The liberal coalition that proved so formidable against Robert H. Bork's nomination to the Supreme Court fell apart when confronted with Judge David H. Souter, because many in its ranks were unwilling to risk an almost hopeless fight over a nominee who provided his foes with so little ammunition.
But the ease with which Souter sailed through the confirmation process -- his nomination is expected to be overwhelmingly ratified by the Senate today -- has left some leaders of feminist and abortion rights groups disappointed and angry. Last summer, they hoped that the abortion issue would become the centerpiece of the confirmation battle and that Souter's lack of a clear public position on the issue would rally opposition.
Instead, many of the groups that played a key role in the battle against Bork -- notably People for the American Way and the American Civil Liberties Union -- decided not to oppose Souter, which made it easier for many of the Senate's staunch liberals to support him.
"I find it all a puzzle," said Eleanor Smeal, the president of the Fund for a Feminist Majority. "To us, it sets a very troubling double standard because on the record, this is a very anti-civil rights, anti-civil liberties, anti-women's rights vote."
"I was totally incredulous that there was only one who had the guts to vote no," said Molly Yard, president of the National Organization for Women, referring to the sole negative vote against Souter in the Judiciary Committee cast by Sen. Edward M. Kennedy (D-Mass). Kennedy was sufficiently frustrated over the lack of opposition to Souter that he personally rallied civil rights groups to come out against him.
Many leaders of the liberal and civil rights coalition argued that talk of division in the ranks has been exaggerated. What happened with Souter, they said, had nothing to do with divisions over principle and everything to do with tactics -- and with Souter's brilliant ambiguity during his Senate testimony.
"Neither side really and truly knows" Souter's views on many issues, said Melanne Verveer, executive vice president of People for the American Way, "and that's what the administration banked on to get this guy through." John A. Powell, national legal director of the ACLU, said that liberals and conservatives alike were "betting and guessing."
Powell said that his organization's neutrality on Souter was not surprising, since it had been involved in only two Supreme Court confirmation battles in its history -- against Bork and against William H. Rehnquist's elevation to chief justice.
But Powell insisted that "the process is not finished." He argued that if Souter proved to be far more ideological on the court than his testimony suggested, "I think he's going to be the last recluse on the court." If Souter proves more conservative than he allowed the Senate to believe, he added, President's Bush's next nominee will be forced to "fill out the record in a very graphic way."
Verveer said that People for the American Way, which played a pivotal role in the Bork battle, decided not to oppose Souter for similar reasons. She said that the New Hampshire jurist "barely met the test" by "distancing himself from a doctrinaire judicial philosophy." In light of this, she said her organization chose to take the long view. "If we were perceived as coming down against every Bush nominee," Verveer said, "our effectiveness would be muted."
The pragmatic argument drew a fierce retort from Yard. "I think it's a perfectly stupid argument," she said. "Are the only things people can stand up for the things that they can win?"
Ralph Neas, the executive director of the Leadership Conference on Civil Rights, an umbrella group of about 185 organizations that formally opposed Souter, argued that his organization's stand should squelch talk of divisions within the civil rights community.
He noted that while some member groups asked not to be included in the organization's statement of opposition, none were against having the conference take the stand it did.
Neas acknowledged "creative tensions" among the groups that make up the coalition -- civil rights, labor and religious groups as well as organizations battling for the rights of women, the handicapped and the elderly. But he said the coalition's legislative successes belied talk of division.
Still, the "creative tensions" have sparked battles inside the civil rights coalition over the relative priority to be accorded women's rights issues and traditional civil rights issues affecting blacks and other minorities. For example, women's groups complain that in negotiations over the Civil Rights Act of 1990, they were shortchanged by an agreement to limit punitive damages. The agreement leaves those claiming racial discrimination -- but not sex discrimination -- with alternative avenues to seek damage awards.
The Souter nomination battle had the potential of aggravating these divisions because Souter was more forthcoming on civil liberties and civil rights issues than on the issue that most concerned feminist groups. "It was on the issue of abortion that he refused to respond," said a key participant in the anti-Bork coalition who asked not to be named. "On the other issues, though his statements may not stand up to scrutiny, they at least sounded good."
Smeal said that the paradox for Souter's foes is that their intense focus on abortion may have helped him by taking "attention away from other parts of his record." The abortion issue, she said, was "used to draw the fire. . . . It served to put to sleep some people and some constituencies."
Terry Eastland, who as a Justice Department official in the Reagan administration was a staunch defender of Bork, said that the lesson of the Souter experience was that Senate liberals had not yet elevated the Roe v. Wade abortion case to the level of the Brown v. Board of Education school desegregation case. No nominee who failed to publicly support Brown, he said, would ever win confirmation. For the moment, he said, Senate liberals were apparently unwilling to see Roe in the same light.
That distinction was not lost on Molly Yard of NOW. "What we need to do," she said, "is to make it equally unacceptable to put a sexist on the court as to put a racist on the court."
Eastland, now a resident fellow at the Ethics and Public Policy Center, said there was another obvious lesson of the liberal failure to stop Souter. "If liberals don't want a conservative court," he said, "they are going to have to elect a liberal president."