicans and Democrats were left trying to figure out, as Sen. Paul Simon (D-Ill.) described it in an interview, "Which is the real David Souter?"
Committee Republicans expressed the hope that it was the earlier, apparently more conservative incarnation and said they would be basing their vote in his favor on that assumption. For Democrats -- and none has yet announced an intention to oppose him -- a positive assessment would proceed from the opposite direction, not on the basis of a record several said they found troubling but on the basis of what they view as reassuringly moderate statements to the committee.
Asked by Sen. Charles E. Grassley (R-Iowa) to describe one occasion when he believed the Supreme Court "improperly created rights," Souter offered no example.
Later, discussing the constitutionality of affirmative action, Souter said he believes there are times when "race-conscious" remedies may be adopted without violating the constitutional guarantee of equal protection of the laws -- a position that is anathema to conservatives who argue that the constitutional principle of colorblindness prohibits even "benign" racial classifications.
Sen. Arlen Specter (R-Pa.) asked whether "there are some circumstances . . . as a matter of general principle . . . where it would be appropriate to consider race as one of many factors in coming to a decision."
"Yes," Souter responded, without further elaboration.
At another point, Souter stated flatly that he disagreed with Justice Antonin Scalia's approach, in turning to history and tradition to discern the scope of constitutional protection, of examining only whether that specific conduct or relationship was historically considered important rather than looking to a broader tradition.
The issue might sound like the most technical of legal points. But Justices Sandra Day O'Connor and Anthony M. Kennedy have warned that Scalia's narrow approach, which was joined by Chief Justice William H. Rehnquist, "may be somewhat inconsistent with our past decisions." They cited two central privacy cases, Griswold v. Connecticut, in which the court established the right of married couples to obtain contraceptives, and Eisenstadt v. Baird, in which the court extended that right to single people.
Those were just a few of the times when Souter's remarks, as Grassley phrased it, seemed "more the terminology likely to come from a judicial activist" than the strict constructionist President Bush had promised. In contrast, perhaps because he was aware that any threat to his nomination would come from the left rather than from the right, Souter never sounded the clarion of a conservative decrying the evils of judicial activism.
What was the committee to make of the 2 1/2 days of testimony? Would Souter be, as his liberal Democratic friends from New Hampshire predicted, a centrist in the mold of retired justice Lewis F. Powell Jr? Or would he be another Anthony M. Kennedy, sounding more moderate than Robert H. Bork but voting solidly with the court's conservative bloc?
The hearings offered no conclusive answer. In his responses, Souter left himself a good deal of wiggle room. On the question of the separation of church and state, for example, Souter said he saw problems with the high court's existing test for determining whether there has been a state "establishment" of religion but also said he would be "loath" to discard that approach without knowing an alternative.
He said he had no immediate inclination to dismantle the wall of separation between church and state but would listen "respectfully" to those who argue that the Constitution does not require such strict separation. In short, Souter could vote any way on religion cases without being accused of having deceived the Senate.
More fundamentally, Souter the nominee sounded significantly different from Souter the attorney general and Souter the judge, in the assessment of both Republicans and Democrats on the panel.
There was, Specter said in announcing his support for Souter on the Senate floor following the close of the hearings Wednesday, "significant variance between his written opinions and what he testified to."
Noting that "there is license for a nominee as there is license for a poet," Specter told his Senate colleagues that in deciding to vote for Souter he "relied more on his written opinions than I did on his testimony."
Souter's testimony, said Sen. Patrick J. Leahy (D-Vt.), "definitely sounded more moderate. Whether he is, the only way you're going to know that is if he's on the court ruling."
Some committee Republicans said they believed that Souter, while not deceitful in his testimony, had certainly been politic.
"You have people on that committee from the far left and the far right and almost every step in between, and it's just good confirmation strategy to try to satisfy them all if you can," said Sen. Orrin G. Hatch (R-Utah). "I have to say he satisfied the centrist position very well, which is the safest way to go."
Souter's testimony, Grassley said, "showed that he was not a political novice as he was portrayed. Of all of us politicians in the room, he was the best of all. He took every opportunity he could to reassure the committee liberals.
"I suppose you might ask, as a conservative, am I worried?" Grassley added. "I think I understand the political realities. It is a matter of political realities and political theater."
Democrats were wrestling with whether they could comfortably make the opposite calculus. "He sounded as if he were balanced," said Sen. Howard M. Metzenbaum (D-Ohio). "But in all honesty, we don't get many nominees who come before us who sound unbalanced. They all put on their best face and their best presentation." Reflecting on the nomination, he said, "I think there's a fair chance he might be a Powell. I don't think he'll be a Kennedy nor a Scalia," one of the court's most conservative members.
Hatch predicted that Souter would be a "centrist" in the style of Justice Byron R. White, who gave liberals the fifth vote in many of their key victories last term, and would "evolve" in the direction of Scalia and Kennedy.
"I thought he came across a better person in terms of my interests than his record indicated, and one of the things I have to weigh is, is this a David Souter who has grown in the process or is this kind of a political accommodation," Simon said. "I tend to think probably he's grown."
Some committee conservatives expressed the hope, although they put it less bluntly, that their liberal colleagues were being snookered.
"I hope so," Grassley said. Still, he added, "Let's suppose that the real Souter is the Souter who has been speaking for the last 2 1/2 days, then I could be snookered."
Liberals are equally, if not more, nervous. Simon said that while Souter does not appear to be a "home run" for conservatives, as White House Chief of Staff John H. Sununu reportedly promised a conservative activist, "whether it's a base hit for us, I'm not sure either. We're all worried. I don't think there's anyone who feels completely comfortable."