Anthony M. Kennedy

Speaker, Title, Party Statements
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge Kennedy, welcome. We are delighted that you are here and are anxious to get this hearing under way. I would like to at the outset indicate how we are going to proceed. It has been the custom of the committee to not have a singular custom; that is, that ofttimes we have started with opening statements of Senators and then had those who were going to introduce the nominee introduce, and then move to the nominee. But in the interest of accommodating our colleagues, Senator Wilson and our colleagues from the House, what I would like to suggest we do before I make an opening statement is: I would ask Senator Wilson and my House colleagues if they would make opening statements. Then we will allow them to sit and listen to all of us, if they wish, for the next 1Vz hours. Or if they have other business, we understand. Then I will make an opening statement, and all of us will endeavor to keep our statements relatively short. Then we will go to you, Judge; you will be sworn, go to you for an opening statement. If we are lucky, w Now, if they want to stay around and gain some wisdom from the Senators, that will be fine, too. Thank you very much.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, before you start, could I just note one thing, because a number of us are going to be doing this? So I will not have to be answering all kinds of phone calls from my office, a lot of us are on various committees of conference, and I think different ones will be going in and out during this hearing. I thought I would note that so that Judge Kennedy does not think that we suddenly left in dismay.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The Judge has some extensive experience in California, in the California legislature, and I know he knows how legislative bodies work. That is a good point to make. I know some of my Republican and Democratic colleagues will have to be absent at part of the hearing throughout. I know Senator Metzenbaum has business he has to attend to this afternoon. I know that you and many others are on a conference. So, Judge, if, in fact, Senators are moving in and out, it is not out of lack of interest. It is additional responsibilities in the Senate that require them to do so.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, we will be glad to excuse any of them, of course, just so they are here when the time comes to vote for Judge Kennedy. That is all that counts.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS usual, my colleague from South Carolina beats around the bush a lot. Let me yield now to our colleague from California, Senator Wilson. Welcome, Senator.
Senator Pete Wilson (CA)
Senator
(R)
Senator WILSON. Thank you very much, Mr. Chairman. I will avail myself of the opportunity to drink deep from the wisdom. I do have some time this morning, and I look forward to it. I am particularly pleased—in fact, I feel privileged—to be able to introduce a long-time friend, but much more importantly an exceptional judge, one who gives promise of giving truly distinguished service on the Supreme Court of the United States. The committee is in possession of his background, his record, which is an extraordinary one. You know that he was a brilliant student, both as an undergraduate at Stanford, graduating Phi Beta Kappa, having completed all of the work required for his graduation by the end of his junior year so that he took his senior year at the London School of Economics. You know that he was a cum laude graduate of the Harvard Law School; that he was born and raised in Sacramento and, after his father's death, returned, having served 2 years with one of the best known, most prestigious San Francisco firms, to take over his father's practice in Sacramento. I will not dwell at length on that. I was privileged to first know Tony Kennedy some 20 years ago when we were both young men—still, I hope, young at heart. He was a young lawyer practicing in Sacramento. I was a young member of the State legislature. A small part of his practice consisted of legislative advocacy, and it was in that role that I first 3 knew him. He was a very different kind of legislative advocate. He came to my office, and without my soliciting him to do so, he informed me not only who was for the legislation that he was proposing, but who was opposed to it and why in both cases. He anticipated my questions. He did not offer to buy me a drink. He did not offer to take me to dinner. He was a very good legislative advocate and, I think, an effective one, though I have read that it was not particularly a part of his practice that he enjoyed. But for those of us who were exposed to him, we quickly learned that this was a young man who obviously knew what it was that he was talking about, who disclosed everything, and who concealed nothing. Judge Kennedy's excellent reputation as a lawyer became so well known in 1975 President Ford named him to the U.S. Court of Appeals for the Ninth Circuit. He was only 38 years old, one of the youngest lawyers ever honored by a Presidential appointment to the nation's second highest court. It was as a member of the ninth circuit that Judge Kennedy has authored hundreds of opinions, majority opinions, as well as some very important dissents, one of which I will dwell upon in a moment. He has, through all the years of maintaining a very heavy judicial docket, found time to serve on a number of administrative panels for the improvement of the functioning of the federal judiciary, as well as upon the Committee on Pacific Ocean Territories. He has been a director of the Federal Judicial Center and a National Correspondent for Crime Prevention and Control with the United Nations. Beyond his work on the bench, Judge Kennedy's dedication to the law has inspired him to teach at the McGeorge School of Law of the University of the Pacific, where he has been a distinguished professor since 1965. It would be a gross understatement to say that Judge Kennedy has been well received by his students. Not only have they found him to be, in the words of one former student, "an excellent teacher" who commands a "brilliant intellect," but they also know him to be a very creative instructor. He reportedly has taken to conducting a lecture on the Constitutional Convention having assumed the persona of James Madison—complete with period garb. What I was looking for a moment ago was the exact quote of one of his students, a Mr. Norm Scott, and I will have to paraphrase Mr. Scott. He said that it was clear that Judge Kennedy enjoyed the interchange, the interaction with his students, enjoyed teaching them to think. It was also true that, while he told them that they should respect the pronouncements of the Supreme Court, they should not accept them as gospel. I think that it is clear from those who have known Judge Kennedy in one persona or another—whether as teacher or as a judge during his 12 years on the Court of Appeals—that he has demonstrated the highest intellect, a truly judicial temperament, great compassion. I think, too, that it is clear from those that have known him, either as teacher or judge, that he has exhibited, in the courtroom as well as in the classroom, the belief that the Founding Fathers exercised the greatest care that the national government, and especially our federal courts, should play a properly limited role in the lives of our citizens. We should expect no less care of any candidate for our nation's highest court, and in Judge Kennedy you will find that expectation fully met. When a judicial candidate's qualifications are considered, one ever-present question is whether he or she possesses compassion. But too often, the test of compassion is focused too heavily on the candidate's concern for the accused, with little or no regard for society and little or no regard for the victim. Justice does not simply demand protection of the rights of the accused; it demands as well the protection of the rights of those harmed. Until a verdict has been returned, the accused in a criminal case obviously is just that—the accused. But whether the accused being tried is ultimately adjudged guilty or innocent, we cannot ignore the fact that an innocent victim has been harmed: either deprived of property or, in the most egregious circumstance, forced to suffer the violence of rape or robbery or other assault, or even death. Unfortunately, in the effort to respond to some past abuses of those accused by our criminal justice system, we have almost lost sight of the need to safeguard the rights of victims. Judge Kennedy has never lost sight of the need for our criminal justice system to seek justice for all those affected by crime, as he made clear in a speech delivered earlier this year in New Zealand. As he stated forthrightly, "[A] decent and compassionate society should recognize the plight of its victims." In fleshing out this basic truth, Judge Kennedy went on to say that, "An essential purpose of the criminal justice system is to provide a catharsis by which a community expresses its collective outrage at the transgression of the criminal." Clearly, that is what law-makers do in enacting criminal codes. We proscribe antisocial conduct and prescribe a penalty for the commission of a prohibited act; and we entrust the application of the laws to judges. That is why the role of judges is so important. As Judge Kennedy noted in his speech, "It does not do to deny the same catharsis to the member of the community most affected by the crime. A victim's dissatisfaction with the criminal justice system, therefore, represents a failure of the system to achieve one of the goals it sets for itself." This failure which Judge Kennedy has noted occurs most often at retail, in the courts, when the application of the law achieves not justice, or the legislative intent of deterrence and catharsis, but frustration and distrust in the victim and in the public. It is little wonder that victims often fail to report crimes, Judge Kennedy notes, for the criminal justice system's failure to care about victims is too well known and too often inspires in the public doubt that true justice will be done. Ultimately, victims and witnesses become indifferent to the need of the criminal justice system for their cooperation in the belief that the system has become indifferent to them. Judge Kennedy's concern is appropriate not only for those of us entrusted with making the law, but also for judges who apply it. Certainly, it is appropriate for those whose duty it is to test it against the Constitution. If the proper protections of the Constitution are stretched to the point where the criminal law provides inadequate and uncertain protection to the public, if our criminal justice system is perceived to be unjust, the demoralizing effects may well breed distrust, disrespect for the legal process, and a desperate resort to vigilante actions. The Bernhard Goetz case comes to mind. Broadly stated, our exclusionary rule requires that if the constable blunders, the criminal goes free. The sad fact is that too often when the constable has made no willful blunder, the criminal has still gone free, even where evidence of guilt was entirely reliable. And, again, the result in such cases has been that in seeking to curb and penalize unlawful police practices, our criminal justice system, through largely court-made law, has released the clearly guilty, to the outrage of the victim and to the peril of the public. This situation has been one that cries out for judicial application of a rule of reason to limit abuses. Enter now Judge Kennedy—and reasonable balance. In an exceptional dissenting opinion in the case of United States v. Leon, Judge Kennedy argued that a truly good-faith mistake by police should not lead to a criminal's release. What makes the opinion exceptional is that its persuasiveness ultimately led to its adoption by the Supreme Court. It is this strict approach to the application of the fourth amendment that is necessary to restore effectiveness, fairness, and true compassion to our criminal justice system. There are many issues that will be raised by the members of this committee during these confirmation hearings, drawing deep from the well of American law. But as the committee carries out its constitutional responsibilities, it will look, I am sure, to see whether or not Judge Kennedy's service on the Supreme Court will serve the interests of justice—which, in my judgment, it surely will—but as the committee seeks justice, it should also do justice both to the nominee and to the confirmation process. At the President's announcement of his nomination, Judge Kennedy told reporters that this committee and the entire Senate have a duty to give the most careful scrutiny to his candidacy, and that he welcome such scrutiny. Mr. Chairman, I take pride in joining him in inviting that scrutiny. Tony Kennedy's record as a lawyer, as a judge, as a teacher, as a human being, is an open book, and it is a story of an individual who has charted a judicial course of such distinction and soundness, of such consistency and reliability, that there should be little question of his exceptional qualifications to serve on the Court—as, indeed, the American Bar Association has found in giving him its highest rating. Therefore, I urge the committee to complete its work with both deliberation and alacrity, so that the Senate may consider Judge Kennedy's nomination at the start of the new year. I know that is the Chairman's intention. I congratulate him upon his having moved expeditiously to convene these hearings as early as he has. Mr. Chairman, I wi1 ! simply say that I think when you have completed your deliberations, and when the Senate has voted, we will have given the Supreme Court a distinguished new member, one who will reflect credit upon us and upon the President in having 6 made this nomination. More importantly, he will be a valuable addition. He has long years of service to give. His, I think, will be a truly extraordinary career, as it has been already. Thank you, Mr. Chairman. [The statement of Senator Wilson follows:] STATEMENT OF SENATOR PETE WILSON OF CALIFORNIA BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE — DECEMBER 14, 1987 NOMINATION OF ANTHONY M. KENNEDY TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT Mr. Chairman and members of the Committee, I am extremely pleased to appear here today to introduce Judge Anthony M. Kennedy, who has been nominated by the President to serve as Associate Justice of the Supreme Court of the United States. My state of California has been blessed with an abundance of legal talent, and the public has been well served by the willingness of the very best to serve there as judges. Among the very distinguished judges at all levels of the judiciary in California, it has been known far and wide for many, many years that there is no more distinguished and talented member of this varied fraternity than Judge Anthony Kennedy. Anthony Kennedy was born in Sacramento, California, on July 23, 1936. The son of a noted lawyer in the state capital, he grew up in Sacramento and then attended Stanford University. At Stanford, Judge Kennedy was an excellent student. Not only did he graduate "with great distinction" in 1958, he was also elected to Phi Beta Kappa and Phi Sigma Alpha, the national political science honor fraternity. During his senior year at Stanford, Judge Kennedy already had fulfilled the principal requirements for graduation and attended the London School of Economics and Political Science at the University of London. Deciding to follow his father into a career as a lawyer, Judge Kennedy attended Harvard Law School, where during his final year he served as a member of the Board of Advisors of the law faculty. He received his law degree, cum laude, in 1961 Judge Kennedy began his legal career at the noted San Francisco law firm of Thelen, Marrin, Johnson & Bridges. In 1963, upon his father's death, Judge Kennedy returned to Sacramento to assume his father's business law practice. Four years later, he formed a partnership, Evans, Jackson & Kennedy, Page 2 Judge Kennedy's Sacramento law practice was broad in scope. During his years as a solo practitioner, he handled twenty to thirty litigation matters per year, including criminal and probate cases. After forming his partnership in 1967, Judge Kennedy's practice for major clients was extensive, including corporate, tax, administrative, real estate, and environmental law, as well as legislation, estate planning and probate, and international legal transactions. Judge Kennedy's excellent reputation attracted the attention of President Ford, who named him in 1975 to the United States Court of Appeals for the Ninth Circuit. At the age of 38, Judge Kennedy was one of the youngest lawyers ever honored by a presidential appointment to the Nation's second highest court. As a member of the Ninth Circuit Court, Judge Kennedy has authored more than 300 majority opinions, as well as 100 concurring and dissenting opinions. While maintaining a full judicial docket, Judge Kennedy has also served on a number of administrative panels of the federal judiciary, including the Judicial Conference's Advisory Committee on Codes of Conduct and its Committee on Pacific Ocean Territories. He is also a director of the Federal Judicial Center and a National Correspondent for Crime Prevention and Control with the United Natxons. Beyond his work on the bench, Judge Kennedy's dedication to the law has inspired him to teach at the McGeorge School of Law of the University of the Pacific, where he has been a professor since 1965. He has been a distinguished teacher of the law. It would be a gross understatement to say that Judge Kennedy has been well received by his students. Not only have they found him to be, in the words of one former student, "an excellent teacher" who commands a "brilliant intellect", they also know him to be a creative instructor. He reportedly has taken to conducting a lecture on the Constitutional Convention having assumed the persona of James Madison — complete with period garb. I have been privileged to know Tony Kennedy for more than 20 years, since we first met in Sacramento — where, as I noted, he was born and raised, and where I had come to begin my political career in the state Assembly. During his 12 years on the Court of Appeals, and indeed during his entire life, Tony Kennedy has shown himself to possess the highest intellect, temperament, and compassion. Page 3 Furthermore, as the Committee considers Judge Kennedy's nomination to serve on the Supreme Court, your review of his service on the Court of Appeals will leave no doubt that he subscribes to the conservative principles which the framers of our Constitution adopted 200 years ago. He knows that our Pounding Fathers exercised great care that the national government, and especially our federal courts, should play a properly limited role in the lives of our citizens. We should expect no less care of any candidate for our Nation's highest court, and in Judge Kennedy you will find that expectation fully met. When a judicial candidate's qualifications are considered, one everpresent question is whether he or she possesses compassion. But too often the test of compassion has focused too heavily on the candidate's concern for the accused, with little or no regard for society, and with little or no regard for the victim. Justice does not simply demand protection of the rights of the accused. Justice also demands the protection of the rights of those harmed. Until a verdict has been returned, the accused in a criminal case is just that — the accused. But whether the accused being tried is ultimately adjudged guilty or innocent, we cannot ignore the fact that an innocent victim has been harmed — either deprived of property, or in the most egregious circumstances, forced to suffer the violence of rape or other assault, or even death. Unfortunately, in the effort to respond to some past abuses of those accused by our criminal justice system, we have almost lost sight of the need to safeguard the rights of victims. Judge Kennedy has never lost sight of the need for our criminal justice system to seek justice for all those affected by crime, as made clear in a speech he delivered earlier this year in New Zealand. As he stated forthrightly, "[A] decent and compassionate society should recognize the plight of its victims." In fleshing out this basic truth, Judge Kennedy went on to say that, "An essential purpose of the criminal justice system is to provide a catharsis by which a community expresses its collective outrage at the transgression of the criminal." Clearly that is what law-makers do in enacting criminal codes. We proscribe anti-social conduct and prescribe a penalty for the commission of prohibited acts —• and we entrust the application of the laws to judges. That is why the role of judges is so important. As Judge Kennedy noted in his speech, It does not do to deny that same catharsis to the member of the community most affected by the crime. A victim's dissatisfaction with the crxminal justice system, therefore, represents a failure of the system to achieve one of the goals its sets for itself. 10 Page 4 This failure occurs most often at retail, in the courts, when the application of the law achieves not justice, or the legislative intent of deterrence and catharsis, but frustration and distrust in the victim and in the public. It is little wonder that victims often fail to report crimes, Judge Kennedy notes, for the criminal justice system's failure to care about victims is well known, and too often inspires public doubt that true justice will be done. Ultimately, victims and witnesses become indifferent to the need of the criminal justice system for their cooperation, in the belief that the system has become indifferent to them. Judge Kennedy's concern is appropriate not only for those of us entrusted with making the law, but also for judges who apply it. Certainly it is appropriate for those whose duty it is to test it against the Constitution. If the proper protections of the Constitution are stretched to the point where the criminal law provides inadequate and uncertain protection to the public, if our criminal justice system is perceived to be unjust, the demoralizing affects may well breed distrust, disrespect for the legal process, and a desperate resort to vigilante actions. The Bernhard Goetz case comes to mind. Broadly stated, our exclusionary rule requires that if the constable blunders, the criminal goes free. The sad fact is that too often when the constable makes no willful blunder, the criminal has still gone free, even where evidence of guilt was entirely reliable. And again, the result in such cases has been that in seeking to curb and penalize unlawful police practices, our criminal justice system, through largely court-made law, has released the clearly guilty — to the outrage of the victim and the peril of the public. This situation has been one that cries out for judicial application of a rule of reason to limit abuses. Enter now Judge Kennedy — and reasonable balance. In an exceptional dissenting opinion in the case of United States v. Leon, Judge Kennedy argued that a truly good-faith mistake by police should not lead to a criminal's release. What makes the opinion exceptional is that its persuasiveness ultimately led to its adoption by the Supreme Court. It is this strict approach to the application of the Fourth Amendment that is necessary if we are to restore effectiveness, fairness, and true compassion to our criminal justice system. 11 Page 5 There are many issues that will be raised by the members of this committee during these confirmation hearings, drawing deep from the well of American law. But as the Committee carries out its constitutional responsibilities, it should not only look to see if Judge Kennedy's service on the Supreme Court will serve the interests of justice — which it surely will — but as the Committee seeks justice, it should also do justice, both to the nominee and to the confirmation process. At the President's announcement of his nomination, Judge Kennedy told reporters that this Committee and the entire Senate have a duty to give the most careful scrutiny to his candidacy — and that he welcomed such scrutiny. I take pride in joining him in inviting that scrutiny. Tony Kennedy's record as a lawyer, as a judge, and as a human being is an open book, and it is a story of an individual who has charted a judicial course of such distinction and soundness that there should be little question of his exceptional qualifications to serve on the Court. Therefore, I urge the Committee to complete its work with both deliberation and alacrity, so that the full Senate may consider Judge Kennedy's nomination at the start of the new year. 12
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Representative Fazio, thanks for coming to the other body. We appreciate it. It is interesting to note that your Republican colleague from the Senate is here, and you, a Democrat, are here, both to speak on behalf of Judge Kennedy. Please go forward.
Rep. Vic Fazio (NY)
Mr. Fazio
(D)
Mr. FAZIO. Thank you, Mr. Chairman. Members of the committee, it is a great pleasure and an honor to join my colleagues, Congressman Bob Matsui and Senator Pete Wilson, in presenting Judge Anthony M. Kennedy for your consideration to fill the current vacancy on the Supreme Court. I come before you as Judge Kennedy's friend, a former neighbor, and as one of two members of Congress who have the privilege of representing the city of Sacramento where Judge Kennedy grew up and where he has resided for the last 24 years. I also represent Solano County, California, which produced the last Supreme Court nominee from the Ninth Circuit Court of Appeals, Judge Joseph McKenna. Judge McKenna was nominated to the Supreme Court by President McKinley and confirmed for appointment to the high court in January of 1898. Judge Kennedy, who is quite a historian, has informed me that Judge McKenna, a former district attorney, promptly repaired to the Columbia University Law School for a refresher course. One wonders how the ABA might have reacted in 1988 to that kind of activity by a prospective member of the Supreme Court.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS long as they came east, they probably would have been satisfied.
Rep. Vic Fazio (NY)
Mr. Fazio
(D)
Mr. FAZIO. East of the Mississippi. Judge Kennedy, in my view, has long possessed all of the qualities and qualifications needed to make an outstanding Associate Justice. As a youth, Tony Kennedy displayed an early interest and appreciation for the law and our judicial system. At the early age of 10, he began working around his father's law office and began accompanying his father to trials throughout northern California. I do not have to recount his academic record. Senator Wilson has outlined it for you. But it is important to point out that during his time on the bench and in the classroom, Judge Kennedy has earned the respect of his peers and the admiration of his students for his commitment to excellence, his spirited eloquence, and his unparalleled understanding of the Constitution. He has also proven himself to be an active and concerned member of our community, active in organizations and projects from his local Catholic Church to Little League Baseball, while performing pro bono legal work for a number of entities, including Plaza de Las Flores, a project of the Sacramento Mexican-American community. A highly respected local attorney, the former President of the California State Bar, and principal partner of the firm Diepenbrock, Wulff, Plant and Hannegan of Sacramento, Forest A. Plant, perhaps summed up Judge Kennedy's overall qualifications best when he wrote: Judge Kennedy is extremely industrious; he is highly intelligent; .. . he has a profound knowledge of the evolving Constitution as evidenced not only by his decisions but by his years of teaching the subject at the law school level; he is objective and even-handed in decision-making and is sensitive to the concerns of all parties involved in the particular litigation. He is not doctrinaire or inflexible in the discharge of his judicial duties. Above all, he has exhibited a profound faith in our judicial system and the central importance of the Constitution in that system. In my view, if confirmed, Judge Kennedy will show judicial restraint on the Supreme Court just as he has for the last 12 years on the court of appeals. But that does not mean that he is hostile to individual rights. The kind of judicial restraint which typifies Judge Kennedy's record in the court, his lectures in the classroom and his statements in both public and private, respects precedents which some feared previous nominees would ignore; it respects our institutions and expects change to occur not always through the courts but through the efforts of the people and their representatives as well. The rights which we all take for granted, the rights of privacy, of freedom of expression and freedom from arbitrary government action, are all well established under current law and, I believe, would be safeguarded and honored by Judge Kennedy. But Tony Kennedy, nonetheless, is a conservative. He is a man with common sense value, a middle class lifestyle, and a traditional sense of judicial restraint. Mr. Chairman, members of the committee, it is a pleasure for me to give Judge Kennedy my highest recommendation and to convey to you the sense that the community in which Judge Kennedy has worked and lived for most of his life takes great pride in his accomplishments and has great hope for his elevation to the highest court in the land. At this time, Mr. Chairman, I would like to submit for the record a letter from Gordon Schaber, Dean of the McGeorge Law School of the University of the Pacific, where, as has been indicated earlier, Judge Kennedy has taught for the last 23 years. Dean Schaber, an active Democrat, gives Judge Kennedy his strong recommendation, and states that Judge Kennedy would, as an Associate Justice, serve this country in the highest tradition. [The letter of Dean Schaber follows:] Mr. FAZIO. In addition, Mr. Chairman, I would like to submit for the record an article published in the Sacramento Bee by John Oakley, a self-described liberal, a Democrat, and a professor at the University of California's Martin Luther King Law School in Davis. Mr Oakley writes that Judge Kennedy's "opinions show great concern for consensus and consistency, for the will of the community made public and coherent through the medium of the law." My friend John Oakley concludes: "Judge Kennedy will fit solidly in the center of the Supreme Court. That is right where we need him, and right where he belongs." [The article of John Oakley follows:] Mr. FAZIO. I believe it is time to unite the Senate, and thereby the country, behind a man who has proven himself to his profession and his community, the capital of California. He has earned the respect and support of Sacramento, just as I am sure that Justice Lewis Powell earned that of the people of his State's capital, Richmond, during his many years of practice there. Anthony Kennedy is the right man to take up the responsibility that Justice Powell has set down. I urge you to send his nomination to the full Senate with your unanimous endorsement.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Congressman. The two references you made will be placed in the record as if read.
Rep. Vic Fazio (NY)
Mr. Fazio
(D)
Mr. FAZIO. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Congressman Matsui, welcome. Nice to have you here. Please proceed.
Rep. Robert Matsui (CA)
Mr. Matsui.
(D)
Mr. MATSUI. Thank you very much, Mr. Chairman. I would like t,. join my colleagues, Senator Wilson and Representative Fazio, in introducing Judge Kennedy and also give him my highest endorsement for his nomination to the U.S. Supreme Court. I noticed an editorial in the New York Times this morning that made reference to the two nominees that preceded Judge Kennedy, Judge Bork and Judge Ginsburg. It is too bad that two individuals preceded Judge Kennedy for this nomination. I say it is a shame because we should not be here today comparing Judge Kennedy to his two previous nominees. Judge Kennedy in and of himself is a superb candidate for the U.S. Supreme Court, and comparisons do not do this gentleman justice. He has a deep compassion for the law, as many of you know. He is highly intelligent; from his academic record, we can discern that. His experience, 12 years on the appellate court in California, demonstrates a level that very few nominees to the U.S. Supreme Court demonstrate. Obviously, Judge Kennedy is a conservative, and Representative Fazio and myself are here as Democrats. We support him because of our personal knowledge of Judge Kennedy. I look back to Sacramento County, where he and I grew up, and I can talk to any of the 1 million people in Sacramento and not one of them would have anything negative to say about this candidate. One individual, when asked by a reporter what they thought of him, said they noticed a lack of an observable ego. Judge Kennedy is a man of humility; he is a man of compassion. He is an individual that really has no ego and who will understand the plight of the common man when matters come before this court. I would also have to say that even though he is a conservative and Representative Fazio and I are moderates to liberals, we have a great deal of confidence in Judge Kennedy in terms of what he will do on the U.S. Supreme Court. If one looks at his opinions, one will notice that he demonstrates judicial restraint. But in 1987, that makes a lot of sense. It means that he probably will not be overturning many of the decisions of the 1950s, 1960s, 1970s and 22 1980s. As a result, you will have stability on the court, which I think all of us in the United States desire today. Let me make one further observation. In the next few days, you will hear testimony from a gentleman for whom I have a great deal of admiration. The gentleman is from Sacramento. His name is Nathaniel Colley. Nathaniel Colley is a black lawyer. He was former general counsel of the NAACP. He was born in Alabama, came to Sacramento, opened up his law practice, and became truly one of the prominent lawyers in the United States and one of the great trial lawyers in the State of California. I would like you to read or listen to his testimony when he gives it because that testimony will demonstrate the regard that lawyers, law students and ordinary individuals have for Judge Kennedy. I heartily endorse his nomination to the U.S. Supreme Court. You could not make a better selection. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Representative. As I indicated to my three colleagues, you are welcome to stay. We will now move to opening statements from me and my colleagues, but any time you have to absent yourself, we understand. We want to thank the three of you for coming over and being so eloquent in your support of Judge Kennedy. This committee last assembled to consider the Supreme Court nomination on the eve of the 200th anniversary of the Constitution's drafting, and our discussion with the previous nominee and other witnesses was vigorous, educational and, I believe, ultimately enlightening. In sum, it was a discussion that I and most of my colleagues believe was worthy of the momentous anniversary that we were at that very moment celebrating. Today, there is a calmer atmosphere. The confrontational spirit that characterized the last two nominations has passed as well. But make no mistake about it: at this moment in history, the Senate's decision on this nomination is every bit as important as our decision on the nomination of Judge Bork or anyone else. For if we are to do our job, and if you are to be confirmed, Judge Kennedy, you will occupy the same position of responsibility and power to which Judge Bork and Judge Ginsburg were nominated. Our tradition of evolving liberty is just as much at stake today as it was when Justice Powell resigned in July. So once again, we meet to discuss the meaning of the majestic phrases of our greatest document, the Constitution; phrases that Justice Harlan knew cannot "be reduced to any formula"; a document that Chief Justice Marshall foresaw was "intended to endure for ages to come and consequently to be adapted to the various crises of human affairs." Through that document, the Supreme Court holds far-reaching power over the constitutional rights and the daily lives of every American citizen. Accordingly, our role of advice and consent demands from every Senator a thorough and careful review, even with nominees of sterling character and qualifications, as you obviously have, Judge Kennedy. This careful review is not an expres- 23 sion of doubt about you, or any nominee, but a recognition of our obligation under the Constitution. As someone said this morning, as I turned on the television: "I hope we have ended, once and for all, the debate as to whether or not this committee has the right to delve into the judicial philosophy and constitutional grounding of any nominee." In the past, I, and many other Senators of both parties, had been frustrated with the confirmation process for some Supreme Court nominees. The Senate was being asked, in effect, to waive through nominees to the highest tribunal in America, largely on faith, sometimes on the assertion that the President wanted the person, and surely, in my opinion at least, the framers did not intend this institution in the United States Senate to bestow such monumental powers after such cursory examination. In contrast, when we considered the last nomination, every one of us, literally every one of us on this committee, carefully reviewed the nominee's full record of constitutional and judicial thinking. And the heart of that review took place during the committee's hearings. Each Senator on the committee reached his own conclusion about what those views are, and are not; what they were and were not; whether they are or whether they are not acceptable for a Supreme Court Justice to hold. And that review process begins again with your nomination, Judge. We have spent the past month reviewing all 438 of your opinions that you wrote, and close to a thousand opinions that you were a part of, if not the author, and the twenty speeches delivered by you. These hearings will extend that review, and should provide a rich body of information that will answer the question: Who is Anthony Kennedy and what does he stand for, and how does he, how does he view the Constitution and its role in our society? The Bork hearings set high standards for this committee, the Senate, and the President, in the appointment of a Supreme Court Justice. From those hearings have emerged lasting principles for the nomination and confirmation of members of the Supreme Court. First, the President exercises better judgment when he considers the prevailing views of the Senate, and the American people before making a nomination. This has always been the case for 200 years. Second, if the President does consider the views of the Senate and the people in making the nomination, the Senate may not need to act as such a forceful constitutional counterweight. Thus, the Senate must carefully judge whether the President has nominated someone who is simply philosophically compatible with him, or someone who would bring a political agenda to the Supreme Court. And third, we, in the Senate, still have a constitutional duty to make our review a thorough one. That means we must know the nominee's constitutional views, and state clearly to the nominee our own perspective on constitutional interpretation. To uphold these standards, we must begin by insisting that every Supreme Court nominee understand and accept a number of basic constitutional principles, among them the separation of powers, unenumerated rights, equal protection for 24 minorities and for women, for all citizens, and due process of the law, and the precious rights protected by the first amendment. It seems to me the Senate should, properly, explore further each of these issues, and it is equally reasonable to expect every nominee to state to the Senate the general—I emphasize general—criteria that he, or she, would use to apply these fundamental principles. Without the criteria to apply them, fundamental principles may shrink to the status of noble but empty rhetoric. Therefore, in these hearings, Judge Kennedy, I intend to ask you questions in the following five areas. I will ask you questions intended to determine whether your view of the Constitution has a narrow code of enumerated rights. To me, the idea of unenumerated rights expresses a larger truth, a truth which I believe the President alluded to when he introduced you. The American people have certain rights, not because the government gives them those rights, or because the Constitution specifically names them, but because we exist, simply exist as children of God. That our rights can expand with America's proud and evolving heritage of liberty, a heritage founded in the Constitution, that is, in the words of Justice Harlan, quote, "A living thing." I will ask you questions about the nature of what you have called the "unwritten Constitution," which restrains the exercise of power among all branches of government, and about how the doctrine of precedent restrains the exercise of power by the Supreme Court in particular. I will ask you questions about your views on civil rights and gender discrimination, and your understanding of the role of Congress, and the courts, in providing remedies for past acknowledged discrimination. I will ask you questions on the constitutional balance that should be struck between the procedural protections guaranteed to those accused of criminal acts, and the consideration that should be given to the safety of society and the victims of crime. In discussing these areas, I—and I expect most of my colleagues—will not ask you to predict what your vote will be, or to say how you would decide a specific case in the future. I want instead, to understand the approach you will use, the general criteria you will bring to constitutional claims on these issues, a discussion that is critical, if the committee is to perform its constitutional role properly. It is somewhat presumptuous of me, Judge, but I suggest that you might adopt the role of professor, rather than judge, in answering those questions. Discuss with us how you arrive at your views on the Constitution. Educate us a little bit as to who Tony Kennedy is. Some outside this committee misunderstood this very vital distinction during our last hearing. Indeed, there are reports that the administration, and even some of my colleagues, have not observed the distinction, either. In my view, these reports are a matter of grave concern. So finally, I will also ask you whether the administration, or any member of this body, have sought any commitments from you on 25 matters that might come before the Supreme Court. For just as it is, in my view, inappropriate for us to seek those commitments, it would be highly inappropriate for anyone else, in determining whether or not you are appointed, or whether or not they will vote for you, to seek similar commitments. In September, both my conservative and liberal colleagues, as well as the previous nominee, were emphatic, that no campaign promises were sought or secured in the judge's testimony before this committee. None will be sought or secured at this hearing either. I expect, however, that within reasonable limits of propriety, you will respect the Senate's constitutional role of advice and consent, by being as forthcoming and responsive as possible. As I am sure you remember from our conversations in private, Judge, the committee fully expects a thorough discussion of your constitutional philosophy, because while your judicial record is impressive, it does not address many constitutional issues. And though your speeches are stimulating, they raise, in many cases, as many questions as they answer, and, consequently, Judge, the committee would very much appreciate—and quite frankly we expect—forthcoming answers that will shed light on your constitutional philosophy. I expect this to move very swiftly, and fairly, and I hope—and I mean this sincerely—I hope you enjoy the experience. This is not anything other than an attempt to have a dialogue with you as to who you are, what you stand for, why you want to be on the Court, so we have a sense of what we are about to vote on. Most everyone on this committee look—I think everyone on this committee looks very favorably on your nomination, but most of us have an open mind. As one of my colleagues said this morning, the most important witness in this hearing will be Judge Kennedy, and Judge, we welcome you, we look forward to hearing from you, and with that, let me yield to my colleague from South Carolina for his opening statement. [The statement of Senator Biden follows:] This committee last assembled to consider a Supreme Court nomination on the eve of the 200th anniversary of the Constitution's drafting. Our debate with Judge Bork and the other witnesses was vigorous, educational, and ultimately enlightening. In sum, it was a debate that I and most other Senators believe was worthy of that momentous anniversary. Today, there's a calmer atmosphere. The confrontational spirit that characterized the last two nominations has passed as well. But make no mistake about it. At this moment in history, the Senate's decision on this nomination is every bit as important as our decision on the nomination of Judge Bork. For if you are confirmed, Judge Kennedy, you will occupy the same position of power and responsibility to which Judge Bork and Judge Ginsburg were nominated. Our tradition of evolving liberty is just as much at stake today as it was when Justice Powell resigned in July. So, once again, we meet to discuss the meaning of the majestic phrases of our greatest document, the Constitution — phrases that Justice Harlan knew cannot be "reduced to any formula;" a document that as Chief Justice Marshall foresaw, was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. Through that document, the Supreme Court holds far-reaching power over the constitutional rights and the daily lives of every American citizen. Accordingly, our role of advice and consent demands from every Senator a thorough and careful review, even with nominees of sterling character and qualifications. This careful review is not an expression of doubt about a nominee, but a recognition of our obligation under the Constitution. In the past, I and many other Senators of both parties have been frustrated with the confirmation process for some other Supreme Court nominees. The Senate was being asked, in effect, to (more) 27 Biden waive through nominees to the highest tribunal in America — largely on faith. Surely, the Framers did not intend this institution to bestow such monumental powers after such a cursory examination. In contrast, when we considered the Bork nomination, every one of us carefully reviewed the nominee's full record of constitutional and judicial thinking — and the heart of that review took place during the committee's hearing?. Each Senator on the committee reached his own conclusion about what views are or are not acceptable for a Supreme Court Justice to hold. That review process begins again with this nomination. We have spent the past month reviewing the 438 opinions written by you and the 20 speeches delivered by you. These hearings will extend that review, and should provide a rich body of information that will answer the question — Who is Anthony Kennedy and what does he stand for? The Bork hearings set high standards for this committee, the Senate and the President in the appointment of a Supreme Court Justice. From those hearings have emerged lasting principles for the nomination and confirmation of members of the Supreme Court. First, the President exercises better judgment when he considers the prevailing views of the Senate and the American people before making a Supreme Court nomination. Second, when the President does consider the views of the Senate and the people in making the nomination, the Senate may not need to act as such a forceful constitutional counterweight. Thus, the Senate must carefully judge whether the President has nominated someone who is simply philosophically compatible with him, or someone who would bring a political agenda to the Court. Third, we in the Senate still have a constitutional duty to make our review a thorough one. That means we must know the nominee's constitutional views, and state clearly to the nominee our own perspectives on constitutional interpretation. To uphold these standards, we must begin by insisting that every Supreme Court nominee understand and accept a number of basic constitutional principles. Among them: the separation of powers; unenumerated rights; equal protection for minorities, for women, for all citizens; due process of law; and the precious rights protected by the First Amendment. The Senate should properly explore these issues further. (more) 28 Biden And it is equally reasonable to expect evary nominee to state to the Senate the general criteria that he or she would use to apply those fundamental principles. For without the criteria to apply them, fundamental principles may shrink to the status of noble but empty rhetoric. Therefore, in these hearings, Judge Kennedy, I intend to ask you questions in the following five areas: I will ask you questions intended to determine whether you view the Constitution as a narrow code of enumerated rights. To me, the idea of unenumerated rights expresses a larger truth: a truth to which I believe the President alluded when he introduced you — that Americans have certain rights not because the government gives them or because the Constitution specifically names them, but because we exist, as children of God; that our rights can expand with America's proud and evolving heritage of liberty, a heritage founded on a Constitution that is, in the words of Justice Harlan, a "living thing." I will ask you questions about the nature of what you have called our "unwritten constitution," which restrains the exercise of power among all branches of government, and about how the doctrine of precedent restrains the exercise of power by the Supreme Court in particular. I will ask you questions about your sensitivity to matters of civil rights and gender discrimination, and your understanding of the role of Congress and the courts in providing remedies for past discrimination. I will ask you questions on the constitutional balance that should be struck between the procedural protections guaranteed to those accused of criminal acts and the consideration that should be given to the safety of society and the victims of crime. In discussing these areas, I will not ask you to predict your vote or to say how you would decide any specific future case. I want instead to understand the approach you would use and the general criteria you would bring to constitutional claims on these issues — a discussion that is critical if this committee is to perform its constitutional role properly. Some outside this committee misunderstood this very vital distinction during our last hearings. Indeed, there are reports that the Administration and even some of my colleagues haven't (more) observed that distinction either. In my view, those reports are a matter for grave concern. So finally, I will also ask you whether the Administration or any member of this body have sought any commitments from you on matters that might come before the Supreme Court. In September, both my conservative and liberal colleagues, as well as Judge Bork, were emphatic that no "campaign promises" were sought or secured in the Judge's testimony before this Committee. None will be sought or secured in these hearings. I expect, however, that within reasonable limits of propriety, you will respect the Senate's constitutional role of advice and consent by being as forthcoming and responsive as possible. As I am sure you remember from our conversation, Judge, the committee fully expects a thorough discussion of your constitutional philosophy; because while your judicial record is impressive, it doesn't address many critical constitutional issues; and though your speeches are stimulating, they raise as many questions as they answer. Consequently, Judge, the Committee would appreciate forthcoming answers that shed light on your constitutional philosophy. Welcome Judge. I look forward to hearing fr 30
