News Analysis: Little Known About Court Nominee, but Jews Discover ‘no Smoking Gun’

When President Bush nominated federal appellate Judge David Souter to the Supreme Court on Monday, Jewish organizations knew nothing about his views on issues of concern to American Jews, such as the separation of church and state.

A day later, Jewish organizations were still not able to get a fix on the 50-year-old jurist from New Hampshire.

But there appears to be “no smoking gun,” said Mare Stern, legal director for the American Jewish Congress.

Stern said Tuesday that he and his staff had gone over more than 185 opinions Souter had written while on the New Hampshire Supreme Court from 1978 to 1983. They found that not one dealt with the church-state issue.

Souter has been on the 1st U.S. Circuit Court of Appeals in Boston for only two months and has not taken part in any cases before the court.

But one incident that occurred when Souter was New Hampshire’s attorney general could be of concern to Jews.

Meldrim Thomson, who was the state’s conservative and controversial governor at the time, ordered the American flag flown at half mast on public buildings on Good Friday, to mark the death of Jesus.

When a federal court blocked the order on grounds that it violated the separation of church and state, Souter argued that Thomson was recognizing Jesus as a “historical figure” and not endorsing Christianity.

“It’s hard to tell whether it means anything,” Stern said of Souter’s action. He noted that Souter was acting to defend his client, the governor, in his capacity as attorney general.

NO CLUE ON ABORTION STAND

It is also not clear whether Souter did the work on the case or whether it was done by one of his assistants, Stern added.

He said Souter should be questioned about the incident when he appears before the Senate Judiciary Committee for his confirmation hearings. They are expected to begin in September.

“His record will certainly be scrutinized by the Senate,” agreed Samuel Rabinove, legal director for the American Jewish Committee. Souter is an “unknown, and one has to reserve judgment,” he said.

The main issue of general public concern, following Justice William Brennan’s surprise announcement last Friday that he was retiring after 34 years on the court, has been where his replacement will stand on the issue of abortion.

President Bush, in announcing Souter’s appointment, denied that he had made abortion or any other issue a litmus test in his decision.

As a state Supreme Court justice, Souter was involved in a decision on abortion. But his disposition in the case gives no clue as to whether he would vote to uphold or overturn Roe vs. Wade, the 1973 U.S. Supreme Court case that ruled women have a constitutional right to an abortion.

Federal and state court judges must rule in accordance with U.S. Supreme Court decisions. But once on the U.S. Supreme Court, a justice is free to decide according to how he interprets the federal Constitution.

Souter had concurred in a majority opinion of the New Hampshire Supreme Court that a doctor was negligent in failing to warn a pregnant woman of the possibility that her child would be born with birth defects, in which case she might have decided on an abortion.

Souter wrote a concurring opinion that if the doctor had “conscientious scruples against abortions,” the patient should have been referred to another doctor.

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