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Although there was little suspense surrounding the confirmation process, the stakes could not have been higher. The departure in July of Justice William Brennan, an influential liberal, has left the court with a preponderance of conservatives. Last term, Brennan's vote and persuasive powers helped the liberals win a number of 5-to-4 victories in such areas as flag burning, affirmative action, desegregation and free speech. But if Souter proves to be as rigidly conservative as some fear, he could swing the court's balance to the right for perhaps the next quarter-century. His cautious testimony before the committee last week shed little light on how he might vote on specific issues. But if he joins the court for the session beginning Oct. 1, as expected, he will immediately confront several key cases that will give a clearer idea of what his career on the high bench portends. Among them:
Rust v. Sullivan. A free-speech case, testing whether federal regulations can prohibit doctors and health-care providers from discussing abortion as an option for patients.
United Auto Workers v. Johnson Controls, Inc. An employment case involving a company's right to prohibit women of childbearing years from being hired for jobs that could pose a danger to a fetus.
Board of Education of Oklahoma City Public Schools v. Dowell. A desegregation case examining whether a school system can adopt a neighborhood attendance plan that might result in resegregation.
The most pointed questioning during the first day of hearings came from Massachusetts Democrat Edward Kennedy, who was harshly critical of Souter's performance as attorney general of New Hampshire from 1976 to 1978. In that role, Souter had maintained that the state had no obligation to provide data on racial discrimination in employment to the Equal Employment Opportunity Commission, an argument that was later rejected on appeal and one that the U.S. Supreme Court refused to review. On behalf of the Governor of New Hampshire, Souter had also defended a literacy test for voters and argued that Congress had no authority to invalidate it. In another case cited by Kennedy, Souter had defended the state's right to require that flags fly at half-staff on Good Friday, a practice that was later struck down by a federal judge as a violation of the separation of church and state.
But Kennedy's misgivings fell far short of providing a basis for rejecting the nomination. Souter explained to the panel of 14 Senators that he had served in all these cases as the Governor's advocate, a role required of the attorney general. At one point, the hearing room burst into laughter when it turned out that the argument in one of the cases cited by Kennedy was signed not by Souter but by his predecessor as attorney general, Warren Rudman. Now a Republican Senator from New Hampshire, Rudman has been Souter's foremost supporter and sat behind him throughout the hearing.