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, today the committee begins consideration of the nomination of Judge Anthony M. Kennedy to be an Associate Justice of the U.S. Supreme Court. As we begin the hearing process, we must remain keenly aware that a Supreme Court appointment is unique, not only because it grants life tenure, but more specifically, because it invests great power in individuals not held accountable by a popular election. Along with this power comes a greater responsibility to the people of this nation, to the concept of justice, and to the Constitution. Judge Kennedy, it is very fitting that the Senate consider your nomination to be an Associate Justice of the Supreme Court at a time when we are celebrating the 200th anniversary of the Constitution of the United States. It is also fitting that we take a moment to reflect not only on the wisdom of our forefathers in preparing this magnificent document, but also on the tremendous responsibility it confers on the Senate. The Constitution assigns the Senate and the House equal responsibility for declaring war, maintaining an armed forces, assessing taxes, borrowing money, minting currency, regulating commerce, and making all laws necessary for the operation of the Government. However, the Senate alone holds exclusive authority to advise and consent on nominations, and this, without doubt, is one of the most important responsibilities undertaken by this body. It is one that takes on an even greater significance when a nomination is made to the highest court in the land. The Senate has assigned the task of reviewing judicial nominations to the Judiciary Committee. This responsibility is critical to the nomination process. The committee's consideration must be equitable, thorough, and diligent. The Judiciary Committee must be ever so mindful that a nomination to the Supreme Court affects all the people of this nation, and not just a select group. The role of the Supreme Court in America's development has been vital because the Court has faced many difficult issues. Using its collective intellectual capacity, precedent, and constitutional interpretation, the Court must address issues related to criminal law, abortion, privacy, church-state relations, freedom of speech, freedom of the press, the death penalty, civil rights, and much, much more. Throughout the course of this nation's history, the Court has been thrust into the center of many difficult controversies. As Justice Holmes stated, "We are quiet here, but it is the quiet of a storm's center." Due to the broad range of controversial issues which must be resolved by the Court, and the impact these decisions will have, great responsibility is placed upon each Justice, and an Associate Justice must be an individual who possesses outstanding qualifications. In the past, I have reflected upon these qualifications, and I will only briefly reiterate that I feel a nominee should possess integrity, courage, wisdom, professional competence, and compassion. An individual with these attributes cannot fail the cause of justice. In his 12 years of service on the U.S. Court of Appeals for the Ninth Circuit, Judge Kennedy has displayed these qualities. 31 His proud judicial service, and his distinguished background make him eminently well-qualified to serve on the nation's highest Court. He attended Stanford University from 1954 to 1957, and was awarded the degree of bachelor of arts, with great distinction, in 1958 During the year 1957 to 1958, after he had already fulfilled the principal requirements for graduation from Stanford, he attended the London School of Economics and Political Science at the University of London, where he studied political science and English legal history, and also lectured in American Government. He graduated cum laude from Harvard Law School in 1961. Judge Kennedy practiced law for several years before his appointment to the ninth circuit, where he now ranks among the most senior judges on the bench. He has vast judicial experience, participating in over 1400 decisions, and authoring over 400 published opinions. In addition, Judge Kennedy has been a constitutional law professor at the McGeorge School of Law at the University of the Pacific for more than 20 years. A review of Judge Kennedy's 400 written opinions indicates that he is among the leaders of thoughtful jurisprudence. Judge Kennedy's published opinions have earned him the reputation reserved for our most distinguished jurists. His opinions clearly show that he is an advocate of judicial restraint. Judge Kennedy has already had a major impact on American jurisprudence. In 1980 he ruled against the so-called legislative veto, a once common practice under which Congress would grant certain authority to the executive branch, would reserve to itself the right to disapprove particular sections exercised under that authority. Judge Kennedy declared that the practice violated the constitutional separation of powers. The Supreme Court adopted Judge Kennedy's position. In a 1983 dissent, in the case of U.S. v. Leon, Judge Kennedy argued that a court should admit evidence seized by law-enforcement officers under a search warrant, that they believed to be proper. The Supreme Court ultimately reversed a majority opinion, and adopted a good-faith exception to the exclusionary rule. Generally, the opinions written by Judge Kennedy take a lawand-order position. However, Judge Kennedy has made it clear that if law-enforcement officers overstep legal bounds, he will not hesitate to limit overreaching. While the constitutional rights of criminal defendants must be protected, Judge Kennedy will not ignore the rights of victims or law-abiding citizens. I am confident that he will take a practical, common-sense approach to criminal cases, protecting the constitutional rights of criminal defendants, but upholding the right of society to be protected from those who commit criminal wrongdoings. A review of other opinions written by Judge Kennedy shows that he examines viewpoints and arguments from all sides. His opinions show that he is openminded, fair, and independent. He does not, 32 before he has the facts, in reviewing the appropriate law, develop preconceived ideas about what the ultimate result should be. I will also note that Judge Kennedy's opinions show compassion, and why Judge Kennedy has upheld tough sentences. He has shown the fortitude to reverse a criminal conviction if an individual has been treated fundamentally unfair, or his constitutional rights have been violated. In summary, a complete and thorough review of Judge Kennedy's background indicates that he is competent, fair, and just, and furthermore, that he is exceptionally well-qualified to serve as an Associate Justice of the Supreme Court. His vast experience as a practicing attorney, professor of constitutional law, and many years of service on the federal bench provide the ideal background and qualifications for confirmation to the nation's highest Court. Judge Kennedy, we welcome you to the committee, along with your wife Mary, and the rest of your family, and congratulate you on the honor that President Reagan has bestowed upon you. [The statement of Senator Thurmond follows:] 33 STATEMENT BY SENATOR STROM THURMOND (R-S.C.) BEFORE THE SENATE COMMITTEE ON THE JUDICIARY. REFERENCE NOMINATION OF JUDGE ANTHONY M. KENNEDY TO BE ASSOCIATE JUSTICE OF THE UNITED STATES, MONDAY, DECEMBER 14, 1987, 10:00 A.M. MR. CHAIRMAN: Today the Committee begins consideration of the nomination of Judge Anthony M. Kennedy to be an Associate Justice of the United States Supreme Court. As we begin the hearing process, we must remain keenly aware that a Supreme Court appointment is unique, not only because it grants life tenure but, more specifically, because it vests great power in individuals not held accountable by popular election. Along with this power, comes a greater responsibility to the people of this Nation, to the concept of Justice, and to the Constitution. Judge Kennedy, it is very fitting that the Senate consider your nomination to be an Associate Justice of the Supreme Court at the time we are celebrating the two hundredth anniversary of the Constitution of the United States. It is also fitting that we take a moment to reflect not only on the wisdom of our forefathers in preparing this magnificent document, but also on the tremendous responsibility it confers on the Senate. The Constitution assigns the Senate and the House equal responsibility for declaring war, maintaining the armed forces, assessing taxes, borrowing money, minting currency, regulating commerce, and making all laws necessary for the operation of the government. However, the Senate alone holds exclusive authority to advise and -1- 34 consent on nominations, and this, without doubt, is one of the most important responsibilities undertaken by this body. It is one that takes on an even greater significance when a nomination is made to the highest Court in the land. The Senate has assigned the task of reviewing nominations to the Judiciary Committee. This responsibility is critical to the nomination process. The Committee's consideration must be equitable, thorough, and diligent. The Judiciary Committee must be ever so mindful that a nomination to the Supreme Court affects all the people of this nation and not just a select group. The role of the Supreme Court in America's development has been vital because the Court has faced many difficult issues. Using its collective intellectual capacity, precedent, and Constitutional interpretation, the Court must address issues related to criminal law, abortion, privacy, church-state relations, freedom of speech, freedom of the press, the death penalty, civil rights, and much, much more. Throughout the course of this Nation's history, the Court has been thrust into the center of many difficult controversies. As Justice Holmes stated: "We are quiet here, but it is the quiet of a storm center. " Due to the broad range of controversial issues which must be resolved by the Court and the impact these decisions will have, great responsibility is placed upon each Justice. An Associate Justice must be an individual who possesses outstanding qualifications. In the past, I have - 2- 35 reflected upon these qualifications and I will only briefly reit erate, that I feel a nominee should possess: Integrity, Courage, Wisdom and Compassion. An individual with these attributes cannot fail the cause of Justice. In his twelve years of service on the U.S. Court of Appeals for the Ninth Circuit, Judge Kennedy has displayed these qualities. His prior judicial service and his distinguished background make him eminently well-qualified to serve on this Nation's highest court. He attended Stanford University from 1951 to 1957 and was awarded the Degree of Bachelor of Arts with great distinction in 1958. During the year 1957-1958, after he had already fulfilled the principal requirements for graduation from Stanford, he attended the London School of Economics and Political Science at the University of London where he studied political science and English legal history, and also lectured in American Government. He graduated cum laude, from Harvard Law School in 1961. Judge Kennedy practiced law for several years before his appointment to the Ninth Circuit where he now ranks among the most senior judges on the bench. He has vast judicial experience, participating in over fourteen hundred decisions and authoring over four hundred published opinions. In addition, Judge Kennedy has been a constitutional law professor at the McGeorge School of Law at the University of the Pacific for more than 20 years. A review of Judge Kennedy's 400 written opinions indicates that he is among the leaders of thoughtful jurisprudence. -3- 36 Judge Kennedy's published opinions have earned him the reputation reserved for our most distinguished jurists. His opinions clearly show that he is an advocate of judicial restraint. Judge Kennedy has already had a major impact on American jurisprudence. In 1980, he ruled against the so-called legislative veto, a once common practice under which Congress would grant certain authority to the Executive Branch but reserve to itself the right to disapprove particular ae^-4-etrs exercised under that authority. Judge Kennedy declared that the practice violated the constitutional separation of powers. The Supreme Court adopted Judge Kennedy's position. In a 1983 dissent in the case of U.S. v. Leon, Judge Kennedy argued that a court should admit evidence seized by law enforcement officers under a search warrant that they believed to be proper. The Supreme Court ultimately reversed the majority opinion and adopted a "good faith" exception to the exclusionary rule. Generally, the opinions written by Judge Kennedy take a law-and-order position. However, Judge Kennedy has made it clear that should law enforcement officers overstep legal bounds, he will not hesitate to limit overreaching. While the constitutional rights of criminal defendants must be protected, Judge Kennedy will not ignore the rights of victims or law-abiding citizens. I am confident that he will take a -4- 37 practical, common sense approach to criminal cases, protecting the constitutional rights of criminal defendants, but upholding the right of society to be protected from those who commit criminal wrongdoings. A review of other opinions written by Judge Kennedy shows that he examines viewpoints and arguments from all sides. His opinions show that he is open-minded, fair and independent. He does not, before hearing the facts and reviewing the appropriate law, develop preconceived ideas about what the ultimate results should be. I also note that Judge Kennedy's opinions show compassion. While Judge Kennedy has upheld tough sentences, he has shown the fortitude to reverse a criminal conviction if an individual has been treated fundamentally unfair or his constitutional rights have been violated. In summary, a complete and thorough review of Judge Kennedy's background, indicates that he is competent, fair, and just, and furthermore that he is is exceptionally well qualified to serve as an Associate Justice of the Supreme Court. His vast experience as a practicing attorney, professor of constitutional law, and many years of service on the Federal bench provide the ideal background and qualifications for confirmation to the Nation's highest court. Judge Kennedy, we welcome you to the Committee, along with your wife Mary and the rest of your family, and congratulate you on the honor President Reagan has bestowed upon you. -End- 38
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. I also want to join in welcoming Judge Kennedy and his family to these hearings. It is always nice to see a Kennedy nominated for high public office. The vacancy on the Supreme Court is no less important today than it was 6 months ago when Justice Powell resigned. His departure left a large opening, and the person who fills it will have a large role in defining the scope of the fundamental rights and liberties of the American people for years to come. The events since Justice Powell's resignation have provided a clear demonstration of what the American people expect of a nominee to the nation's highest court. They want a Justice who understands that the Constitution is not just a parchment frozen under glass in 1787. It is the living, growing embodiment of our history, traditions, and aspirations as a free people. They want a Justice who appreciates that the Supreme Court is not just a tribunal for the intellectual resolution of lawsuits. It is the institution that protects our constitutional rights and liberties from the prejudices of the moment, and from excessive intrusions by the Government. And they want a Justice who will not be a mouthpiece of the ideology of a single constituency or group. They want a Justice for all. In reviewing Judge Kennedy's opinions and speeches, I have seen some hopeful signs, and some troubling ones. I am impressed by one of his opinions recognizing that the Constitution prevents law-enforcement officers from bribing a 5-yearold child to be an informant against his mother. I am impressed by another opinion vigorously applying the first amendment to protect controversial speech in political debate. And he deserves credit for his landmark opinion in the Chadha case, in which he correctly anticipated the Supreme Court's resolution of the complex issues of separation of powers between Congress and the President with respect to the legislative veto. But I am troubled by the narrow interpretation that Judge Kennedy has given civil rights in a number of cases. In some of these cases, his interpretations were flatly rejected by the Supreme Court. And I am also concerned by his past membership in clubs that discriminated against minorities and women. These hearings will help us to determine whether Judge Kennedy is sensitive to the constitutional rights of the American people, and if he is, he will deserve to be confirmed by the Senate. Thank you. [The statement of Senator Kennedy follows:] I join in welcoming Judge Kennedy and his family here today. It's always nice to see a Kennedy nominated to high public office. The vacancy on the Supreme Court is no less important today than it was six months ago when Justice Powell resigned. His departure left a large opening, and the person who fills it will have a large role in defining the scope of the fundamental rights and liberties of the American people for years to come. The events since Justice Powell's resignation have provided a clear demonstration of what the American people expect of a nominee to the nation's highest court: — They want a Justice who understands that the Constitution is not just a parchment frozen under glass in 1787; it is the living, growing embodiment of our history, traditions and aspirations as a free people. — They want a Justice who appreciates that the Supreme Court is not just a tribunal for the intellectual resolution of lawsuits; it is the institution that protects our constitutional rights and liberties from the prejudices of the moment and from excessive intrusions by the government. — And they want a justice who will not be a mouthpiece for the ideology of a single constituency or group; they want a Justice for all. In reviewing Judge Kennedy's opinions and speeches, I have seen some hopeful signs — and some troubling ones. I am impressed by one of his opinions recognizing that the Constitution prevents law enforcement officers from bribing a five year-old child to be an informant against his mother. I am impressed by another opinion vigorously applying the First Amendment to protect controversial speech in political debate. And he deserves credit for his landmark opinion in the Chadha case, in which he correctly anticipated the Supreme Court's resolution of the complex issue of separation of powers between Congress and the President with respect to the legislative veto. But I am troubled by the narrow interpretation that Judge Kennedy has given civil rights in a number of cases. In a few of these instances, his interpretations were flatly rejected by the Supreme Court. And I am also concerned by his past membership in clubs that discriminated against minorities and women. These hearings will help us to determine whether Judge Kennedy is sensitive to the constitutional rights of the American people. If he is, he will deserve to be confirmed by the Senate. 40
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. My colleague from Utah, Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, thank you, Mr. Chairman. Again, like the others, I am happy to welcome you, Judge Kennedy, and your family to these hearings. I have been very impressed with you as we have met for extensive periods of time, and as we have chatted, and I just want to tell you it is nice to see this day arrive. It is indeed an honor to welcome you, an individual, who I think is eminently qualified to serve in the nation's premier judicial office. You have the highest qualifications given you by the American Bar Association. Unanimously. I think that is a great thing after what I saw Judge Bork go through, and I want to give some credit to the Washington Post for the good editorials that they have written with regard to the rating system of the ABA, recognizing its importance, but also recognizing that there is an obligation there, too. And I think that they have lived up to their obligations with regard to you, and I am very pleased about that. You have had 14 years experience as a practicing attorney, 20 years as a professor of constitutional law, and more than 12 years on the circuit court that defines federal law for nine States and 37 million people. I think this has prepared you for the trust that we are about to place in you, and the trust displayed in you by President Ronald Reagan. Indeed, as this hearing progresses, I think President Reagan's trust will soon be shared by the people of the United States. As we all know, it would be difficult to find an aspect of American life that has not been touched by the Supreme Court. I might say, in approximately the time that you have served on the ninth circuit, a President has resigned, the world's largest telecommunications company has disintegrated, or at least has been changed, rules for criminal trials have changed, and even a town's ability to display a creche during the holiday season has been established, all because nine individuals in our society have found enduring principles in the Constitution itself. But as we well know, it has recently become an issue whether the Supreme Court must find the principles for its decisions in the Constitution. Some legal scholars and even some judges have contended that judges need not base their decisions on the words of the Constitution. Instead, they contend that judges may go outside the Constitution to decide cases on the basis of the judges' understanding of human dignity, or some other vague and unlimited principle. The problem with this argument is that it permits unelected judges to override democratic laws created by the people themselves without constitutional justification. For example, judges have overturned capital punishment laws in 34 States—even though the Constitution itself, in four or five instances, mentions the death penalty—and this is known generally as judicial activism. In my mind, judges who take upon themselves to overrule the people's laws without clear warrant from the Constitution, overstep 41 their authority. Of course, all judges are not so bold. Most judges do practice judicial restraint, which is another way of saying they refrain from using extra-constitutional principles to decide cases. The reason for judicial restraint is I think well-illustrated in a statement by a distinguished jurist: The imperatives of judicial restraint spring from the Constitution itself, not from a particular judicial theory. The Constitution was written with care and deliberation, not by accident. Its draftsmen were men skilled in the art and science of constitution writing. The constitutional text, and its immediate implications, traceable by some historical link to the ideas of the Framers, must govern judges. Marbury v. Madison states the rule: "It is apparent that the Framers of the Constitution contemplated that instrument as a rule for the government of the courts, as well as the legislature." Now this eminent jurist with profound respect for the Constitution is none other than Judge Anthony Kennedy in an address to the Canadian Institute for Advanced Legal Studies, more than a year ago. To those who classify judges who practice judicial restraint as conservative, Judge Kennedy I think has the best response. As he stated, judicial restraint is neither conservative or liberal, but a requirement of the Constitution and a natural predicate for the doctrine of judicial review. Now Judge Kennedy is a champion of judicial restraint. It is easy to understand why he has won President Reagan's trust, and it is easy to understand why he will win the trust of the American people as well. After all, he will let the American people govern themselves, and refrain from imposing his own predispositions from the bench. If the people legislate a death penalty, for example, I think he will apply it because the Constitution is clearly no bar. In that regard, Judge, I just want to make a recommendation to you. There are a lot of comments about how you will have to go into philosophy here, and you are going to have to go into judicial theories, and concepts, and that you can treat them any way you want to. Let me just say this: I think we, as a committee, have to refrain from delving into your personal views with regard to constitutional doctrine. First of all, I think it is unfair to future litigants before the Supreme Court. So, if you do want to answer some of these questions, choose with care how you do it because you may have that case before the Supreme Court at some future time, and you do not want to prejudice your right to decide that case, or have them criticize you after the fact, which certainly will occur. The very ones who raise it here will be the most critical if you do not agree with them in the future. I think future litigants need to know that Judge Kennedy is open to their arguments, not predisposed against them. That he is going to be open to whatever the arguments and facts of the case really are. And I think you have to show that you will not be prejudiced for or against any doctrines, and that is a very delicate, difficult line to traverse. So I want to just recommend to you, don't be bullied or badgered into thinking you have got to answer every question that we ask up here. 42 Some of them you simply cannot answer, and some of them you will simply have to say, this is a matter that is presently in the courts of this land or may come before the Supreme Court, and I have to be concerned about whether or not I prejudice my right to sit on that particular case in the future, and besides, I do not know what the facts are going to be in future cases that come before the Court. So, there are limitations to what even you distinguished Senators can ask in your very time-honored and constitutional function of investigating for purposes of confirming, or not confirming, and your function of advising and consenting. I do not think you can offer an informed view of doctrines until they really appear in the form of a case. Before a judge can make a determination on the merits of certain doctrines, I think he, or she, needs to read the briefs, hear oral argument, discuss the matter with colleagues, and see the issue in the context of the specific facts of that case. And a judge should not presume to short-circuit this process with any prior opinions. Now that does not mean you cannot give your opinion, but certainly, you have to take that into consideration, and I think people here will respect such a decision. The judiciary is an independent branch. Congress should not attempt to dictate the outcome of future cases, or even meddle in the processes of another branch, by extracting any kind of promises at any kind of confirmation hearing, least of all this confirmation hearing for one of the most important positions in our country's history. So judges are independent. They are not subject to political pressure from Congress, and you do not have to be subject to it, either—I just want you to know that—in this very important set of hearings that we will have, where you will have an opportunity to really be a major participant. I think it is totally unnecessary to delve into inquiries that you might have to have come before you at a future time. You have written over 430 opinions. You have participated in many, many more opinions, over a thousand opinions in addition to that, and I think this is an adequate body of evidence, and the best body of evidence, to ascertain how you will perform as a Supreme Court Justice. So don't feel like you have to do something like that. By the way, I think it is good to see a Republican Kennedy in this environment. I just want you to know that, and I have noticed how well you have been treated by the press in this matter. You know, some members of the press have treated you so fairly, that basically, they may have overlooked which branch of the Kennedy clan you come from, and I just want to tell you that I am glad to have you here. And I also have deep respect for my colleague. We have been on as many as three committees together. So it is good to have you here. I could say many more laudatory things about you. You are a wonderful family man from what I see. You have a profound determination to fight crime, and your opinions indicate that. 43 That is exactly what President Reagan said he would do, in trying to appoint people to the bench. And you want to fight it with appropriate legal tools. You have devoted much of your life to education and to teaching. These are very important things to me. And I think the highest compliment a judge can receive, is that you know that ours is a government of laws, not of men, and that you have really been a stickler for abiding by the law, and I think that is important. I think you deserve many more compliments than that. I think you have been a very appropriate model of judicial restraint on the bench, and I think that your service will serve to remind other judges of their duty to uphold the Constitution as written. So these are important things, and I just want to compliment you for the efforts you have made in the past, for the reputation that you have gained, and of course for the good person that you are, and I hope that you will enjoy this appearance before the committee, and I know that you will enjoy your service on the Supreme Court in the future. Thank you. [The statement of Senator Hatch follows:] 44 From the office of SEN. ORRINHATCH Washington, D.C 20510 December 14, 1987 Contact: Paul Smith, 202/224-9854 SOXEHBHTOe SEHMTOR QRRDI HATCH THE NOMINATION OP JUDGE ANTHONY Mr. Chairman. It is indeed an honor to welcome an individual who is eminently qualified to serve in the nation's premier judicial office. Fourteen years as a practicing attorney, twenty years as a professor of constitutional law, and more than twelve years on the circuit court that defines federal law for nine states and 37 million people have prepared Judge Anthony Kennedy well for the trust placed in him by President Ronald Reagan. Indeed as this hearing progresses, I think President Reagan's trust will soon be shared by the people of the United States. As we all know, it would be difficult to find an aspect of American life that has not been touched by the Supreme Court. In approximately the time that Judge Kennedy has served on the Ninth Circuit, a President has resigned, the world's largest telecommunications company has disintegrated, rules for criminal trials have changed, and even a town's ability to display a creche during the holiday season have been established — all because nine individuals have found enduring principles in the Constitution. But as we well know, it has recently become an issue whether the Supreme Court must find the principles for its decisions in the Constitution. Some legal scholars and even some judges have contended that judges need not base their decisions on the words of the Constitution. Instead they contend that judges may go outside the Constitution to decide cases on the basis of the judges' understanding of human dignity or some other vague and undefined principle. The problem with this argument is that it permits unelected judges to override the democratic laws created by the people without constitutional justification. For example, judges have overturned the capital punishment laws of 34 states even though the Constitution itself mentions the death penalty. This is known generally as judicial activism. In my mind, judges who take upon themselves to overrule the peoples' laws without clear warrant from the Constitution overstep their authority. 45 HATCH/Kennedy nomination page 2 Of course, not all judges ace so bold. Most judges practice judicial restraint, which is another way of saying they refrain from using extraconstitutional principles to decide cases. The reason for judicial restraint is stated well by one distinguished jurist: "The imperatives of judicial restraint spring from the Constitution itself, not from a particular judicial theory. The Constitution was written with care and deliberation, not by accident. Its draftsmen were men skilled in the art and science of constitution writing... The constitutional text and its immediate indications, traceable by some historical link to the ideas of the Pramers, must govern judges. Harbury v. Madison states the rule: 'It is apparent that the Framers of the Constitution contemplated that instrument as a rule for the government of the courts, as well as the legislature.'" This eminent jurist with profound respect for the Constitution is none other than Judge Anthony Kennedy in an address to the Canadian Institute for Advanced Legal Studies more than a year ago. To those who classify judges who practice judicial restraint as conservative, Judge Kennedy has the best response. As he stated, judicial restraint is neither conservative or liberal, but a requirement of the Constitution and a natural predicate for the doctrine of judicial review. Judge Kennedy is a champion of judicial restraint. It is easy to understand why he has won President Reagan's trust. And it is easy to understand why he will win the trust of the American people as well. After all, he will let the people govern themselves and refrain from imposing his own predipositions from the bench. If the people legislate a death penalty, for example, he will apply it because the Constitution is clearly no bar. I could say many more laudatory things about this excellent American — he is a wonderful family man, he has a profound determination to fight crime with appropriate legal tools, he has devoted much of his life to education and teaching, and so forth — but perhaps the highest compliment a judge can receive is that he knows ours is a government of laws, not of men. Judge Kennedy deserves that compliment and more. He is a model of appropriate judicial restraint and will serve to remind our other judges of their duty to uphold the Constitution as written. I look forward. Judge Kennedy, to your appearance before this committee and your continued service to our nation. ##• 46
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator from Ohio, Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. We begin these hearings almost 6 months after Justice Powell announced his retirement. I believe all of us on the committee are optimistic that the long struggle to fill this vacancy is nearing its conclusion. Nevertheless, this committee owes it to the Senate, and the American people, to conduct fair and thorough hearings, and I am confident we will do so. I did not intend to address myself to this particular point, but my distinguished colleague from Utah I think was advising you not to answer some questions and to resist the temptation to explore with us some of the issues that we on the committee will inquire about. I would hope that you would disregard that advice, and that you would follow your own judgment, which has been previously stated to many of us, and that is that the answers will be forthcoming. I think, indeed, we have not only a right, but an obligation to inquire of your philosophy, and your approach, and your thinking. We do not have a right to ask of you how you will vote in connection with any particular case, or how you would have voted. Judge, you are clearly qualified by ability and temperament to sit on the Supreme Court. In addition, the record suggests that you are a traditional conservative in your approach to constitutional and statutory interpretation. I will be frank with you. I do not necessarily agree with all of your decisions. I would have been happier if you had reached different results in certain cases. I would have been pleased if you had resigned earlier from clubs that excluded women, though it is fair to point out that you did take affirmative steps, somewhat belatedly perhaps, to change the policy of those clubs. In short, I am not going to say to you, Judge Kennedy, that you are my ideal nominee. But the choice is not ours in the Senate to make. On the basis of what we now know, you appear to be an acceptable nominee. Only after the hearing is concluded can we make that final assessment. We have undergone a lengthy and exhausting struggle over who will become the next Supreme Court Justice. The public is entitled to ask, "Has it really been worth this much trouble?" Without question, it has. We have had a national referendum on the kind of Constitution this country wants. The result has been an overwhelming endorsement for the one we have now. The Senate and the American people rejected a nominee who believed individual freedoms can be found only in the fine print of the written Constitution. The Senate and the American people reaffirmed the value of broad constitutional protections for individual liberties, and strong guarantees of equal protection. If this hearing demonstrates that you do indeed support these fundamental values—and I fully expect that it will—these months of struggle will pay rich dividends far into the future for our country. Thank you, Mr. Chairman. [The statement of Senator Metzenbaum follows:] 47 U.S. Senator Howard M. Committ66s: Judiciary Labor and Human Resources METZENBA UM ffff" Subcommittee on Antitrust Subcommittee on Labor f\"f jjtjl/l Subcommittee on Energy *-V v-"**C Regulation and Conserv WE BEGIN THESE HEARINGS ALMOST SIX MONTHS AFTER JUSTICE POWELL ANNOUNCED HIS RETIREMENT. I BELIEVE ALL OF US ON THE COMMITTEE ARE OPTIMISTIC THAT THE LONG STRUGGLE TO FILL THIS VACANCY IS NEARING ITS CONCLUSION. NEVERTHELESS, THIS COMMITTEE OWES IT TO THE SENATE AND THE AMERICAN PEOPLE TO CONDUCT FAIR AND THOROUGH HEARINGS AND I AM CONFIDENT WE WILL DO SO. JUDGE KENNEDY IS CLEARLY QUALIFIED BY ABILITY AND TEMPERAMENT TO SIT ON THE SUPREME COURT. IN ADDITION, THE RECORD SUGGESTS THAT HE IS A TRADITIONAL CONSERVATIVE IN HIS APPROACH TO CONSTITUTIONAL AND STATUTORY INTERPRETATION. ON THE OTHER HAND, I DO NOT NECESSARILY AGREE WITH ALL OF JUDGE KENNEDY'S DECISIONS. I WOULD HAVE BEEN HAPPIER IF HE HAD REACHED DIFFERENT RESULTS IN CERTAIN CASES. I WOULD HAVE BEEN 48 PLEASED IF HE HAD RESIGNED EARLIER FROM CLUBS THAT EXCLUDED WOMEN, THOUGH IT IS FAIR TO POINT OUT THAT HE TOOK AFFIRMATIVE STEPS TO CHANGE THE POLICY OF THESE CLUBS. IN SHORT, HE WOULD NOT BE MT IDEAL NOMINEE. BUT THE SIGNS ARE THAT HE IS AN ACCEPTABLE NOMINEE, AND THAT IS ALL WE ARE ENTITLED TO ASK OF THE PRESIDENT. WE HAVE UNDERGONE A LENGTHY AND EXHAUSTING STRUGGLE OVER WHO WILL BECOME THE NEXT SUPREME COURT JUSTICE. THE PUBLIC IS ENTITLED TO ASK — HAS IT REALLY BEEN WORTH THIS MUCH TROUBLE? WITHOUT QUESTION, IT HAS. WE HAVE HAD A NATIONAL REFERENDUM ON THE KIND OF CONSTITUTION THIS COUNTRY WANTS. THE RESULT HAS BEEN AN OVERWHELMING ENDORSEMENT FOR THE ONE WE HAVE NOW. THE SENATE AND THE AMERICAN PEOPLE REJECTED A NOMINEE WHO BELIEVED INDIVIDUAL FREEDOMS CAN BE FOUND ONLY IN THE FINE PRINT OF THE WRITTEN CONSTITUTION. THE SENATE AND THE AMERICAN PEOPLE REAFFIRMED THE VALUE OF BROAD CONSTITUTIONAL PROTECTIONS FOR INDIVIDUAL LIBERTIES AND STRONG GUARANTEES OF EQUAL PROTECTION. IF THIS HEARING DEMONSTRATES THAT JUDGE KENNEDY DOES SUPPORT THESE FUNDAMENTAL VALUES ~ AND I FULLY EXPECT THAT IT WILL — THESE MONTHS OF STRUGGLE WILL PAY RICH DIVIDENDS FAR INTO THE FUTURE FOR OUR COUNTRY. 49
