The Opinions Of David Souter -- Court Nominee Approaches Law With Cold Precision

CONCORD, N.H. - David Souter's seven years on the New Hampshire Supreme Court produced keenly reasoned, history-bound opinions with a fierce adherence to text and process, a reflection of his own spare, scholarly life.

Unmarried, still living in the farmhouse where he grew up, the U.S. Supreme Court nominee has a belief in learning and public virtue that pervades his rulings. In this rural state where public functions lack formality, Souter's work stood out for its erudition and precision.

But to some liberal lawyers, it was characterized by an icy logic sometimes devoid of such qualities as dignity and compassion.

And, these critics say, the nominee's priestlike life of mountain walks, books and classical music spent nearly entirely in a state with few ethnic or racial minorities has ill-prepared him for the raw, complex issues that urban life brings to the courts.

Souter's views of the nation's most-contested current social issue - abortion - is not known, nor are there many hints in his opinions. While he was state attorney general, his office produced a brief opposing Medicaid funding for abortions while referring to ``an unborn child's right to birth,'' but The New York Times today quoted Richard Weibusch, whose signature appears on the 1976 brief as an assistant attorney general, as saying, ``I never ran the language before Judge Souter.''

Still, Souter's emphasis on text and ``plain meaning'' suggest he may show hostility to Roe vs. Wade, the 1973 Supreme Court ruling that declared abortion a constitutional right.

During his time on the bench, Souter has not dealt with race. Nor has Souter - an Episcopalian and vestry member, a steady churchgoer - ever ruled on church-state relations. While attorney general, he defended Gov. Meldrim Thomson's order to fly flags at half staff on Good Friday - but that was his job, not necessarily his opinion.

``It's not possible to make a decision on how he will vote on the fighting issues of the day: discrimination, social issues and the First Amendment. He has written almost nothing on those,'' said Bruce Fein, an attorney once associated with the conservative Heritage Foundation.

``We see that there's a lot in the area of criminal procedure,'' said Denis Burger, director of liberal Supreme Court Watch.

And on issues of criminal law, noted New Hampshire's chief appellate defender, James Duggan, ``A close case always goes to the government.''

When other justices sought to invest the state constitution with greater protection for individual rights than the federal Constitution, Souter objected. But his belief in process meant that when state prosecutors displayed sloppiness, he did not hesitate to overturn a conviction.

Some years ago, Souter commented on the importance of precision in language and law, saying: ``The more we allow language to be debased, the more free-swinging we are in our interpretation of legal language, the greater risk we run of having the public perceive our actions as arbitrary and personal, not grounded in the constitutional process.''

That sentiment was evident in a 1986 Souter dissent.

The case concerned efforts by the state to pay probate judges extra money, a maneuver that the state Supreme Court declared unconstitutional by a vote of 4-1.

Souter, the dissenter, said the court had failed in its job of interpreting the New Hampshire Constitution. Citing both scholarly commentary on the Magna Carta of 1215 - in Latin - and the history of New Hampshire statutes providing for supplementary fees, Souter instructed his fellow judges ``of what the people of 1784'' and ``the constitutionalists of that time'' understood by the provision ``when the framers proposed it and the people ratified it as part of the original constitutional text that took effect in June of 1784.''

Such an emphasis on the original meaning of provisions and the understanding of words at the time they were written is a key component of the conservative school of law known as ``originalism'' or ``strict construction.''

The debate over the validity of that approach, championed by former Attorney General Edwin Meese, played a role in the failed 1987 nomination of Judge Robert Bork, who described himself as an originalist.

Two cases, with contrasting results, illustrate Souter's adherence to legal process:

The first, a 1988 case called State vs. Bosselait, involved two brothers, Albert and Edward, ages 76 and 79, who shared a janitorial job at the Spaulding Youth Center in Northwood, each man working four hours a day.

When the center contracted with a new company, the brothers lost their jobs. But the state denied them unemployment benefits because, it argued, they were not ``ready, willing and able'' to work full-time.

The two men represented themselves at an administrative hearing, arguing that they were too old and weak to work more than half-time. One brother said he thought ``the statute is discriminating against old fellas'' but did not make his objections in legal or constitutional terms.

Only later, after they lost on appeal, did the Bosselaits get a lawyer who sought to raise constitutional, equal protection objections. But Souter, ruling for a unanimous court, said the issues had not been raised earlier, at the proper time, and therefore he could not consider it.

In a very different case, but one that provides another example of Souter's respect for proper procedure, he overturned the conviction of a man accused of sexually assaulting a 13-year-old boy. Souter said the lower court had erred in not permitting a hearing just because the defendant's lawyer raised the issue at an ``exasperating'' point in the case. The lower-court judge, he said, should not ``penalize the criminal defendant for his lawyer's untimeliness.''

