Will Souter Make It?

WHY are the results of the last presidential election being largely overlooked in the scrutiny of the president's nominee to the Supreme Court? Where is the memory of the Democrats who said that they must defeat George Bush because, if elected, he would have the opportunity to turn the high court in the conservative direction?

They lost. Bush won. And that's what's happening, even though the president has picked a conservative whose ideology isn't showing in order to avoid a rancorous battle in the Senate.

Indeed, if there was any passion in the Democrats' fight for the presidency, it was on this Supreme Court opportunity issue. They knew they were on the verge of losing control of the Supreme Court's direction well into the next century. But this possibility obviously didn't scare the voters - where a conservative trend has been apparent since Ronald Reagan became president.

Obviously, Judge Souter isn't a Judge Bork. His manner is quiet. He won't take on his critics on the Judiciary Committee. And he probably will be confirmed without much inflammatory grilling - although he will be pressed hard on his views about the right of privacy.

But the real story is that the judiciary, along with the Executive Branch, now is in the hands of the Republicans.

Certainly, Supreme Court justices are independent of politics - and sometimes show this independence. The best example is William J. Brennan Jr. - an Eisenhower appointee. Ike also put Earl Warren on the Court. Both moved in liberal directions that caused Eisenhower to regret these appointments.

So Souter as an associate justice might surprise Bush and please the Democrats. I can imagine Souter refusing to overthrow Roe v. Wade - deciding to stand by stare decisis (decided matters). He might even find himself joining another conservative, Justice Sandra Day O'Connor, in taking such a position.

But who says abortion is a conservative versus liberal issue - although many people frame it that way? It is arguable that the imposition of government into the lives of individuals is something that conservatives have been resisting for years.

There is nothing evil about a president appointing a justice whom he thinks will see the world the way he does. This has been going on for a long time. I recall when Franklin D. Roosevelt even tried to increase the size of the Court and thus get people in sympathy with his New Deal approach on that judicial body.

He failed in packing the Court. But his supporters saw nothing wrong in a president seeking to get high-Court approval for measures that were taking the nation in a socialistic direction.

What would be wrong is if a president named an incompetent - or someone whose experience was insufficient. No one could say that Judge Souter is lacking in these categories.

I became convinced that the Souter nomination would win out when I read columnist Judy Mann's interview with a woman who had been young Souter's girl friend when he was a law student at Harvard. Ellanor Stengel Fink, his friend, was a student at nearby Wheaton College.

Today, Ms. Fink, a Democrat and a mother of three children, is chairman of the board of elections of the town of Somerset - on the edge of Washington, D.C. Her husband is a lawyer. Of Souter, with whom she has not spoken in 20 years, she has, according to Mann, ``extremely positive recollections.''

``What's characteristic of him (Souter),'' Fink told Mann, ``is he's fair-minded. He wants to know and listen to everybody and to reach a fair position based upon the law. The one thing you can say is he will be fair and he will listen to all sides and he will tell you how it is.''

Fink continued, ``He is very much an individualist, with strong feelings about the rights of individuals to control their lives, but I think he also has strong feelings about an individual's duty to the community. He feels very strongly about the country in a very quiet, unassuming sort of way.''

Judge Souter sounds like the kind of judge most people admire. Maybe that's why I think he will pass muster when he faces the Senate in September.

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