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Simpson from Wyoming.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman. I appreciate your very steady and sure handling of this nomination, for indeed, we must be about our business. It is a rich pleasure to have you here today, Judge Kennedy. I trust you are looking forward to these hearings. I mean that. I think the Chairman is correct. Here is where we have the opportunity to publicly interrogate you with respect to issues of great importance. While that word, interrogation, sometimes, perhaps often, has some rather negative connotations, I am very certain that our Chairman will maintain proper order and decorum in this process, and assure that you are treated with all of the respect due to your high office and to your nomination. But before I go further, I need to clarify something which I said during the Bork nomination, which has proven to be in total error. A little bit, really, off the rail. And so I will eat crow—legs, beak and all here—because on occasion, I expressed my opinion during some of the wretched excesses of the Bork hearing—and there were some—that if Judge Bork were not to be confirmed, then the next nominee would be some nameless, faceless, witless, and terminally bland soul who I referred to as Jerome P. Sturdley. Now, I said that, and suffered a foot-in-the-mouth disease, because I was wrong, so very wrong. You are living proof of my error, because, indeed, you are a splendid and remarkable new nominee, and your record of public service and professional life is absolutely outstanding. I will not go into your background. Senator Biden has covered that, and Senator Thurmond. But it is extraordinary, beginning at the age of 38 on the bench, Stanford, graduation cum laude, Phi Beta Kappa, London School of Economics, election to the Harvard Law School board of student supervisors, your private practice, your pro bono efforts. That distances you about as far away from my mythical character as one could possible get. So we are going to review your record, and we have reviewed this for some time now. The committee has reviewed it. Others are very interested. Specifically, now, we know of the unanimous recommendation of the American bar in providing you with the highest possible rating, that of well-qualified. I will leave for another time a discussion of how the ABA came to its decision, but they eventually got it right. It is important to note that. They were certainly disappointing doing the last nomination. Four of their remarkable crew are still cloaked somewhere in anonymity. We do our business in the light here. It is important to note, from the outset, that you received the nomination you so clearly deserve. Well, Senators give you advice on how to answer questions. I heard that. But if you want to choose a course, why, try the one that the last three successful nominees picked. Those questions of the committee were answered like: How I am to resolve a particular issue, or what I might do might make it necessary for me to disqualify myself, and that would result in my inability to do my 50 sworn duty. I do not think I should, Senator, respond to the question, because that may well be an issue argued before the Court, and I do not want to be in a position of having a connection, as a condition of my confirmation. As any nominee will in the future, and have always in the past, say, "I just cannot do it." Now those were the remarks of Justices O'Connor, Rehnquist and Scalia. You would want to follow that good counsel there, I think somewhat, anyway. It is well worth pursuing. I think it is very important to remember that that worked, and Judge Bork of course got into the full panoply of effort because he had no choice. He had no choice. You do. You have not been hammered flat before you got here. So, as we proceed here, we will want to know about your judicial philosophy. I am certain there are those who would believe it to be too conservative to the extent that that label, conservative or liberal, really means much. It never has in my life, to add a bit of dimension or light to a situation—but that is not the inquiry. The inquiry is whether you possess the integrity, temperament, and ability to be on the Supreme Court. The inquiry is also whether your judicial philosophy, without consideration of your political philosophy, is worthy of representative on the Supreme Court, and I very much believe it is. I hope that we will do that fairly. I have disagreed with the specific judicial philosophy which nominees possess—and I have done this before, so this is not a case, you know, of sudden enlightenment. And again, I bring to the floor the case of Judge Pat Wald, who serves absolutely superbly, and was being criticized for the most superb and banal activities I have ever heard of. And she's there on the bench. She's doing a marvelous job, and I supported her. And I've supported other nominees of Jimmy Carter, so that's the way that is. I just hope that when I'm in the minority, and a president is presenting a nominee, that I will be as fair as I hope others would be. It's called fairness. I know that is naive, but I still like to try that. And it would be eminently defeating to our national goals if we ever have another situation—it doesn't matter who it is—similar to Robert Bork's process. Additionally, even though you hold these particular philosophies, we also know there is no predictability as to how you'll act when you get on the high court bench. That has proved to be troublesome to some in the past. And it is so important for all of us to remember that you will be only one of nine. To form a majority, you would have to be joined by at least four of your colleagues, just as you were joined when you wrote your majority opinions on the ninth circuit. It seems to me around here we focus on the nominees as single entities, as though they're the sole arbiters of justice, discounting the importance and impact of the other eight justices on the Court. That dazzled me in the last exercise. Because Bork, to carry out his "heinous" agenda, was evidently this Pied Piper who would lead four dull witted colleagues off the edge of the pier. That's what he would have had to have done. How deceptive that was. So I look forward to the hearings, working with you. I enjoyed our visit. I found your treatment of the Bork nomination, Mr. 51 Chairman, to be under all the circumstances equitable. I say that to you, Mr. Chairman. You always command my utmost personal regard and appreciation, just as under the chairmanship of Ted Kennedy and Strom Thurmond in this committee, we brought forth an appreciation for your efforts, your honest attempts. And I commend you, Mr. Chairman, as to how you personally handled that at a time of great personal distress to you. So I know it will be fairly done. And I said under the first procedures at the inception of the Bork nomination that his confirmation or rejection would be brought about by use of a deft blend of emotion, fear, guilt and racism. Yes, I overuse that phrase, I do. But it proved to be so. My prediction was borne out. I know that we will be avoiding all that kind of stuff in this nomination. And we seem to be off to a much better start. Of course, let me conclude, we remember again that you were unanimously confirmed by this Senate previously. And since that time you have served with great honor and distinction. I'm sure that your current and former students at McGeorge Law School will be watching intently to see just how you answer these questions on constitutional law. They will think, "I remember he fired those questions at me. How will he do?" It will be the law students' primal joy to watch you in these proceedings. No doubt you will handle yourself with great aptitude and dignity. I look forward to hearing your views, indeed I do. And I say, as I have said always, that there are not many of us here, at this table, who would like to be at that table where you sit in your position. We could not pass the test that we now give to you and to others. In no way, none of us. And as I have said before, I would hate to have someone rifling through the collected utterances, mumblings and scratchings of Al Simpson. It would be a bizarre array of stuff. But once again, America will be watching to see how we do our business of advice and consent. The Senate obviously has no objective criteria. I think we learned much from the past one. We have no standards, no criteria by which to honestly measure the qualifications of Supreme Court nominees. Each Senator simply makes up his or her mind. And they make up their own criteria, which is even more fascinating. And often, sometimes, even before the hearings, which is ever sublimely fascinating. And then they come to their conclusions. I know you're going to handle things beautifully. You will be a splendid addition to the Supreme Court. I intend to participate fully, Mr. Chairman, and I await your presentation with great interest and anticipation. Welcome to you, sir, and to your fine family. And I thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. I say to my colleague, I thank him for his kind remarks about me. 90-878 0 - 52 And Judge, just like none of us would like to be where you are right now, we probably would find a majority up here would like to be on the Court. And just as you would probably not like to stand for election, you probably would not be offended to be appointed to the United States Senate. So we all go through similar proceedings, we in a general election, and you before us. And lastly, it is true, you are only one of nine. But I think a case that's just been handed down a few minutes ago by the Supreme Court on one of the most controversial issue in America today that tied four to four indicates why your nomination is so critical. I yield to my colleague from Arizona.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, thank you. I want to add my congratulations for the way you have handled the Judiciary Committee in general, and in specific, as to the Supreme Court nominees. Judge Kennedy, we welcome you and your family here today. You are sitting with some of the most respected Members of Congress, Senator Wilson profound in his statement in support of you, and Representatives Fazio and Matsui. No one is more respected by this Senator, and I think by this committee, than the friends that you have by your side. I want to first address the subject of advice. I'm not going to give you any advice, Judge Kennedy. I am going to say that I hope you do respond to questions as to your own feelings. In my judgment, that's the only way we know what you think about the law and the Constitution. And contrary to my colleagues on the other side of the aisle, I think it would be a mistake to not do that. No one is going to ask you how you would have voted on the four-to-four decision that the Senator from Delaware just mentioned, dealing with abortion. No one is going to be so presumptuous as to expect you to come forward and give opinions on matters that will be pending before the Court, or may be before the Court at the time. But it is important for us to find out how you view the Constitution, and to question some of the decisions that you have made concerning stare decisis and other areas. So Mr. Chairman, we are gathered together, once again, in this historic room, to begin what I think is perhaps our most important responsibility as a body. I have said many times, confirmation of members to the Supreme Court, and perhaps, God forbid, having to declare war, are the two most important decisions a Senator is called upon to make. The nomination of Judge Robert Bork divided this committee, as well as the Senate and the nation as a whole. I am hopeful that the nomination of Judge Anthony Kennedy will bring us back together, with the common purpose of determining objectively whether Judge Kennedy should be confirmed as an associate justice to the Supreme Court. During the committee's and the Senate's consideration of Judge Bork, I found myself at the center of a bitter debate over the role of the Senate, and about the acceptability of Judge Bork as a justice. 53 Many on both sides of the Bork debate saw that nomination as an opportunity to advance their political goals. Judge Bork's supporters saw the nomination as a chance to create social and legal changes that they had been unable to create through other means. Judge Bork's opponents saw the nomination as an opportunity to reverse the decline of their influence that had occurred under President Reagan's term. Both sides used the nomination for fund raising, membership expansion, and personal attack on Members who happened to disagree with their side of the issue. I found the rhetoric on both sides of this unfortunate circumstance not only inappropriate but very dissatisfying, distracting, and distasteful. I accept it as part of the system. I make no criticism of anybody who engaged in such activity. I just expressed my view that I thought it was inappropriate. I attempted to divorce political considerations from my decisionmaking. I urged my colleagues to wait until the record was complete before making up their minds. I attempted tr us* the hearing to learn, and to gather information, rather than to bolster a preconceived notion about that nominee. I have been pleased to receive a good deal of mail and in-person support for me deliberate approach I took to the Bork nomination. And while there are those, of course, who are still trying to make political hay out of the defeat of Judge Bork, I am glad that most have moved on, and approached the Kennedy nomination in what I consider to be a very appropriate manner. We do not have everyone jumping out on this issue, and on this nomination, as we did before, for or against. We are more deliberate as a body and as Members. So I think the bad has turned into good; we all learned something, certainly this Senator did. The nomination of any individual to the Supreme Court is of the highest importance. Even though we begin these hearings at the end of the congressional session, and during the holiday season, we must be careful, and be as thorough as possible in our consideration of the nominee. I have had an opportunity to visit with you, Judge Kennedy. I appreciate the short time we had to discuss constitutional issues, and how you feel about them. I have read over dozens of your opinions. I have read several transcripts of speeches that you have given. And I have talked to many attorneys and judges in the ninth circuit about your qualifications. And I have had the personal pleasure of being in your company at ninth circuit judicial conferences, on occasion. I do, however, have unanswered questions that I intend to ask you, Judge Kennedy, as a witness. I want to assure myself that you will apply the law of this nation, and our Constitution, in a consistent way. I want to be sure that Judge Kennedy will be able to separate his personal views and philosophies from his judicial decisionmaking. I want to know what those personal views may be, and I want to know how they may be applied. I want to satisfy myself that your 54 record as an appellate court judge does indeed display a separation of your personal and legal views when issuing opinions. I am interested in learning how you intend to approach the different responsibilities of the Supreme Court, vis-a-vis the court of appeals. I will be particularly interested, Judge Kennedy, in discussing with you your views on discrimination, equal protection, privacy, criminal procedures, and access to the court. I want to hear your opinions on the roles that precedent and stare decisis play on the Supreme Court. And I am hopeful, Judge Kennedy, that you will answer these questions as forthrightly as you can, without intimidation, without feeling put on the spot, or mat there is somebody out to get you, because there is no one here that I know of who is approaching this hearing in that way. We are out to do our responsible duty, and I am very pleased that you have been chosen for the position. I am also very pleased that your attitude is one of a willingness to work with us, so we may come to a conclusion that will fill the vacant seat on the Supreme Court, and enable the country to move ahead. Thank you, Judge Kennedy. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Our colleague from Iowa, Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. Judge Kennedy, let me add my welcome to you and your family. I particularly want to congratulate you on being chosen by President Reagan to serve on the Supreme Court. Three months ago this committee convened for the purpose of assisting the Senate's advice and consent responsibility. Badly, in my judgment, the committee and the Senate managed to transform a narrow constitutional function into a full blown fear and smear campaign. The advice and consent function, located as it is in the Executive Branch Article of the Constitution, simply cannot mean that the Senate's last word is to be the only word. I begin these hearings full of hope that this nomination will return the Senate to its more traditional and appropriate role. In the past, I have set out what I believe is a principled, threepart standard for evaluating a nominee. First, does a nominee possess knowledge of and respect for the Constitution as the precious inheritance that it is for all Americans, and as the sole rule of decision in constitutional cases? Second, does the nominee have full appreciation of the separate functions between the unelected judiciary and the political branches? Thirdly, will the nominee exercise self restraint? Self restraint, which makes a judge resist the temptation to revise or amend the Constitution according to that individual's view of what is good policy. Mr. Chairman, I believe that this is a good occasion to repeat some often cited history about the third branch. First, according to the framers, the judiciary was to be the "least dangerous" branch to the political rights guaranteed in the Constitution. Second, courts are to make decisions based on the law rather than personal preference. Courts derive their legitimacy and authority from this restriction. They lose both when they go beyond it, As Justice Frankfurter once expressed it, and I quote: The ultimate touchstone of constitutionality is the Constitution itself; not what we have said about it, unquote. Much of the furor of the past few months only underscores the fact that some prefer a judiciary that obliterates the delicate balance struck by the framers in the Constitution's first three articles; a judiciary whose acts have no roots in the text or history of the Constitution and laws; a judiciary with little regard for the consent of the governed or separated powers. Of course, good intentions will be pleased by the defenders of an untethered judiciary. But good intentions ought not to prevail over the Constitution itself, if we are to be truly a nation of laws, not men. Following the Bork hearings, a constituent of mine reminded me of the words of a former Iowa Congressman, John W. Gwynne. His words explain it quite plainly, and I quote: A constitution is a document written by people in their better moments * * * to protect themselves in their worst moments. A constitution is not only to protect man from his enemies * * * but also from his friends, unquote. Mr. Chairman, I thank you for scheduling these hearings as early as you did, and I look forward to them as I evaluate this nominee on the vital questions concerning the judicial branch. Thank you. [The statement of Senator Grassley follows:] 56 JOSEPH R BIDEN Jn DELAWARE. CHAIRMAN EDWARD M KENNEDY MASSACHUSETTS STROM THURMOND SOUTH CAROLINA ROBERT C BYRD WEST VIRGINIA ORRIN G HATCH UTAH HOWARD M METZENBAUM OHIO ALAN K SIMPSON WYOMING DENNIS DlCONCINI ARIZONA CHARLES E GRASSLEY IOWA PATRICK J LEAHY VERMONT ARLEN SPECTER PENNSYLVANIA GORDON J HUMPHREY NEW HAMPSH States Senate COMMITTEE ON THE JUDICIARY WASHINGTON, DC 2OS1O-6275 STATEMENT OF SENATOR CHARLES E. GRASSLEY ON THE NOMINATION OF ANTHONY M. KENNEDY TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT 32125 JUDGE KENNEDY, LET ME ADD MY WELCOME TO YOU AND YOUR FAMILY. I'D LIKE TO CONGRATULATE YOU ON BEING CHOSEN BY PRESIDENT REAGAN TO SERVE ON THE SUPREME COURT. THREE MONTHS AGO THIS COMMITTEE CONVENED FOR THE PURPOSE OF ASSISTING THE SENATE'S ADVICE AND CONSENT RESPONSIBILITY. SADLY, IN MY JUDGMENT, THE COMMITTEE AND SENATE MANAGED TO TRANSFORM A NARROW CONSTITUTIONAL FUNCTION INTO A FULL-BLOWN, FEAR AND SMEAR CAMPAIGN. THE ADVICE AND CONSENT FUNCTION ~ LOCATED AS IT IS IN THE EXECUTIVE BRANCH ARTICLE OF THE CONSTITUTION — SIMPLY CANNOT MEAN THAT THE SENATE'S LAST WORD IS TO BE THE ONLY WORD. I BEGIN THESE HEARINGS FULL OF HOPE THAT THIS NOMINATION WILL RETURN THE SENATE TO ITS MORE TRADITIONAL, AMD APPROPRIATE ROLE. IN THE PAST, I HAVE SET OUT WHAT I BELIEVE IS A PRINCIPLED, THREE-PART STANDARD FOR EVALUATING A NOMINEE: (1) DOES THE NOMINEE POSSESS KNOWLEDGE OF AND RESPECT FOR THE CONSTITUTION AS A PRECIOUS INHERITANCE FOR ALL AMERICANS, AND AS THE SOLE RULE OF DECISION IN CONSTITUTIONAL CASES ? (2) DOES THE NOMINEE HAVE FULL APPRECIATION OF THE SEPARATE FUNCTIONS BETWEEN THE UNELECTED JUDICIARY AND THE POLITICAL BRANCHES ? AND (3) WILL THE NOMINEE EXERCISE SELF-RESTRAINT ? SELF-RESTRAINT WHICH MAKES A JUDGE RESIST TKt TEMPTATION TO REVISE OR AMEND THE CONSTITUTION ACCORDING TO THAT INDIVIDUAL'S VIEW OF WHAT IS GOOD POLICY. 57 MR. CHAIRMAN, I BELIEVE THIS IS A GOOD OCCASION TO REPEAT SOME OFTEN-CITED HISTORY ABOUT THE THIRD BRANCH. FIRST, ACCORDING TO THE FRAMERS, THE JUDICIARY WAS TO BE THE "LEAST DANGEROUS" BRANCH TO THE POLITICAL RIGHTS GUARANTEED IN THE CONSTITUTION. SECOND, COURTS ARE TO MAKE DECISIONS BASED ON THE LAW RATHER THAN PERSONAL PREFERENCE. COURTS DERIVE THEIR LEGITIMACY AND AUTHORITY FROM THIS RESTRICTION. THEY LOSE BOTH WHEN THEY GO BEYOND IT. AS JUSTICE FRANKFURTER ONCE EXPRESSED IT: "THE ULTIMATE TOUCHSTONE OF CONSTITUTIONALITY IS THE CONSTITUTION ITSELF, NOT WHAT WE HAVE SAID ABOUT IT." MUCH OF THE FUROR OF THE PAST FEW MONTHS ONLY UNDERSCORES THE FACT THAT SOME PREFER A JUDICIARY THAT OBLITERATES THE DELICATE BALANCE STRUCK BY THE FRAMERS IN THE CONSTITUTION'S FIRST THREE ARTICLES .. . A JUDICIARY WHOSE ACTS HAVE NO ROOTS IN THE TEXT OR HISTORY OF THE CONSTITUTION AND LAWS .. . A JUDICIARY WITH LITTLE REGARD FOR THE CONSENT OF THE GOVERNED OR SEPARATED POWERS. OF COURSE, GOOD INTENTIONS WILL BE PLEADED BY THE DEFENDERS OF AN UNTETHERED JUDICIARY. BUT GOOD INTENTIONS OUGHT NOT TO PREVAIL OVER THE CONSTITUTION ITSELF, IF WE ARE TRULY TO BE A NATION OF LAWS, NOT MEN. FOLLOWING THE BORK HEARINGS, A CONSTITUENT OF MINE REMINDED ME OF THE WORDS OF A FORMER IOWA CONGRESSMAN, JOHN WILLIAMS GWYNNE. HIS WORDS EXPLAINED IT QUITE PLAINLY: A CONSTITUTION IS A DOCUMENT WRITTEN BY PEOPLE IN THEIR BETTER MOMENTS . . . TO PROTECT THEMSELVES IN THEIR WORST MOMENTS. A CONSTITUTION IS NOT ONLY TO PROTECT MAN FROM HIS ENEMIES . . . BUT ALSO FROM HIS FRIENDS. MR. CHAIRMAN, I THANK YOU FOR SCHEDULING THESE HEARINGS, AND LOOK FORWARD TO THEM AS I EVALUATE THIS NOMINEE ON THE VITAL QUESTIONS CONCERNING THE JUDICIAL BRANCH. THANK YOU. 58
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator from Vermont.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. I am pleased to welcome Judge Kennedy and his family to the Judiciary Committee this morning in this historic room. Today, the committee is gathering for the second time in less than 3 months to undertake one of our most important tasks: to hear the testimony of the President's nominee to the U.S. Supreme Court. Our work here over the next few days actually is going to reflect the performance of three important duties. First, we have a duty to the Senate to develop a complete and detailed record on all issues pertaining to the fitness of Judge Kennedy to serve on the Supreme Court, and to recommend to the Senate, based on that record, whether it should give its consent to this nomination. Second, we have a duty to the Constitution, that magnificent charter whose 200th anniversary we celebrated this year. The men who wrote the Constitution recognized that the appointment of a Justice of the Supreme Court is too important a decision just to leave to one branch of government alone. They gave the President the power to nominate, but they entrusted the Senate with the power to withhold or give its consent. The fulfillment of this second duty also requires that we examine this nomination with extraordinary care. Finally, of course, we have a duty to the American people. The decisions of the Supreme Court touch the lives of every citizen of our republic. We depend upon the Supreme Court as the ultimate guardian of our liberties. Whoever succeeds Justice Powell on the Supreme Court is going to play a pivotal role in defining the shape of those liberties, not only for us, but for our children; in your case, well into the next century. So our duty to the American people also requires us to act on the basis of a complete record that discloses, as well as it can be disclosed, what this nomination might mean for the future of those freedoms. We have already begun to fulfill these three duties—to the Senate, to the Constitution, and to the American people—by studying Judge Kennedy's distinguished record as an attorney, as a professor of constitutional law, and, for the past 12 years, as a circuit court judge. The hearings that begin today are the next important step. Three months ago—and we have had a lot of discussion about this today—this committee convened to carry out these same duties with respect to another nomination to the Supreme Court. The hearings on the nomination of Judge Robert Bork established three precedents that should guide our work in the days ahead. First, the Bork hearings were wide-ranging, they were thorough, they were intensive. The hearings starting here today will share those features. I hope that every relevant aspect of the nominee's record is going to be thoroughly explored. Too much is at stake for the committee to falter in its obligation to develop a complete record, a complete record, on which to base its recommendation to the Senate. 59 Second, the Bork hearings focused on the judicial philosophy of the nominee: his approach to the Constitution, and to the role of the Supreme Court in discerning and enforcing its commands. The hearings today should have the same focus. No issue is more central to a decision on the appointment of a Justice of the Supreme Court; after all, it is the Court which under our system has the last word on what the Constitution means. Now, one Senator today said, Judge, you are not to be badgered into answering improper questions. Well, those improper questions are not going to occur. But if they did, I do not think anybody on this panel thinks you could be badgered into anything. Now, I met with you, and I know from our conversation, our private conversation, I think I know how you will answer. My advice is the same as I gave you then: Just answer honestly and candidly. Ignore any other advice of how you should or should not answer. Just be yourself. Be honest and be candid. Nobody is going to badger you; and even if they did, you are able to take care of yourself. As I said before, I cannot believe you could be badgered into anything. And you should not be able to be. You are going to be asked about many aspects of your judicial philosophy, as reflected in your previous record. You will also be asked about many topics on which you have not previously spoken in public. Your responsiveness to these questions and your candor and your completeness, they are going to be important factors in the committee's ultimate recommendation. Finally, these hearings, like the Bork hearings, will be fair. Judge Kennedy is going to be given every opportunity to explain his judicial philosophy, to put his record in context, and to respond to any criticisms that may be leveled. That is going to give this committee and the Senate and the American people the chance to see the whole picture before a decision is made on this nomination. The hearings on Judge Bork's nomination set a precedent in another way as well. Never before in our history have the American people been so engaged and so involved in the debate not over one nomination but over the future of the Supreme Court. The public debate that accompanied the Bork nomination had its excesses and, as Senator DeConcini mentioned earlier, its low points, like every public debate in a democratic society. But on the whole, it was a positive example of our democratic system in government. It certainly was a positive example of the checks and balances. Now, the decision on Justice Powell's successor remains the most important decision in the field of constitutional rights and responsibilities of this decade. It has been, and it must continue to be, a public decision, made on the basis of a public record and with the input of a concerned public. I hope that the high level of public interest continues. Debate on a nomination to the Supreme Court is in the best traditions of American citizenship. I look forward, over the next few days, to learning more about Judge Kennedy's judicial philosophy and about his qualifications to serve on the Supreme Court. Most importantly, these hearings carry out our duty to the U.S. Senate, to the Constitution and to the American people. We fulfill that duty if we are fair and thorough, and we fail our fellow Amer- 60 icans, the Constitution and the Senate if we are not. So I look forward to that challenge. Finally, the most important witness, Judge Kennedy, is going to be yourself. Your testimony and really no one else's—either for or against you—will determine whether you become a Supreme Court Justice. Only you could stop eventual confirmation. I rather suspect you will not. Mr. Chairman, I am going to have to leave for a few minutes for the reconciliation conference, and I will be back in time to hear the nominee. I thank you for your courtesy. [The statement of Senator Leahy follows:] I am pleased to welcome Judge Kennedy and his family to the Judiciary Committee this morning. Today, the Committee gathers for the second time in less than three months to undertake one of our most important tasks: to hear the testimony of the President's nominee to the United States Supreme Court. Our work here over the next few days actually will reflect the performance of three important duties. First, we have a duty to the Senate, to develop a complete and detailed record on all issues pertaining to the fitness of Judge Kennedy to serve on the Supreme Court, and to recommend to the Senate, based on that record, whether it should give its consent to this nomination. Second, we have a duty to the Constitution, that magnificent charter whose 200th anniversary we mark this year. The men who wrote the Constitution recognized that the appointment of a Justice of the Supreme Court is too important a decision to leave to one branch of government alone. They gave the President the power to nominate, but they entrusted to 63 the Senate the power to give or withhold its consent. The fulfillment of this second duty also requires that we examine this nomination with extraordinary care. Finally, we have a duty to the American people. The decisions of the Supreme Court touch the lives of every citizen of our Republic. We depend upon the Supreme Court as the ultimate guardian of our liberties. Whoever succeeds Justice Powell on the Supreme Court will play a pivotal role in defining the shape of those liberties, not only for us, but also for our children, well into the next century. So our duty to the American people also requires us to act on the basis of a complete record that discloses, as well as it can be disclosed, what this nomination might mean for the future of our freedoms. We have already begun to fulfill these three duties — to the Senate, to the Constitution, and to the American people — by studying Judge Kennedy's distinguished record as an attorney, as a professor of constitutional law, and, for the past twelve years, as a United States Circuit Judge. The hearings that begin today are the next important step. Three months ago, this Committee convened to carry out these same duties with respect to another nomination to the Supreme Court. The hearings on the nomination of Judge Robert 64 Bork established three precedents that should guide our work in the days ahead. First, the Bork hearings were wide-ranging, thorough, and intensive. These hearings will share those features. I hope that every relevant aspect of the nominee's record will be thoroughly explored. Too much is at stake for the Committee to falter in its obligation to develop a complete record on which to base its recommendation to the Senate. Second, the Bork hearings focused on the judicial philosophy of the nominee: his approach to the Constitution, and to the role of the Supreme Court in discerning and enforcing its commands. These hearings should have the same focus. No issue is more central to a decision on the appointment of Justice of the Supreme Court, the court which under our system has the last word on what the Constitution means. Judge Kennedy will be asked about many aspects of his judicial philosophy, as reflected in his previous record. He will also be asked about many topics on which he has not previously spoken in public. His responsiveness to these questions, and the candor and completeness of his answers, will be important factors in the Committee's ultimate recommendation. 65 Finally, these hearings, like the Bork hearings, will be fair. Judge Kennedy will be given every opportunity to explain his judicial philosophy, to put his record in context, and to respond to any criticisms that may be leveled. That will give this Committee, the Senate, and the American people the chance to see the whole picture before a decision is made on this nomination. The hearings on Judge Bork's nomination set a precedent in another way as well. Never before in our history have the American people been so engaged and so involved in the debate over the future of the Supreme Court. The public debate that accompanied the Bork nomination had its excesses and its low points, like every public debate in a democratic society. But on the whole, it was a positive example of our democratic system in action. The decision on Justice Powell's successor remains the most important decision in the field of constitutional rights and responsibilities of this decade. It has been, and it must continue to be, a public decision, made on the basis of a public record and with the input of concerned citizens. I hope that the high level of public interest continues. Public debate on a nomination to the Supreme Court is in the best traditions of American citizenship. 66 I look forward, over the next few days, to "learning nsore r bout Ji.dge Kenr.edy's judicial philosophy and i>cut his qualifications to t&rve on the Srpro :e Court. ffost importantly - these hearings carry out our duty to the United States Senate, to the Constitution and to the American people. Ue fulfill that duty if we are fair and thorough - we fail our fellow Americans, the Constitute en r.^d the Senate if we are not. I look forward to the chal.1p-vje. 67
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. The Senator from Pennsylvania, Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge Kennedy, I join my colleagues in welcoming you here. These hearings have already been described as harmonious, perhaps routine, and maybe less important than previous hearings. I frankly disagree with that for a number of reasons: I believe that these hearings are very important to explore key issues on your record and your views; secondly, to proceed to develop the Senate's judgment on the proper scope of inquiry into a nominee's judicial philosophy; and, third, somewhat differently, to discharge the Senate's constitutional duty to scrutinize a Supreme Court nominee and make an independent judgment on the nominee's qualifications. I disagree with those who have described your judicial approach as bland or vanilla. I yet do not know what flavor it is, but I am convinced that it is not vanilla. And we will have to wait until the final outcome of the hearings to see precisely where you fit into the tradition of constitutional jurisprudence. In reading many of your opinions, in reading many of your speeches, I note very profound philosophical strains running through your approach to constitutional law. Those subjects that I think are appropriate and really very important for inquiry. I have noted your comment on executive power, for example, that Presidents have significant degrees of discretion in defining their constitutional powers. Today, there are many important issues on executive power which confront the nation, and specifically confront the Congress. You have written landmark opinions on the good-faith exception to the exclusionary rule, a dissent which started the Supreme Court in that track. You have written a major opinion on the Chadha decision. You have written about legal realism and original intent. And during the course of the questioning, I think it is important to see just where you are in the tradition of constitutional jurisprudence. When you and I talked privately, I commented on Chadha with respect to whether that might reflect your underlying view about the inadequacies of Congress's own action, and called your attention at that time to a very interesting statement, hardly bland, where you said in one of your speeches that: The ultimate question, then, is whether the Chadha decision will he the catalyst for some basic congressional changes. My view of this is not a sanguine one. I am not sure what it will take for Congress to confront its own lack of self-discipline, its own lack of party discipline, its own lack of principal course of action besides the ethic of ensuring its re-election. I do not necessarily disagree with that conclusion, but the importance in an analysis of judicial philosophy is to what extent that underlying approach had an effect on your decision in Chadha. You have made a very interesting statement about original intent, a subject of really great importance in terms of where the court is going to go and how free Justices are to decide important constitutional issues, free perhaps, to some extent, at least from original intent. And you and I discussed this, again, at some length. I intend to pursue it, but your comment on a symposium was, 68 There must be some demonstrated historical link between the rule being advanced in the court and the announced declarations and language of the framers. I think that is a subject which really requires some analysis. You have moved from that position in a very erudite and philosophical speech on constitutional law on the right of privacy and the right to travel and the right to vote, and in that speech dealing with the right to privacy, recognize that right perhaps in fairly emphatic terms. I do not want to draw any conclusions. The speech speaks for itself. That will obviously be a subject of inquiry. But one of the very profound statements that you made in that speech was your comparison of "essential rights in a just system or essential rights in our constitutional system." Then you say that the two are not coextensive, and I believe that that is a subject which requires some examination as to whether there really is a difference between a just system and our Constitution which speaks to a just system. In that same speech, you made a reference to other constitutional provisions beyond the due process clause in a very interesting way, and inquired into the subject as to whether equal protection may have a broader application to homosexual rights than due process, which was the basis of the Supreme Court's decision in the Bowers case. Then in conclusion, you had made a fascinating reference to arguable rights—you did not adopt them—as to education, nutrition, and housing; and you really looked away from them as rights embodied in the Constitution. But I do believe that your writings and your decisions—decisions on school desegregation, on comparable worth, on a large representation—pose really breadth of understanding and, as I read them, a balance and essential elements of judicial restraint, but not judicial restraint to the extent of being musclebound, in your interpretation of the Constitution. But there is a great deal in your record which I think warrants inquiry in our proceedings. On the subject of judicial philosophy, our introductory statements today have already negated to some extent the conclusion of harmony in these hearings. You have already heard a fair difference of views. And the first question I asked of you when you and I sat down to talk—and I thank you for the almost 3 hours we spent together in two extensive sessions. The first question I asked you was whether you thought that judicial philosophy was an appropriate subject for inquiry. You said you thought that it was, and we proceeded to talk. And I did not ask you about your views on any specific cases, and I would not in private or in public. But I do believe that there are broad parameters which are appropriate for discussion. The only advice that I am going to give you on this subject is not to take any advice on this subject. That was the first question I asked of Judge Bork as well, whether he thought judicial—we were talking about judicial ideology at that time, and Judge Bork said in response that he did not like the term "ideology" because it had some political connotations, but he thought judicial philosophy was an appropriate subject for inquiry. And it is true that some nominees have answered to a lesser extent than have others. There was a very important article on 69 this subject written by a lawyer named William H. Rehnquist back in 1959, our current Chief Justice, when he took the Senate to task in Judge Whittaker's confirmation proceeding for not asking Judge Whittaker questions about due process of law and equal protection of the law, because Lawyer Rehnquist thought that that was indispensible in the Senate's discharge of its constitutional duties. When the subject came up with Justice Rehnquist on his confirmation proceedings for Chief Justice, he did answer a fair number of questions in terms of the jurisdiction of the court and first amendment rights; and, of course, Justice Scalia answered very few questions, leading a number of us on this committee to consider a sense of the Senate resolution on the appropriate scope of the inquiry. And Judge Bork's proceedings led to an extensive examination of judicial philosophy. My own sense is that within appropriate parameters on generalized subjects it is appropriate. At least speaking for myself, I intend to pursue it very much as we did in our private discussions where no objection was raised to any of the questions which I had asked at that time. The subject about our own independent role I think is one which warrants a comment or two. There is widespread misunderstanding about the Senate's role with many people thinking that it is a party matter for an automatic approval as to what nominee the President sends to the Senate. Some analogize it to the nomination of a Cabinet officer. My own sense is that it is fundamentally different from a Cabinet officer who serves the pleasure of the President and during the term of the President. These proceedings constitute really the apex of the separation of power under our Constitution. All three branches are involved. The President makes the nomination; it is up to the Senate to consent or not; and then the nominee who is successful goes to the court and has the final word over both the executive branch and the legislative branch. So there are really very important issues involved. I believe that the Senate has learned significantly from the confirmation proceedings as to Judge Bork. Prior to those hearings, many on this committee had expressed conclusions. As of this moment, that has not taken place. I think the Senate also learned the error of the so-called rolling vote; that when some 51 Senators had announced positions that then there was a call for Judge Bork to withdraw. To his credit—and I said so contemporaneously with his statement that Friday afternoon that he would not withdraw— he did not. But the proceedings as to Judge Bork lacked the Senate's deliberative process because so many Senators expressed conclusions without the benefit of a Judiciary Committee report and without the benefit of the debate. I think that we have learned from that. As Judge Bork urged, voices should be lowered, and I think they have been lowered. So I think progress has been made on all sides. It is an inexact process, I think. We all have a great deal to learn from it, and I think that the great public attention and the great public focus on these nominations is very much in the national interest. In conclusion, I think it worth just a brief comment about one of your concluding statements to me when we finished our brief discussion about 10 days ago, when you said did I think it was appro- 70 priate under the advice and consent function for the Senate to give advice to a nominee. And I responded that I thought that was up to the nominee. But in the informal sessions which you have had with all of us—and you had expressed this to me—you saw a keen sense of interest by the Judiciary Committee, and it is reflected in the entire Senate. And what we say to you both privately and publicly reflects our own views which are distilled significantly from representation, the majoritarian position we have as elected officials. So I do think there is something that we all learn from these processes, and that an appropriate range of discussion—and I emphasize the word "appropriate." We should not go too far, but we should go far enough. That is what, speaking for myself, I will attempt to do. Thank you very much, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. One thing you can be assured of, Judge, is you will find the spectrum covered in this committee on the type of advice you get. And it is all cost free. The Senator from Alabama, Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Mr. Chairman, I commend you for moving rapidly in regards to these hearings. On November the 11th, Armistice Day, Veterans' Day, Judge Kennedy was nominated. Here, 34 days later, we are conducting his hearings. They have been set in the closing week of this session of Congress when much activity is going on in various matters and their will, of course, require the presence of members of this committee on the floor and in other places. Nevertheless, I feel that the Supreme Court needs the ninth member, and I congratulate you on the effort to bring these hearings to a speedy focus and on the effort for us to proceed. Two hundred years ago, the framers of the Constitution captured the spirit of a struggling new nation in 52 words. These words form the Preamble of the Constitution. I think most of us are familiar with it, but just to set the tone for it I will quote a little of it. We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility. I think we ought to look at the first three words of the Preamble, We the people. That is what this nation is all about, and that is why the Constitution is so important, because it protects the rights of all people: conservatives and liberals, extremists and moderates, young and old, men and women, rich and poor. Some may argue that the ability of the Constitution to be all-encompassing is its greatest weakness. I would argue, therein lies its greatest strength. The Constitution is the cornerstone of our democracy, and if we are to protect it, we must entrust it to men and women who will respect its principles and its parameters. That is our function today: to determine the fitness of this nominee for a lifetime position on the Supreme Court. As Senators, we have a constitutional mandate to provide advice and consent on this nomination. Judge Kennedy, in your questionnaire, you listed what you consider to be the attributes of a good judge: compassion, warmth, sensitivity, and an unyielding insistence on justice. I could not agree with you more. But let me add two additional criteria: an understanding of the proper role of the judiciary as expressed in the Con- 71 stitution, and a deep belief in and an unfaltering support for an independent judiciary. Judge Kennedy, in these hearings you will be questioned on your views of the Constitution, your judicial philosophy, your commitment to equal justice under the law. Your speeches will be scrutinized, and some of your opinions will be criticized. It is my hope that you will respond to our questions as thoroughly as possible in order that we may be better able to understand not just Judge Kennedy, the lawyer or the judge, but Judge Kennedy, the man. In fulfilling my responsibility of advice and consent, I will keep an open mind as I have endeavored to do in every other judicial confirmation hearing. I believe the confirmation process should be exercised in a judicial manner, without pre-decision leanings, biases, or allegiances. To act otherwise makes the hearing procedure a waste of time or a perfunctory process. My decision will be based on my own, and no one else's, assessment of your commitment to the judicial system, the American people and the Constitution. I am in full agreement with the late Senator Sam Ervin when he said: Our greatest possession is not the vast domain; it is not our beautiful mountains or our fertile prairies or our magnificent coastline. It is not our great productive capacity; it is not the might of our Army or Navy. These things are of great importance. But in my judgment, the greatest and most precious possession of the American people is the Constitution. Judge Kennedy, if confirmed, you will be charged with safeguarding this most precious possession. The words in the Preamble of the Constitution are not mere words in a document; they are our lifeline. Judge Kennedy, it is a lifeline that you will be charged with protecting, and one that must be extended to all. Judge Kennedy, it is a life line—one that must be extended to all—that you will be charged with protecting. Following the rejection of Judge Bork and the self-withdrawal of Judge Ginsburg, the spotlights of the Justice Department, the media, the various Bar Associations, outside partisan and special interest groups, and the investigative forces of this committee have focused on you. Thorough and exhaustive investigations have been conducted. Your life history has been carefully dissected during the past 34 days. Your opinions have been reviewed under a searching judicial microscope. Your speeches have been read, re-read, and read between the lines. Every closet in your life has been opened; a few skeletons have been found. But thus far, none of the bones are rattling. You are off to a good start, and I wish you good luck. [The statement of Senator Heflin follows:] 72 STATEMENT OF SENATOR HOWELL HEFLIN ON THE NOMINATION OF JUDGE ANTHONY M. KENNEDY TO BE AN ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT 32125 MR. CHAIRMAN: I COMMEND YOU FOR MOVING RAPIDLY IN REGARDS TO THESE HEARINGS. ON NOVEMBER THE 11TH, ARMISTICE DAY. VETERANS' DAY, JUDGE KENNEDY WAS NOMINATED. HERE, 34 DAYS LATER, WE ARE CONDUCTING HIS HEARINGS. THEY HAVE BEEN SET IN THE CLOSING WEEK OF THIS SESSION OF CONGRESS WHEN MUCH ACTIVITY IS GOING ON IN VARIOUS MATTERS AND WILL, OF COURSE, REQUIRE THE PRESENCE OF MEMBERS OF THIS COMMITTEE ON THE FLOOR AND OTHER PLACES. NEVERTHELESS, I FEEL THAT THE SUPREME COURT NEEDS THE NINTH MEMBER, AND I CONGRATULATE YOU ON THE EFFORT TO BRING THESE HEARINGS TO A SPEEDY FOCUS AND FOR US TO PROCEED. TWO HUNDRED YEARS AGO THE FRAMERS OF THE CONSTITUTION CAPTURED THE SPIRIT OF A STRUGGLING NEW NATION IN FIFTY-TWO WORDS. THESE WORDS FORM THE PREAMBLE OF THE CONSTITUTION. I THINK MOST OF US ARE FAHILIAR WITH IT, BUT JUST TO SET THE TONE FOR IT I WILL QUOTE A LITTLE OF IT. "WE THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM A MORE PERFECT UNION, ESTABLISH JUSTICE, INSURE DOMESTIC TRANQUILITY." 