Although we support the confirmation of Judge David Souter for the U.S. Supreme Court, we respect Maryland Sen. Barbara Mikulski's announced intention to vote against the nomination because Souter refused to declare himself unequivocally in favor of the fundamental right of women to terminate unwanted pregnancies.
Political reality is such that if Souter had given such an assurance, President Bush would have withdrawn his nomination. Thus, in our view, his responses to other questions -- in particular his embrace of the judicially established right to practice birth control -- came as close to signaling his support of abortion rights as can be expected under the circumstances.
Let's suppose, for the moment, that Souter had indicated he might vote to overrule the 1954 decision banning school segregation. Or the 1962 ruling banning religious exercises in public schools. Or the 1963 decision declaring the right to legal representation in every criminal prosecution. If Souter had been equivocal on any of these settled cases, he almost certainly would be facing defeat this week rather than confirmation.
By voting against Souter, Mikulski -- and other senators who will join her -- are sending a strong signal that the day is coming when any nominee for the Supreme Court who refuses to declare himself or herself in favor of the fundamental right to choose an abortion may as well not bother to come to Washington for the confirmation hearings.