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POLITICAL FORECAST : New Hampshire's Unknown Judge: How to Gauge a Man of Few Words? : Supreme Court: Justice Souter will be a pragmatist in conservative clothing.

September 23, 1990|LISA M. FLEISCHMAN | Forecast interviews were conducted for Opinion by Lisa M. Fleischman, an attorney and writer in New York.

I f the nomination of David H. Souter to the Supreme Court is confirmed by the Senate, as seems likely, the New Hampshire judge would join the court sometime after Oct. 1, when it begins its new term. What sort of justice will he be? The Times posed that question to seven people representing a variety of backgrounds and interest groups:

Tanya Melich,executive director, Republican Pro-Choice Political Action Committee:

He will be a very pragmatic jurist. I could see him lining up with (Chief Justice William H.) Rehnquist and (Justice Antonin) Scalia on some issues, and with (Justice Thurgood) Marshall on others.

I think he is a man with great respect for fundamental rights, so a lot hinges on what he thinks a fundamental right is. But he has not given those of us who are pro-choice any more indication as to what he'll do than he has given to the anti-choice people. He has tried to separate his personal positions from the law, but the bottom line is that you can't separate them entirely. . . .

My impression is that Souter is very much a conservative in the old tradition--he is a libertarian. . . . But I am certainly much more comfortable with this man than with (rejected nominee Robert) Bork.

Karima Wicks,research director, Capital Punishment Project, NAACP Legal Defense Fund:

If he wasn't able to see that there is discrimination in his own state, then we aren't sure that he would be sensitive to larger civil-rights questions. New Hampshire isn't Howard Beach, and the minority population is small, but there are problems there.

We really need more information about his views with regard to women and people of color. His record on civil rights is an unfinished book.

We would also like to know more about his stand on the constitutionality of the death penalty. Civil-rights leaders and human-rights activists need to pay attention to what Souter says about the death penalty, because a lot of politicians use the death penalty as a way of getting tough on crime without looking at the social and economic causes of crime, like poverty.

Robert Morvillo,former chief of the Criminal Division, office of the U.S. Attorney for the Southern District of New York, now in private practice as a criminal defense attorney:

I think . . . you will continue to have a court that is moderately pro-prosecution, and will not be expanding defendants' rights or personal liberties significantly. That wing of the court will continue to attempt to cut back on those rights, but I believe Souter will play a swing role.

I don't see him as a solid vote for the right wing of the court, but he is more conservative than liberal. I think he will pay more attention to precedent, and to analyzing issues in a pure legal fashion than with regard to ideological biases. He doesn't have an agenda.

Thomas B. Stoddard,executive director of Lambda Legal Defense and Education Fund, the nation's largest gay-rights organization:

It is easiest to evaluate David Souter by considering what he will not be. He will not be an ideologue. His views tend toward the pragmatic rather than the theoretical.

He will not be a loner. However eccentric his personal habits may be, his professional instincts are largely conventional, even conformist.

He will not be a leader on the court. While obviously very bright, he possesses neither the intellectual acumen of a Felix Frankfurter nor the political dexterity--for even the Supreme Court of the United States runs on political steam--of a Brennan.

And, of course, he will not be a liberal. Although he did say some things on the final day of his congressional testimony that surprised conservatives, his career to date evidences a distinctly conservative frame of mind, especially in the realm of criminal justice. What, then, will he be? David Souter will be a bland, but thoughtful associate justice inclined to follow the lead of the court's conservative majority. Like Sandra Day O'Connor, he will strike out on his own on occasion, but these forays will be rare in number and limited in scope.

Paul Bschorr, attorney and chairman of the litigation section, American Bar Assn. (which recently gave Souter its "most qualified" rating):

I think there are going to be some surprises on both sides. I think he's going to be much more in the middle. I think one of the really interesting questions is if he's going to be a leader on the court, in the way, say, (Justice William J.) Brennan (Jr.) was. (Souter) is on the quiet side, and that may indicate that it is unlikely he will be a leader. But there are people who know him personally that say he is a very engaging human being, on a personal, one-to-one basis. And that is how he'll be dealing with the rest of the justices on the Supreme Court.

Phyllis N. Segal,president, NOW Legal Defense and Education Fund:

He will be a consistently regressive justice on virtually every issue of importance to women.

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