73 I THINK HE OUGHT TO LOOK AT THE FIRST THREE WORDS OF THE PREAMBLE: WE THE PEOPLE. THAT IS WHAT THIS NATION IS ALL ABOUT. AND THAT IS WHY THE CONSTITUTION IS SO IMPORTANT — BECAUSE IT PROTECTS THE RIGHTS OF ALL PEOPLE — CONSERVATIVES AND LIBERALS. EXTREMISTS AND MODERATES, TOUNG AND OLD. MEN AND WOMEN. RICH AND POOR. SOME MAT ARGUE THAT THE ABILITY OF THE CONSTITUTION TO BE ALL ENCOMPASSING IS ITS GREATEST WEAKNESS. I WOULD ARGUE. THEREIN LIES ITS GREATEST STRENGTH. THE CONSTITUTION IS THE CORNERSTONE OF OUR DEMOCRACY. AND IF WE ARE TO PROTECT IT. WE MUST ENTRUST IT TO MEN AND WOMEN WHO WILL RESPECT ITS PRINCIPLES AND PARAMETERS. THAT IS OUR FUNCTION TODAY. TO DETERMINE THE FITNESS OF THIS NOMINEE FOR A LIFETIME POSITION ON THE SUPREME COURT. AS SENATORS WE HAVE A CONSTITUTIONAL MANDATE TO PROVIDE ADVICE AND CONSENT ON THIS NOMINATION. JUDGE KENNEDY. IN YOUR QUESTIONNAIRE YOU LISTED WHAT YOU CONSIDER TO BE THE ATTRIBUTES OF A GOOD JUDGE: "COMPASSION, WARMTH, SENSITIVITY AND AN UNYIELDING INSISTENCE ON JUSTICE." I COULD NOT AGREE WITH YOU MORE. BUT LET ME ADD TWO ADDITIONAL CRITERIA: AN UNDERSTANDING OF THE PROPER ROLE OF THE JUDICIARY AS EXPRESSED IN THE CONSTITUTION. AND A DEEP BELIEF IN. AND UNFALTERING SUPPORT FOR. AN INDEPENDENT JUDICIARY. j 74 JUDGE KENNEDY. IN THESE HEARINGS YOU WILL BE QUESTIONED ABOUT YOUR VIEWS OF THE CONSTITUTION, YOUR JUDICIAL PHILOSOPHY. AND YOUR COMMITMENT TO EQUAL JUSTICE UNDER THE LAW. YOUR SPEECHES WILL BE SCRUTINIZED. SOME OF YOUR OPINIONS WILL BE CRITICIZED. IT IS MY HOPE THAT YOU WILL RESPOND TO OUR QUESTIONS AS THOROUGHLY AS POSSIBLE SO THAT WE WILL BE BETTER ABLE TO UNDERSTAND, NOT JUST JUDGE KENNEDY, THE LAWYER OR THE JUDGE. BUT JUDGE KENNEDY THE MAN. IN FULFILLING MY RESPONSIBILITY OF ADVICE AND CONSENT, I WILL KEEP AN OPEN MIND AS I HAVE ENDEAVORED TO DO IN EVERY OTHER JUDICIAL CONFIRMATION HEARING. I BELIEVE THE CONFIRMATION PROCESS SHOULD BE EXERCISED IN A JUDICIAL MANNER WITHOUT PRE-DECISION LEANINGS, BIAS OR ALLEGIANCES. TO ACT OTHERWISE MAKES THE HEARING PROCEDURE A WASTE OF TIME OR A PERFUNCTORY PROCESS. MY DECISION WILL BE BASED ON MY OJ*U AND NO ONE ELSE'S ASSESSMENT OF YOUR COMMITMENT TO THE JUDICIAL SYSTEM, THE AMERICAN PEOPLE AND THE CONSTITUTION. I AM IN FULL AGREEMENT WITH THE LATE SENATOR SAM ERVIN WHEN HE SAID: OUR GREATEST POSSESSION IS NOT THE VAST DOMAIN, IT'S NOT OUR BEAUTIFUL MOUNTAINS, OR OUR FERTILE PRAIRIES, OR OUR 75 MAGNIFICENT COASTLINE. IT'S NOT OUR GREAT PRODUCTIVE CAPACITY. IT IS NOT THE MIGHT OF OUR ARMY OR NAVY. THESE THINGS ARE OF GREAT IMPORTANCE BUT IN MY JUDGEMENT. THE GREATEST AND MOST PRECIOUS POSSESSION OF THE AMERICAN PEOPLE IS THE CONSTITUTION. JUDGE KENNEDY. IF CONFIRMED. YOU WILL BE CHARGED WITH SAFEGUARDING THIS MOST PRECIOUS POSSESSION. THE WORDS IN THE PREAMBLE OF THE CONSTITUTION ARE NOT MERE WORDS IN A DOCUMENT. THEY ARE OUR LIFELINE. JUDGE KENNEDY, IT IS A LIFELINE THAT YOU WILL BE CHARGED WITH PROTECTING, AND ONE WHICH MUST BE EXTENDED TO ALL. FOLLOWING THE REFECTION OF JUDGE BORK AND THE SELF-WITHDRAWAL OF JUDGE GINSBURG, THE SPOTLIGHTS OF THE JUSTICE DEPARTMENT. THE MEDIA, THE VARIOUS BAR ASSOCIATIONS, OUTSIDE PARTISAN AND SPECIAL INTEREST GROUPS, AND THE INVESTIGATIVE FORCES OF THIS COMMITTEE HAVE FOCUSED ON YOU. THOROUGH AND EXHAUSTIVE INVESTIGATIONS HAVE BEEN CONDUCTED. YOUR LIFE HISTORY HAS BEEN CAREFULLY DISSECTED DURING THE PAST 34 DAYS. YOUR OPINIONS HAVE REVIEWED UNDER A SEARCHING JUDICIAL MICROSCOPE. YOUR SPEECHES HAVE BEEN READ. RE-READ. AND READ BETWEEN THE LINES. EVERY CLOSET IN YOUR LIFE HAS BEEN OPENED; A FEW SKELETONS HAVE BEEN FOUND. BUT THUS FAR. NONE OF THE BONES ARE RATTLING. 76
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator, for that colorful description. [Laughter.] Maybe the Senator from New Hampshire can conclude and put some flesh on the bones for us. Senator Humphrey.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you, Mr. Chairman. Judge Kennedy, congratulations on your nomination, and welcome to you and each member of your family. My colleagues have said, I think, all that needs to be said at this point—perhaps more than needs to be said at this point. I will make a contribution to efficiency rare around this place by putting my statement in the record. [The statement of Senator Humphrey follows:] 77 SENATE JUDICIARY COMMITTEE HEARINGS ON THE NOMINATION OF JUDGE ANTHONY KENNEDY FOR THE U.S. SUPREME COURT 32125 STATEMENT OF SENATOR GORDON J. HUMPHREY JUDGE KENNEDY, WELCOME TO THESE COMMITTEE HEARINGS. I BELIEVE IT TAKES SPECIAL CHARACTER AND COMMITMENT TO SUBMIT TO A PROCESS WHICH HAS NOW BECOME A PUBLIC ORDEAL. I APPLAUD YOUR WILLINGNESS TO GO THROUGH THIS GRUELLING PROCESS FOR THE GOOD OP THE COUNTRY AND THE COURT. I WILL MAKE NO SECRET OF THE FACT THAT I DEEPLY REGRET THE SENATE'S REFUSAL TO CONFIRM JUDGE BORK FOR THIS VACANCY. HE WAS UNIQUELY QUALIFIED TO MAKE A VALUABLE CONTRIBUTION TO THE COURT'S WORK AND THE HEALTHY DEVELOPMENT OF OUR LAW. HE WOULD HAVE BROUGHT A PROFOUND APPRECIATION FOR THE LIMITS OF THE JUDICIAL ROLE TO THE HIGH COURT — LIMITS WHICH THE COURTS TOO FREQUENTLY IGNORE IN THIS ERA OF JUDICIAL POLICYMAKING. IT IS A GENUINE HISTORICAL TRAGEDY THAT THE PUBLIC DISTORTION OF JUDGE BORK'S RECORD KEPT HIM FROM THE SEAT WHICH HE SO CLEARLY DESERVED TO FILL. BUT THAT BATTLE IS OVER, FOR NOW, AND IT IS TIME TO MOVE ON. IF NOTHING ELSE, I HOPE THAT LESSONS LEARNED FROM THE EXCESSES OF THE BORK HEARINGS WILL LEAD TO MORE RESTRAINED TREATMENT OF JUDGE KENNEDY AND THE NOMINEES OF FUTURE YEARS. I HAVE CAREFULLY EXPLORED JUDGE KENNEDY'S EXTENSIVE JUDICIAL RECORD, AND IT IS A SOUND AND RESPONSIBLE ONE. IT SHOWS PROPER RESPECT FOR THE LANGUAGE AND PRINCIPLES OF THE CONSTITUTION, AND FOR THE DEMOCRATIC PREROGATIVES OF THE ELECTED LAWMAKERS. IT GENERALLY SHOWS KEEN APPRECIATION FOR FOR THE OBLIGATIONS AND LIMITATIONS OF THE JUDICIAL ROLE. HIS OPINIONS IN THE CRIMINAL LAW AREA ARE ESPECIALLY COMMENDABLE. IN SOME OF THE MOST IMPORTANT CRIMINAL LAW CONTROVERSIES OF THE DAY, JUDGE KENNEDY'S OPINIONS AND DISSENTS HAVE LATER BEEN FOLLOWED BY THE SUPREME COURT. HIS SOUND REASONING HAS LED HIM TO REJECT ATTEMPTS TO HAMPER LAW ENFORCEMENT WITH ARTIFICIAL BARS TO THE USE OF RELEVANT EVIDENCE AGAINST DANGEROUS CRIMINALS. AT THE SAME TIME, HE HAS TAKEN STRONG STANDS TO UPHOLD THE RIGHTS OF THE ACCUSED AND REVERSE CONVICTIONS WHERE THE CONSTITUTION REQUIRES. IN A DIFFERENT AREA, JUDGE KENNEDY'S OPINION IN THE COMPARABLE WORTH CASE OF AFSCME V. STATE OF WASHINGTON WAS ONE OF THE MOST IMPORTANT COURT OF APPEALS DECISIONS OF THE DECADE. THAT DECISION PROPERLY REJECTED AN EXTREME INTERPRETATION OF TITLE VII WHICH WOULD HAVE COST THE STATE OF WASHINGTON NEARLY ONE BILLION DOLLARS AND UNDERMINED THE MOST FUNDAMENTAL PREMISES OF A RATIONAL, COMPETITIVE LABOR MARKET. MORE IMPORTANTLY, IT UPHELD THE PRINCIPLE THAT LEGISLATURES, NOT COURTS, SHOULD MAKE THE POLICY DECISIONS GOVERNING OUR SOCIAL AND ECONOMIC WELFARE. I CANNOT AGREE WITH ALL OF JUDGE KENNEDY'S OPINIONS. IN A PEW CASES — SUCH AS HIS EXPANSIVE DISCUSSION OF SUBSTANTIVE DUE PROCESS IN THE CASE OF BEI.LF.R V. MIDDENDORF — HE HAS SEEMED TO STRAY SOMEWHAT FROM THE PRINCIPLE OF JUDICIAL RESTRAINT WHICH HE USUALLY FOLLOWS. BUT EVEN IN THAT CASE HE REACHED THE CORRECT RESULT, AS LATER CONFIRMED BY THE SUPREME COURT'S DECISION IN BOWERS V. HARDWICK. ON THE WHOLE, HIS JUDICIAL RECORD IS EXEMPLARY AND SOUND. ANY ATTEMPT TO SUGGEST THAT JUDGE KENNEDY IS NOT WITHIN THE SO-CALLED "MAINSTREAM" IS IMPLAUSIBLE. EVEN THOSE OF HIS OPINIONS WHICH HAY BE CRITICIZED BY HOSTILE WITNESSES — SUCH AS HIS COMPARABLE WORTH OPINION AND HIS DECISION UPHOLDING THE NAVY'S RIGHT TO DISCHARGE HOMOSEXUALS IN THE BEI.LER CASE — APE CONSISTENT WITH RESULTS REACHED BY NUMEROUS OTHER FEDERAL APPEALS COURTS. THE TEST FOR ME, THOUGH, IS NOT WHETHER HE IS WITHIN SOME SELECTIVE NOTION OF THE "MAINSTREAM"; IT IS WHETHER HE IS FAITHFUL TO THE CONSTITUTION AND THE LIMITS OF THE JUDICIAL ROLE. FROM WHAT I'VE SEEN AND READ SO FAR, JUDGE KENNEDY SHOULD PASS THAT MORE IMPORTANT TEST. I HOPE HIS TESTIMONY AND HIS ANSWERS TO MY COLLEAGUES' QUESTIONS WILL REENFORCE THAT BELIEF.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Following Senator Humphrey's lead, Senator Simon asked me to put his statement in the record as well.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am sure they will be compatible. With 79
Senator Paul Simon (IL)
Senator
(D)
Opening Statement of Senator Simon Judge Kennedy, I would like to welcome you and your family this morning. If you are confirmed as the next Associate Justice of the Supreme Court, you will be asked to decide some of the most sensitive and controversial issues of American life. The Supreme Court has a special role in making good the promise of liberty in our Constitution. The words that say it best have been carved across the entrance to the Court itself: "Equal Justice Under Law." That is what the Supreme Court represents, and so should every Justice of that Court. Unlike most of my colleagues on the Committee, I am not a lawyer, so I will not be asking about technical legal rules or doctrines. My concern is this basic one--will Judge Kennedy be fair? Will he be sensitive to individual rights? Will he safeguard the constitutional protections of all Americans? Will he pay particular regard to the rights of women, to the rights of minorities, sometimes ignored in our nation's history? Will he represent "Equal Justice Under Law"? I want a nominee who is open-minded, not a man with a mission; a judge who will listen carefully to every argument and decide on the basis of law, not philosophy. I want a Supreme Court Justice who understands and applies not only the letter of the Constitution, but its spirit as well. These are the qualities I looked for in Judge Bork, and they are the criteria I will apply to any Supreme Court nominee. Judge Kennedy, I have reviewed your record on the federal bench and I see some very positive signs. But I do have some concerns, and some questions. I look forward to your testimony. 80
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, it is 12:00 o'clock. I think rather than swear you right now, Judge—which I was going to do—to the great disappointment of the photographers—who I enjoy disappointing on occasion in light of the pictures I see of myself in the press—I think what we will do is we will wait until 1 o'clock, bring you back, swear you in, and then I will ask you to introduce your family, make your opening statement. Then we will begin the first round of questioning.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will reconvene at 1 o'clock. The hearing is recessed until then. [Whereupon, at 11:58 a.m., the committee recessed, to reconvene at 1:00 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. I yield to my colleague from South Carolina.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, Senator Bob Dole has sent over a statement to be placed in the record favoring Judge Kennedy's confirmation to the Supreme Court. I ask unanimous consent it be put in the record.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be placed in the record. [The statement of Senator Dole follows:] 81
Senator Bob Dole (KS)
Senator
(R)
STATEMENT OF SENATOR BOB DOLE CONFIRMATION HEARINGS FOR JUDGE ANTHONY M. KENNEDY MR. CHAIRMAN: IT IS A GREAT PRIVILEGE TO SPEAK ON BEHALF OF JUDGE ANTHONY M. KENNEDY, WHO HAS BEEN NOMINATED TO SERVE AS AN ASSOCIATE JUSTICE ON THE SUPREME COURT. FILLING THIS SEAT, AS EVERYONE IS WELL AWARE, HAS BEEN A TRIAL — SO TO SPEAK. BUT IN JUDGE KENNEDY, I BELIEVE PRESIDENT REAGAN HAS NOMINATED A JURIST WHO FULFILLS ALL THE MOST IMPORTANT REQUIREMENTS OF SUCH AN IMPORTANT POSITION.. JUDGE KENNEDY IS A GRADUATE OF STANFORD UNIVERSITY AND HARVARD LAW SCHOOL, AND HAS STUDIED AT THE LONDON SCHOOL OF ECONOMICS. HE PURSUED A SUCCESSFUL CAREER IN PRIVATE PRACTICE, AND HAS SERVED AS PROFESSOR OF CONSTITUTIONAL LAW AT THE MCGEORGE SCHOOL OF LAW AT THE UNIVERSITY OF THE PACIFIC. SINCE 1976 .JUDGE KENNEDY HAS SERVED AS A MEMBER OF THE UNITED STATES COURT OF APPEALS FOR THE 9TH CIRCUIT, WHICH INCLUDES ALASKA, ARIZONA, CALIFORNIA, HAWAII, IDAHO, MONTANA, NEVADA, OREGON, AND WASHINGTON. DURING HIS TENURE AS AN APPELLATE JUDGE HE HAS HANDED DOWN LITERALLY HUNDREDS OF OPINIONS. THOSE, COMBINED WITH HIS WRITINGS, PROVIDE AN LARGE 82 - 2 - BODY OF WORK TO ILLUSTRATE JUDGE KENNEDY'S JUDICIAL PHILOSOPHY. AND NONE OF THESE POSITIONS ARE SO EXTREME THAT THEY FELL OUTSIDE THE MAINSTREAM OF AMERICAN OPINION. IN FACT, JUDGE KENNEDY'S WORK IS OF SUCH A CALIBER THAT THE AMERICAN BAR ASSOCIATION UNANIMOUSLY VOTED HIM ITS HIGHEST APPROVAL RATING. MR. CHAIRMAN, THERE HAS BEEN AN EMPTY SEAT ON THE SUPREME COURT SINCE SUMMER. ALREADY THIS TERM, THE COURT HAS HAD TO AFFIRM A NUMBER OF SIGNIFICANT CASES BECAUSE OF SPLIT DECISIONS. THIS IS NO WAY FOR THE HIGHEST COURT IN THE LAND TO FUNCTION. IT IS A DISSERVICE TO THE AMERICAN PEOPLE, AND TO OUR SYSTEM OF JUSTICE. IN JUDGE KENNEDY WE HAVE A JURIST WITH IMPECCABLE PROFESSIONAL AND PERSONAL CREDENTIALS — A CONSERVATIVE IN THE FINE TRADITION OF JUDGE LEWIS POWELL, THE JUDGE HE IS REPLACING. I WOULD NEVER ADVOCATE EITHER THIS COMMITTEE OR THE SENATE AS A WHOLE RUSHING THROUGH THE CONFIRMATION PROCESS. BUT WE DO NEED TO ACT EXPEDITIOUSLY. AND WITH AS QUALIFIED A CANDIDATE AS JUDGE KENNEDY IT SHOULD NOT BE DIFFICULT TO DO. SO, MR. CHAIRMAN I HOPE THAT THIS COMMITTEE, AND THE ENTIRE SENATE, WILL CONFIRM THE KENNEDY NOMINATION, SO THAT HE CAN TAKE HIS PLACE ON THE BENCH SHORTLY AFTER THE NEW YEAR AND SO THE SUPREME COURT CAN MOVE FORWARD TO CARRY OUT ITS IMPORTANT RESPONSIBILITIES.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, would you stand to be sworn? Do you swear that the testimony you are about to give will be the whole truth and nothing but the truth, so help you God?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I do so swear.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Judge. Welcome back. Do you have an opening statement you would like to make?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator; if I may make just a few remarks.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Take as much time as you like.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I most appreciate the gracious welcome from the members of the committee this morning, from Senator Wilson and from the two distinguished Congressmen from their districts in Sacramento, all three of whom I have known for a number of years. This is an appropriate time for me to thank the President for entrusting me with the honor of appearing before you as his nominee for Associate Justice of the United States. My family shares in extending our deep and great appreciation for this or his confidence in me. I wish also to thank the members of your committee, Mr. Chairman, for the most interesting and impressive set of meetings that I have had with you and Members of the Senate as a whole over the last 4 weeks. These are denominated "courtesy calls" in the common parlance, as I understand it. It seems to me that that is perhaps a somewhat casual term for what is a very important and significant part of the advice and consent process. In a number of these advise and consent discussions, Mr. Chairman, you or your colleagues indicated that you wanted to explain to me your own views, your own convictions, your own ideas, your own concerns about the Constitution of the United States. You have indicated that no reply or response was expected from me. And in every case, Mr. Chairman, I was profoundly impressed by the deep commitment to constitutional rule and the deep commitment to judicial independence that each Member of the United States Senate has. I wish your workload were such that you could give the experience that I have had to every nominee for appointment to the courts in the article III system. Now, Mr. Chairman, I understand that it is appropriate, and at your invitation, to introduce my family who are here with me.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Please do.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. My oldest son, Justin, is a recent graduate of Stanford and is now an assistant project manager for a major corporate relocation in Sacramento. We are delighted to have him home with us in Sacramento. His brother, Gregory, our other son, is a senior at Stanford, and I am authorized to assure the committee that he has taken the LSAT test and is on his way to law school. Our youngest child is Kristin, who is now a sophomore at Stanford majoring in liberal arts, particularly English-and history. 90-878 0 - 89 - A 84 Finally, my wife Mary, who has the love and admiration of our family and also of her 30 students in the Golden Empire School in Sacramento. They most appreciate your invitation to be with us here today, Mr. Chairman. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We welcome you all here. I surely do not envy your tuition bill. [Laughter.]
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am glad that is part of the record, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is a sacrifice you are making, and I mean that sincerely. Please move forward, Judge, if you would like.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That concludes my opening remarks, Mr. Chairman. I am ready to receive questions from you and your committee members.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, let me explain to you, and to my colleagues, how the ranking member and I would like to proceed today. That is, as has been the custom in the recent past, we will allow each Senator to question you up to a half an hour, hopefully to have some continuity to the questions, and allow both you full time to answer the questions and they to flesh out the line of questioning they wish to pursue. It is my hope, although not my expectation, that we will complete one round of questioning today. We will stop, though, at 6 o'clock, or as close to 6 o'clock as we can get. And at approximately 3:15, we will take a break for 15 minutes or so to give you an opportunity to stretch your legs and maybe get a cup of coffee or whatever you would like. Judge, I will begin my first round here by telling you at the outset that I would like to pursue or touch on three areas in my first round. One is the question of unenumerated rights, and if there are such, if they exist under our Constitution. Secondly, as a matter, quite frankly, more of housekeeping and for the record, with you under oath, I would like to question you about your meetings with Justice Department, White House and other officials, and whether or not any commitments were elicited or made. I quite frankly must tell you at the outset I have had long discussions and full cooperation from the White House in this matter, and I am satisfied; but I think we should have it under oath what transpired and what did not. Thirdly, if time permits—which it probably will not—I would like to discuss with you a little bit about your views on the role of precedent as a Supreme Court Justice. Ofttimes, it is mentioned here that we unanimously voted for you when you came up as a circuit court appointee, and that is an honor. You are to be congratulated. But as you well know, we unanimously vote for almost; everybody who comes up. Ninety-eight percent of all those that come before the Congress are unanimously approved of. That is in no way to denigrate the support shown to you by us in your previous appearance here, but it is to indicate that, as you know better than most of us, the role of a lower court judge and the role of a Supreme Court judge are different. They are both to seek out and find justice under the Constitution, but lower court judges are bound by precedent. They do not have the authority, the constitu- 85 tional authority to alter Supreme Court decisions. But as a Supreme Court Justice, you obviously will have that authority, and I would like at some point to discuss to what extent you think that authority resides in a member of the court. Judge Kennedy, let me begin, though, with the unenumerated rights question, which occupied a great deal of our time in the prior hearing—not your prior hearing, but the prior hearing with Judge Bork. Judge Kennedy, in your 1986 speech on unenumerated rights which, if I am not mistaken—I have a copy of it here—was entitled Unenumerated Rights and the Dictates of Judicial Restraint, in that speech you place great emphasis on the specific text of the Constitution as a guidepost for the court. You said, for example— and I quote from the concluding page of that speech— I recognize, too, that saying the constitutional text must be our principal reference is in a sense simply to restate the question what that text means. But uncertainty over precise standards of interpretation does not justify failing to attempt to construct them, and still less does it justify flagrant departures. What we finH out today, or at least I do, is how you go about attempting to cox., ti. ~ n , such standards of interpretation. As I read your speech vou we?" "•cerned that unenumerated rights articulated by the Pui-remc Court, such as the right of privacy, but not exclusively I tinted to that, in your words "have a readily discernible basis in the Constitution." But you also recognize, Judge Kennedy, that the text of the Constitution is not always, to use your phrase, I believe, "a definitive guide." On two separate occasions, in August of 1987 and February of 1984, you have described the Due Process Clause, which, of course, contains the word "liberty," the 14th amendment. You described that as a spacious phrase. That seems to—well, let me not suggest what it suggests. The point I want to raise with you is there seems to be an underlying tension here; that you talk about liberty as being a spacious phrase, and you insist at the same time that the constitutional text must be our principal reference. Although 1 have my own view of what you mean by that—and they are not incompatible, those two phrases, as I see it—I would like you to give us your view of the liberty clause. Do you believe that the textual reference to liberty in the 5th and 14th amendments and in the Preamble of the Constitution provides a basis for certain fundamental unenumerated rights?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Senator, of course, the great tension, the great debate, the great duality in constitutional law—and this has been true since the court first undertook to interpret the Constitution 200 years ago—has been between what the text says and what the dictates of the particular case require from the standpoint of justice and from the standpoint of our constitutional tradition. The point of my remarks—and we can talk about the Canadian speech in detail, if you choose—was that it is really the great role of the judge to try to discover those standards that implement the intention of the framers. The framers were very careful about the words they used. They were excellent draftsmen. They had drawn 11 constitutions for the separate states. This, they recognized, was a unique undertaking. But the words of the Constitution must be the beginning of our inquiry. Now, how far can you continue that inquiry away from the words of the text? Your question is whether or not there are unenumerated rights. To begin with, most of the inquiries that the Supreme Court has conducted in cases of this type have centered around the word "liberty." Now, the framers used that, what I call spacious phrase, both in the fifth amendment, almost contemporaneous with the Constitution, and again in the 14th amendment they reiterated it. The framers had an idea which is central to Western thought.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Western thought?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thought. It is central to our American tradition. It is central to the idea of the rule of law. That is there is a zone of liberty, a zone of protection, a line that is drawn where the individual can tell the Government: Beyond this line you may not go. Now, the great question in constitutional law is: One, where is that line drawn? And, two, what are the principles that you refer to in drawing that line?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But there is a line.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. There is a line. It is wavering; it is amorphous; it is uncertain. But this is the judicial function.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is not unlike, as I understand what you have said, one of your predecessors—if you are confirmed—discussing shared traditions and historic values of our people in making that judgment, and another of your predecessors suggesting that there is a right to be let alone, left alone. Let me ask you, Judge Kennedy, Justice Harlan, one of the great true conservative Justices, in my view, of this century, had a similar concern; and as I understand it—correct me if I am wrong— expressed it not dissimilarly to what you are saying when he said no formula could serve as a substitute in this area for judgment and restraint, and that there were not any "mechanical yardsticks" or "mechanical answers." Do you agree with the essence of what Justice Harlan was saying?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is hard to disagree with that. That was the second Mr. Justice Harlan. Remember, though, Senator, that the object of our inquiry is to use history, the case law, and our understanding of the American constitutional tradition in order to determine the intention of the document broadly expressed. One of the reasons why, in my view, the decisions of the Supreme Court of the United States have such great acceptance by the American people is because of the perception by the people that the Court is being faithful to a compact that was made 200 years ago. The framers sat down in a room for three months. They put aside politics; they put aside religion; they put aside personal differences. And they acted as statesmen to draw a magnificent document. The object of our inquiry is to see what that document means.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, it will come as no surprise to you that one of the storm centers of our last debate and discussion was 87 whether or not there were unenumerated rights and whether the document was expansive. Would you agree with Justice Harlan that, despite difficult questions in this area, the Court still has a clear responsibility to act to protect unenumerated rights, although where it draws that line depends on the particular Justice's view?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, although I am not sure that he spoke in exactly those terms.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, I am not quoting him.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not trying to quibble, but it may well be the better view, rather than talk in terms of unenumerated rights to recognize that we are simply talking about whether or not liberty extends to situations not previously addressed by the courts, to protections not previously announced by the courts.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let us be more fundamental than that. There are certain rights that the courts over the years have concluded that Americans have either retained for themselves or have been granted that do not find specific reference in the Constitution—the right of privacy being one, as you pointed out in your speech, the right to travel. So what we are talking about here, what I am attempting to talk about here and you are responding, is that whether or not in the case of the 14th amendment the word "liberty" encompasses a right that maybe heretofore has not been articulated by the court and does not find residence in some text in the Constitution, and whether or not the ninth amendment means anything. Could you tell me what the ninth amendment means to you? And for the record, let me read it. I know you know it well. "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Can you tell me what you think the framers meant by that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I wish I had a complete answer. The ninth amendment has been a fascination to judges and to students of the Constitution for generations. When Madison—and he was the principal draftsman of the Bill of Rights—wrote the Bill of Rights, he wanted to be very sure that his colleagues, the voters, and the world understood that he did not have the capacity to foresee every verbal formulation that was necessary for the protection of the individual. He was writing and presenting a proposal at a time when State constitutions were still being drafted, and he knew that some State constitutions, for instance the Virginia Bill of Rights went somewhat further than the Constitution of the United States. In my view, one of his principal purposes, simply as a statesman, was to give assurance that this was not a proclamation of every right that should be among the rights of a free people. Now, going beyond that, I think the sense of your question is: Does the ninth amendment have practical significance
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Please keep your voice up so we can hear you.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Does the ninth amendment have practical significance in the ongoing determination of constitutional cases? As you know, the Court has rarely found occasion to refer to it. It seems to me the Court is treating it as something of a reserve clause, to be held in the event that the phrase "liberty" and the other spacious phrases in the Constitution appear to be inadequate for the Court's decision.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I do not want to hurt your prospects any, but I happen to agree with you, and I find comfort in your acknowledgement that it had a purpose. There are some who argue it has no purpose. Some suggest it was a water blot in the Constitution. But I read it as you do. It does not make either of us right, but it indicates that there is some agreement, and I think the historical text, and the debate surrounding the Constitution sustains the broad interpretation you have just applied. And is it fair to say that in the debate about unenumerated rights, and the right of privacy in particular, that there is a question of crossing the line, acknowledging the existence of unenumerated rights, and the existence of the right of privacy? The real debate for the last 40 years has been on this side of the line, among those who sit on the bench and the Supreme Court, who acknowledge that there is, in fact, for example, a right to privacy, but argue vehemently as to how far that right extends. Some believe that extends only to a right of privacy to married couples. Others would argue, and will argue, I assume at some point, that that right of privacy extends to consensual homosexual activity. But the debate has been on this side of the line, that is, as to how far the right extends, not if the right exists. Do you have any doubt that there is a right of privacy? I am not asking you where you draw the line, but that it does exist and can be found, protected within the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It seems to me that most Americans, most lawyers, most judges, believe that liberty includes protection of a value that we call privacy. Now, as we well know, that is hardly a selfdefining term, and perhaps we will have more discussions about that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I would like to go back to that, if my colleagues have not covered it. I only have about 10 minutes under my own rules, and I would like to settle, if we can at the outset here, the question of whether or not any commitments were given, or were asked for. In your questionnaire, you identified at least seven different sets of meetings, and a number of phone calls that you had with White House staff, or Justice Department personnel before you were actually nominated by the President. Let me ask you this first. Since completing your questionnaire, have you recalled any other meetings, or conversations of any type, that have not already been identified, and that took place before your actual nomination?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO, I have not recalled any such additional instances.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. TO be absolutely clear, I am asking you here about direct communications of any type with the White House or Justice Department, as well as indirect communications such as through some third party or intermediary. That is, someone coming to you, asking your view, and that view being transmitted 89 through that person back to anyone connected with the Administration.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I understood that question in the sense that you describe when I answered the questionnaire, and I understand it that way now. The conversations that I described were the only conversations that occurred.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I appreciate your cooperating in this matter, but I hope you understand why it is important. Let's look at, if you will, the October 28th meeting that you identified. According to your questionnaire, that meeting was attended by Howard Baker, Kenneth Duberstein, A. B. Culvahouse, Mr. Meese, and Assistant Attorney General William Bradford Reynolds. Were you asked at that meeting how you would rule on any legal issue?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was not; I was asked no question which came even close to the zone of what I would consider infringing on judicial independence. I was asked no question which even came close to the zone of what I would consider improper. I was asked no question which came even close to the zone of eliciting a volunteered comment from me as to how I would rule on any particular case, or on any pending issue.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, were you asked about your personal opinion on any controversial issue?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was not.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Did anyone ask you what, as a personal matter, you thought of any issue or case?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO such questions were asked, and I volunteered no such comments.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And were you asked anything about cases currently before the Court?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I realize there is some redundancy in those questions, but is important, again, for the record. Now, Judge, there was—if I can move to the end here—there was some newspaper comment about a meeting that took place after you had been nominated. Let me ask you the question. Did you meet with any sitting United States Senators prior to your being nominated by the President?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW let me turn to that period, now, after the nomination.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NOW let's be precise, however. I think the nomination was sent to the Senate some weeks after it was announced.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I beg your pardon. From the time the President had announced his intention
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. At the time I had already met with you and a number of Senators, but if the demarcation in your question is as to the time the President made the announcement in the White House
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is what I mean.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The answer is no, I had not met with any United States Senators prior to that time. 90
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW I would like to speak with you about the same issues, subsequent to the President standing with you and announcing to all of the world that you were going to be his nominee. Have you made any commitments or promises to anyone in order to obtain their support for your nomination?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I have not done so, and I would consider it highly improper to do so.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO just to make the record clear, you made no promise to any Member of the Senate on anything?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Other than that I would be frank and candid in my answers.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I am not doubting you for a minute. As I am sure you are aware, though, one of my colleagues is reported to have spoken with you about the issue of abortion on November the 12th at a meeting at the White House. Let me read to you—and I am sure you have seen the text—from a newspaper article by a columnist named Cal Thomas. And Mr. Thomas says the following happened. I am quoting from his article. Republican Senator Jesse Helms of North Carolina told me that he and Judge Kennedy met in a private room at the White House on November the 12th. Then a quote within a quote. I think you know where I stand on abortion, Mr. Helms said to Judge Kennedy. Judge Kennedy smiled and answered, "Indeed I do, and I admire it. I am a practicing Catholic." The article then goes on to say: Judge Kennedy did not elaborate, but Mr. Helms interpreted the response to mean that Judge Kennedy is opposed to abortion and would look favorably on any case in which the Court's earlier decisions striking down the abortion laws of all 50 States might be overturned. A bit later in the column, Mr. Thomas continued: I am certain as I can be, said Mr. Helms, "without having heard him say I shall vote to reverse Roe v. Wade—which of course he wasn't going to say—on what he called this 'privacy garbage'—recent Supreme Court decisions involving not only abortion but civil rights, protections for homosexuals—Mr. Helms indicated a certain collegiality with what he believes to be Judge Kennedy's views." Ultimately though, said, Mr. Helms, quote, "Who knows?," but, quote, "That's where we are with any of the nominees." End of quote. End of column. Could you, for the record, characterize for us how accurate or inaccurate you think that column is.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I have not seen that column, but I have absorbed it from what you have said, Senator. To begin with, I think it is important to say that if I had an undisclosed intention, or a fixed view on a particular case, an absolutely concluded position on a particular case or a particular issue, perhaps I might be obligated to disclose that to you. I do not have any such views with reference to privacy, or abortion, or the other subjects there mentioned, and therefore, I was not attempting, and would not attempt to try to signal, by inference, or by indirection, my views on those subjects. The conversation that you referred to was wide-ranging, and of a personal nature. The Senator asked me about my family and my 91 character, and I told him, as I have told others of you, that I admire anyona^ith strong moral beliefs. Now it would be highly improper for a judge to allow his, or her, own personal or religious views to enter into a decision respecting a constitutional matter. There are many books that I will not read, that I do not let, or these days do not recommend, my children read. That does not prohibit me from enforcing the first amendment because those books are protected by the first amendment. A man's, or a woman's, relation to his, or her, God, and the fact that he, or she, may think they are held accountable to a higher power, may be important evidence of a person's character and temperament. It is irrelevant to his, or her, judicial authority. When we decide cases we put such matters aside, and as—I think it was—Daniel Webster said, "Submit to the judgment of the nation as a whole."
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO Judge, when you said—if it is correct—to Senator Helms: "Indeed I do, and I admire it, I am a practicing Catholic," you were not taking, at that point a position on the constitutional question that has been and continues to be before the Court?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. TO begin with, that was not the statement.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Will you tell us what
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. We had a wide-ranging discussion and those two matters were not linked.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Those two matters were not linked. So the article is incorrect?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In my view, yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is fine. I thank you. My time is up. I yield to my colleague from South Carolina.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Judge Kennedy, a fundamental principle of American judicial review is respect for precedent, for the doctrine of stare decisis. This doctrine promoted certainty in the administration of the law, yet at least over 180 times in its history, the Supreme Court has overruled one or more of its precedents, and more than half of these overruling opinions have been issued in the last 37 years. Judge Kennedy, would you tell the committee what factors you believe attribute to this increase in overruling previous opinions.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is a far-ranging question, Senator, which would be an excellent law review article, but let me suggest a few factors. First, there is a statistical way to fend off your question, by pointing out that the Supreme Court hears many more cases now than it formerly did. You will recall, in the early days of the Republic, when some cases were argued for days.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He may be the only one able to recall the early days of the Republic, here, on the committee. [Laughter.]
