David Souter: An 18th Century Man

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But there are few dog-eared tomes from a hundred years ago to consult on the divisive issues of today. Liberals are worried that just as Souter spurns gold chains and Club Med vacations, he will also eschew the "penumbras" emanating from the Constitution that activist judges have used to find heretofore unknown protections -- like the guarantee of privacy, which underlies Roe v. Wade's right to abortion. New Hampshire Governor Judd Gregg predicts that "Souter won't graft current ideas or social concerns onto constitutional law." In a dissent he wrote in 1986, Souter said "the court's interpretive task is to determine the meaning of . . . ((constitutional language)) as it was understood when the framers proposed it." A judge cannot be more strict constructionist than that. On the other hand, Roe v. Wade does constitute precedent, another principle the conservative Souter holds dear. Says Fink: "He really reveres the law. He's not someone who's coming from his personal opinions and then twists the law accordingly."

It is this kind of on-one-hand, on-the-other-hand aspect of Souter's behavior that has thrown the likely combatants over a new Justice into disarray. Souter gave a commencement address at Daniel Webster College in Nashua, N.H., in 1976 in which he called affirmative-action rules "affirmative discrimination" and said the government has no place meddling in such initiatives. He flew across the state by helicopter to make ; sure protesters who were arrested for demonstrating against the Seabrook nuclear power plant were forced to serve actual jail terms rather than suspended sentences. He tends to rule in favor of the prosecution in criminal trials. But Souter is also a great supporter of environmental and consumer protection, of victims' rights, and of giving child abuse and neglect cases high priority. He let the government in the skinflint state of New Hampshire know at the end of a suit to recover $206 in mistaken payments from an indigent that he would not look favorably on similar suits in the future. At Concord Hospital, where he served on the board from 1971 to 1985, he did not object to abortions being performed.

As the week wore on and Souter came to life, he was transmuted from a dazed and gray-faced gnome standing awkwardly beside the tall and tanned Bush into a Yankee original in the mold of astronauts Alan Shepard and Christa McAuliffe and the last Supreme Court Justice to hail from the Granite State, Harlan Fiske Stone. By choosing someone so hard to pigeonhole, indeed, someone from another era, Bush may have created the kind of philosophical gridlock he felt he needed to get his nominee swiftly approved. If Americans are lucky, they will also get the kind of Justice they need -- someone who looks at the law of the land with reverence and the people it governs with respect.