New Hampshire Judge Tapped To Fill Brennan's Court Seat

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Washington--President Bush's nomination last week of David H. Souter, a federal appellate-court judge from New Hampshire, to replace Justice William J. Brennan Jr. on the U.S. Supreme Court left the education community, like many other interest groups, warily uncertain.

Justice Brennan, who authored several landmark decisions in the field, had established himself in 34 years on the Court as a clear proponent of civil-rights protections, affirmative action, and separation of church and state.

But Mr. Souter, who has sat on the U.S. Court of Appeals for the First Circuit in Boston since April, is a virtual unknown when it comes to school law, sources said last week.

Appointed to the New Hampshire Supreme Court by former Gov. John H. Sununu, now the President's chief of staff, Judge Souter wrote few decisions in his seven-year tenure on that court dealing directly with educational issues.

In fact, several school officials and district lawyers in the state said last week they had no basis for any comment on Judge Souter's influence, past or future, on education.

"We really don't have any notion of his philosophy or position on educational equity, for example," said Richard Goodman, executive director of the New Hampshire School Boards Association.

But one local lawyer who has argued several cases before the judge was critical of his rulings involving "the disadvantaged generally."

"He has an intellect unsullied by experience or compassion," said Ronald K. Lospennato, a lawyer who specializes in defending persons with disabilities.

Mr. Lospennato cited one case involving a dispute between the state departments of education and health and human services. Both claimed it was the other's responsibility to provide certain services to two educationally disabled persons.

In arguing the case before the state supreme court, Mr. Lospennato contended that the two departments' administrative-law processes were inadequate and too slow.

Judge Souter disagreed. Writing for the court, he said that since the administrative-law process was voluntary, "we find no conflict between a claimant's unfettered right to obtain immediate judicial review following a state hearing ... and the claimant's unfettered discretion to seek further administrative review to resolve a conflict between administrative departments."

Seen 'Solidifying' Majority

The President nominated Mr. Souter to the High Court on July 23, three days after Justice Brennan unexpectedly notified Mr. Bush of his resignation due to illness.

The sudden departure of Justice Brennan, who had been known as a coalition builder on the Court, as well as a champion of legal interpretations considered more "liberal" in their reading of the Constitution's scope, focused intense interest on Judge Souter's confirmation hearings, scheduled to begin in September.

The New Hampshirite's probable confirmation, many said, will likely make the Court more conservative.

"With Brennan's retirement, a further shift to the right should result" on several issues regarding student rights and search and seizure, said Stephen B. Thomas, president of the National Organization on Legal Problems of Education.

The nominee's views on many issues are unknown. But President Bush praised Mr. Souter as a judge who will "interpret the Constitution and not legislate from the bench."

Although Judge Souter has never written an opinion on abortion--the issue that dominated speculation on his views last week--he did write an letter to a New Hampshire legislative committee in 1981, advising against passage of a bill that would have required minors to seek parental consent before obtaining an abortion.

The bill specified that if a minor could not obtain parental consent, she would have had to get a judge's approval for the abortion.

In his letter, Judge Souter said that such a bill would force jurists "to make fundamental moral decisions about the interests of other people, without any standards to guide the individual judge."

In the departure of Justice Brennan, educators said last week, the Court is losing one of its strongest advocates for civil rights in the schools.

Among the several important decisions he wrote are Keyes v. Denver School District No. 1 (1973), in which the Court held that school officials could be held responsible for racial segregation that had not been mandated by law, and Edwards v. Aguillard (1987), in which the Court struck down a Louisiana law requiring the teaching of creationism.

His key dissenting opinions in the field include those in New Jersey v. T.L.O. (1985), which upheld searches of students on "reasonable" grounds of suspicion, and in Hazelwood School District v. Kuhlmeier (1988), which allowed school officials greater authority in regulating speech in school-sponsored activities.

Vol. 09, Issue 40

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