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was using "you" in the institutional sense, Senator. And that has changed. Secondly, the Court has taken many more public-law cases on its docket. And thirdly, there are simply many, many more precedents for the Court to deal with, and so the adjustment, the policing, the shaping of the contours of our law simply require more over ruling, as a statistical matter. 92 That does seem, though, to be not quite a complete answer to your question, because your question invites at least exploration of the idea whether or not the Supreme Court has changed its own role, or its own view of, its role in the system, or has changed the substantive law, and it has. In the last 37 years, the Supreme Court has followed the doctrine of incorporation by reference, so that under the Due Process Clause of the 14th amendment, most of the specific provisions of the first eight amendments have been made applicable to the States, including search and seizure, self-incrimination, double jeopardy, and confrontation. Many of these cases, many of these decisions, involved overruling. So there was a substantive change of doctrine that did cause an increase in the number of overruled cases, Senator.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Incidentally, Judge, if I propound any question that you feel would infringe upon the theory that you should not answer questions in case it might come before the Supreme Court, just speak out, because I do not want you to feel obligated to answer if I do.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, Senator.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, we have recently celebrated the 200th anniversary of the Constitution of the United States. Many Americans expressed their views about the reason for the amazing endurance of this great document. Would you please share with the committee your opinion as to the success of our Constitution, and its accomplishment of being the oldest existing Constitution in the world today.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the reasons for its survival, and its success, Senator, are many fold. The first is the skill with which it was written. Few times in history have men sat down to control their own destiny before a government took power; in the age of Pericles, and in the Roman empire, just before Augustus, and again, in 1789. The framers wrote with great skill, and that is one reason for the survival of the Constitution, for the survival of the Constitution despite a horrible civil war, a war arguably, and I think probably, necessary to cure a defect in the Constitution. Then there is the respect that the American people have for the rule of law. We have a remarkable degree of compliance with the law in this country, because of the respect that the people have for the Constitution and for the men who wrote it. My third suggestion for why there has been a great success in the American constitutional experience is the respect that each branch of the government shows to the other. This is a vital part of our constitutional tradition. It has remained true since the founding of the Republic.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I had a question on the ninth amendment, but you have already been asked about that. Judge Kennedy, under the Constitution, powers not delegated to the federal government are reserved to the States, and to the people. Would you describe, in a general way, your view of the proper relationship between the federal and State law. 93
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The frarners thought of the States as really a check-and-balance mechanism, operating, obviously, not on the national level. The idea of preserving the independence, the sovereignty, and the existence of the separate States was of course critical to the Constitution, and it remains critical. Now there are very few automatic mechanisms in the Constitution to protect the States. If you read through the Constitution you will see very little about the rights and prerogatives of the States. At one time, as you all well know, United States Senators were chosen by State legislatures, which gave the States an institutional control over the national government. That has long since disappeared, and I am sure no one argues for its return. But that was one of the few automatic mechanisms for the States to protect themselves. The Congress of the United States is charged, in my view, with the principal duty of preserving the independence of the States, and it can do so in many ways; in the way that it designs its conditional grant-in-aid bills, in the ways that it passes its statutes. The courts, too, have a role, and the courts have devised some verj' important doctrines to protect federalism. The idea of abstention in Younger v. Harris, the Erie rule, the independent State ground rule, have all been designed by the courts out of respect for the States. But in my view, this is the job of every branch of the government.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Are you of the opinion that our forefathers had in mind, as I understand it, that the federal government, the central government, the national government, was simply to be a government of limited powers?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is very clear that that was the design of the Constitution.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I am glad to hear you say that, and I wish more people in this country would recognize that. I see you are a good student of the Constitution.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am glad you give me a good mark, Senator.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, the Supreme Court's decision in Marbury v. Madison is viewed as a basis of the Supreme Court's authority to interpret the Constitution, and issue decisions which are binding on both the executive and legislative branches. Would you please give the committee your views on this authority.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Marbury v. Madison is one of the essential structural elements of the Constitution of the United States. As we all know, the doctrine of judicial review is not explicit in the Constitution. I have very little trouble finding that it was intended. Federalist Number 78 makes that rather clear, and I think that this vital role is one of the critical structural elements of the Constitution, and that it is essential to the maintenance of constitutional rule.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, would you please tell us your general view of the role of antitrust today, including those 94 antitrust issues which you believe most seriously affect competition and the consumer.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not a student of the antitrust law. I try to become one whenever I have an antitrust opinion. This is an area which is one of statutory law, and it is an interesting one because the Congress of the United States has essentially delegated to the courts the duties of devising those doctrines which are designed to insure competition. I have no quarrel with the Congress doing that, because if the courts do not perform adequately, if they do not follow the intent of Congress, there is always a corrective. And I think it is somewhat reassuring that the judiciary has performed well under the antitrust laws. The particular elements that are necessary to preserve competition are of course vigorous enforcement of the law against illegal practices, particularly price fixing, and other prohibited practices.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, do you believe the Court has given sufficient consideration to a relevant economic analysis in evaluating the effects of restraints of trade, and are you satisfied with the guidance that the Court has provided on the proper role of economic analysis in antitrust laws?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. An important function of the courts, Senator, is to serve as interpreters of expert opinions, and the courts of the United States have received economic testimony, have studied economic doctrine, and have formed these into a series of rules to protect competition. Now economists, like so many others of us, have great disagreements, and we have found—for instance—that economic testimony tells us that some vertical restrictions are actually pro competitive, did the courts have accepted this economic testimony. And I think the courts, all in all, have done a good job of articulating their reasoning in antitrust cases, and identifying when they are relying on economic reasoning. Sometimes that reasoning is wrong, but at least it is identified.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, recent Supreme Court decisions, such as Illinois Brick, Monfort, and Associated General Contractors, have, for different reasons, restricted standing to bring private antitrust suits. Generally, what is your view of these decisions, and how do you assess their impact on access to the courts by private parties?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the Court has struggled to draw the appropriate line for determining who may recover and who may not recover in an antitrust case. As we know, if there is an antitrust violation it has ripple consequences all the way through the system. Antitrust cases are ones in which triple damages are recoverable, and therefore, the courts have undertaken to draw a line to allow only those who are primarily injured to recover. Not only is this, it seems to me, necessary simply as a matter of enforcing the antitrust laws, but it reflects, too, the underlying value of federalism, because to the extent to which federal antitrust laws apply, State laws are displaced. Where that line should be, how successful the Illinois Brick doctrine has been in terms of promoting competition, and permitting, 95 at the same time, antitrust plaintiffs to sue when necessary, is a point on which I have not made up my mind.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, there has been much publicity and debate recently about corporate takeovers. What is your general view about the antitrust implications of these takeovers, and how do you view State efforts to limit takeovers?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The Supreme Court has recently issued a decision in which it approves of State statutes which attempts to regulate takeovers. This is a tremendously complex area. It is highly important because business corporations throughout the United States have a fixed-capital investment, and a fixed investment in human resources. They have managers, they have skilled workers, and it is important that they be given protection. Now it seems to me that the States might make a very important contribution in this complex area.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, some of your opinions involve application of the per se rule of liability. Generally, when do you believe it is appropriate to apply the per se rule in antitrust cases, and when would you apply the rule of reason?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS to the specific instances, I cannot be particularly helpful to you, Senator. Let me see if I can express what I think are the considerations that the Court should address. There is a continuum here, or a balance. On the one hand, there is a rule of reason, and this involves something of a global judgment in a global lawsuit. A rule of reason antitrust suit is very expensive to try. And once it is tried, it is somewhat difficult to receive much guidance from the decision for the next case. Per se rules, on the other hand, are precise. They are automatic, in many cases, as their name indicates. The problem with per se rules is that the}' may not always reflect the true competitive forces. The Supreme Court has to make some kind of adjustment between these two polar concepts, and it has taken cases on its docket in order to do this.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, recently, there has been some discussion in regards to raising the amount in controversy requirement in diversity cases. If the amount is raised, it should reduce the current civil caseload in the federal courts. Would you please give the committee your opinion on this matter.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. On diversity jurisdiction, generally—I may be drummed out of the judges' guild—but I am not in favor of a total abolition of diversity jurisdiction. I have tried cases in the federal courts, and I realize their importance. On the other hand, we simply must recognize that the federal courts' time is extremely precious. The Congress of the United States has vitally important goals that it wants enforced by the federal courts. Rather than looking at jurisdictional limits, which can be avoided, and which are the subject of further controversy as to whether or not they have been adequately pleaded, it seems to me that perhaps Congress should look at certain types of cases which could be excluded from the diversity jurisdiction, say, auto-accident cases. 96 It seems to me that that is a better approach, generally.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. That question really involved a decision by Congress, but I just thought maybe your opinion would be helpful.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it is somewhat tempting, with diversity jurisdiction, to think that we could take a byzantine area of the law, and simply make it irrelevant by abolishing the jurisdiction. Many lawyers, many judges, would think Congress had done them a great favor if they made that whole branch of our learning simply irrelevant. On the other hand, I think the commitment to diversity jurisdiction, both in the Constitution and in many segments of the bar, is sufficiently strong so that the better approach is to find a class of cases that we can eliminate from the jurisdiction, rather than abolishing it altogether.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, 20 years have passed since the Miranda v. Arizona decision which defined the parameters of police conduct for interrogating suspects in custody. Since this decision, the Supreme Court has limited the scope of Miranda violations in some cases. Do you feel that the efforts and comments of top law-enforcement officers throughout the country have had any effect on the Court's views, and what is your general view concerning the warnings this decision requires?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I cannot point to page and verse to show that the comments of law-enforcement officials have had a specific influence, but it seems to me that they should. The Court must recognize that these rules are preventative rules imposed by the Court in order to enforce constitutional guarantees; and that they have a pragmatic purpose; and if the rules are not working they should be changed. And for this reason, the Court should pay close attention to the consequences of what it has wrought. Certainly comments of lawenforcement officials, taken in the proper judicial context, it seems to me, are relevant to that judgment.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. What did you say? Are relevant?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Are relevant.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you. Judge Kennedy, there are hundreds of inmates under death sentences across the country. Many have been on death row for several years as a result of the endless appeals process. Would you please tell the committee your opinion of placing some limitation on the extensive number of post-trial appeals that allow inmates under death sentences to avoid execution for years after the commission of their crimes.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS to the specifics of a proposal, of course I could not and would not pass on it. It is true that when we have an execution which is imminent, say, 30 days, the courts, particularly at the appellate level, begin undergoing feverish activity, activity which is quite inconsistent with their usual orderly, mature, deliberate way of proceeding. We are up past midnight with our clerks, grabbing books off the wall, and phoning for more information, where a man's life—it is usually a man—is hanging in the balance. And this does foster not a good perception of the judiciary. It is a feverish kind of activity 97 that is not really in keeping with what should be a very deliberate and ordered process. Justice O'Connor who is the Circuit Justice for the Ninth Circuit is concerned about this. She has asked the Ninth Circuit to draft some procedures in order to make this a more orderly process. Any guidance that the Congress of the United States could give would, I think, be an important contribution to the administration of justice. I really do not know how you are going to avoid it, but it is something that we should give attention to.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, in the last several decades, we have seen a steady increase in the number of regulatory agencies which decide a variety of administrative cases. I realize that the scope of judicial review of these administrative cases varies from statute to statute. However, as a general rule, do you believe that there is adequate opportunity today for the appeal of administrative decisions to the federal courts, and do you believe that the standard of review for such appeals is appropriate?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Generally, the answer to that question is yes. As I have indicated before, I think the courts play a very vital function by taking the expert, highly detailed, highly complex findings of an agency, and recasting them in terms that the courts themselves, the litigants, and the public at large, can understand. While with reference to particular agencies there may be areas for improvement by statute, I think generally the system of administrative review is working well.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, in the past several decades, the caseload of the Supreme Court has grown rapidly, as our laws have become far more numerous and complex. In an effort to reduce the pressures on the Supreme Court, an inter-circuit panel was proposed to assist the Court in deciding cases which involve a conflict among the judicial circuits. In the 99th Congress, the Judiciary Committee approved such a panel on a trial basis. Similar legislation has been introduced in the 100th Congress. As you may know, former Chief Justice Warren Burger has been a strong advocate of this panel, along with many other current members of the Court. Would you please give the committee your general thoughts on the current caseload of the Court, and the need for an inter-circuit panel.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I hope, Senator, that some months from now I will have a chance to take a look at that firsthand. But it seems to me from the standpoint of a circuit judge that there are some problems with that proposal. Circuit judges, I think, work under an important constraint when they know that they are writing for review by the Supreme Court of the United States, and not by some of their colleagues. Furthermore, if you had a national court of appeals, it would not simply resolve particular issues; it would have its own case law, which would have its own conflicts. And I am concerned about that. Further, as I understand the statistics, this would save the Supreme Court about 35 cases a year, maybe 50. In all of those cases, the circuit courts have already expressed their views, and so the 98 Supreme Court has a very good perspective of what choices there are to make. If those 50 cases were taken away, the nature of the docket of the Supreme Court might change. The Supreme Court might hear all public law cases in which the juridical philosophies that obtain on the court would divide them in more cases. It seems to me somewhat healthy for the Supreme Court to find something that it can agree on.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And incidentally, this was a suggestion made by Arthur Hellman in a very perceptive law review article that I read a few years ago.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, at present, federal judges serve during good behavior, which in effect is life tenure. Federal judges decide when they retire, and when they are able to continue to serve. Congress, in the Judicial Councils Reform and Conduct and Disability Act of 1980 provided some limited ability for the judicial council of the circuits to act with respect to judges who are no longer able to serve adequately because of age, disability, or the like. The Supreme Court is not covered by this act. Judge Kennedy, do you feel the Supreme Court should be covered by the Judicial Conduct and Disability Act? And would you give the committee your opinion on the need to establish by constitutional amendment a mandatory retirement age for judges and justices?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, Senator, in the past few weeks, most of my thoughts have been on how to get on the Supreme Court, not how to get off it. But my views are that I would view with some disfavor either of those proposals. The Supreme Court is sufficiently small, sufficiently collegial, sufficiently visible, that I think if a member of the court is incapable of carrying his or her workload, there are enough pressures already to resign. History has been very kind to us in this regard.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. SO far as I am concerned, it is not age but it is health that counts.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am with you, Senator.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Kennedy, and this is the last question, there have been complaints by federal judges regarding the poor quality of advocacy before the nation's courts, including advocacy before the Supreme Court. Do you feel that legal representation is not adequate? And if so, what in your opinion should be done to improve the quality of this representation?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The repeat players in the legal system—insurance companies, in some cases public interest lawyers—are very, very good. The person that has one brush with the legal system is at risk. I wish I could tell the committee that most of the arguments I hear on the court of appeals, and we come from a great and respected circuit, are fine and brilliant and professional arguments. They are not. 99 You gentlemen are the experts on what to do. I think we have to attack it at every level, in the law schools, with Inns of Court, with judges participating with the bar, and with an insistence that the highest standards of advocacy pertain in the federal courts. It is a problem that persists. And it is a problem that should be addressed. We had in the ninth circuit a committee study for 4 years on whether or not we should impose standards on the attorneys that practice in the federal courts of the ninth circuit. We finally came up with a proposal that they had to certify that they had read the rules. And it was turned down. So judges, as well as attorneys, must be more attentive to this problem.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, I want to thank you for your responses to the questions I have propounded, and I think they indicate that you are well qualified to be an Associate Justice of the Supreme Court.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, before I yield to Senator Kennedy, I want to set the record straight. It has been called to my attention that I may have left the implication that on November the 12th you met with only one Senator, when in fact you met with about 10 Senators. I was referring to a single conversation.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was handed a note to that effect. And I did not understand your question that way. But it is true that I met with a number of your colleagues.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I didn't think it was that confusing, either. I am glad you didn't. But obviously, our staffs did. So now we have cleared up what wasn't confusing before. And one last comment that I will make. I was at the White House with the President on one occasion with the Senator from South Carolina. And the President was urging me to move swiftly on a matter. And he said to me, he said, Joe, when you get to be my age, you want things to hurry up. Senator Thurmond looked at him and said, Mr. President, when you get to be my age, you know it does not matter that much. [Laughter.] I will yield to the Senator from
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, I just want to say, experience brings wisdom. And as time goes by, I'm sure you will realize this is the case. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I realize it now. That is why I follow you, boss. I yield to the Senator from Massachusetts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much. Mr. Chairman, when I had the good opportunity, like other members of the committee, to meet with the nominee, I showed him in my office the seal of the name Kennedy in Gaelic. And the name Kennedy in Gaelic means helmet. And I wondered whether the nominee was going to bring a helmet to these particular hearings. But I am not sure we are playing tackle. Maybe perhaps touch football. But nonetheless, I do not know whether he is prepared to say whether he is really enjoying these hearings, like some mentioned earlier or not. 100
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I will put on a helmet when you do, Senator. [Laughter.]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. AS I mentioned during the course of our exchange, we talked about the issues of civil rights and the progress that had been made in this country in the period of the last 25 years. And I think it has been extraordinary progress. You have referred to it in a peripheral way in response to some of the earlier questions, but it has been progress which I think some of the American people have been proud of. It has been progress which Republican and Democratic presidents have contributed to, and for which there's been strong bipartisan support in the House of Representatives and the Senate of the United States. The role of the courts, both in interpreting and in enforcing this progress, has been important and virtually indispensable. That is certainly something that you have recognized in ensuring that we are going to get a fair interpretation of the laws, and that the laws are going to be vigorously enforced. You made a number of speeches, but one of the ones that I find extremely eloquent was one you made in 1978, when you were talking about the independence of the federal judiciary. And you said, and I quote: It was not the political branches of the government that decided Brown v. Board of Education. It was not the political branches of the government that wrought the resolution of Baker v. Carr, the apportionment decision, or that decided the right of counsel case in Gideon v. Wainwright. It was the courts. And I submit that if the courts were not independent, those decisions might not have been made, or if made, might not properly have been enforced. Some of the opinions you have written, Judge, do not seem to reflect that same sensitivity, and I would like to review some of those cases with you at this time. The first area is fair housing. I think as you probably know the discrimination in housing is one of the most flagrant forms of discrimination, because it perpetuates the isolation and the ignorance that are at the roots of prejudice. In 1985, the Department of Housing and Urban Development reported there are 2 million incidents of race discrimination in housing each year. In fact, a black family looking for rental housing stands over a 70 percent chance of being a victim of discrimination. Your opinion in the Circle Realty case in 1976 raises a question about how you interpret the anti-discrimination laws in housing. And in that case, the citizens had claimed that their communities were segregated as a result of racial steering by real estate brokers, that is, blacks were steered to black neighborhoods and whites were steered to white neighborhoods. You ruled that those citizens did not even have standing to raise their claim of discrimination under a key provision of the Act because they were only testers, and they were testing the brokers to see if they were actually steering clients in this discriminatory way. You threw them out of court because they weren't actually trying to rent or to buy a house. In 1978, the Supreme Court ruled 101 7 to 2, in an opinion by Justice Powell, that your interpretation of the law was wrong, and that the testers did have a right to go to federal court to remedy this blatant form of racial discrimination in housing. My question is this; How do you respond to the concern that your opinion reflects a narrow approach to the civil rights laws as the Supreme Court has interpreted those laws?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, Senator, at the outset, it is entirely proper, of course, for you to seek assurance that a nominee to the Supreme Court of the United States is sensitive to civil rights. We simply do not have any real freedom if we have discrimination based on race, sex, religion or national origin, and I share that commitment. Now, in the particular case, what occurred was, plaintiffs who themselves were not homebuyers went to real estate agents and were turned down allegedly because of their color, or were not turned down but were shown a black community if they were black or to a white community if they were white. This is, of course, of critical concern because brokers are a small channel in the stream of housing sales. And if there is discrimination at that point, that is a good point to attack it. Now in a sense, I think it is incorrect, Senator, to say that I threw them out of court. There were two provisions in the law. One provision provided for immediate redress from a court of law. Another provision, which I believe was Section 810, required that the plaintiffs must go first to the agency responsible for enforcement of anti-discrimination in housing laws. Because there were some unresolved questions as to standing at the time of this litigation, we thought that Congress, in its scheme, had made a distinction based on the degree of injury that the particular plaintiff had shown. We found no other way to explain the difference in the two sections. And we indicated in the opinion that administrative remedies may be superior in some cases to judicial remedies. The lesson of the Voting Rights Act cases, and the Voting Rights Act statutes, is that courts can be very inefficient. One of the great lessons for courts taught by the Voting Rights Act statutes is that there are remedies other than courts if civil rights are being deprived. We thought this was a creative, important, helpful statement of what Congress had in mind. The Supreme Court said we were wrong, and I certainly have no quarrel with the decision. I was puzzled by the statute. And so far as the Supreme Court's decision is concerned, I would willingly and fully enforce it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I do not think you will get any argument, at least from Senator Specter and myself, with regards to using administrative remedies. We have legislation that is cosponsored now by some 38 Senators to try to strengthen these administrative remedies. You point out that there are two possible remedies in this particular legislation, one that involved running through an administrative procedure and then being able to go to the courts; and another in which one could go directly to the courts. 102 My question is: how do you respond to the concern as to whether you were using a rather narrow, cramped, interpretation of that legislation, in an area where there is a good deal of discrimination in our society? And what kind of assurance can you give to people that are concerned about this, that you have a real sensitivity to the type of problem that at least the existing legislation was focused on?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. You are entitled to that assurance. And I have the greatest respect for the lead that the Congress has taken in this area. We had thought that this was really the appropriate way to explain why the two sections were different. In that respect, we thought we were being faithful to the drafting of the statute and the structure of the statute. It is true, of course, that these laws must be generously enforced, or people are going to get hurt.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. The reason I raise this, Judge, is because both the Supreme Court had reached a different decision than you had, and the four other cases that finally were decided by other courts had also reached a different decision than you had. And to get your assurances about this issue, I think, is important. Let me go to another area, and that dealt with the Mountain View-Los Altos Union High School case. As the Judge knows, we indicated to you prior to today that we were going to explore various decisions with you, and named the particular cases. In recent years, Congress and the States have taken steps to protect the civil rights of handicapped persons. And we have much more to do to ensure that the disabled are not isolated, and can participate to the full extent possible in our society. In our efforts to reach that goal, Congress enacted the Education for All Handicapped Children Act in 1975. The Act gives handicapped children the right to education, either in public schools if possible, or in private schools if necessary; and federal funds are made available to defray the cost. Now, in the Mountain View-Los Altos Union High School case in 1983, you read the statute narrowly and held that parents who transferred their handicapped child to a private school, while an administrative proceeding was pending, were not entitled to reimbursement for tuition expenses. And once again, the Supreme Court took a different view; and in a unanimous opinion by Justice Rehnquist, the Court read the statute broadly, holding that the parents were entitled to reimbursement. Justice Rehnquist recognized that Congress did not intend to put parents to the choice of losing their rights under the Act or doing what they think is best for the educational needs of their child. So my question here again is, what can you tell the members of the committee to give us confidence that you will not take a crabbed and narrow view in construing these extremely vitally important and significant statutes?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. This was a vitally important case. I reviewed it only last night, and didn't have the record in front of me. But I recall the case. 103 It was unfortunately an all too typical case in which a young man had emotional problems. He found it very difficult to adjust to school. And his mother was distraught, not only over how her child was developing, but over the battle she had to have with the administrative agency to get him special care. The question was whether or not, if the school disagreed with the mother initially and said, no, we will not pay for the special care, whether the school, after the administrative agency had ruled in favor of the mother, had to pay for the cost of the special instruction in the interim. We thought that the normal administrative remedies rule and exhaustion rule were written into the statute. There was a socalled stay-put provision in the statute, which we thought required the parent to leave the child in the hands of the school authorities if the school authorities did not agree with the parent; and in many cases, school authorities agree with the parent. In many cases, there is an agreement, and they immediately send the child. The fourth, the seventh and the eighth circuits agreed with as. The first did not and the Supreme Court unanimously did not. I have seen the necessity for spending more money in the schools on education across the board. And we were being asked in this case to say that a local school district, an entity of the State, was required to pay this sum. We thought a question of federalism was involved, in that school districts are strapped for every penny. It is true that the Congress of the United States had a policy in favor of supporting education for these disturbed children, and of course that should be given full and vigorous enforcement. I have absolutely no problem with the Supreme Court's decision. It said that exhaustion of administrative remedies w r as not necessary. The Court also made another very important statement. We had said that these are damages against the State. And the Supreme Court of the United States said, well, these are not damages. These are simply payments that the State had to make all along, and the State is really not injured. I fully accept and endorse the reasoning in that case, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. It was really the reimbursement of the tuition, was it not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, of the cost of the special school, yes, sir.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But again, the question is: Congress developed that legislation to try and deal with the need for the handicapped and disabled children to get an education; the question is whether you are going to interpret this Act in what I would have considered as both the spirit and the letter of the law—a sense of generosity, or whether it would be in a more reshaped way. And that is really what we are trying
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I do not think those statutes should be interpreted grudgingly. There is a certain amount of finger pointing that goes on here where the courts say the Congress did not write the statute clearly enough, and more or less saddles Congress with the duty of cleaning up the language. I have come to recognize that 104 the workload of the Congress is such that we have to interpret the statutes as they are given to us.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I think as you know from the process, as a result of being a political institution we some how lack the kind of precision that a court might want. Again, it seems that this particular issue, given the fact where the Supreme Court came out on this with a unanimous decision, it was appropriate to raise and have your comments today. Let me move to another area, Judge Kennedy. And this is with regards to the memberships in various clubs. You are familiar with this issue. As you know, in 1984, the American Bar Association amended the commentary to its Code of Judicial Conduct to provide, and I quote: "It is inappropriate for a judge to hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin." It would seem from your questionnaire that you belonged to three clubs that discriminated against women, and that one or more of these clubs may have discriminated against racial minorities as well. As I understand it, the Olympic Club is a country club in San Francisco which also has a downtown athletic facility with meeting rooms, dining, and residential facilities. And it has about 4,000 members. And when you joined the Olympic Club in 1962, its membership was expressly limited to white males. And apparently, that explicit restriction on racial minorities was lifted in 1968. Today there are still, as I understand, no active black members of the club, and women can still not be full members of the club. You were a member of the Olympic Club for many years before you became a federal judge. You continued to be a member of the club for 12 years after you became a federal judge, even though it discriminated against blacks and women. Now in June of 1987, the San Francisco City Attorney warned the Olympic Club that its discriminatory practices violated the California civil rights laws. So the issue was becoming a public controversy. At this time you first expressed concern about the club's restrictive membership policy. And in August you wrote to the Olympic Club to express those concerns, and you resigned from the Olympic Club in late October, when you were under consideration for nomination to the Supreme Court, and after the membership of the Olympic Club had voted against the board of directors' proposal to amend the bylaws of the club to encourage the sponsorship of qualified women and minority candidates. So Judge Kennedy you apparently didn't try to change the discriminatory policies of the Olympic Club until this summer, and you didn't resign until your name had evidently surfaced on the short list of potential nominees. My question is a simple one. Why did it take so long?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Discrimination comes from several sources. Sometimes it is active hostility. And sometimes it is just insensitivity and indifference. 105 Over the years, I have tried to become more sensitive to the existence of subtle barriers to the advancement of women and of minorities in society. This was an issue on which I was continuing to educate myself. I want to see a society in which young women who are professionals have the same opportunity as I did to join a club where they meet other professionals. I would like that opportunity for my daughter if she were a practicing lawyer or in the business world. With reference to the Olympic Club, in part it has the atmosphere of a YMCA with its downtown facilities reserved for me. I used it and enjoyed it and found it helpful. In the late spring of 1987, this year, the U.S. Open was sponsored at the Olympic Club. At that time publicity surfaced that it did not have some racial minorities as members. That was not a policy of the club, as I understood it, but it was pretty clear that the mix was not there if you looked at the membership rolls. The club expressly excluded women. There was an article in the New Yorker magazine which really triggered my action. A very fine sports writer wrote about the Open and talked about the egalitarian history of the club. I wrote a letter to the club, which the committee has, in which I indicated that it was time to make the egalitarian spirit a reality. I had discussions with the legal counsel for the club. I knew no directors of the club or officers. I indicated that in my view it was high time that the Olympic Club changed. They did have a membership meeting, as you've indicated, in part as a result of my discussions, but in part as a result of the action of the city attorney, and concerns expressed by other members. I actually had heard that the bylaw that you referred to had passed. The board of directors were optimistic that it would, and somebody actually reported back to me that it had passed. I was not a voting member and cannot vote and was not at the meeting. When I heard that the bylaw had been turned down, principally the objection was women in the athletic facility, not racial minorities. I thought that my position had become quite untenable. I therefore resigned before I talked to the members of the Administration, thinking that it was not fair either to the Administration or the Members of this distinguished body to make that an issue.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. This is also a club where professionals gather, and have some business associations or meetings or entertainment?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO question about it. It is downtown. It is a luncheon club.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I think you probably answered the point that I am getting at, but let me just back up and see if you have responded to it. In the questionnaire, when you were asked about your definition of invidious discrimination, you wrote, I quote: Invidious discrimination suggests that the exclusion of a particular individual on the basis of their sex, race, or religion or nationality is intended to impose a stigma upon such persons. As far as I am aware, none of those policies or practices were a result of ill will. 106 In talking about the Olympic Club, I gathered from the answer you just gave previously, when you were talking about this issue, you talked about insensitivity and indifference with regards to creating a stigma on professional people, women, minorities, and used the illustration of your daughter.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is the distinction I drew.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I just want to make sure we have the whole response and answer here, so I have it correctly.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you for giving me that opportunity. In my view, none of these clubs practiced invidious discrimination. That term is not a precise and crystal clear term. But as I understood it and as I have defined it in the questionnaire, none of the clubs did practice that, or had that as a policy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But in terms of stigmatizing various groups, since this is a prestigious club, in what I gather was the general commercial life of the city, the fact that either women or minorities cannot belong to it, does that not serve to stigmatize those individuals?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. There is no question that the injury and the hurt and the personal hurt can be there, regardless of the motive.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU resigned from the Sutter Club, as I understand.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could you tell us the reasons—and that was in 1980, is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. The Sutter Club is in downtown Sacramento. It is a club that is primarily used at luncheon by professional and business people. I was always seen there as a judge when I went there. And I had concerns with their restrictive policies against women. Again, some of the great leaders in Sacramento city life, some of my very best friends, people who have no animosity, people who have sensitivity and goodwill, are members of those clubs. I in no way wish to criticize them, because many feel as I do that the policy should be changed. I, however, felt that my membership there was one where I was there only as a judge, and that it was inappropriate for me to belong. And I resigned in 1980 before the canons of ethics on the subject were promulgated.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And you resigned from there, as I understand, because of both its restrictive kinds of policies and because you were, as I understand it, a judge, and you didn't want to appear to have an inappropriate appearance, since it was more restrictive in terms of women and minorities.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. Everybody knew me there as a judge, and would come up and greet me and so forth. And I felt uncomfortable in that position.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, if you felt uncomfortable with regard to the Sutter Club in 1980, why didn't you -and since you were meeting on the Circuit Court in San Francisco, and you had another club there that had similar kinds of problems, why didn't you feel uncomfortable with that club?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Probably because nobody knew me, and I basically used the athletic facility. 107
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But it really isn't a question just of being known, is it? It's a question about what you basically represent or your own beliefs on this.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, although I think sometimes continued membership can be helpful. In California the rule is that judges should remain in those clubs and attempt to change their policies and resign only when it becomes clear that those attempts are unavailing.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Don't you think the club's rules did actually then stigmatize women and minorities?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, they were not intended to do so. I think women felt real hurt, and there was just cause for them to want access to these professional contacts. It is most unfortunate, and almost Dickensian, for a group of lawyers to meet at 11:30 and to settle a case and to celebrate and say, well, let's all go to the club. And suddenly there is a silence, and they cannot go because there is a woman there. That is stigmatizing. That is inappropriate.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, I understand my time is up. In my next questioning, I would like to come into the area of the voting rights issue. I think I have indicated to you that I had hoped to be able to get to that at another time.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Again, I welcome you, Judge, before the committee. Let's revisit for a few minutes the question of club membership. Just a few questions do linger from that. First, as I understand it. you joined the Olympic Club back in 1962; is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is correct, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU have described the club a little bit, but could you describe it a little further with regard to some of its public service and charitable activities that it supported?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it has been a club that is principally prominent in athletics. And it has promoted athletics for young people in the community for over 100 years. It is recognized as a club with a strong sense of civic obligation. It has athletic meets and so forth at its facilities.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS I understand it, the club came into being about 2 years before the Civil Rights Act of 1964.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The Olympic Club was founded in the 19th century and I joined in 1962.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And in 1962, I think it's fair to say, a lot of clubs did have the same policies as this club, and that was one of the reasons why Congress enacted the 1964 act to begin with. So it took only a few years for individuals to understand this. As I understand it, you mentioned that the Olympic Club was the site of the U.S. Open, and this was a great honor, as I understand it, for that particular club at that time.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. What preparations did the club make for this national event? 108
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was not involved in it at all. I know from the press that it was a great event for the club, and they made arrangements to serve all of those who purchased a ticket to come in and watch the golf match, and they wanted to put their best foot forward, of course, because it is a great event.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And when the press learned that the club, according to its bylaws, was open only to, quote, gentlemen, unquote, what was the reaction, if you recall?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the reaction in the community is one I can only gauge by the press. There were press stories on it. It did not seem to dampen attendance at the Open or interest in the Open. But I thought there was a problem disclosed by that, and that problem was not going away. That was very clear.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, the reaction some thought might have been somewhat unexpected. Because as I understand it there were over a thousand women who had privileges at the club and had the regular use of its facilities. But am I correct that they did that through their husbands or through some male members?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I cannot answer that question, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That was my understanding.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is plausible.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, apparently, some of this heightened scrutiny that the press brought out and others brought out came to your attention. Was that about at the time when you began to discuss with the club leaders some of these problems?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU referenced that discussion in your letter dated August 7th, 1987, and you asked to be notified of the results of the poll of the membership, as I recall. In fact, you said that—in your letter, you said, the fact is that constitutional and public morality make race or sex distinctions unacceptable for membership in a club that occupies the position the Olympic Club does, unquote.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That was my position. And I urged the board to go ahead with the membership poll and see if the bylaw change could be effected.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In other words, by your letter, by what you were doing, you were strongly urging the club to end the process of discrimination, or its policy of discrimination?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Okay. I think another point that is worth repeating, it occurred in the first week of August—at that point Judge Bork was President Reagan's nominee. The hearings had not yet begun for Judge Bork, and most commentators felt that he would have a rough time, but they felt that he was going to make it through and that he was going to be confirmed. Moreover, your name had not yet surfaced as one of the leading candidates for the Supreme Court nomination in the way your colleague Cliff Wallace's name had arisen at that time. I only mention this because we ought to be completely clear that you were acting, it seems to me, out of a sense of constitutional and public morality, as you said, not on the basis of any hint that there 109 might be a higher calling in your future when you wrote that letter. So what was the outcome of the vote at the club?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I don't know what it was; three to two is my guess. There are some 7,000 members of the club. I had better not guess what the vote was. I'm not allowed to come to meetings: I'm not a voting member, but apparently it was a great debate. The membership was divided on it. Apparently the board of directors are going to continue to try to press for this change.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I see. When were you informed of that particular vote?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I was originally informed that the vote had been successful, that the measure had been successful to change the by-laws. So I congratulated myself for having played a small part in bringing the membership meeting about. It came to my attention about a week later that my information was wrong. The proposal had actually been turned down. So I wrote a letter saying that my position had simply become untenable.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I see. Are you now a member of the club?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, it seems to me that under the circumstances your actions are basically above reproach. The most you could be faulted for is not recognizing the problem earlier, but then nobody else had recognized it either. Many other clubs have had similar policies and they have gone unnoticed as well. I am aware of a number of popular clubs here in the Washington, DC area, for instance, that have this same kind of policy. So I just wanted to bring that out because I think that is important. Will you describe for us the Del Paso Country Club and its activities in support of worthy community ventures?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is a country club in Sacramento with a golf course and a swimming pool. I had been a member of it when I was a boy. My family and children enjoyed it. And again, I have the greatest respect for the members of that club. The by-laws of the club, in 1975 when I became a judge, used male pronouns and led to the inference that it was male-only membership, although there were some women members. I objected to the by-laws being written in those terms and the board of directors changed the by-laws. My purpose in making the recommendation was so that it would be clear that women would be admitted to the club. Women are admitted to the club as members, but a quick look at the roster shows there is not any kind of a representative mix based on the professional community. However, the club does not have a policy or a practice of excluding on the basis of sex or race as far as I know.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In fact, there have been women members of the club since the early 1940's, as I understand it, according to my records.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. 110
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, once again I can only say your actions demonstrate nothing it seems to me but heightened sensitivity to any perception of bias. You know, even when the by-laws might have been technically complied with, or might have technically complied with the law you urged an effort to remove any residual sense of difficulty there or problems. So I think that is an important point, too.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Your attention to your judicial and ethical duties I think is particularly underscored by your activities with respect to the Sutter Club. Can you describe that club again, and its activities?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is a downtown club primarily used for luncheon. It is a very well-knowT n club used by many in the government and in business. The club sometimes has grand functions in the evening which are open for parties that are sponsored by members, and persons of all races and gender are welcome.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I see. You joined that club in 1963, as I understand it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. About then?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is about right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That also is one year before the 1964 Act, Civil Rights Act. In that case, however, the club's by-laws did not bar women but the club's practice seemed to exclude females.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is my understanding, that the practice was fairly clear.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, when and why did you leave that club?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was concerned about the policy of excluding women. I went to the club for lunch and was known, really, only as a judge. Although I had many close friends there, it seemed to me I was really there in my professional capacity. I was concerned about the appearance of impartiality.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Okay. Well, again I think your actions show extreme sensitivity to these problems, and I think that is much in your favor and I just want to compliment you for it. Let me ask you about the Sacramento Elks Lodge. The propriety of your actions with respect to club memberships I think is bolstered with respect to the Elks Lodge. Can you describe the Sacramento Elks Lodge and its charitable and service activities?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Again, I simply used the club for its athletic facilities. I really was not an active participant in the club, but I know that they undertake any number of civic and charitable activities and that membership in the club is viewed by all who are in it as a privilege and as a way to furthering charitable and civic purposes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. What is that organization's policy with respect to women?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I do not know, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Okay. When did you join that club, and when did you resign?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is in my questionnaire.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Okay. Ill
