JUDGE DAVID SOUTER has stirred modest concern among several conservative members of the Senate Judiciary Committee with some of his statements on judicial activism. Judge Souter said that one reason past Supreme Courts have taken active stances is that a ``vacuum'' sometimes existed which neither Congress nor the White House had filled, and into which the Court stepped, in accordance with its constitutional duties, to meet proper national needs.
The courts, he said, sometimes are ``forced to take on problems which sometimes might better be addressed by the political branches of government.''
These statements raised anew conservative concerns over activism by the court.
During the Earl Warren years, the court took far too active a stance on social issues, according to many conservatives. However, the concern does not seem to threaten his nomination.
Conservatives worry that Souter might become an activist member of the Supreme Court, trying to force it back into a more socially active and liberal role than it now holds.
But activism lies more in the eyes of the beholders than in the actions of the justices, say several legal specialists. ``In general, people criticize courts for being activists [because the courts are] doing things they don't like,'' says Mark Tushnet, professor of law of Georgetown University Law School. Activism ``is just a label'' to describe actions that people oppose.
From the beginning of the Supreme Court in the late 18th Century, its judges have been judicial activists, says Herman Schwartz, professor of law of American University: ``From John Marshall, one of our greatest activists, to Antonin Scalia, to Bill Brennan, to Sandra Day O'Connor - they're all activists.'' They just have different perspectives, he says.
At present it is conservatives who accuse liberals of being court activists. But in the past it has been the other way around: ``Liberals accused conservatives in the pre-1937 Court of being activists,'' says David O'Brien, professor of government of the University of Virginia.
SOUTER'S comment about the court's role in filling a vacuum was too much for Iowa's Republican Senator Charles Grassley. ``If we're going to have a Supreme Court that thinks it can fill vacuums every time there is a perceived problem,'' he said, ``then ... you're going to be a very busy person...''
Souter hastened to explain that he meant a far more narrow concept, in which the court would step in as a last resort when the political system had failed to right a constitutional wrong.
As an example of filling a vacuum, he cited the situation that existed in 1954 with school segregation. Several southern states then had laws that prohibited racial integration, and the law of the United States for 58 years had been that separate-but-equal school facilities were legal.
At any time in those 58 years Congress could have changed the law, Souter noted, but it did not; and the Supreme Court, to carry out the Constitution, ``had a responsibility to take some action.''
Thus when the landmark Brown v. Board of Education case came to the Supreme Court in 1954, ``it was incumbent'' upon the Court ``to apply the equal protection clause as it thought right,'' Souter said. ``And in my judgment ... there is no question it applied it correctly.''
Somewhat mollified, Grassley was still concerned, and pressed the issue. He quoted the late conservative Justice John Harlan, whom Souter much admires: ``I believe that the vitality of our political system ... is weakened by reliance on the judiciary for political reform.'' And again: ``This court does not serve its highest purpose when it exceeds its authority even to satisfy the justified impatience with the slow workings of the political process.''
Souter's use of the word ``vacuum'' does not ``tell you very much about what he would do,'' Professor Tushnet says. ``This vacuum idea could be used by a judge ... to be quite aggressive. But it also could be used to identify extreme circumstances.''
Souter ``is clearly sending mixed signals,'' says Professor O'Brien. ``But whether he's an activist or an advocate of judicial self-restraint, we don't know.''
O'Brien continues: ``Souter is going to be more of a technician and less of a social visionary, in contrast to [Chief Justice William] Rehnquist and [Justice Antonin] Scalia, who are more social visionaries in terms of where they want to see the law go.''
``I think Souter will stand where every other justice has stood,'' says Professor Schwartz, ``judicially active on things he cares about, and judicially restrained where he sees no need to act.''