Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, July 25, 1990 TAG: 9007250249
SECTION: NATIONAL/INTERNATIONAL PAGE: A/1 EDITION: METRO
SOURCE: Los Angeles Times
DATELINE: WASHINGTON LENGTH: Long
Souter's record is contained almost exclusively in his more than 200 published decisions from the New Hampshire Supreme Court. He has not yet written any opinions as a federal appeals court judge. And, in sharp contrast to Robert Bork, whose extensive writings were a fount of controversy during his confirmation hearings in 1987, he has written only one law review article - a eulogy to a former New Hampshire judge.
A preliminary review of Souter's record indicates only one case that even touches the abortion issue. The 1986 decision, written by one of the other judges on the court but joined by Souter, held that doctors have an obligation to test for birth defects if there is reason to consider the fetus at risk and to inform pregnant women of the results.
That information might lead the woman to abort the pregnancy, the court acknowledged, noting that "we recognize that the termination of pregnancy involves controversial and divisive social issues" but that "the Supreme Court of the United States has held that a woman has a constitutionally secured right to terminate a pregnancy."
Having joined the opinion, Souter then wrote separately to express concern over how the ruling might affect doctors with moral or religious scruples against abortion. Those physicians, he noted, should not have to choose between "rendering services that they morally condemn and leaving their profession in order to escape malpractice."
However, he added, doctors in that position might be able to fulfill their ethical obligations if they simply referred patients to another obstetrician.
As a state court judge, Souter seldom has been called on to handle the sort of federal constitutional questions that form the major part of the Supreme Court's work. The one area in which there is substantial overlap between the two is in criminal law. There Souter, like nearly all the current members of the Supreme Court, generally has taken a narrow view of the protections the Constitution affords defendants.
In a 1985 case, for example, he was the only member of the New Hampshire court to vote in favor of the state's use of random roadblocks to catch drunken drivers. All other members of the court ruled that the roadblocks violated the Constitution's ban on unreasonable searches.
Earlier this year, however, the U.S. Supreme Court sided with Souter, ruling that roadblocks pass constitutional muster.
One of Souter's more controversial criminal law decisions involved a New Hampshire law designed to shield rape victims from questions about their sexual histories. Souter wrote a unanimous opinion that gave the shield law a narrow interpretation.
The defendant in the case argued that the woman accusing him had consented to sex after the two spent much of the afternoon together in a bar. His lawyers wanted the jury to consider statements by witnesses that the woman had repeatedly made sexual advances to other men in the bar.
The trial judge ruled that the "shield law" barred the jury from considering that evidence. Souter disagreed, saying that barring the evidence would deny the defendant a fair trial. The decision was criticized by women's organizations but praised by civil libertarians.
A second controversy involved Souter's defense, as state attorney general in 1978, of former Gov. Meldrim Thomson's decision to fly the flag at half staff over state office buildings on Good Friday. Souter argued Thomson had ordered the flag flown to honor Jesus as a "historical figure" rather than a religious one. The federal courts did not accept that argument.
During his time on the state Supreme Court, Souter had few occasions to rule on civil rights issues. In one case involving gay rights he struck a compromise - saying the state could prohibit homosexuals from adopting children or becoming foster parents but could not bar homosexuals from running day-care centers.
Souter tangled with environmental groups in the long-running controversy over the Seabrook nuclear power station in New Hampshire. In 1977, as attorney general, he vigorously prosecuted demonstrators who had occupied the site in an unsuccessful attempt to keep the plant from being built.
On the other side of that issue, however, as attorney general he challenged part of the federal government's 1976 decision to grant Seabrook a license, arguing that federal regulators had not taken sufficient care to protect safety.
by CNB