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I just do not have the dates. I believe I resigned shortly after I became a judge.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I just submit to anybody looking at it carefully that that also is an instance of your responding to at least a perception problem back in 1978, and that was years before President Reagan was elected. And I think your actions as a whole on all of these matters are very commendable with respect to upholding your ethical duties as a judge. I just want to commend you on that. Let me turn to another, totally different subject. Few provisions of the Constitution are more important to Americans and our way of life than the free speech guarantees of our Constitution, our first amendment. Accordingly, I would like to inquire a little bit about your record on free speech. In the first place, let me just ask you what is your view of the importance of the speech clause and its role in our society?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The first amendment may be first, although we are not sure, because the framers thought of it as the most important. It applies not just to political speech, although that is clearly one of its purposes. In that respect it ensures the dialogue that is necessary for the continuance of the democratic process. But it also applies, really, to all ways in which we express ourselves as persons. It applies to dance and to art and to music. These features of our freedom are to many people as important or more important than political discussions or searching for philosophical truth. The first amendment covers all of these forms of speech. Of course, the first amendment also protects the press. One of the unfortunate things about the case law is that the great cases on the press are New York Times v. Sullivan and United States v. New York Times and The Washington Post. But the press is not monolithic. In Northern California I believe that there are 37 small papers that in many cases are literally "mom and pop" operations where the editor has to stop writing at noon because he has to start working the printing press. These papers simply must have the protection of the first amendment if they are to be vigorous in reporting on matters of interest to their readers insofar as their locality is concerned. They vitally need the protection of the first amendment. It is not just for The Washington Post and The New York Times.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, our first amendment under American jurisprudence, of course, is a model for the rest of the world because it provides rights and privileges and it actually forbids any prior censorship or restraints on speech except in the most extenuating circumstances. And one of your cases dealt with an attempt to place a restraint on the broadcast of a TV program, and that was the 1979 case of Goldblum v. NBC. Now would you explain why the privacy and fair trial interests of the petitioner, an executive officer implicated in the equity funding scandal, were not sufficient to block the broadcast of the TV program, if you remember that case?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. What happened in that case, as I recall it, was that a person who was the subject of what is called a docu-drama was concerned that his rights were being infringed by the publication, or by the broadcast of the television show. He was a some- 112 what celebrated figure who had allegedly committed serious wrongdoings in a financial scam. The trial judge was sufficiently concerned about the allegations that he ordered the television network to bring the tape to the courtroom and show the tape. This was a matter, really, of hours or maybe a day or so before the broadcast was to go on nationwide TV. I presided over a three-judge panel in an emergency motion. He issued the order at 11:30 and we vacated it at 5 minutes to 12. We said that it was a prior restraint on speech and that for the district judge to order the film delivered was in itself an interference with the rights of the press. I wrote the opinion and issued it a few days later. That is the Goldblum opinion.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In my mind it is significant that the courts, too, have sometimes forgotten to protect the Constitution's prior restraint doctrine. Fortunately, other courts are available to correct those errors and that was a perfect illustration. Although access to government records is not a first amendment speech issue, it is nonetheless related to the access which our citizens have to their government. In that sense, it is related to the very principles by which citizens participate in a government run by the people. Now, in this regard, I was interested in your 1985 CBS v. District Court case. If you remember that case, I know sometimes it is awfully difficult, you have participated in so many cases. I don't mean to just isolate and pick these out of the air, but it is an important case. Could you discuss that with the committee? Would you also explain why the Government's effort to suppress the media's access to certain sentencing documents in a case related to the DeLorean trial was really rejected?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. This was a case in which one of the coprincipals or accomplices in the DeLorean drug matter had entered a guilty plea and then applied to the district court, as is his right, to modify the sentence. The Government of the United States joined with the attorney for the defendant in asking that the documents be filed under seal. The press objected. There was standing for the objection, and we ruled that those documents could not be filed under seal. We indicated that the public has a vital interest in ascertaining the sentencing policies of the court. I think I indicated that this is one of the least satisfactory portions of the entire criminal justice system and that the public ought to know if a sentence was being reduced and why.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. One further first amendment issue arose in some of your past cases involving the operation of the Federal Election Commission. In the 1980 California Medical Association case, you decided that limitations on contributions to political action committees are not eligible for the full protections of the free speech clause. When people contribute to a PAC they choose that committee in order to express themselves on political issues and they make the contribution to, in essence, advocate their views. Now can you explain why limiting this form of expression would not be a limitation on the free expression principles in the first amendment? 113
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. This was a case in which we were asked to interpret a new statute passed by the Congress. We thought we had guidance from the Court that controlled the decision. We expressed the view, as we understood the law of the Supreme Court, that this was speech by proxy. This was not direct speech by the person who was spending the money, rather he or she was delegating it to an intermediary. We thought that was a sufficient grounds for the Congress of the United States in the interest of ensuring the purity of the election process to regulate the amount of the contribution.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right, let me turn for a few minutes to criminal law because you have an extensive record and background in criminal law and few people realize that no category of cases is more often litigated in the Supreme Court than criminal law cases. From my point of view, this is entirely appropriate because life and liberty, not to mention the order and safety of our society, are nowhere more at stake than in criminal trials. Accordingly, I would like to review with you a portion of your record on criminal issues. Could you just give us the benefit of discussing with us generally how you approach the task of finding an appropriate balance between the procedural rights of the defendant and society's right to protect innocent victims of crime?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, Senator, I do not think that there is a choice between order and liberty. We can have both. Without ordered liberty, there is no liberty at all. One of the highest priorities of society is to protect itself against the corruption and the corrosiveness and the violence of crime. In my view judges must not shrink from enforcing the laws strictly and fairly in the criminal area. They should not have an identity crisis or self-doubts when they have to impose a severe sentence. It is true that we have a system in this country of policing the police. We have a system in this country that requires courts to reverse criminal convictions when the defendant is guilty. We have a system in this country under which relevant, essential, necessary, probative, convincing evidence is not admitted in the court because it was improperly seized. This illustrates, I suppose, that constitutional rights are not cheap. Many good things in life are not cheap and constitutional rights are one of them. We pay a price for constitutional rights. My view of interpreting these rules is that they should be pragmatic. They should be workable. We have paid a very heavy cost to educate judges and police officers throughout this country, and the criminal system works much better than many people give it credit for. In every courthouse at whatever level throughout the country, even if it is a misdemeanor traffic case, the judge knows the Miranda rule, he knows the exclusionary rule, and so do the police officers that bring the case before him. We have done a magnificent job of educating the people in the criminal justice system. On the other hand, it is sometimes frustrating for the courts, as it is frustrating for all of us, to enforce a rule in a hypertechnical way when the police or the prosecutor have made a mistake in good faith. The good faith exception to the exclusionary rule is one of the Court's recent pronouncements to try to meet some of these concerns. It remains to be seen how workable that exception is. 114 Sometimes exceptions can swallow the rule, and the Court has yet to stake out all of the dimensions of this exception. That is just a rough expression of my general philosophy in the area.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is good. As I mentioned earlier, nearly onethird of the Supreme Court's time is consumed in criminal trials, criminal matters. It seems to me that this is very appropriate for another reason because studies have shown that the poor, the aged, women, the minority groups are disproportionately victimized by crime and when our criminal justice system fails these groups are the first to suffer. So what role do you think the plight of victims of crime ought to play in the criminal justice process?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. YOU know, Senator, I went to one of the great law schools in the country—I am sorry Senator Specter is not here to agree with that—and I never heard the word "victim" in three years uf law school, except maybe from the standpoint of an apology that a corpus delicti was not present. This is the wrong focus. We simply must remember that sometimes the victim who is required to testify, who misses work without pay, who sits in the courthouse hallway with no special protection, and who is stared at by the defendant and harassed by the defendant's counsel, undergoes an ordeal that is almost as bad as the crime itself. The Congress of the United States has made a very important policy statement in passing the Victims Assistance Act. It has given the courts a new focus, and a focus that is a very, very important one in the system. Judges recognize that victims, too, have rights.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think that is great. In October of 1987, the Bureau of Justice Statistics reported that the rate of violent crime dropped 6.3 percent in 1986. Now, of course, this was no consolation to the victims of crime, but it is important to realize that since 1981 the rate of violent crime has dropped nearly 20 percent; 7 million fewer crimes occurred in 1986 than in the peak year of 1981. That does not mean that the battle is being won. I am sure we will find statistics to show that drug abuse and its link to crime is definitely on the rise. Nonetheless we are gaining ground on crime to some degree. Do you feel that the courts have a role to play in ensuring that this hard-won progress on crime continues?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Absolutely, Senator. They are the front-line agency for administering the criminal justice system, and we have much to do, particularly in the area of corrections, which judges do not know much Jbout. But in so far as the enforcement of the criminal laws, the courts do have the responsibility to ensure that their procedures are efficient, that they understand the law, and that they apply it faithfully.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In this regard, I would like to discuss with you one of your death-penalty cases, namely, the Neuschafer v. Whitley case.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS I understand that case, an inmate had murdered another inmate, and when you first received the case, you sent it back to the lower court to make sure that the evidence in that case—it was a statement by the accused—was proper. Now 115 when that was established, the case returned to you, and several arguments were made against the State's decision to order the death penalty. Could you recall some of the arguments and why they were insufficient in that case?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Senator, I have a little difficulty in answering that question because my characterization of the arguments might bear on the petition for rehearing.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure. All right. Then I will
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That case is still before us.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is one of those cases that goes on and on, then.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would rather not characterize an argument in a way that would seem either too generous, or too limited for the particular parties in that case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, let me move to another capital-crime case in which you were involved, and that was Adamson v. Ricketts, and I do appreciate your sensitivity there, and this involved the murder of an Arizona newspaper reporter with a car bomb. As I understand it, the defendant had confessed to the murder but had escaped the death penalty in the first trial because of a plea bargain. Now, would you briefly state the facts of that case, and how you became involved.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. This case is also appearing before us—or, rather, is still before us on remand from the Supreme Court of the United States—so I will give only a capsule description. A newspaper reporter was killed when a bomb was placed in his car by a person connected with the Mafia. The reporter lost both arms and both legs, but lived for 10 days. He identified the defendant in this case, Adamson. Adamson was brought to trial, but the question was whether or not Adamson would tell who paid him to do this work. As part of a plea bargain, Adamson did agree to testify, and in exchange, the State of Arizona reduced the charge to second-degree murder. I think that is accurate; but, in any event, the State dropped the capital sentence demand that it had made earlier. Adamson did testify, the two were convicted. The Supreme Court of Arizona then reversed, so another trial was called for. At this point Adamson said that he wanted to change the deal. The question came to our court whether or not his double jeopardy rights had been properly protected. Some of my colleagues thought they had not. Some of us thought that the plea bargain itself was clear warning to Adamson that he had certain rights that were being waived. I was in the dissenting position. The Supreme Court of the United States agreed with the dissenters. The case has now been sent back to the ninth circuit on other issues.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, in other words—my time is up—but in other words, the Supreme Court overturned the majority of your court
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. And followed your dissent
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is correct. )0-87 8 0-89- 5 116
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. In finding that the plea bargain should not figure into the double jeopardy clause in this particular instance, so that resulted in the reinstatement of the death penalty for the cold-blooded car bombing. Is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. Well, I have a lot of other questions, but I have appreciated very much the responses you have made here today.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. As I indicated earlier, we will very shortly recess for 15 minutes, and then we will come back and stay at least until 5 and no later than 6. So we will recess now for 15 minutes. [Recess.] The CHAIRMAN. The hearing will come to order. Well, Judge, how is it so far?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is very fair, Senator. Since I have been doing this to attorneys for 12 years, it is only fair that it be done to me.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Simpson is worried about your students. He wants to make sure they are observing. I will now yield to my colleague from Arizona, Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Judge Kennedy, I appreciate your candidness and response to previous Members here. I think it is very helpful, and quite frankly, I think it tells us something about you, both as a jurist and as a lawyer, and as a family person of values and sensitivity, and that is important to this Senator, and I think it is important to the process. I am very interested, Judge Kennedy, as I discussed with you briefly, the Equal Protection Clause in the 14th amendment, and I would like to review some of that. Based on some of your decisions, and your teachings, I consider you an expert in it, and I do not consider myself in that vein at all. However, it is of great importance to me, for many compelling reasons. With regards to race discrimination, as you know, the courts have employed a strict scrutiny test, and require that a compelling interest be shown, in order for the statute to survive review. Additionally, fundamental rights, such as the right to travel, the right to vote, the access to the judicial process, enjoy the benefit of a strict scrutiny analysis. In gender discrimination cases the Court employs the heightened scrutiny test, sometimes called the intermediate scrutiny test. The classifications, by gender, must serve important governmental objectives and must be substantially related to achieving those objectives. There is some suggestion that both alienage and illegitimacy enjoy the same type of analysis—intermediate scrutiny. All other forms of discrimination, economic and social, receive the lowest level of scrutiny known as the rational basis test. I offer this abridged review to set the basis for the few questions I would like to ask you. 117 Justice Marshall, as you are aware, has proposed a sliding scale—I guess you would call it—approach to analyzing equal protection claims. He suggests that instead of cases falling into neat categories, as the Court has so put them, a spectrum be used to review claims of discrimination, and this spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize, particularly classifications, depending, I believe, on the constitutional and social importance. Now, when Judge Bork was here, it became very clear to many of us that there was a fundamental disagreement here. I am not here to peg you against Judge Bork at all. What I would like to know, Judge, is some answers to some questions, if you would, please. In reviewing the opinions you have written, I notice that in the equal protection area, you have had little opportunity to express yourself, I think maybe six opinions, the best that I could encounter. Is that a. our;/n or have we not found more decisions? Or do you know?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I have really not had the opportunity, Senator, to address, ' i any detail, the levels of scrutiny that apply to gender, or, t compare them to race. I think you are correct. I have had Equal Protection Clause cases, mostly in the implementation phase rather than in defining substantive liability.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And it is roughly a half a dozen opinions, to your recollection?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would think that would be correct, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I would like to explore with you the analysis you do apply, or the approach you take, and not to get into any particular case or circumstances that would be a potential case before you, but how you view the Equal Protection Clause. Would you agree, first of all, that the Equal Protection Clause applies to all persons?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, the amendment by its terms, of course, includes all persons, and I think was ver}^ deliberately drafted in that respect.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And of course women being in that category. As I understand, that the Court has developed some standards, and they refer to them in the race cases, considered a "suspect classification," I think is the Court's term, and the standard of review is known as strict scrutiny, as I mentioned. Additionally, for the State to justify discrimination based upon race, would require a showing of a compelling interest. Is that your fundamental understanding of the strict scrutiny standard that the Court has referred to in various decisions?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is my understanding of the standard that the Court has enunciated.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Can you conceive of any situation where discrimination based upon race would be legitimate under the Equal Protection Clause?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I cannot think, at the moment, of any of the standard law-school hypotheticals, that would lead to the conclu- 118 sion that a racial classification that is invidious would be sustained under an equal protection challenge.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Your record certainly indicates that you have not had any cases, that has squarely been presented to you, that I can find at least, but I just wondered if you had any hypotheticals, because I find I can make up some hypothetical, but I just would like to see whether someone else has, if they have thought about it. With respect to this standard of strict scrutiny, analysis employed by the Court today, is it your understanding that a fundamental right, such as the right to interstate travel or freedom of speech, are protected in the same manner as the race discrimination? Or non-race discrimination?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, and sometimes those cases are difficult, because if you have a first amendment case, it often can really be explained on its own terms. The first amendment sits on its own foundation, so it is sometimes puzzling why we even need an equal protection analysis in such cases, although the Court has had first amendment cases in which it uses an equal protection analysis. Why that is necessary is not clear to me, since one of the essential features of the first amendment is that we cannot engage in censorship. Censorship involves choice, so the first amendment does seem to have its own foundation in this regard.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Focusing, Judge Kennedy, on gender discrimination, discrimination based on sex, I understand that the Court has developed what is popularly known as the heightened scrutiny test, as I mentioned, or intermediate scrutiny for this type of discrimination case brought before the Court. Do you recognize that, or agree that is the standard the Court now has set out.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is my understanding of the case law. The Court, as an institution, and the judicial system generally has not had the historical experience with gender discrimination cases that we have had with racial discrimination cases. The law there really seems to me in a state of evolution at this point. It is going to take more cases for us to ascertain whether or not the heightened scrutiny standard is sufficient to protect the rights of women, or whether or not the strict standard should be adopted.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. There is no question in your mind, that the Supreme Court is very clear—and whether they are termed conservative, or liberal judges, or moderate—whatever they may be— that the judges recognize those standards, and you also subscribe to the standards in general principle?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it may be that in resolving one of those cases, I would give attention to Justice Marshall's standard and make a determination whether or not that is a better expression than the three-tier standard that the Court seems to use, although it seems to me, on analysis, that those are very close.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NOW I also understand that classification based on gender must serve as an important governmental objective, and must be substantially related to the achievement of certain legislative goals. Have you delved into that, or have any thoughts on that? 119
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. I understand what the Court is driving at, and as I have indicated, it is probably because the Court simply lacks the historical background to feel that it can impose the strictscrutiny standard without causing problems for itself down the line.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Without committing you on anything that you might do as a Supreme Court Justice, do you think, generally thinking, that that is a proper legal conclusion that the Court has come to in this area?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I think the Court has, as 1 say, recognized the fact that the law is in a state of evolution and flux, and is proceeding rather cautiously.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU do not have some personal hostility towards the way the Court is proceeding in this particular area of gender discrimination as it relates to the Equal Protection Clause?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The cases seem to me a plausible and rational way to begin implementing the Equal Protection Clause.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I am sorry. I did not hear that.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The cases seem to me a plausible and a rational way to begin implementing the Equal Protection Clause.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I thought you said plausible and irrational. Thank you.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And of course with reference to other forms of discrimination we have what is known as the rational basis, which, if you accept the different standards we have—and I do not make those decisions, but I certainly have read enough cases—that it seems clear to me, that even if you feel, a judge feels that a set of facts may not fall into the heightened scrutiny, or into the rational basis, that there is so much precedence here—and as you say, it may be new, and does not have a long history of it—it appears to me to be very fundamental, that the Court is set, at least on a course, to help guide lower courts, to help guide legislative bodies, where these scrutinies are going to be placed. As to the rational basis test for other discrimination, do you recognize that as a given standard that the Court has pretty well settled on for other discrimination, other than gender and race?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, it is, and as we know, all laws discriminate.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That is right.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. YOU can get a driver's license if you are over 16 but not if you are under 16. Yet we know that there are some drivers who are under 16 who are much better than many drivers who are over sixteen. But we have a fixed and arbitrary standard. That is the way laws must be written in order to have an efficient society and an efficient legislative system.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Have you delved at all, either in your job as a judge, or as a teacher, with Justice Marshall's sliding scale? Have you written anything or done anything in that area?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I have not written on it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU are aware of it yourself?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I ask my students to explain to me why there is any difference between that and the three-tier standard, and I am not yet satisfied what the correct answer to that question should be. 120
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Then there is the proposition that has been mentioned—I believe it is Judge Stevens—about a reasonableness standard as a sole standard, and of course the Court has not accepted that, although I believe Stevens is the only one that has mentioned that, and of course as we said, Marshall, a sliding scale standard. The reasonable standard poses problems to this Senator, but I welcome people who might disagree with that. Have you formed either a preference, or do you have any distinction in your mind between a three-tier standard that we have been talking about, and the importance of it, particularly as it relates to gender, and a reasonableness standard for all discrimination cases?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I do not have a fixed or determined view. I would offer this observation: one beneficial feature of a tier standard is that the court makes clear the substantive weight that it is giving to the particular claim before it, and the court can then be criticized, or vindicated as the case may be. It sets standards. And the lower courts have a certain amount of guidance. The Supreme Court is in the difficult position of hearing 150 cases a year, and in doing so, providing the requisite doctrinal guidance and supervision of the lower courts. This is a very difficult task, and not much has been written on the difference between an intermediate appellate court judge, such as I am, and the responsibilities of the judge of a supreme court of a State or the Supreme Court of the United States. Judge Sneed of our court is always careful to point out that this is an area of academic inquiry that should be explored. I think the requirements, and the duties and the obligations, and the concerns of those two different courts may be quite divergent.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. The interesting thing, as one views this— and I think you make a good point, the history behind the Court's struggle as it relates to the sex-discrimination cases—is the importance to the lower courts to see something coming from the Court that is a bit consistent, even though it may fall into different standards as they come. Judge, as an appellate judge, how helpful is that when the Supreme Court has these fundamental cases, if you want to call them, where they start to become consistent in their holding and a standard starts to emerge? Is that as obvious to the federal judges, yourself, as it is to me, that that would be extremely helpful, or is it difficult to implement?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is tremendously helpful. We wish that the Supreme Court could review most of our cases. As you know, the Supreme Court takes only about 2 percent of the judgments of the circuit courts, and within that case mix it has the duty to give us the necessary guidance. This of course is the way the case law method evolves, but we wish we could have more guidance from the Court.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I would like to turn to another subject matter. The Chairman touched on it somewhat this morning, regarding your Canadian Institute speech that you made in December of 1986, and as it relates particularly to the privacy question. On page 9 of that text, you state that: 121 It is difficult for courts to determine the scope of personal privacy when it is specifically mentioned in a written constitution, and that courts confront an even greater challenge when the Constitution omits language containing the word privacy, or private. Now in discussing the legislation, and the legitimate sources for the right of privacy, you mentioned the Supreme Court cases, the Bowers case, and the Griswold case. And it appears from reading your speech, that you have concluded, without question, that there is a fundamental right to privacy. And I think the Chairman had you state that, and that is your position, correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I have indicated that is essentially correct. I prefer to think of the value of privacy as being protected by the liberty clause; that is a semantic quibble, maybe it is not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. But it is there, is that
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NO question about it being in existence?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NOW the Chairman also touched a little bit on the ninth amendment, and just out of education for this Senator, do you have an opinion why the Supreme Court seems to shy away from using that ninth amendment for some of these unspecified rights that have been, I think quite clearly enunciated by the Court, vis-a-vis the right of privacy?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Again, I am not sure. I think the Court finds a surer guide in the 14th amendment or the fifth amendment, because the word liberty is there. In the ninth, of course, it is simply an unenumerated right. I think also that the Court has this problem: as we have indicated, Mr. Madison, and his colleagues, were concerned with the ninth amendment to assure the States that they had adequate freedom for the writing of their own constitutions, but under the incorporation clause that is flipped around. Under the incorporation clause, the ninth amendment would actually be used as a constraint on the States, and I think the Court may have some difficulty in moving in that direction. I do not think the Court has foreclosed that, and I do not think, for reasons—as I have indicated—that it should address the issue until it has to.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. It just quite frankly fascinates me—not being a judge—and I ask that question purely for myself, just wanting to know what a judge thinks. If we were sitting in my office or at a social function, I might just ask you that question, because I have never quite understood why the Court has ruled as it has. I think you probably have as good an observation, or better than I do. You have asserted, Judge Kennedy, that the opinions in the Griswold case and the Bowers case, that they are in conflict, and on, I think it is page 13 of your Canadian Institute speech, you discuss whether a right is an essential right in a just system, or an essential right in our own constitutional system. You state that, quote: "One can conclude that certain essential or fundamental rights should exist in any just society." End of quote. 122 But then you say, quote: "It does not follow, that each of those essential rights is one that we, as judges, can enforce under the written Constitution. The due Process Clause is not a guarantee of every right that should inhere in an ideal society." End of quote. How would you define the enforcement power given to the judiciary?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the enforcement power of the judiciary is to insure that the word liberty in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it. There are many rights, it seems to me, that you could put in a charter if you were writing a charter anew. The right to be adequately housed and fed, and education, and other kinds of affirmative rights. You see this in the European Convention on Human Rights, which is what I was trying to contrast in the Canadian speech with the Canadian constitution. We had three documents. It seems to me an important point, that the Constitution works best if we have a stable and a just society. The political branches of the Government can do much to insure that these preconditions exist for the responsible exercise of our freedom. And I think the courts are subjected to constraints, obviously, that the political branches are not, especially in that the courts cannot initiate those programs and those requisites that are necessary to insure that some very basic human needs are met.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Some of those, quote, "basic human needs of society," are you saying, really rest with other branches of government, to see that they are available?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That would be my general view.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. In your 1986 speech, you also advance, or you said that the right to vote, quote, "is not fundamental in the sense that like the privacy right, it supports substantive relief of its own. It operates, instead, as a fundamental interest that triggers rigorous equal protection scrutiny." End of quote. Am I correct to conclude from this statement, that you think the right of privacy is a right, freestanding, which though not found in the Constitution, requires similar consideration as those rights that are indeed enumerated in the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that is
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. IS that a right interpretation?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY [continuing]. Generally correct to the extent that we can identify that is a privacy interest. It struck me, as I was preparing this speech for the Canadian judges, that the voting rights cases are very interesting. I think most of us think of voting as absolutely fundamental, and it is so listed in the Canadian constitution. This is a new constitution that the Canadians have adopted, and their judges were there to see what benefit federal judges in the United States could give them in interpreting the document. I found, doing the research for this, that although we think of voting as a quintessential fundamental right, the Supreme Court has not recognized it as a right that necessarily supports an action. Though you may think that you have a right to vote for a sheriff because in some States they are elected, the Supreme Court has 123 not so far recognized that you have that right. That is why it is not a fundamental right on which one can base a cause of action. It is a right that we recognize so that the vote cannot be diluted.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU mean that specifically the right to vote for sheriff is not the same right as the fundamental right to vote? Is that where you are drawing a distinction, that that is a political subdivision, whether or not the right to vote for sheriff, or whether there is a vote for sheriff——
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. As I understand the case law, the Court has been very cautious about stating that there is a fundamental right to vote that stands on its own foundation, simply to avoid having to make this kind of inquiry. Whether or not one of those cases will arise in the future, I am just not sure.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU have written a very interesting case, your opinion in Beller v. Middendorf case, dealing with the right of privacy and homosexuality as it relates to certain regulations. The analysis of that case, if I understand it, was of some distinction as to the regulation vis-a-vis the actual right of a homosexual act. Is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that is a beginning point.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And where your opinion zeroed in on. Now criticism has been levied against your decision in the Beller case, particularly the National Women's Law Center, asserting that in the Beller, you incorrectly rejected a fundamental right, or the analysis of a fundamental right in favor of a more easily met balance test when applying substantive due process analysis to this particular set of regulations, and vis-a-vis, that it was relating to the military. Can you address the distinction of this case for me, and your thoughts, when you came to the conclusion that the military regulations demanded a different view as to the right of regulating that right of privacy, assuming that the right was there?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. AS we know, just for the record, Judge, that case has gone to the Supreme Court and no longer is one that would be pending for you to have to decide on.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, this was really, I think, the first case in the circuits on the question whether or not the armed services, in this case the Navy, could dismiss its personnel for having engaged in homosexual conduct while in the military. This case required the court to undertake a rather comprehensive study of what the Supreme Court had said on the issue to that point. We reiterated what we thought the Supreme Court had taught us with reference to substantive due process, to the rights of privacy and to the rights of persons, and we set forth there our understanding of the rules. We assumed arguendo, made the assumption, that in some cases homosexual activity might be protected. We did not say it would be because that issue was not before us. We decided instead only the narrow issue of whether or not in the specific context of conduct occurring in the military the Navy had a right and an interest which was sufficient to justify the termination and the discharge of the personnel. 124
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And that is because the regulation was only before you and not the question of whether or not there was a right of privacy for this activity; is that what you are saying?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, that is correct except that you might have argued that tfyis right was so fundamental and so all-embracing that the military could not
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Could not infringe on it.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Could not abridge it in any event. For analytic purposes, we simply left to another day the question whether or not there is this fundamental right. In other contexts, we assumed that there could be. We said that in the context of the military there were adequate, stated, articulated reasons for the enforcement of the policy.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I read that case very carefully more than once because of the significance of what I consider judicial restraint, and my compliments about the case, but it seemed to me a great temptation for a judge who wanted to express an opinion for or against there being a fundamental right for the homosexual activity not to do so. I think the greatest compliment I can pay you, Judge, is that you stayed with the issue there that I think was very clear. But quite frankly, if a court had gone off the other way I might have disagreed with him or I might have agreed with him, and sometimes the court does. And I really wanted to say that that opinion, as many of your opinions, have impressed upon me your real strict understanding of what you think judicial restraint is, and trying to exercise it. I may disagree with it or someone else may, but I think it is fundamental and very complimentary to you and the President for choosing someone who has that restraint in their mind.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. I am finished for now. I do want to talk to you about judicial tenure, a subject that you and I have shared some fun over the last years, and we will do that tomorrow I guess.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am looking forward to that, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Kennedy. Recognize Senator Simpson because Senator Biden isn't here.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I thought maybe we were going to take over there for a minute. With the Chairman gone, it was marvelous opportunity, but I see you were prepared. Like Senator DeConcini, I found that case fascinating for its clarity and getting just to where he wanted to get and not one whit further. It was a superb decision, the one that Dennis speaks of. Dennis and I come at each other occasionally in this league, but he is a fine lawyer. I have a great respect for him. But I have exactly the same feelings about that case in reading it and knowing what a hot one that was. You know, you could have at any point gotten off onto a little Hindu, some philosophy or something else, or morals or everything else, but you really did a beautiful job with that. Well, I am interested in you doing very well in the surveillance that is being performed here. I don't know if 1—I sometimes forget, but I can't help but tell you that in the last such proceedings there was a gathering of various groups who said that they wanted to 125 find the transcript of the law school records of all the members of the judiciary to see just how well we all did.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I sent mine. Did you send yours? [Laughter.] No, I make it a habit of not picking mine up. I never have.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I am going to move right on now. I have nothing more. But I was interested, I told them, I said, I am glad you asked that question because, I was in the top 20 of ray class. And there was a scribbling and that was the end of that, and they went off, I guess, to check. But the interesting thing was, then I think I turned to Joe and I said, "That is going to be great." I said, "There were only 18 of us in our class." [Laughter.] So we get the surveillance. Tndeed, we do, and there will be ever more of that, and is, in this league. But with that the light comes back to privacy. What is this right of privacy? We talked about it a lot with regard to Judge Bork, an awful lot. This right to privacy, what is it? You know, and you get into it. It is a detonator, and you have answered that very well so far. I think the most pungent comment on it was Judge Griffin Bell, our former Attorney General, who said that the right of privacy is the right to be left alone. He really cut through the fog as we were dissecting the right to privacy and where it was with Griswold and whether it was written or unwritten, or in the Constitution or out of the Constitution, or innate or conditional, is the right to be left alone. That is something that really means something I think to the American people. At least the average guy, he likes that. And then as I say, I shared with many my frustration that at the very time these very high-blown probes were going on with regard to that there were few worthies who were finding Judge Bork" video rental records to find out what he was renting, hoping to find all sorts of things. My mother has written me about that and talked to me about that, and I won't go into that. It was a rather smart phrase. But I commend the ACLU who rallied to that in a moment. The District of Columbia is now dealing with a statute on that. There is a House bill in on that, and I am certainly going to be looking into that from the Senate side. So there's some positive results—but those are more real examples than, j^ou know, law school theories out there on the right to privacy. In my mind they are. Then I was interested in your comments on the two cases, Topic v. Circle Realty and the Mountain View-Los Altos Union High School District.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Hearing your explanation of those was very important to me. You used the phrase "we ruled," and I think that we don't want to forget that, as I understand it, and you can respond, that those were both unanimous decisions of a three-judge group. I mean, I don't know what you call that in your
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is correct, Senator. It was a three-judge panel on each of those cases.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Panel.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And, as you know, each judge researches the record independently and we usually come to the bench not having 126 conferred with one another in order to ensure both the fact and the appearance of fairness for the litigants. We confer only after the oral argument.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. In the Topic case, there was Justices Chambers and Trask and yourself.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And in the Mountain View case, Justices Trask and Poole and yourself.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And those were unanimous decisions and, as you say, an interesting finding as to how you come to those, giving every evidence of fairness in that; isn't it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is correct. We thought both of them were close cases in which we were trying to divine the will of Congress.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I had a feeling that one on the disabled child would be a very important one and probably will be reviewed again, so I was particularly interested in that, you know, because it is so easy to pick an issue and say how will you vote on this or—for us, how do you vote on this, Simpson? You can't vote "maybe", you have to vote yes or no. It is a very precise activity here. I was very interested in how you did decide because you obviously were impressed, and you have said it here. The facts of that case were rather unique in a sense. This boy, this son who was involved here had some extreme behavioral problem. It said, while the assessment was taking place the boy was excluded from school for repeated misconduct. It went on, they stopped the process then. They stopped, and no one knows why. Then there was the offer to send a teacher to the boy's home for instruction. District personnel recommended private schools. The appellant placed the boy in one of the schools and he was expelled for continued misbehavior and then he attended another. He was a very disruptive young man apparently is what I gather. It is a very short opinion. And then it was determined that he be placed in a resource classroom in a regular public school program, and the appellant, still dissatisfied, requested an administrative hearing under the Act and the administrative law judge determined the parents were entitled to reimbursement. The school district then brought the action and the appellant was saying that—the district court, of course, adopted that and held the appellant had violated the so-called "stay put" provision— I wouldn't want that to get left out here—by placing the boy in this other school before the administrative proceedings were concluded. That is a very important thing because it says very clearly that during the pendency of any proceeding conducted pursuant to this section unless the State or local education agency and the parents or guardians otherwise agree the child shall remain in the then current educational placement of such child until all such proceedings have been completed. I was fascinated by the precision of that. She was saying that her actions were not unilateral and they were saying they were, it was that simple, I guess. And you were saying something that is said to us all the time as Congresspersons. Why do you pass laws that 127 leave the burden on the local districts or the local county or the municipality? Your decision said that the threat of damages in a case like this would not make compliance any more likely and would subject school districts to contingent liabilities hardly foreseeable when the annual school budget is prepared. Now, with disabled children and the disabilities and special education, one of the most serious problems in the United States is that the school districts can't afford it. And they tell us that when they go home, but who is going to come back here and say you can't afford to take care of disabled children, so we don't say much about it. We just pass another law and ship it back to the local district. Some districts are paying out $100,000 and $200,000 for maybe one person in one year, and we just sit and say go ahead, that is your job. Now that won't last much longer. They can't stand that burden. So it is such a well-focused opinion. A very well-centered and reasonable decision, and I don't think it should have any kind of flavor that somehow you are not sensitive to the disabled in our society. And I don't think that was the intent but we surely wouldn't want it to be at all expressed in that form because that is not what it dealt with as I see it. Compassion was there but this was, under the fact situation, a most difficult person. And we do that with our new asbestos law. We passed a dazzling law about asbestos in the schools and then just sent it back to the States and said go to it. We don't know where you are going to get the money to do two or three hundred grand worth of ripping asbestos out of a school built in 1930, but get at it. And this is the same kind of thing that we do well, and I think you called attention to that. Well, that is just my view of that. Some of that of that case. Then with regard to discrimination, that certainly came up and it has come up again here today. Discrimination based on gender, I don't like to harp here but I think it is so important that we just try to keep a continuity. We have a situation where six members of this 14-member panel have voted to cast a vote specifically to discriminate against women based solely on their gender. That may be a bit surprising but it is very real and you can't describe it any other way; and that is, to exclude women from the draft. And six members of this panel, three from each side of the aisle, so we don't get into sloppy partisanship, voted to exclude women from the draft, which is obviously and patently a discrimination against women based solely on their gender. There is no other way to describe that that I know, as a lawyer. So that is interesting, when we get into those tough issues that seem so good when they appear in law review articles, but in real life they are just plain tough. You cited a very interesting thing about, I think you were talking about advocacy before the courts. The quality of advocacy has gone down, I hear you saying, or is not what it should be. Would you develop that a bit more? Tell me a little more about that. How do you feel about that? 128
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, Senator, sometimes one asks the question, does a good lawyer really make a difference? The questioner I think, may think it a trick question because if you say yes, then you are not listening to the law, and if you say no, then you are just wasting your time listening to the oral argument. But these cases are very, very difficult, and the law draws its sources from many places. Judges listen to many voices. The constraints and the compulsions of the facts of the particular case, and of the legislative history, all have to be brought to bear on the specific case before the court. Far more often than most people realize, the three judges on that panel all have their minds made up during the oral argument. It is the time that I use to make up my mind. I wait until that oral argument. It is a tremendously important half hour or hour. It is very important that counsel be skilled. Oh, sometimes we know that the counsel just has not seen the problem, and we will see it for him and save the case. But really, we have to impress upon the bar that the duty of the lawyer is to the client, and he may not let the court do the work for him or her. There should just be no shoddy practice in the federal courts; and there is too much of it.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I think it was former Chief Justice Burger who made some statement years ago that we were doing 747 litigation with Piper Cub pilots, or something like that, and I think that is true. I admired Justice Burger, a Chief Justice, in so many ways a superb human being. He is a delightful gentlemen. I have come to know him personally and that has been my great gain. Would you, if you were on the Supreme Court, and I honestly and sincerely hope you will be, would you hesitate to write and speak on that subject of lawyers when you are addressing the American Bar Association or the federal bar? Is that something you would like to get involved in, making our profession better and speaking as one who has heard these men and women before you?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am committed to that. The former Chief Justice, Mr. Chief Justice Burger, did a marvelous service to the Constitution and to the rule of law when he insisted on this throughout the country. This is not to denigrate the legal profession or the law schools. They are doing a magnificent job. But one of the frustrations of being a judge is that we get away from the practice somewhat. I see or hear of things going on in the practice, and conclude the ethic is changing out there. The law practice has become much more of a marketplace than of an ethical discipline, and I am concerned about that. But I am so far removed from the practice that I am not sure there is a whole lot I can do about it, other than to talk about the problem.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. But you would be talking about that if you were on the Supreme Court bench?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think it is vital.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That is very important to hear you say that. I think it is critical. I practiced law for 18 years and I loved it, and I did everything from the police court to the federal district court— everything. And now in the marts of trade, the law school students are interested only in what they will receive on their first job. 129 Those who recruit them are interested only in those who are in the top 8 percent of their class. They must come from the best schools, whoever makes those descriptions, and they must I guess have an overwelming desire for pure greed. Because I think greed is overwhelming our profession. I think they are not practicing law, they are practicing money, and that disturbs me. And, if you are placed on this Court, it will be a delight to see you with your tremendous ability to deal with young people as you have in your law school, in McGeorge, that you can get them back on track as to what it is. And what it is is not to see how many depositions you can Xerox during the discovery proceedings, you know, by the metric ton, or how to make discovery to put your children through college. The first and only rule under Rule 1 of the Rules of Civil Procedure is that the rule shall be construed to secure the just, speedy and inexpensive determination of every action. That is what it says, and it says that in every State rule, under the State rules of civil procedure. So as we talk about dissecting cases, and that is critically important, we all do that in our law careers, and in theory and philosophizing the issue we are forgetting what has happened to the little guy. He can't even afford a lawyer anymore. What are your thoughts about that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Just to go back one moment
