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Little-Known Judge Named to Replace Brennan on Court : Judiciary: David Souter served as New Hampshire justice and attorney general. He has no clear record on abortion.

July 24, 1990|JAMES GERSTENZANG and DAVID LAUTER | TIMES STAFF WRITERS

WASHINGTON — President Bush on Monday chose David Hackett Souter, a little-known judge from New Hampshire, to be an associate justice of the U.S. Supreme Court.

Bush moved quickly to fill the vacancy created by Friday's resignation of Justice William J. Brennan Jr., choosing a nominee with no clear record on the most contentious issues facing the court. The move at least temporarily short-circuits building pressure from groups on both sides of the abortion and affirmative action controversies.

"I will nominate as associate justice of the United States Supreme Court a remarkable judge of keen intellect and the highest ability, one whose scholarly commitment to the law and whose wealth of experience mark him of first rank," Bush said at a hastily summoned meeting with reporters in the White House. "My choice will serve the court and the Constitution well."

Souter, a former New Hampshire attorney general who served seven years on the state's Supreme Court, is widely acclaimed as a brilliant legal mind but considered something of a loner, a 50-year-old bachelor who prefers mountain climbing and long hikes to socializing with colleagues. He will be a sharp contrast with the gregarious Brennan in both personality and politics.

Souter's nomination to the U.S. high court came after he had sat only one day on the U.S. 1st Circuit Court of Appeals in Boston. Bush nominated Souter to the appeals court this past winter, and he was confirmed in April. But the panel on which he served heard arguments on cases only one day in June, court officials said.

The announcement won cautious praise from both conservatives and liberals in the Senate. Bush urged the Senate to consider the nomination quickly so that the court will be at its full strength of nine justices when it begins its term in October.

There is little in Souter's writings as a judge that would provide a road map to his views on the most divisive issues likely to be presented to the court in coming years.

He was not the first choice of conservative activists, who had pushed federal appeals court Judge Edith Jones of Texas. But he was also hardly a favorite of judicial liberals, who worry about his association with Bush's conservative chief of staff, John H. Sununu, who--as governor of New Hampshire--appointed Souter to the state's Supreme Court in 1983.

Answering questions from reporters, Bush insisted repeatedly that he had not asked Souter's views on abortion, and did not know them.

"I had one meeting with Judge Souter. I was very impressed but, in my view, it would have been inappropriate to ask him his views on specific issues," Bush said.

Only one case on which Souter ruled in New Hampshire dealt with abortion. The complicated case, decided in 1986, "sends a message of great sympathy to those who are personally opposed to abortion," said a lawyer who examined Souter's opinions for the Senate when he was nominated to the federal appeals court. But the lawyer added that the case sheds no particular light on Souter's view of Roe vs. Wade, the 1973 Supreme Court decision establishing a woman's constitutional right to an abortion.

Said Bush: "My selection process was not geared simply to any legal issue. It is not appropriate in choosing a Supreme Court justice to use any litmus test."

"I want a justice who will ably and fairly interpret the law across the range of issues the court faces."

Souter's more than 200 judicial opinions are almost devoid of any evidence of his views on most of the controversial issues facing the high court.

As a state court judge from 1978 until his appointment to the federal court and as New Hampshire attorney general before that, his career has involved state-law issues, including many criminal cases, but not interpretations of the federal Constitution.

In addition, in sharp contrast with such past nominees as Robert H. Bork, who was defeated for the high court three years ago, Souter has written almost nothing outside his job as a judge. As a result, he lacks the sort of "paper trail" that allowed opponents of Bork to stage a major battle over that nomination.

"I'm not going into this . . . expecting a highly contentious battle," Bush said in announcing the nomination. Senate sources generally concurred.

"There's a certain amount of futility" in waging a major fight, said a leading Senate Democratic aide who played a key role in the successful anti-Bork strategy. Bork's nomination came late in the second term of former President Ronald Reagan, close enough to the 1988 election to give Democrats the hope that they might avoid a Reagan nominee altogether. But defeat of Souter would simply give Bush an opportunity to nominate someone else, the aide said.

"No matter what we do, we're going to go from losing 85% of the cases in the Supreme Court to losing 95%," he added.

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