Souter confirmation expected despite lingering feminist opposition

THE BALTIMORE SUN

WASHINGTON -- Along K Street, Washington's busiest downtown thoroughfare, very bright red signs have started showing up on utility poles and boxes, and pasted over other posters on available flat spaces. Scurrying pedestrians and

motorists can't miss the glaring top line: "Stop Souter."

But, if all of the political realists in this city could be polled on whether that will happen, it is fair to speculate that they could be close to unanimous in saying it would not.

It is now common wisdom, shared along K Street as well as elsewhere in town, that Judge David H. Souter's move to the U.S. Supreme Court almost certainly will not be stopped. That was far from a sure thing just a few days ago.

What has happened in the interim were the Senate Judiciary Committee hearings -- three days with Judge Souter as the witness, two days with 41 other witnesses demanding "yea" or "nay" votes on his nomination.

The consensus in the capital is that the hearings made all the difference -- a "tour de force" by Judge Souter himself, as the Judiciary Committee's chairman, Sen. Joseph R. Biden Jr., has twice put it, meaning to be very flattering.

From almost total obscurity in remote New Hampshire this summer to celebrity status last week at Memorial Stadium in Baltimore, where he showed up looking reasonably comfortable in a jaunty Boston Red Sox cap, Judge Souter had undergone a transformation in public imagery. And Washington, awaiting the Senate's expected final approval of him, has begun to ponder how it happened.

In the weeks since President Bush chose him on July 23, Judge Souter had been making -- characteristically, in very studious fashion -- what he has called "sort of an autobiographical inquiry," examining again how he sees himself and what he believes, as preparation for the Senate's hearings.

What Judge Souter did at those hearings -- and on nationwide television -- "was not a manipulated performance," according to a person here who was familiar with Judge Souter's preparation, and with his thinking.

That individual, who asked not to be identified, added: "The David Souter you saw is the real David Souter."

Echoed Thomas Rath, a Concord, N.H., lawyer, and one of Judge Souter's closest friends who took part in helping Judge Souter prepare for his Senate encounter: "What you saw was him.

"This man sat there, for 18 1/2 hours, and there was not a single statement out of sync; there is no way you could prepare someone like that. He did it without ever looking at a note; there is no way you could coach that."

The nominee's supporters, in the White House and in the Senate, had grumbled openly beforehand, because activist civil rights groups had insisted that Judge Souter bear the "burden of proof" at the hearings in order to demonstrate that he was not only qualified for but was also entitled to be a Supreme Court justice.

Now, a number of those activist groups, who earlier had given every sign that they were gearing up for a fight, have dropped out of sight -- apparently in direct response to the way he handled the "burden of proof" at the nationally televised hearings. Those groups are not entirely content, their leaders say, but they seem unwilling to risk their political capital by taking him on in the face of almost certain Senate approval.

Judge Souter, to be sure, still has opponents -- very angry opponents, particularly in women's rights groups -- who fear what he will do as a justice on the abortion question. The red "Stop Souter" signs posted downtown were put up by the National Organization for Women, announcing a "Do or Die Day" today -- a day of anti-Souter rallying and "mass" lobbying.

But, in the 10 days since Judge Souter sat down at a red-felt-covered table on Capitol Hill to start making his case for a promotion to the nation's highest court, he apparently has neutralized the opposition, even if he has not won everybody over.

Already, senators are eagerly putting out press notices declaring their intention to vote for Judge Souter -- even senators who had not been at the hearings.

The contrast with 1987 -- the last time that a Supreme Court nomination stirred a serious debate here -- is being widely noted. In that year, Judge Robert H. Bork was turned down decisively after a bitter, nationwide feud. Then, the close of the hearings found the nominee's supporters deeply pessimistic. The outlines nearly certain defeat could already be seen; Judge Bork was privately berating his "handlers," and they were privately blaming him.

When the defeat of Judge Bork finally came, the combatants tTC then were so weary that Justice Anthony M. Kennedy's nomination some weeks later sailed through without a serious contest.

Judge Kennedy, in fact, had been a preferred nominee among even some Democratic senators after the Bork defeat, and thus there was less than rigorous penetration of his views. Judge Kennedy, though, did conduct himself quite differently from Judge Bork, avoiding verbal combat, answering in an engaging way, showing no strain.

Judge Souter, in fact, spent more time watching videotapes of the Kennedy hearings than of those involving Judge Bork, according to his friend, Mr. Rath. "There are ways in which you can answer questions that are more effective," Mr. Rath added, noting that that perception came through from the Kennedy videotapes.

According to another source close to Judge Souter since his nomination, "There was not a preoccupation with Bork. It was not suggested to David that he do something this way, or that, because of the way Bork might have handled it."

Judge Souter, according to that source, did realize quickly that he might well have some difficulty be cause of the way he was being portrayed in early publicity.

"He knew that people would think he was a hermit, and that perception grew [in him] in the days and weeks after the nomination," according to that source.

Those who know Judge Souter personally, like Mr. Rath, had insisted repeatedly to reporters in those days that he was not like that, but he decided on his own, it is understood, that it was his own obligation to dispel that image.

"As he started thinking about his confirmation hearings," an associate said, "he realized that one of the tasks he had was to let the David Souter his friends know really come out."

One of the results of that was the long autobiography he gave as he began his testimony.

He wanted to show, according to those familiar with his planning for the hearings, that "he was somebody who was not a computer, but someone who knew that, at the end of every [court] case, there was a person."

And, it was suggested, the nominee also realized that this was a performance not just for 14 senators, but "before the American public." By Judge Souter's choice, he gave his testimony with deliberate avoidance of "a lot of legalese," and with an intentional display of his "sense of humor."

The summertime of preparation for what turned out to be three highly visible days in front of the cameras "was David's process, from day one," according to Mr. Rath. "Anything we did, it was what he wanted done."

And, with some fervor, Mr. Rath rejects the notion that the notably moderate legal and constitutional views that Judge Souter laid out in answer to senators' questions were uttered just for the sake of making him more appealing than his conservative record as a state judge might have been.

"The kinds of issues he was articulating, the approaches he said he would take, are significantly different from what he had on the state court," Mr. Rath said.

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