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Please.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY [continuing]. To your first comment, the bar of the ninth circuit and the leaders of the bar in every circuit in the country do work with the courts very, very closely to assist their colleagues in understanding the rule of courts. They have helped us implement rule 11 on sanctions. They sometimes forget, though, the very critical point that the first duty of the lawyer is really to the law. He has an ethical obligation. The greatest privilege that a lawyer has is counseling a client. I think we all miss that from our practice. Every lawyer every day acts as a judge, telling his client what the facts are and insisting that his client or her client conforms their conduct to an ethical standard. That is what the law should be about. I am afraid we have lost some of that ideal in the profession, and part of the reason is money. You can not have it two ways. You can not complain about poor representation and then, on the other hand, complain about the cost of legal services. There is a relation between the two. Law is so complex now that it takes lawyers longer to do the job. What the answer is so far as legal fees are concerned, I don't know. But it is quite true that if a wage-earner, a person in the middle-class is hit with a lawsuit and does not have an insurance company to defend him or her, they are in big, big trouble. The repeat players in the system and, as I have indicated, including some public interest groups are very adequately represented. But the person that has one brush with the law sometimes has a problem.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Yes, that is an interesting part of our profession, counseling a real live, human being client who is in extremity usually. Because they have already talked to their spouse and said, I wonder if I should go get a lawyer, and they think "I don't 130 think so. Better watch out." Then they go to their brother and then their uncle and finally they walk in to see a lawyer, and they know they are in trouble and they go only in extremity. You know, that is the way law really is practiced in the world. It is not like here where there are 33,000 lawyers who, if you turn them loose with an anguished and tearful human being, they would hope they could find somebody down in the lower bowels of the office to take care of the poor old soul. Well, I haven't asked many questions yet, have I? But I have been certainly launching around in them. Another thing though I wanted to—it is so good to hear someone saying that, and be on the Court saying that where you will be heard and have a forum. But, again, take the issue of clubs. You stated your position I thought very clearly. There is a discrimination based on hostility. And then there is a discrimination just based on plain old, you know, indifference, not paying attention. Joining a club and you don't know what is in the by-laws. You just were looking for a place to play squash. We have been through some remarkable exercises here. We nearly torpedoed a guy because he was a member of the Masons. And everybody sobered up real quick and the word went around that there were about 20 of us in the Masons in the U.S. Senate and 60 or 70 over in the other body, or more than that, and it is really not too sinister an organization. Their tenets there are based on a fierce protection of wife and mother and daughter and son and brother. Probably like the Knights of Columbus in that respect. But we had to go through all that. I mean you really would have been dazzled by that. And groups that care for the needy, and there is, you know, a secret society that believes in love of fellow man and woman. Interesting. But the Elks Club now is really getting to be the epitome now. I joined the Elks Lodge in Cody, Wyoming, so I could get a suds on Sunday. That was the original reason. Since then I learned what they did, and their order is based on charity and brotherly love and helping their fellow man. That is what it is. It is not some sinister outfit. I don't know about the Sutter Club but they must have some purpose. Charity—you know, they actually take Christmas baskets and do little silly things like that in real life in Cody, Wyoming, and help people. Give scholarships to boys and girls. So, it really is fascinating. I did bring this up and I want to bring it up one more time because we had a group that wrote to us in strident terms during the last hearing, the National Women's Law Center, I believe was the name, in Chicago. There is a forum there of women lawyers. There is not a single man on the letterhead. And they really raised hell with us. And I asked if they had any men members, and they said no. But there wasn't much more to be said about that. But, you know, come on. You can't have it both ways in this game. You reach the height of absurdity, and that is what gets reached in this exercise. Well, I will hear from someone on that subject, but it is important to me to know that you have done the human practice of law 131 for 13 years and apparently with distinction that testimony from your neighbors, Vic Fazio, to hear him speak, I have great regard for him, Bob Matsui, Pete Wilson. Those things are very important to us as we make our decisions. I understand you have represented minority groups. You were in the Judicial Administration for the Pacific Territories of American Samoa, were you not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am still on that committee, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And what is the nature of that work— I have 4 minutes remaining? Wait. Forget it. Don't bother with that. [Laughter.] You were a member of a union, yourself?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am trying to—1 believe that I was. I had summer jobs where I did manual labor, usually in the oil fields, but one summer I worked in a lumber mill and I believe I was a member of the Millworkers union. At least I remember paying the money. I do not know if that made me a member or not.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. If you paid money, we will talk to Lane Kirkland. I think you are all right if you paid in. But you are sensitive to those rights of unions and minorities and women and pro bono activity and fairness. Those things have all been forged in you. Would you say that that is a very important thing as you go on to this new duty, which I hope you will?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO judge comes to the bench as a clean slate and completely free of all compulsions and restraints from his background. Therefore I think the background of a person, his temperament and his character, or her background, temperament and character, are of relevance to your consideration. I have been pleased to make available to you my life so far as I can remember it, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, we will do that sometime. I would like that. And it has been a real treat to almost watch your cognitive processes as you deal with the issues and the questions presented to you. You handle the inquiry very well, and it is interesting to hear the verbalization of that cognitive process after you churn it, and it comes out in a way that is very understandable. And as I have always said, what good is our whole practice or profession if those we are supposed to serve can't understand what we are doing for them, can't read the lease you prepare, don't understand the will you did, can't understand the property settlement that you drafted. Clarity will save us yet. But I think you are going to be a great advocate of that. Thank you, sir.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, do you realize how difficult you are making this for Senator Simpson? He spent a whole half hour defending you against charges no one made. [Laughter.] You know, he is so much in the mode from the last confrontation that I hope that Senator Heflin says something nasty so we get something going here.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. YOU have been always good with equal time.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU are the only one I would take the liberty to kid with because I know you have a sense of humor that exceeds mine. 132 And I want to say one other thing while we are on this. And that is, that things haven't changed all that much, Judge. I remember my first case as a young lawyer in the Court of Common Pleas in New Castle County, Delaware. I was assigned to—I was sent a client who was accused of driving under the influence, and my first thing that I did was to go in and to ask for a continuance. And, as I stood there waiting in line, a fellow named Switch Di Stefano, God bless him, the clerk of the court, turned to Judge Gallo and he said, and I could hear him say, "Ask him if rule 1 has been complied with?" And he asked me, and I looked and I panicked. I thought I knew what rule 1 was but I couldn't see how it related to this. And I said, "Your Honor, I am embarrassed. I am not sure what rule 1 is." They called me to the bench and Switch Di Stefano leaned over and he said, "Before we grant the continuance, have you gotten the fee?" [Laughter.] I am sure that never happened in your life, Judge, but it happened in mine. And I want to yield now to the Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Judge Kennedy, have you found the teaching of law while being a judge rewarding?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I have to say since I am under oath that teaching is the most enjoyable day of my week. I love it.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Would you plan if you go to the Supreme Court to do some teaching, too, on the side?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. From what I hear about the workload, I think the answer must be no, Senator.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Does teaching cause any problems with predetermination of issues?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I fear that if I were appointed to the Supreme Court that it might. In the ninth circuit there would be maybe two or three times a year in which I would get a little close to a case that was before me, and so I thought I would stay away from it. But you know what the usual drill is. You simply ask the student the question and then you take the opposite side. I always made it clear to my students that I did not care what they thought but I did care passionately how they came to that conclusion, within certain broad limits of tolerance, of course.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In the case of U.S. v. Alberto Antonio Leon, which is now a famous case—and was heard by the Supreme Court—you dissented from the opinion of the ninth circuit and you closed your dissent with this language: Whatever the merits of the exclusionary rule its rigidities become compounded unacceptably when courts presume innocent conduct when the only common sense explanation for it is ongoing criminal activity. I would reverse the order suppressing the evidence. Now I would assume as a teacher after the Supreme Court decided the Leon case, you and your students discussed this decision and also your dissent in the ninth circuit's decision. Did that occur?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, Senator, the constitutional law course as it is now composed no longer includes criminal procedure, so I was not able to discuss that with my students. As you have indicated, I get somewhat, at least by inference, more credit for the Leon case 133 than I deserve, because I did not find that there had been an illegal search in that case.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU looked at the conduct and felt it was continuous conduct and therefore that the information was adequate for the warrant, but you did use the word "good faith" in one aspect
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. SO you at least have some claim for that. You also mentioned the rigidities of the exclusionary rule. Do you see in other areas, say in warrantless cases, that the good faith exception could be applied?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was on a panel and authored the decision in a case called the United States v. Peterson in which drug enforcement agents relied on the statement of Philippine law officials for the proposition that they could tap a telephone. They interdicted a ship some 100 miles off the coast of California with a huge volume of illegal drugs on it. We held that the good faith exclusionary rule applied in the circumstances on the theory that the officers acted reasonably in relying on the assurances of their foreign counterparts. So I have addressed that issue. There was no warrant there. Whether or not it should apply to warrantless searches in the United States is a question that I have not addressed, and I would want to consider very deliberately whether or not the rule should be extended to those instances because you then get, as you know, into the problem of objective versus subjective bad faith. You must be very careful to ensure that by the exception you do not swallow the rule.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NOW let me ask you about the interpretation of the freedom of religion and the Establishment Clause. Over the past several years many have accused the Supreme Court of interpreting the Establishment Clause in an overly expansive manner. You are quoted in a 1968 interview with McGeorge School of Law newspaper as saying that the Court should leave room for some expressions of religion in State-operated places. There should be a place for some religious experience in schools or a Christmas tree in a public housing center. Now, without speaking to any specific case, can you elaborate a little on your thoughts pertaining to this issue?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I can not recall that article or that interview. I saw another article about it just yesterday or the day before. I would say that the law would be an impoverished subject if my views did not change over 20 years. As I understand the Establishment Clause doctrine, the Court has a very difficult problem because, as you know, the Establishment Clause, which tells us that the Government should not aid or assist religion, in some senses works at cross purposes with the free exercise clause. The classic example is the furnishing of a chaplain to the military. If the Government furnishes the chaplain, it is in a sense assisting religion. If it does not it is denying soldiers whose conduct is completely controlled by their officers the free exercise of their religion. So the clauses sometimes point in different directions. 134 Now, the test the Supreme Court has for Establishment Clause cases is whether or not the particular legislation or governmental program adopted has the purpose or the effect of aiding religion or of hurting religion and whether or not there is a forbidden entanglement of religion. The Court is struggling with that test on a case-by-case basis. The decisions are difficult to reconcile, Senator. In this area more than in almost any other one the Court has relied on the historic practices of the people of the United States, and has found in history a guide to a decision. In that respect in this area history has been helpful to the Supreme Court. It seems to me that that is an appropriate reference in those cases. Where I would draw the line in any given case is a question that I have not addressed in my circuit decisions so far. I have no really fixed views on the subject other than to say that the framers were very careful about this. Many of the framers were religious people, but they were careful not to allow that to enter into the debates in the Constitutional Convention. Madison was very concerned about religious intolerance and so when Alexander Hamilton asked for the protection of contracts, Madison asked that the test oath clause be put in the main body of the Constitution. The main body of the Constitution contains religious protection and the framers were very, very conscious of this. It is a fundamental value of the Constitution of the United States that the Government does not impermissibly assist or aid all religions or any one religion over the other.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Going to another subject, media reports have indicated that your relationship with President Reagan came as a result of your assistance in writing proposition No. 1, which was a tax limitation measure. Would you tell us about your circumstances in relationship to now Attorney General Edwin Meese and now President Ronald Reagan when he was Governor and the circumstances concerning that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In those halcyon days, Senator, when our current President was Governor of the State of California and Edwin Meese, I suppose his executive secretary, I am not sure exactly of the title, the Governor's administration concluded that it was time to propose to the people of the State of California an amendment which would limit the spending of the government of the State of California. It was a rather complex proposal designed to impose a spending limit. It was hoped that tax reform would follow from that. The spending limit was based on a percentage of the total gross product for the State of California, and the permitted spending, expressed as a percentage, was to decline each year. It was a highly complex measure. The Governor at the time believed very strongly that the citizens of the State of California should be able to control their government. He and Mr. Meese asked if I would be the draftsman for this complex proposal. One of the reasons the proposal failed of adoption, I am told, is it was too difficult for people to understand. I understood it, but it was an exceptionally complex document. It was very interesting to work on.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, your judicial writings have improved.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, thank you. 135
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In this Canadian Institute speech you deal with unenumerated rights, and in that speech you state that most rights in the Constitution are enforced as negatives or prohibitions, not affirmative grants, and you list as examples, Congress shall make no law respecting the establishment of religion, no warrant shall issue but upon probable cause, or nor shall any State deprive any person of life, liberty or property without due process of law. You seem to view these prohibitions in the Constitution as limiting the expansion of judicial power. Are they also, though, a means of preventing government from denying individuals their fundamental rights?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would agree that they certainly are, Senator. And in the negative form they are easily understood well, not always easily enforced, but I think easily understood.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In Judge Bork's hearing, I think we questioned him for a long time before we finally got around to asking him about Roe v. Wade. I suppose if there is any one issue, that issue is probably within the spotlight the most. He answered by saying that his position relative to reviewing Roe v. Wade, if it came up for a review and if he was on the Supreme Court, would be directed in three different areas. One is looking to the Constitution to find whether or not there was any specific authorization for an abortion; second, whether or not he could find a general right of privacy by which he would base a decision relative to Roe v. Wade; and, third, stare decisis. There was no question that he had been quoted as saying that that decision was a unsatisfactory decision of the U.S. Supreme Court. He had previously been quoted and he admitted that he thought it was a wrong decision, and that he thought that the reasoning of the decision was defective. He outlined, not in specific terms the criteria that he would use, but in general terms the criteria that he would review relative to stare decisis. In all fairness I think the American people would like for you to give an expression pertaining to that case, your views, how you would approach, without specifying how you might hold, but how you would review and how you would approach that issue.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In any case, Senator, the role of the judge is to approach the subject with an open mind, to listen to the counsel, to look at the facts of the particular case, to see what the injury is, see what the hurt is, to see what the claim is, and then to listen to his or her colleagues, and then to research the law. What does the most recent precedent, the precedent that is before the Court if it is being examined for a possible overruling, and what does that precedent say? What is its logic? What is its reasoning? What has been its acceptance by the lower courts? Has the rule proven to be workable? Does the rule fit with what the judge deems to be the purpose of the Constitution as we have understood it over the last 200 years? History is tremendously important in this regard. Now, as you well appreciate, and as you certainly know, Senator, stare decisis is not an automatic mechanism. We do not just pull a stare decisis lever or not pull it in any particular case. Stare decisis is really a description of the whole judicial process that proceeds on a case-by-case basis as judges slowly and deliberately decide the facts of a particular .case and hope their decision yields a general 136 principle that may be of assistance to themselves and to later courts. Stare decisis ensures impartiality. That is one of its principal uses. It ensures that from case to case, from judge to judge, from age to age, the law will have a stability that the people can understand and rely upon, that judges can understand and rety upon, and that attorneys can understand and rely upon. That is a very, very important part of the system. Now there have been discussions that stare decisis should not apply as rigidly in the constitutional area as in other areas. The argument for that is that there is no other overruling body in the constitutional area. In a stare decisis problem involving a nonconstitutional case, the Senate and the House of Representatives can tell us we are wrong by passing a bill. That can not happen in the constitutional case. On the other hand, it seems to me that when judges have announced that a particular rule is found in the Constitution, it is entitled to very great weight. The Court does two things: it interprets history and it makes history. It has got to keep those two roles separate. Stare decisis helps it to do that.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Let me ask you about the death penalty. If you believe that the death penalty is constitutional, and some of the speeches you have made indicate that you believe that it is, what safeguards do you think are necessary to prevent the use of the death penalty in a discriminatory manner?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I, at the outset. Senator, would like to underscore that I have not committed myself as to the constitutionality of the death penalty. I have stated that if it is found to be constitutional it should be enforced. With reference to its being used in a discriminatory manner, there are at least two safeguards. The first is that the legislature itself defines the category of crimes that deserve the ultimate punishment. The second is that courts develop, articulate, and pronounce rules for instructions to the jury so that the jury's decision is properly channeled. You know better than I because of your experience in the trial courts, Senator, the tremendous power of that jury. Juries simply must be given clear guidelines so that they can apply the death penalty on a consistent basis. It is not clear to me that under the existing law that requisite has been satisfied in some of the cases that I have reviewed. On the other hand, I recognize the difficulty in formulating these standards that I so blithely recommend.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In 1980, you gave a speech in Salzburg, Austria, which focused on the power of the Presidency. In that speech you stated: I think that the accepted view is that while Congress can instruct the President in most matters there are some inherent powers in the office exercisable in an emergency but their nature and extent are still not fully understood. These answers must wait an evolutionary process in the continuing traditions of the Presidency. My position has always been that as to some fundamental constitutional questions it is best not to insist on definitive answers. The constitutional system works best if there remains twilight zones of uncertainty and tensions between the component parts of the government. The surest protection of constitutional rule lies not in definitive announcements or power boundaries but in a mutual respect and deference 137 among all the component parts. This furthers recognition of the need to preserve a working balance. Would you elaborate on the inherent powers you believe might be exercisable by the President in an emergency?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS you know, Senator, if you look at article II of the Constitution, it is much different in style than article I. Article I, which specifies the powers of the legislative branch, is quite detailed. Article II is not. It is almost as if it were written by different people. It was not, but it looks that way. It is a text in which you have to isolate phrases in order to pick out what the President's powers are. The President's power is to exercise the executive power; that is the way article II begins; he has the powers of the commander in chief; he has the power of appointment, the power to receive ambassadors, and the duty faithfully to execute the law. Duty has translated to power by the tradition of the office. I am not quite sure how that happened. Youngstown Sheet and Tube tells us, or it begins to discuss, the critical question, whether or not the President is simply the agent of Congress, bound to do its bidding in all instances, or whether or not there is a core of power that lies at the center of the presidential office that the Congress cannot take away. As I understand current doctrine, and the Youngstown case, there is that core of power. The extent to which it can be exercised in defiance of the congressional will is a question of abiding concern, I know, to the Congress and to the judges. My point in those remarks was that these power zones are perhaps best defined as each branch accommodates the other, and expresses deference to the legitimate concerns of the other branch. The history of the development of the presidency has been one of evolution. One suggestion given for the different textual treatment in article II was that the framers knew that Washington would be the president. They trusted him, indicating that the framers thought there would be an evolutionary component to the presidency as it evolved. The extent to which the presidency can be controlled by the courts is not yet clear. We know that in the Youngstown case, where the president seized the steel mills, and in the Nixon tapes case, where the President was ordered to turn the tapes over to the prosecutor, there was immediate compliance by the president with the mandate of the Court. To date, the court's authority to review the acts of the president has not been questioned by the president. Lincoln questioned the authority, because of the necessity of the Civil War. Whether or not the courts are the appropriate body for the reconciliation of all of the disputes between the political branches of the government is a question as to which I have some doubt. In some disputes, it may be unclear there is a case and controversy which the courts can adequately and meaningfully interpret consistent with the case-by-case method.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Have you expressed in your opinions or speeches or statements a position on congressional standing?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO, sir, I have not. It has been an issue that has arisen principally in the District of Columbia circuit. It is an issue on which I have not expressed myself, and have no particular fixed 138 views, other than, as I have indicated, to state that one of the reasons for a case and controversy requirement is to recognize the limitations of the judicial office. When President Truman seized the steel mills, this was an act that took place at a fixed time. It was like a taking under the fifth amendment. It was something that the court could very manageably work with. And they gave an important pronouncement in that case. It is a case that still has puzzles to it, but it is one of the leading cases on presidential power. That was a circumstance that had fixed boundaries, both as to time and to space, and the actions of the participants involved. That is the kind of case that the court can very manageably undertake.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Thank you, Mr. Chairman. My time is up.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. The Senator from Iowa.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. Judge Kennedy, during the committee's consideration of Supreme Court nominees over the past several months, it has been asserted several times by different people that one of the jobs of a judge is to find and create rights which are not in fact mentioned in the Constitution, but which the Judge might deem to be very fundamental. Fundamental in terms of the mind of the judge and the judge's own abstract moral philosophy. Do you see any dangers with such an undefined standard as a foundation for constitutional analysis? In other words, how confident can we be that judges, fallible human beings as they are, will exercise that mighty power appropriately?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not sure how you can be satisfied that a judge will not overstep the Constitutional bounds. What you must do is, number one, examine the judge's record; document his or her qualifications and commitment to constitutional rule. As I think Mr. Justice Jackson said, judges are not there because they are infallible; they are infallible because they are there. I think that comment is somewhat inappropriate. I do not think judges think of themselves as infallible at any point. Certainly the history of the Supreme Court in which the Court has been willing to recognize its errors and to overrule its decisions, indicates that the justices take very conscientiously their duty to interpret the Constitution in the appropriate way.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. If we do not recognize the dangers of judges using undefined standards, aren't we doomed to end up with a small group of unelected, unrepresentative judges making the law in this country?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That, Senator, is one of the great concerns of any scholar of the Constitution. This is not the aristocracy of the robe. Judges are not to make laws; they are to enforce the laws. This is particularly true with reference to the Constitution. The judges must be bound by some neutral, definable, measurable standard in their interpretation of the Constitution.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Kennedy, you stated in an August 1987 speech before the Ninth Circuit Judicial Conference that there are two limitations on judicial power. I hope I interpret the speech correctly. 139 The first limitation is that the Constitution is a written law to which courts are bound when announcing constitutional doctrine. As you know, Judge Kennedy, the Bill of Rights and many later amendments are phrased in broad, spacious terms. If a judge were so inclined, he or she could expand the interpretation, use, and effect of many provisions of the Constitution. And I believe you to be an advocate of judicial restraint. As Chief Justice Marshall emphasized in Marbury v. Madison, judges have a duty to respect constitutional restraints. How do you apply the words of the Constitution to problems that the framers could not have foreseen?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The framers, because they wrote a constitution, I think well understood that it was to apply to exigencies and circumstances and perhaps even crises that they could never foresee. So any theory which is predicated on the intent the framers had what they actually thought about, is just not helpful. Then you can go one step further on the progression and ask, well, should we decide the problem as if the framers had thought about it? But that does not seem to me to be very helpful either. What I do think is that we can follow the intention of the framers in a different sense. They did do something. They made certain public acts. They wrote. They used particular words. They wanted those words to be followed. We can see from history more clearly now, I think, what the framers intended, than if we were sitting back in 1789. I made that discovery when I gave the speech to the Canadian judges. They had just written a constitution 2 or 3 years ago. They knew the draftsmen. And yet, they were, it seemed to me, more at sea as to what it meant than we were in interpreting our own Constitution. We have a great benefit, Senator, in that we have had 200 years of history. History is not irrelevant. History teaches us that the framers had some very specific ideas. As we move further away from the framers, their ideas seem almost more pure, more clarified, more divorced from the partisan politics of their time than before. So a study of the intentions and the purposes and the statements and the ideas of the framers, it seems to me, is a necessary starting point for any constitutional decision.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. IS there any room for a judge to apply his or her own values and beliefs for the purpose of interpreting the text of the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The judge must constantly be on guard against letting his or her biases or prejudices or affections enter into the judicial process.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, what other factors are there which can affect a judge's interpretation of the text of the Constitution? Can these factors be determined and applied without involving the personal bias of the judge?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The whole idea of judicial independence, the whole reason that judges are not accountable to the Congress once they're confirmed, other than for misbehavior, the whole theory is that the judge is impartial; that he will apply a law, or that she 140 will apply a law, that is higher than themselves. It is higher than their own particular predilections.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I do not disagree, but I do not know to what extent you mentioned other factors that can come into play to affect a judge's interpretation of the text of the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. When a judge hears a constitutional case, a judge gets an understanding of the Constitution from many sources: from arguments of counsel; from the nature of the injuries and the claims asserted by the particular person; and from the reading of the precedents of the court, and the writings of those who studied the Constitution. All of these factors are, in essence, voices through which the Constitution is being heard. But the idea is that the Constitution is itself a law. It is a document that must be followed.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU described yourself in a February, 1984 speech before the Sacramento Rotary Club as a "judicial conservative." Does this mean that you are in any way adverse to evolving interpretations of the Constitution that accommodate new technology or current trends in society?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. A conservative recognizes that any State must contain within it the ability to change in order to preserve those values that a conservative deems essential. As applied to a judge, I think that is consistent with the idea that constitutional values are intended to endure from generation to generation and from age to age.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. In that August, 1987 speech before the Ninth Circuit Judicial Conference—which I previously mentioned—you stated that the doctrine of original intent is best conceived of as an objective rather than a "methodology." I would like to have you explain the difference between using the doctrine of original intent as an "objective," and using it as a methodology; and why that is a better practice?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think what I had in mind there was to indicate that the doctrine of original intent is not necessarily helpful as a way to proceed in evaluating a case; but that really it is one of the things that we want to know. The doctrine of original intent does not tell us how to decide a case. Intention, though, is one of the objectives of our inquiry. If we know what the framers intended in the broad sense that I have described, then we have a key to the meaning of the document. I just did not think that original intent was very helpful as a methodology, as a way of proceeding, because it just restates the question.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, when the objective of original intent is not met, do you reevaluate your result and underlying analysis? Or do you accept the result despite not obtaining the objective?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Let me see if I—if you cannot find the original intent, is that your point?
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes, when the objective of original intent is not met.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY, IS not met? 141
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Original intent, broadly conceived as I have described it, is extant in far more cases than we give it credit for. I think that in very many cases, the ideas, the values, the principles, the rules set forth by the framers, are a guide to the decision. And I think they are a guide that is sufficiently sure that the public and the people accept the decisions of the court as being valid for that reason. If there is not some historical link to the ideas of the framers, then the constitutional decision, it seems to me, is in some doubt.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, in your role as a judge—and I do not question your statement that original intent is more often met than we may realize—but if it is not met, do you then at that point reevaluate your result and underlying analysis? Or do you accept the result, despite not attaining the objective?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I do not wish to resist your line of questioning, because I think it is very important; it goes to the judicial method. But I think that in almost all cases there is an intent, at least broadly stated; the question is whether it is narrow enough to decide the particular case. It is, I think, an imperative that a judge who announces a constitutional rule be quite confident, be quite confident, that it has an adequate basis in our system of constitutional rule; and that means an adequate basis in the intention of the Constitution.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Over the past few months, it has been suggested that the broad and spacious terms of the Constitution are best utilized by the courts to relieve the political branches of their responsibility to determine what some might consider to be the attributes of a just society. What is your opinion of the current perception in our society that only the courts, rather than the political branches of government, should address constitutional problems?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I resist that idea as a proper constitutional approach. In my view, it is the duty of the legislative and of the executive to act in a constitutional manner, and to make a constitutional judgment as to the validity of each and every one of their actions. We have a rule in the courts that we presume that a statute is constitutional. If the legislature says, well, it is simply up to the courts, the basis for that presumption is not there. If the legislature does not take the responsibility of making a constitutional determination that its actions are justified, then the presumption of constitutionality should be destroyed. I do not think that would be consistent with our political system.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Kennedy, do you believe that one of the consequences of this deference to the judicial branch that I have just described is the judicial activism the Supreme Court has practiced over the last 20 or 30 years, and that a good way to alleviate this problem would be for the Court to begin practicing a greater degree of judicial restraint?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think judicial restraint is important in any era. It is especially important if the political branches for some 142 reason think that they can delegate or have delegated the power to make constitutional decisions entirely to the courts.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Your answer is yes, then?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge, I am sure that you will agree with me, that there have been many unpopular, and in many cases, even bad laws enacted in the history of our country. However, many of these laws, no matter how unpopular, were, or are, constitutional. What is the court's role when faced with a bad or unpopular law which is nonetheless constitutional?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is very clear. The court's role is to sustain and to enforce that law.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. IS it your judgment, then, that it is the responsibility of the political branches of government to deal with an unpopular law?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Absolutely, Senator. The essence of the democratic process is that the legislature protects citizens against unjust laws, and acts promptly to repeal them.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. DO you think it is within the jurisdiction of the Court to address these laws, or is this an example of what you called, in your July 1986 address to the Canadian Institute for Advanced Legal Studies the "unrestrained exercise of judicial power"?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. If a law is wrong-headed, or a bad, or an ill-conceived law, but is nevertheless constitutional, the court has no choice but to enforce it.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. What exactly is—using your words—the "unrestrained exercise of judicial power"?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The unrestrained exercise of judicial power is to declare laws unconstitutional merely because of a disagreement with their wisdom.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The second limitation of judicial power which you discussed in your August 1987 speech before the Ninth Circuit Judicial Conference is the constitutional requirement of "case or controversy." Correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. However, you suggested that this requirement is not as effective as it once was. Why do you think that this is so? In other words, how did j'ou come to this conclusion?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The underpinning for the doctrine of Marbury v. Madison is that the court pronounces on the Constitution because it has no other choice. It is faced with a case, and it must decide the case one way or the other. It cannot avoid that responsibility, and so the constitutional question is necessarily presented to it. Chief Justice Marshall says that very clearly. He said we do not have the responsibility, or the institutional capability, or the constitutional obligation, to pronounce on the Constitution, except as we must in order to decide a case. Now I had long thought that the case or controversy requirement therefore was an important limit on the court's jurisdiction. The court would not decide cases or issues that should be properly addressed by the political branches in the first instance. But the case or controversy rules are changing. The Court has relaxed rules of standing in some of its own decisions. The Congress has done the same. We have class actions. We have remedial 143 relief. Courts have entered the 20th century in order to make their judgments efficient, which they must do, and their systems efficient, which they must do. All of this has meant that what was once a selection process has now really diminished in its importance and its significance. The courts are more and more confronted with cases that involve the great, current public issues of our time. Therefore, judicial restraint is all the more an imperative.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Could it in any way be said that part of the blame for the ineffectiveness of the "case or controversy" requirement must lie with Congress and its historic deference towards regulating the courts? In other words, should Congress consider removing federal court jurisdiction over certain controversies?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, that is a very delicate question, Senator. The authority of the Congress to reduce the jurisdiction of the federal courts in a particular class of cases presents a very difficult, and, I think, a significant constitutional question. It presents a question that goes perhaps to the verge of the congressional power. Before the Congress would enact such a rule, I would submit that it would have to have the most serious and the most compelling of reasons, and even after that any such attempt would present a serious constitutional issue for the Court itself to decide.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, should the Supreme Court try to find some way to make more effective the "case or controversy" requirement?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Case or controversy is requisite in the Constitution and I agree that the Court should be very, very careful to insure that that requirement is met in every case, and I think it should pay very, very close attention to that.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I was asking my question based upon your statement that in modern times there have been ways of getting around the "case or controversy" requirement; that it is not as effective as it once was. Is there some answer here? I sense that you seem to feel that this is an area in which Congress ought not to operate in, or at least you seem to indicate that it is a very controversial area. I think you have indicated that there is a problem; is there some answer to the problem?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I may also have misinterpreted your earlier question. Congress certainly can relax the rules of standing, or tighten the rules of standing, in order to give more content to the case or controversy rule without
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, of course Congress has had some deference toward regulating the courts to any great extent.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Would it be unfair to say that another reason for the failure of the "case or controversy" requirement is the philosophy of judicial activism which the Court has applied over the last 20 or 30 years? In other words, because the Court has so often extended its holdings to issues not directly presented in the cases before it, do you think litigants and attorneys are more inclined to 144 go to court with attenuated, rather than direct, injuries, expecting relief, nonetheless?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would not quarrel with that characterization. I might be a little bit hard-put to give you a specific example, but there seems to be a thrust in favor of the courts reaching out to decide the issues.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The previous nominee before this committee to fill this vacancy on the Supreme Court was a strong advocate of the belief that rationale was more important than results. He criticized what he called result-oriented jurisprudence in which the rationale was made secondary to the actual result reached. He was admittedly taken to task for his position on this matter, especially before this committee. What is your position regarding this so-called result-oriented jurisprudence, and when, if ever, is it justified?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think if a judge decides a case because he or she is committed to a result, it destroys confidence in the legal system. Senators and Representatives are completely free to vote for a particular bill because it favors labor, or because it favors business. That is the way politics works, and that is your prerogative. To identify such an interest, it seems to me, is very candid. That is improper for a court. The court must base its decision on neutral principles applicable to all parties. That is inconsistent, in my view, with deciding a case because it reaches a particular result. Now we all know that the way we make our judgments in everyday life is to look quickly at a result and act accordingly if the result seems instinctively correct. I think sometimes judges do that initially when they hear a case. They say well, this case is just wrong, or this case is just right. But the point of the judicial method is that after the judge identifies the result, he or she must go back and make sure that that result is reachable because the law requires the result, and not otherwise.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I think I liked the first half of your answer. On the second half, are you in the middle between "results" versus rationale?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I insist that a result is irrelevant. I just have to tell you that many judges have an instinctive feeling for a case, and sometimes you reason backwards. Sometimes you say the case ought to come out this way and you begin to write it, and to prepare an opinion for your colleagues, and it just is not working, and then you know that the result is wrong. That is the nature of the judicial method. That is why we write. We do not write because it is easy to read, or because we think people enjoy reading it. We write because it is a discipline on our own process.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY- Judge, as we become more familiar with you and as we study those opinions that you have written, I sense that you are very adept at addressing the narrow question at hand without expanding into unnecessary discussions of the law. 145 Can you think of any situation where it is appropriate for a Supreme Court Justice to depart from the issue at hand, and announce broad, sweeping constitutional doctrine?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that the constitutional doctrine that is announced should be no broader than necessary to decide the case at hand. I do have to tell you this, Senator, and it was touched on earlier. When the Supreme Court has only 150 cases a year, and it is charged with the responsibility of supervising the lower courts, it has to write with a somewhat broader brush, in order to indicate what its reasons are. This does not mean, however, that it is free to go beyond the facts of the particular case, or that it is free to embellish upon the constitutional standard.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, thank you. Judge Kennedy, thank you.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Judge, we do not have time to get another round in and keep the commitment to get out of here by 6 which I told my colleagues, and we have four Senators who have yet to ask a first round. I do not know how many will have a second. Judge, would you mind coming in at 9:30 tomorrow instead of 10, so we can start a little bit earlier?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Not at all. I am here at the pleasure of the committee, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. Why don't we start at 9:30. We will probably start with Senator Specter at 9:30 and Senator Metzenbaum at 10, unless Senator Metzenbaum is here, and we would alternate. But otherwise, I had told him he would probably start at 10, and I do not know whether he will be able to be back by 9:30. I do not know if he will get the message. So if you are prepared to go at 9:30, or at 10:00, if not 9:30, 10 o'clock would be the time we would start.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. That is fine, Mr. Chairman. I very much appreciate that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And Judge, I appreciate your being so forthcoming today and we look forward to another day, and it is my hope that tomorrow we can finish with your testimony. I know several Senators will have a second round of questions, and we will plan on going from 9:30 until noon, and break for an hour again, and hopefully go until we finish, and then Wednesday morning begin the public witnesses with, if all goes well, with the American Bar Association, Judge Tyler coming before the committee with the recommendation of the ABA. The Senator from South Carolina.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. I just want to say that Judge Kennedy has handled himself in an exemplary manner, and I feel that we stand a chance that we might be able to finish his testimony tomorrow.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The best measure of how exemplary the manner is, is every Senator who has spoken so far has indicated they do not fully agree with you. You have a lot going for you.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, Senator. 146
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Seriously, Judge, I appreciate you being so forthcoming. The hearing will recess until tomorrow at 9:30. [Whereupon, at 5:40 p.m., the committee adjourned, subject to the call of the Chair.] The CHAIRMAN. What I would like to know before we begin, Mr. Kennedy, is: Did Senator Metzenbaum tell you about the candy barrel in his office?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. The candy is very good.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We are delighted to have you back, Judge. In this town, as you know, there are instant reviews and instant analyses, and I observed last night and this morning what I observed when you were here: that everyone thinks you did well. I want to admit I share that opinion.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Notwithstanding the Wall Street Journal's editorials. Senator Metzenbaum is next to speak, but he has been gracious enough to accommodate Senator Specter's schedule. He has a meeting at the White House at 10:30. So what we will do, once again
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. If the Chair would yield for a question?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I would be delighted to.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. The news reports within the last hour have indicated that one of the former contenders for the Democratic nomination is about to re-enter the race and has called a press conference for today at noon. Do you have any plans to call a press conference for tomorrow at noon?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, but
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We just want to be able to schedule, Mr. Chairman. That is all it is.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It will be today at 3. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, could I ask a serious question?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU mean that is not serious? [Laughter.] -147 90-87 8 0-89- 6 148
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NO, I was very serious, but you have already answered 3 o'clock. I will go to the gym during that time. No, actually, I would be at the press conference, Mr. Chairman. Senator Specter is going to go next, then Senator Metzenbaum. Just so that I can plan, I am perfectly free, whatever you want to do, would I then be after Senator Metzenbaum on questioning?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The answer is yes, you would.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That would put us back into the sequence.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, you would. I hope that Senator Humphrey is listening—I do not mean that facetiously—so we do not get into a discussion about two Democrats in a row, et cetera. What we will do, the order will be as follows: The Senator from Pennsylvania, the Senator from Ohio, the Senator from Vermont, the Senator from New Hampshire, the Senator from Alabama—no, you already asked questions, as a matter of fact, yesterday, if I am not mistaken—the Senator from Illinois, who will be at the Hart press conference, and then back to me and to the ranking member. With that, are you not really fascinated by all this, Judge?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is more interesting than some of my sessions, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will now begin with the Senator from Pennsylvania who will question for his first round for half an hour.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman, and I thank my colleague, Senator Metzenbaum, for yielding at this time. Judge Kennedy, as already indicated, I am going to have to depart after my round. We have a meeting on the Strategic Defense Initiative and the INF treaty. We will be following through staff and listening on the radio as I drive away.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator. I certainly understand.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Kennedy, I would like to begin with exploring the legal theories that run through your writings and through your decisions: original intent, interpretivism, legal realism, result-oriented—all subjects which you have addressed and matters which have been referred to, to some extent, in yesterday's session. I start with a comment which you made this year at the Ninth Circuit Conference where you say, "There must be some demonstrated historical link between the rule being advanced in the court and the announced declarations and language of the framers." In a speech which you made in 1978 to the judges of the ninth circuit, you have identified three cases—Brown v. Board of Education, Baker v. Carr, Gideon v. Wainwright—where you noted and reminded the audience that it was not the political branches which decided those cases. And in the context of Baker v. Can; you referred to the fact that the court has wrought the revolution of Baker v. Carr. You had picked out these three cases as being distinctive matters of judicial interpretation. I would like to begin with Brown v. Board of Education, the desegregation case. In examining the issue of framers' intent, I refer to the treatise by Raoul Berger, a noted constitutional authority, who set the factual circumstances at the time the Equal Protection Clause of the 14th amendment was adopted in this context. And at page 118 in Professor Berger's book, "Government By Judiciary," he points out 149 that Congressman Wilson, the sponsor in the House of the 14th amendment, stated, "Civil rights do not mean that all citizens shall sit on juries or that their children shall attend the same schools." Later at page 123, Professor Berger goes on to point out that at the time the 14th amendment was adopted, eight Northern States provided for separate segregated schools; five States outside the Old Confederacy, either directly or by implication, excluded black children entirely from their public schools; and that Congress had permitted segregated schools in the District of Columbia from 1864 onward. Then Professor Berger notes, at page 125, that even the Senate gallery itself was segregated at that time. Now, my question is: Is it ever appropriate for the Supreme Court of the United States to decide a case at variance with the framers' intent?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, in answering that question, let me say that implicit in your introduction was the proposition that it was not the framers' intent to forbid segregation in schools, and 1 think Professor Burger has 180 degrees the wrong slant on that point. He defines intent ii a. v«ry narrow way. He defines intent to mean what the framers, as he AU them, actually thought. I think that is irrelevant. What is important are the public acts that accompr nj> d the ratification of, in this case, the 14th amendment. Reme^nber that the framers are not the sole repository from which we discover the necessary intention and the necessary purpose. In the legislature we do not ask what the staff person thought when he or she wrote the bill, we ask what the Senators thought. And so with the Constitution. It is what the legislatures thought they were doing and intended and said when they ratified these amendments. The whole lesson of our constitutional experience has been that a people can rise above its own injustice, that a people can rise above the inequities that prevail at a particular time. The framers of the Constitution originally, in 1789, knew that they did not live in a perfect society, but they promulgated the Constitution anyway. They were willing to be bound by its consequences. In my view, the 14th amendment was intended to eliminate discrimination in public facilities on the day that it was passed because that is the necessary meaning of the actions that were taken and of the announcements that were made. You can read the abolitionist writings that were the precursor to so much of the 14th amendment. So, that, as Professor Berger states, the framers did not have it in mind at the time or that they knew they had a segregated school system, is irrelevant.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Kennedy