In two labor cases, Souter showed his sharp sense for the written word.

He denied unemployment benefits to striking workers who claimed that, in the midst of a dispute, their employer locked them out. The law, Souter declared, permits benefits when a work stoppage is ``solely'' due to a lockout. Because the dispute included other work-related issues, in addition to the lockout, he denied the benefits. ``There is a presumption that the word `solely' is there for a reason,'' he said.

The judge provided for an expansion of worker rights in another case, however, declaring, for the first time, a company's employee handbook to be equal to an employment contract.

In one case, Souter's unanimous opinion was overruled by the First Circuit Court of Appeals, which complained that he had narrowly interpreted protections for criminal suspects.

In that case, a man tracked down after a rape said to the police, ``I'm not one of your country bumpkins. I grew up on the streets of Providence, Rhode Island. And if you think I'm going to confess to you, you're crazy.''

Souter allowed that statement to be submitted into evidence, saying it suggested the defendant had something to confess. But the First Circuit retorted:

``Under the reasoning of the New Hampshire court, any prearrest invocation of the privilege, no matter how worded, could be used by the prosecutor in his case in chief because it raises an inference of guilt. Such logic ignores the teaching that the protection of the Fifth Amendment is not limited to those in custody or charged with a crime.''

A case on which Souter has been criticized by women's-rights groups involved his overturning of a conviction of an alleged rape because testimony about the victim's activity had been suppressed.

According to the suppressed testimony, the victim had been directing sexually provocative attention toward several men in a bar, including the defendant, hours before he was charged with having raped her. The New Hampshire rape shield law prohibits testimony about a rape victim's sexual past, but Souter ruled that this testimony did not fall in that category, and was relevant to the defense: that the later sexual intercourse was consensual, not forced.

As a trial judge, before joining the New Hampshire high court, Souter received wide praise for a quiet but firm manner.

``He was an excellent trial judge, one of the fairest on the Superior Court,'' said Manchester lawyer John Boeckeler. ``There are some trial judges who sometimes signal their feelings about a case to a jury. Judge Souter didn't do that.''

-- This article contains material from Chicago Tribune and Associated Press.

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RULINGS OF A NEW ENGLAND JUDGE

Among the legal opinions penned by Judge David Souter between 1983 and this year:

RIGHT TO REMAIN SILENT:

Souter allowed the use of a confession made by a defendant after reasoning that the defendant waived his rights to remain silent and to have counsel by saying he had ``no problem,'' talking with police. Souter agreed with the trial judge that the fact of the defendant's ``prior involvement in the criminal law'' and ``street-wise'' character helped support a conclusion that he had waived his rights ``voluntarily and intelligently.''

WIRETAPPING AND PRIVACY:

A wiretapping case allowed Souter to draw a distinction between electronic impulses intercepted from a suspect's telephones and actual conversation. Three convicted drug dealers argued that a trial judge erred in authorizing devices called ``pen registers'' to be attached to the telephone of one of defendants. The devices detected and recorded numbers dialed by that telephone, leading authorities to the other two suspects.

Souter upheld the convictions, saying that all that had been intercepted were electronic impulses between the defendant's telephone and the phone company - not actual conversations.

CHILD ABUSE AND NUDE PHOTOS:

In a child abuse case, Souter upheld a lower court's admission at trial of photos of the defendant and his wife posing in the nude. The child saw the pictures after being sent by the defendant to get cigarettes from a drawer. Souter ruled them relevant because ``although . . . the photographs depicted adults rather than children like the victim, that fact does not negate the premise that causing a child to see sexual material evinces a sexual interest in the child.''

QUOTING THE DEFENDANT:

Souter tolerated questionable police behavior when ruling that a trial court correctly used police accounts of a defendant's statements even though police failed for 14 months to write down the account.

The case involved a man convicted of child abuse who had allegedly asked police officers, ``If I own up to the charges, can you promise me I will not go to jail?'' Even though the police said the account was not necessarily ``verbatim,'' Souter said a jury should hear it.

LIMITS ON DEFENDANT'S RIGHTS:

When a defendant faced a mandatory jail sentence for allegedly violating the state's habitual offender statute for motorists, Souter ruled that there was no constitutional right to be represented by counsel. The state and federal constitutions require the appointment of counsel for defendants charged with crimes punishable by jail sentences, but Souter refused to extend that right to motor vehicle cases even where a jail sentence was possible.

PRECISION OF WORDS:

In a rare decision reversing a criminal conviction, Souter faulted a trial judge for his answer to a jury question. The jury wanted to know if the defendant's refusal to sign an alleged confession meant he denied making the statement. The judge answered no.

Souter found that the jury probably understood the judge's one-word answer to be a resolution of a factual question, when the judge instead meant it as a statement of the law that left the issue open.