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. SO with that preface, we then come to the next part of your question: Can the court ever decide a case contrary to intent? I just wanted to make it clear that I somewhat disagree with the thesis that you interjected at the outset because I think Brown v. Board of Education was right when it was decided, and I think it would have been right if it had been decided 80 years before. I think Plessy v. Ferguson was wrong on the day it was decided. 150
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Kennedy, I quite agree with you that Plessy was wrong and Brown was right, and I am very pleased to hear you say that people can rise above their own injustices, and that a society can rise above its own inequities. Those are very sound principles, and I am pleased to hear you say that. But I do not square the statement you made at the Judicial Conference, referring to framers' intent, with the statement you just made, "What the framers actually thought was irrelevant." You have made a statement about ratifiers, legislators, and I agree that when you have a constitutional amendment, you have the framers who adopt it in Congress and then you have ratification by the state legislatures. But if you take a look at the states which ratified the 14th amendment, you will find that they were the States where the factual situations outlined by Professor Berger were in existence. I do not quote Professor Berger for any philosophical approach or any theory or any conclusion. I quote Raoul Berger for the factual basis. And I could quote many other sources. He just has it neatly pigeonholed in terms of putting in one place the fact that segregation, segregated schools were a fact of life—in the District of Columbia, in Southern States, in Northern States. Segregation was a fact in the Senate chamber. The principal sponsor of the 14th amendment said it was not intended to have integrated schools, that segregation was the order of the day. And in the statement you made at the Judicial Conference, you talk about framers; you do not talk about ratifiers. "There must be some demonstrated historical link between the rule being advanced in the court and the announced declarations and language of the framers." So I do not quite understand your statement today, "What the framers thought was irrelevant." Could you expand upon that a bit?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, number one, I not only should expand on it, I should probably correct it. It is highly relevant what the framers thought. But the general inquiry, the principal inquiry, should be on the official purpose, the official intent as disclosed by the amendment. In looking at legislative history to determine the meaning of Congress, we sometimes find statements made on the floor of the Senate or the floor of the House that seem almost at variance with the purpose of the legislation when viewed overall as an institutional matter. I am applying that same rule here. With reference to framers, I and many others use "framers" in a rather loose sense. I think obviously we want to know what Madison and Hamilton thought, and the other draftsmen of the Constitution. But theirs is not the entire body of contemporary opinion and contemporary expression that we look to. In my view, for instance, the abolitionist writings are critical to an understanding of the 14th amendment. It was in response to their concerns that that amendment was enacted.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Kennedy, when you say that the principal inquiry should be directed to the official purpose, who is going to determine the official purpose? In the case of Brown v. Board in 1954, the Supreme Court of the United States declared that as a matter of basic justice and equal protection of the law, as 151 we understood that concept, it was patently unfair to have black children go to segregated schools.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But if you contrast that with what the intent was of the framers, ratifiers of the 14th amendment, the cold facts are that their intent was very different. That leads me to a conclusion that the real judicial philosophy comes through when you say that people can rise above their own injustices, rise above their inequities, but really look to an intent of justice and an official meaning of equal protection as it is viewed in 1954, as opposed to the way it is viewed in 1868, when the 14th amendment is ratified; and there are segregated schools and a segregated Senate gallery. And the operative intent of the Congressman who passed the amendment and the legislators who ratified it were to be satisfied and really expect segregation.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am not saying that the official purpose, the announced intention, the fundamental theory of the amendment as adopted will in all cases be the sole determinant. But I think I am indicating that it has far more force and far more validity and far more breadth than simply what someone thought they were doing at the time. I just do not think that the 14th amendment was designed to freeze into society all of the inequities that then existed. I simply cannot believe it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I agree with that. But to come to that conclusion, you have to disregard what is a pretty obvious inference of intent of the framers or ratifiers because they lived in a segregated society.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is true, and I think maybe many Senators felt at the time they passed the Civil Rights Act of 1964 that they lived in a society that did not comply in all respects with what the statute required them to do. They were willing to make a statement that society should be changed. The Constitution is the preeminent example of our people making such a statement.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But the legislature's role is clearly established under our principles of government. The contest comes up as to whether the court has any business handing down a decision like Brown v. Board if the court is supposed to look only to framers' intent. And I think the court did have business doing that. But if you contrast that with the Civil Rights Act of 1964, everyone would say, well, that is up to the Congress; that is up to the elected officials; contrasted with the judges who have life tenure who should not make political decisions. And if you have a shifting meaning of equal protection—and I think you do, and I think that is the realism—then it seems to me that that is realistically an abandonment of a rigid nexus to the intent of the framers and ratifiers in 1868.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I do not want to put us in a deeper trench, because I think there is an element of agreement between us. But I must insist that the intention of the 14th amendment is much more broad than you seem to state in the predicate for all of your questions.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, where do you find the intention in the Equal Protection Clause of the 14th amendment more broadly stated than the fact of segregation, which was, in practice, obviously in the minds of the framers and ratifiers? 152
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It was very clear to me that the purpose of the 14th amendment was to effect racial equality in public facilities in this country.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But what did that mean?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It was very clear from the abolitionist writings; it was very clear from some of the statements on the floor; and it is abundantly clear from the text of the language, which admits of no exception, in my view. I think the framers were willing to be bound by the consequences of their words. And their words are sweeping, and their words are very important and they have great power.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Are you saying that there is something in the legislative history of the Equal Protection Clause of the 14th amendment which specifies that schools should be desegregated?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. Those who addressed the amendment specified their purpose in much broader, much more general terms. I think that they were willing to be bound by the consequences of what they did and the consequences of what they wrote. And I think Plessy v. Ferguson was wrong the day it was decided on that basis.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I agree with you about that, and I agree with you about Brown v. Board being correctly decided. But I do not
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. But that cannot be because society changed between 1878 and 1896.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I was not around in 1896 when Plessy was decided, and neither were you. So our perspectives are very different. But the perspectives of the framers, I think, were clearly established by the facts of life. I do not see how you can take a broad principle and say that there was framers' intent or ratifiers' intent to have equal protection, which is specified in desegregation, when the schools were all segregated and the Senate gallery was segregated and the principal sponsor, Congressman Wilson, said it was not their intent to have desegregated schools. It seems to me that the conclusion is conclusive that it is just Judge Kennedy and Arlen Specter viewing it in a different era with different eyes, and the inequities appear differently. As you say, people can rise above their own injustices and above their inequities. And it is a different interpretation, and it does not really turn on what the framers necessarily had in mind.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I agreed with you until your last statement, because I think what the framers had in mind was to rise above their own injustices. It would serve no purpose to have a Constitution which simply enacted the status quo.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, let me move on to another category, the
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And, incidentally, we should note for the record that Mr. Justice Harlan was there in 1896, and he dissented in Plessy. Plessy was not a unanimous decision. The first Mr. Justice Harlan.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, he was correct, but it was a decisive minority view, unfortunately. Only one out of nine saw it, contrasted with Brown v. Board where all nine saw it. In our society, it is hard to understand how anybody ever saw it differently or why it 153 took the political branches—the Congress or the executive branch—so long to catch up. That is the point you make in your speech, pointing to the courts and not to the political branches. That underscores what I consider to be a very basic point that at times, notwithstanding the valid principle of judicial restraint, and notwithstanding the fact that it is up to the Congress and the political branches to establish public policy, public policy of change, that the inequities can be so blatant that the court must step in, as it did in Brown v. Board, and say that equal protection simply mandates desegregation, which is, of course, what happened.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, you know, it sometimes takes humans generations to become aware of the moral consequences, or the immoral consequences, of their own conduct. That does not mean that moral principles have not remained the same.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I believe that these are very important considerations on judicial philosophy, Judge Kennedy, because judges everywhere are applying them—not only in the Supreme Court, but in courts of appeals and in District courts and in State courts. And people are listening to what Judge Kennedy has to say about these subjects, perhaps even to what some of the Senators have to say about the subjects. There is a real battle on interpretivism and legal realism, and to look for some conclusive nexus between framers' intent and the decision in a specific case is very, very difficult, and in my own view in Brown was impossible. But we have explored it at some length. I would like to move on, if I may now
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Certainly, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER [continuing]. To the subject of neutral principles. Here, again, we are on a subject which has been very extensively applied. And judges are always looking to neutral principles, and the hard thing is to make a decision about what a neutral principle is. You say, or said, in a speech to the Sacramento chapter of the Rotary Club just a few months ago, October 15th of this year, that Closely related to the inquiry over the legitimacy of constitutional interpretation is the dangers that courts might be thought of as exercising policy review and not applying neutral judicial principles. And you pick up on that same theme in your response to the Judiciary Committee's questionnaire, when you say that "Judges must strive to discover and define neutral juridical categories." In a speech you gave to the Stanford law faculty on May 17, 1984, you refer to Dean Ely, and you say, "He might make the argument that we prove his point that interpretivism is more hollow than real, because obviously the framers could not and did not foresee a sprawling administrative state." And my question to you, Judge Kennedy, is: Considering, as you have said in this speech, that there are some circumstances which the framers could not have contemplated, obviously—such as the sprawling administrative state—just how far can you go on the principle of interpretivism as a fixed and resolute ideology for application by the courts?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. All right. You are talking about quite a few things here. 154 Let me say at the outset that it is somewhat difficult for me to offer myself as someone with a complete cosmology of the Constitution. I do not have an over-arching theory, a unitary theory of interpretation. I am searching, as I think many judges are, for the correct balance in constitutional interpretation. So many of the things we are discussing here are, for me, in the nature of exploration and not the enunciation of some fixed or immutable ideas. Once again, we must be very careful to note that when we speak of intent we speak on many different levels. The fact that the framers never thought of an ICC is not entirely relevant. The question is whether or not an administrative agency can and does fit within the principles that the framers announced for separation of powers. Now, the position of administrative agencies in a system in which the Constitution mandates the separation of powers—legislative, executive, and judicial—has not been clearly established in the case law. Much work needs to be done there. It seems to me that the Government of the United States could have hardly survived without those agencies, and that may itself be a strong argument for the fact that they are legitimate, given what the framers promulgated. But that whole area of the law, as Professor Bator, I think, has described it, is a very unruly one. And I think, the courts have not really come to grips with how to explain the position of an administrative agency, that is, whether or not it is an appropriate exercise of article I power. Did I answer the question?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Yes, I think you did early on. I am pleased to hear you say that you have no cosmology of constitutional theory, no over-arching principles, and I think that is a very important basic concept. When you take up the ideologies of original intent or you take up the ideologies of interpretivism and neutral principles, there is a tendency, as I see it, for the Supreme Court, for the federal courts or any courts to become musclebound and unduly restrictive. There are many cases that we could take up. I wanted to discuss with you at some length Baker v. Carr, where you have noted in your own writings that there is no established philosophy. And you characterized Baker v. Carr, one-man, one-vote, as the wroughting of a revolution. In some of our hearings, we have become entangled in very rigid ideological philosophies of the court. And I repeat, I am pleased to hear you say that you are looking for a balance as opposed to immutable philosophies, to give you the answer in every case, even though you may not be able to find original intent or even though you may not be able to find a neutral principle of interpretivism. I have got about 4 minutes left, Judge Kennedy, or 3. The time really flies. I want to come to a central issue about the administration of justice and due injustice, and I intend to return to this in another round. I have made reference in my opening to a very provocative comment, very interesting comment, very constructive comment which you made in your speech to the Canadian Institute in 1986 where you say, "A helpful distinction is whether we are talking about essential rights in a just system or essential rights in our 155 constitutional system. Let me propose that the two are not coextensive." Now yesterday, when Chairman Biden was asking you questions, you adopted the principles of the second Justice Harlan, and if I had time I would go through Cardozo and Palco and fundamental values and Frankfurter. We may have time later to come to that. But when we talk about doing justice and we talk about people rising above their own inequities and above their own injustice, why should it not be that the essential rights in our constitutional system should not be coextensive with the essential rights in a just system? Or stated differently, should not essential constitutional rights be implemented to see to it that essential rights in a just system are recognized, that the two are coextensive?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I think the American people would be very surprised if a judge announced that the Constitution enabled a judge to issue any decree necessary to achieve a just society. The Constitution simply is not written that way. And I think it is an exercise in fair disclosure to the American people, and to the political representatives of the Government, to make it very clear that the duty to provide a just society is not one that can be undertaken solely by the judiciary. I indicated yesterday there is no truly just or truly effective constitutional system in the very broad sense of that term—constitutional with a small "c"—if there is hunger, if there are inadequate educational opportunities, if there is poor housing. It is not clear to me that the Constitution addresses those matters.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. My time is up. I will return later. Thank you very much, Judge Kennedy. Thank you, Mr. Chairman. Thank you, Senator Metzenbaum.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, we will turn to Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Kennedy, in the Aranda v. Van Sickle case, you joined a decision which held that the constitutional voting rights of Mexican-Americans were not violated by the election system of the city of San Fernando, California. That was a case where Mexican-Americans claimed that they had been denied their voting rights by the city, and that they had been denied equal access to the political process. Some Hispanic groups, it is only fair to say, find that decision very troubling. They say that you ignored a lot of evidence which showed that the political process was not equally open to participation by Mexican-Americans, and that Mexican-Americans had less opportunities than other residents to participate in the political process and elect legislators of their choice. For example, the evidence showed that up until 1972, two-thirds of the polling places had been located in the homes of whites, and that the private homes which were used were invariably not Spanish-surnamed households, and they were not located in an area of the city where Mexican-Americans lived. In your opinion, you said, "There is no substantial evidence in the record indicating that location of polling places has made it systematically more difficult for the Mexican-Americans to vote, causing Mexican-Americans who otherwise would have voted to forego voting." 156 I guess in this connection I might quote a Supreme Court Justice, when referring to obscenity, who said. "I know it when I see it." And I sort of feel the same thing about this kind of situation. Is it not sort of common sense, or does it not sort of speak for itself, that when you locate polling places in white homes and in a MexicanAmerican area that you are going to bring about the results—I think the results were that only 28 percent of the Mexican-Americans were voting, although they made up about 48 percent of the population. I just was wondering how you came to the conclusion you did in that case.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am pleased to talk with you about that case, Senator. I found it a very troubling case and still do. You began by saying that in that case I found that the constitutional rights of the Hispanic community to vote were not violated.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Would you mind pulling the mike a little bit around? Thank you.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. YOU began by saying that in that case I found the constitutional right to vote of Hispanics in the community were not violated. That was precisely what I was concerned about. It was precisely what I did not find. It is precisely why I wrote a separate opinion. In this case, the plaintiffs, who were residents of the city of San Fernando in Southern California, brought a challenge to the atlarge system of voting, and they asked for the remedy of a federal court decree to require district voting—the purpose being so that Hispanics could have representation in the city government. Although I forget the facts of the case, I will assume that there were neighborhoods which were largely Hispanic. I think that is probably implicit in the facts of the case. So they would have achieved that had that remedy been granted. The lower court found the evidence insufficient to state a cause of action and granted summary judgment. My two colleagues on the court agreed. I felt that there was something wrong in that case. So I undertook to write a separate opinion to express my concerns. I went through the evidence and brought out the fact that voting booths were located in non-Hispanic neighborhoods, that there had been no representation on city commissions and boards, et cetera. I indicated that these facts might very well support an action for relief in the federal courts. In that case, however—and you are never sure why lawyers and litigants frame the cases the way they do—the insistence by the plaintiffs was that they wanted only the one remedy of a district election scheme rather than an at-large election scheme. That is the only remedy they sought. This is one of the most powerful, one of the most sweeping, one of the most far-reaching kinds of remedies that the federal court can impose on a local system. And in our view, or in my view as expressed in the concurrence, that remedy far exceeded the specific wrongs that had been alleged. I concluded that the remedy sought did not match the violation established. But I made it very clear— and that was the point of my opinion in what I still consider trou- 157 bling and a very close case—I had a serious concern that individual rights violations had been established in the record. What was the outcome of that case, whether a subsequent suit was brought based on my concurring opinion, I do not know. My concurring opinion is a textbook for an amended complaint, or a textbook for a new action. I tried to indicate my concerns and my sensitivities in that case rather than simply joining in the majority opinion, which I thought did not adequately address some very real violations.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you make it clear, in your opinion, that if the remedy sought had been a different one, that based upon the same facts, and I think the facts also were that all of the election process was in English and it made it that much more difficult for people to vote, but had the remedy sought been a different one, that you very well might have arrived at a different conclusion? Or is that your comment here today?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I thought that that was implicit if not explicit in my opinion. I was writing a concurring opinion. I did not have the second vote, so I could not order—I could not frame the judgment in the case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Just on this point, why did you not let it go to the jury? You affirmed a summary judgment.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Or to the finder of fact.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Or to the finder of fact. Since 3'ou were troubled by it, and there were the egregious circumstances of polling booths being in white homes, that decision is made by the local ordinance, by the local election officials, if you were troubled by it, why not then let it go to the next stage and let a finding of fact b^ permitted?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, remember, number one, I just don't have the judgment. But so far as my own separate concurring opinion, why didn't I recommend that, I guess would be your question.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Yes. And you might at the same time answer this: why could you not have indicated in your decision what the proper remedy should be? Even though the plaintiffs sought a certain kind of remedy, couldn't you have come to the conclusion in your opinion that another kind of remedy was appropriate? Perhaps the court is not required to deny all relief merely because the petitioner comes in asking for one kind of remedy. Shouldn't the court be able to come up with another remedy in this case?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is a fair question, and I am not sure I have an adequate answer in my own memory—now. As I recall the case, we explored the case with counsel extensively at oral argument. And counsel said, "This is a case in which all we are seeking is an abolition of at-large elections. That is all this case is about." And that was my concern. Why clients and attorneys present cases in this way is beyond me. It was very clear to me, based on my understanding of the record, that any Hispanic resident could bring an action to change the places of the polling booths and to rectify the other injustices that were there in the system. 158 Now, under the—well, I'm not an expert in the amendments to the Voting Rights Act of 1980, I haven't had cases on those. At this time, we were operating under the assumption that the remedy had to fit the wrong, and that was the argument that I had with the attorneys in the case. But I wanted to make it very clear in the concurring opinion that I was concerned with the treatment that the court was giving to these litigants, and I wanted to put on the record that I thought there was some evidence of discrimination. And I guess, Senator Kennedy, the answer to your question of why didn't it go to the finder of fact, is because the attorneys insisted that this was all the suit was about, at-large versus district elections. I just did not see that as a plausible remedy, as a permissible remedy, given the violations they had established.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I don't think we need to debate it further. But suffice it to say, if I were a Mexican-American, I think there would be a keen sense of disappointment that you did not take that extra step so that the summary judgment would not have precluded a different kind of remedy. And as you have already said, maybe you could have or should have indicated something to that effect.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it brings up the troubling point that I have not resolved, Senator: To what extent can courts try lawsuits for the litigants. In this case, as I recall, these were extremely experienced, capable attorneys.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge, I want to make a distinction on that point.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And for me to say, well, now, you have done this the wrong way, you go back, when they insisted they did not want to do that, it seems to me is perhaps overstepping.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU are saying that the court cannot try the case for the litigants' attorney. But I do not think it was a matter of trying the case in a different manner. I think it was a matter of providing a different solution, a different conclusion, than the summary judgment. The evidentiary material was already in the record. It was sufficient. There were Mexican-Americans, 48 percent; 28 percent only voting. Voting booths were in the white homes. All of the election process was in English. So the facts were there. And so I do not think it is a matter of saying that the court had to tell the lawyers how to try the case differently. I think what you're really saying is whether the court should come up with a different kind of result or different kind of remedy than that which is being sought by the litigants.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, but it is not clear to me that the court should, if the litigants insist that this is all they are asking for.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I understand your point.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And the whole point of the decision was that I did not want Hispanics to think that I did not think there were some serious problems down there in San Fernando.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me go on to another issue. Let us look at your 1985 opinion in AFSCME v. State of Washington where you reversed a lower court finding that the State had 159 violated the civil rights law by paying women substantially less than men for comparable work. Until the early 1970s, the State of Washington ran segregated male-only and female-only help wanted ads. In 1974, following a comprehensive job pay study, the State concluded that women overall were paid about 20 percent less than men in jobs of comparable value, and in certain jobs, were paid as much as 135 percent less. These differences were not related to education or skills. They were related only to sex. After the State study, then Governor, now Senator, Evans, conceded there was an inequity, and said the State had an obligation to remove it. Despite its knowledge of the inequity, the State did not correct it. The district court held that the State's knowing, quote, "deliberate perpetuation," end of quote, of a discriminatory pay system, combined with the State's admission of the discrimination, and its past segregated job ads, supported a finding of unlawful discrimination under title VII of the civil rights law. Now, in reaching that conclusion, the court was guided by the Supreme Court's 1981 Gunther decision, which said that Congress wanted title VII's prohibition of discriminatory job practices to be, quote, "broadly inclusive, to strike at the entire spectrum of disparate treatment of men and women resulting from their sex stereotypes," end of quote. The district court's findings obviously raise very serious questions as to the state's discriminatory practices toward women. I have difficult in understanding your complete rejection of the court's conclusion on these facts. And I wonder if you would care to address yourself to it because it is a decision that frankly has many in this country very worried.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would be glad to address it, Senator. We must at the outset distinguish between equal pay and comparable pay. The Congress of the United States has a statute which says that women and men in the same positions are to be given the same pay. That is not what this case was about. That law is clear; that policy is clear; that obligation is clear; and the courts enforce that. That is not what this case was. What this case was about was a theory that women should be paid the same as men for different jobs. The theory of the case was that the State of Washington was under an obligation to adopt this differential pay scale or a compensatory pay scale, because it had notice of the fact that there were pay disparities based on long classifications and stereotypes of women in particular jobs. I understand that. You do not have to be married to a school teacher for very long to figure out that the reasons educators are not paid enough in this country is because for hundreds of years the education system has been borne on the backs of women. They have borne the brunt of it. And I think you can make a pretty clear inference that the reason for those low pay scales is because women have dominated that profession. I think that is very unfortunate. 160 On the other hand, it is something of a leap to say that every school district in the country is in violation of title VII because it does not adopt a system whereby you find comparable worth and lower the salaries of drivers of equipment which, say, are male dominated jobs—let's assume they are—and raise the salaries of women. That may be a commendable result but, number one, we did not see in title VII that Congress had mandated that result, or in the Equal Pay Act. We looked very carefully at the legislative history. Second, we did not see, in the evidence presented to us, that the State of Washington had intentionally discriminated by continuing to use the market system in effect. The State of Washington was subject to a judgment for $800 million, which I take it is a large amount of money, perhaps even in Washington, DC, on the theory that their failing to depart from the market system and from market forces was an actionable violation. Now, the Governor recognized—I forget if it was the Governor or the legislature or both—that in their view, the State as an affirmative matter should undertake this correction. We did not think, however, that there was a shred of evidence to show that the State had deliberately maintained that pay scale difference in order to discriminate against women. It is true that the State had in the past advertised for some job categories as male only. And the State had corrected that. Once again, I guess we are talking about the difference between the wrong and the remedy.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not sure we are in this case, because the Supreme Court in the Gunther case laid down the rule that title VII's ban on discriminatory job practices should be liberally interpreted and strictly enforced. Now, what concerns me is whether you applied title VII too narrowly. You seem to hold that to prove discriminatory treatment, it would be necessary to show that the employer harbored a—this is your word—"discriminatory animus," end of quote, or a discriminatory motive. But the district court had already found that the State of Washington knew for several years that it was perpetuating a discriminatory pay system. Didn't you go too far in immunizing an employer from title VII liability? Should not an employer who has knowingly and deliberately perpetuated a discriminatory wage system be legally liable for engaging in unlawful employment discrimination?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. We held not. We held that under that formula—it appeared to me, it appears to me, that under that formula, every employer in the United States is charged with an intentional discrimination because it follows the market system even though it did not create that market system.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But it seems to me the case is very similar to Gunther. Gunther went beyond equal pay for equal work. Gunther said that a case could be brought where the court was not required to make subjective assessments of job worth. The State did its own study in this case, and therefore there was no requirement in the AFSCME case that the court make a subject judgment. 161 There was the finding by the State. The State had done the work. The facts were there. Gunther had recognized that it appeared to be enough. The appellate court, with you writing the opinion, reversed that and undermined the rights of the women established in the Gunther case. And frankly, it is a kind of a case that causes great concern, and my guess is, we will hear some testimony, some witnesses, on the subject. Women are saying they are concerned about whether you went too far to reverse the lower court in this case, and went beyond the requirements of the Supreme Court as enunciated in Gunther.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am absolutely committed to enforcing congressional policy to eliminate barriers that discriminate against women, particularly in employment or in the market place or in any other area where it is presented to me. We do not have a free society when those barriers exist. We do not have a free society if women cannot command pay that is calculated without reference to the fact that they are of a particular sex. But it is simply not clear to me at all that the State of Washington, because it undertakes a survey and discovers what is intuitive for many people, that some job classifications are dominated by women and that they are paid less, can be held to be a violator for not correcting that. I think the State should be commended for undertaking the study. If the holding were that any employer who undertakes a study of comparable worth is liable for failing to correct the inequity—I simply don't think that the Congress has let the courts go that far. If the Congress wants to enact that, I will enforce it. If the Congress has not enacted it, I cannot as a judge invent it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But the lower court found the law and the evidence adequate. Gunther seemed to say that much evidence was sufficient. And what is of concern to this Senator, as well as to many women, is that you then saw fit to reverse. But let us not belabor that point.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it is an important case, Senator, and I do not mind talking about it. A couple of final points. First, my understanding is that every other court in the country that has looked at the issue has reached the same result. Second, we indicated that in a case where you can establish that the wage scales were set because women were dominant in the pay group, there could be an actionable violation, of course. We made that very clear. We did not find it on this evidence.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Howard, would you yield to me for a comment on my time? It will take less than a minute.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. If the Chair permits it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If there is no objection from anyone else.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I just want to point out that in the Gunther case the court specifically noted that it was not deciding the case on the basis of comparable worth. It was simply ruling on a discriminatory method of evaluation. 162 In this case, you didn't have the same set of circumstance. And one last thing, this was a three judge decision, right?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. HOW was it decided?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It was unanimous.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Okay. That is all.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And you wrote the opinion?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And I am not going to get into a debate with my colleague on it, because I want to go further. I want to ask you about a labor law case called Kaiser Engineers. As you know, that case involved the question whether employees who petition their Congresspersons on a matter of public policy that affects their job security are engaging in protected activity under the National Labor Relations Act. The ninth circuit held that it was unlawful to discharge employees who wrote to their Congressman regarding a proposed change in immigration policy that they felt threatened their jobs. You wrote a dissent from the ninth circuit majority opinion. Two years later, the Supreme Court in the Estek case squarely rejected your position. Justice Powell, writing for seven members of the court, concluded that employees are protected when they seek to improve terms or conditions of employment through channels outside the immediate employer-employee relationship. The court specifically mentioned appeals to legislators, and cited the Kaiser majority decision with approval. In light of the Supreme Court's decision in Estek, have you reevaluated your position? And do you feel that perhaps the conclusion you reached in the Kaiser was wrong?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am fully satisfied with the decision of the Supreme Court. I should note that in Kaiser the implication of the employees was that the employer was supporting their policy position. And the employer's decision to discharge was based on a theory that the engineers had misrepresented the employer's position. But as for the rule that the Supreme Court has announced, I have absolutely no trouble with. And I think it is a good rule.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I must tell you, Judge, that I am troubled by the pattern of your opinions in the area of labor law. In addition to the Estek case, there are two instances in which the Supreme Court granted review of ninth circuit decisions involving labor law questions. In both cases, you wrote, or joined the opinion. In both decisions involving labor law questions. In both cases, you argued for a restrictive interpretation of employee or union bargaining rights. In both cases, the court rejected your position by a vote of 9 to 0. I refer here to the 1982 case called Woelke v. Romero, and the 1986 case called Financial Institution Employees of America. But the Supreme Court cases really only tell part of the story. In your 12 years on the bench, you have participated in more than 50 decisions reviewing orders issued by the NLRB. 163 It is my understanding that although you have voted to reverse board rulings against the employer approximately a third of the time, you have never voted to overrule the NLRB when it has ruled in favor of the employer. It seems to me that your judicial writings reflect a disturbing lack of concern for the bargaining rights of employees. I hope that I am wrong. Can you suggest some other interpretation of this record? Or can you tell us where or when in your opinions or other writings you have evidenced a commitment to employee rights in the collective bargaining context?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is very clear to me that the unions of this country are entitled to full and generous enforcement of the national labor relations laws that protect their activities. The box score here I am not quite familiar with. It is a fundamental matter of national policy that workers are protected in their right to organize, and in their right to collective bargaining. And in my view, I have fully and faithfully interpreted the law in that regard. I have great admiration for working people. I worked through all kinds of jobs when I was working my way through school. Since I was 14 or 15 years old I had jobs with manual laborers. I learned that they had a great deal of wisdom and a great deal of compassion, and that their rights should be protected by bargaining agents.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Just in conclusion, I do not think the question really is, are some of your decisions right or wrong, but I think the issue is whether your consistent support for the employer position on important, unresolved matters of statutory interpretation is indicative of a predisposition in the area of labor law. I do not know. If you are confirmed maybe my questions today will cause you to reflect a bit on this very issue. Thank you, Judge.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS preordered, we will now go to the Senator from Vermont, and then the Senator from New Hampshire.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. Judge Kennedy, welcome back.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. TO you and your family. I always like to get a chance to get my family to sit still this long to listen to me, and I say that only semi-facetiously, because they have had to sit through and listen to too many speeches during campaigns and everything, and do it dutifully. But I think this is such an extraordinary circumstance, as it should be in your life, that I hope it has been something of interest to your family. Certainly we have never seen anybody sit here more attentively than they have.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, I mentioned to you when we met privately that I was impressed with your comments at the White House in which you said that not only did you look forward with eagerness to these hearings, but, and I am paraphrasing now, that they very definitely were not only an integral part of our constitutional 164 makeup, but a very important one, and one that should be done thoroughly and completely. Do you still feel that way, I hope?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Certainly, Senator, I do.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I want to ask you questions in three different areas, primarily. One is in the privacy area; one is in the criminal law area—I spent about a third of my adult life as a prosecutor, so I have an interest there, and you have written a number of cases there; and then lastly in the first amendment area Normally, in these things, I take first amendment first, but a number of your comments to me privately, a number of decisions you have made in the past, give me a lot more comfort in those areas than a number of other nominees have. To begin in the area of privacy, I wonder if I might just follow up on a couple of questions. Senator Biden asked you a number of questions in this area yesterday. In response to one, you said that you think, "most Americans, most lawyers, most judges, believe that liberty includes protection of a value we call privacy." You did not state your own view at that point. But slightly later you said that you had no fixed view on the right of privacy. Senator DeConcini followed up on that. And in response to a question from him, you said that you had no doubt about the existence of a right to privacy, although you prefer to think of it as a value of privacy. Is this a semantic difference? Or is there a difference between right and value? And if there is a difference, what is your view?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I pointed out at one time in yesterday's hearings that I am not sure whether it is a semantic quibble or not. I think that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage. It seems to me that sometimes by using some word that is not in the Constitution, we almost create more uncertainties than we solve. It is very clear that privacy is a most helpful noun, in that it seems to sum up rather quickly values that we hold very deeply.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you understand
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Will the Senator yield on that point?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Certainly.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And this may save some time, because I had a whole round of questions on this. Let me put it to you very bluntly. Do you think Griswold was reasoned properly?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I really think I would like to draw the line and not talk about the Griswold case so far as its reasoning or its result. I would say that if you were going to propose a statute or a hypothetical that infringed upon the core values of privacy that the Constitution protects, you would be hard put to find a stronger case than Griswold.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That doesn't answer the question. Is there a marital right to privacy protected by the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes—pardon, is there a
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Marital right to privacy. 165
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Marital right to privacy; that is what I thought you said. Yes, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, if I might follow on that, have you had any cases so far when you have been in the Court of Appeals where you have had to follow the Griswold case?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The Beller v. Middendorf case was one where we examined it and discussed it extensively. The case we discussed yesterday. And I'm tempted to say that is the only one.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But in that, what reference did you make to Griswold?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. We tried, I tried, in the Beller case, to understand what the Supreme Court's doctrine was in the area of substantive due process protection, and came to the conclusion, as stated in the opinion, that the Supreme Court has recognized that there is a substantive component to the due process clause. I was willing to assume that for the purposes of that opinion. I think that is right. I think there is a substantive component to the due process clause.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And that is your view today?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. When you first
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And I think the value of privacy is a very important part of that substantive component.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The reason we spend so much time on this is that it is probably the area where we hear as much controversy and as much debate in the country about Supreme Court decisions as any single issue. Certainly I do in my own State, and I am sure others do. It is a matter that newspaper debates will go on, editorial debates will go on. And in a court that often seems tightly divided, everybody is going to be looking at you. None of us are asking you to prejudge cases. But I think also, though, if we are going to respond to our own responsibility to the Senate, we have to have a fairly clear view of what your views are before we vote to confirm you. I should also just add—something that obviously goes without saying—we expect you to speak honestly and truthfully to your views, and nobody doubts but that you will. Some commentators and some Senators seem to make the mistake of thinking that a view expressed by a nominee here at these confirmation hearings must, by its expression, become engraved in stone, and that a nominee can never change that view. You do not have that view, do you?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I would be very careful about saying that a judge should make representations to the committee that he immediately renounces when he goes on the court.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That is not my point, Judge Kennedy. What I am saying is that I would assume that your own views on issues have evolved over the years.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What I am suggesting is that even as to views expressed here, should you go on the Supreme Court, there is noth- 166 ing to stop an evolution of your views in either direction, or in any direction?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think you would expect that evolution to take place. And with reference to the right of privacy, we are very much in a stage of evolution and debate. I think that the public and the legislature have every right to contribute to that debate. The Constitution is made for that kind of debate. The Constitution is not weak because we do not know the answer to a difficult problem. It is strong because we can find that answer. Now it takes time to find it, and the judicial method is slow.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. It is also an evolutionary method, is it not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is the gradual process of inclusion and exclusion, as Mr. Justice Cardozo called it. And it may well be that we are still in a very rudimentary state of the law so far as the right of privacy is concerned. If you had a nominee 20 years ago for the Supreme Court of the United States, and you asked him or her what does the first amendment law say with reference to a State suit based on defamation against a newspaper, not the most gifted prophet could have predicted the course and the shape and the content of the law today. And we may well be there with reference to some of these other issues that we are discussing.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I would hope that all Members of the Senate will listen to that answer. I think that the fallacy that has come up, in some of the debate on Supreme Court nominees—one that has probably been heard across the political spectrum—is that we can somehow take a snapshot during these hearings that will determine for all time how Judge Anthony Kennedy or Judge Anybody is going to then vote on the Supreme Court on every issue. And that just cannot be done, and in fact, should not be done. That is not the purpose of these hearings. You said back in June of 1975, at the time you were sworn in to the Court of Appeals, that you were not yet committed in this debate on the reach of the federal Constitution. I think what we would like to explore, though, is what has happened in that 12 years. You have written in numerous cases, participated in hundreds of cases. And so you have been part of that constitutional debate, and your thinking has evolved. And let me just go into a couple of areas of that. In the Stanford University speech that everybody has talked about here, you said that it is important to distinguish between essential rights in a just system, and essential rights in our own constitutional system. And as I understand your speech, the rights in the first category—rights that some may consider essential to a just system but not essential rights in our own constitutional system—are not enforceable by our courts. Is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is correct. I was quite willing to posit that the framers did not give courts authority to create a just society.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW those rights that are essential to a just system are those things like providing adequate housing, nutrition, education, those kind of rights?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir. 167
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And that requires affirmative government action?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Mostly affirmative government action, although the Supreme Court in a case, Plyler v. Doe, held that the State of Texas could not altogether deprive illegal aliens of education.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO there are essentials?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. SO even here there is an area for the courts to participate in.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO there are some essential rights in our own constitutional system, to use your words, that are not explicitly spelled out in the Constitution, but are enforceable by our federal courts?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The equal protection jurisprudence makes that rather clear.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, earlier this year in the Ninth Circuit Judicial Conference speech, you said that each branch of government— and I assume you include the courts in that—is bound by an unwritten constitution that consists of our ethical culture, our shared beliefs, our common vision. Are there rights included in this unwritten constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I would think so, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Such as?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. My point about the unwritten constitution, I suppose, has been to try to explain how that term was used by early political philosophers. Plato, Aristotle, Hobbes, all talked about the constitution. And what they meant was, the whole fabric of a society. As you know, there are something like 160 written constitutions in the world today. Very few of them work like ours does. And yet their terms in some cases are just as eloquent, and perhaps even more eloquent. Their terms are somewhat more far-reaching in the grant of the positive entitlements that we have talked about, the right to adequate housing, food, shelter. But they do not work. The reason ours works is because the American people do have a shared vision. And I think important in that shared vision is the idea that each man and woman has the freedom and the capacity to develop to his or her own potential. That is somewhat different than the Constitution states it, but I think all Americans believe that. And I think that has a strong and a very significant pull on the legislature and on the courts.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. At the same time, an unwritten constitution— you say that it instructs government to exercise restraints. What does the court do when another branch of government ignores that counsel and takes some unrestrained action? Say the action of another branch does not violate a specific constitutional prohibition, can the courts strike that down because it violates this unwritten constitution that restrains all branches?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. But, again, this is the consensus that our society has that makes it work. One of the great landmark
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. HOW do you square them if you have got these essential rights out there one way—that is, at the same time you have got the essential rights pushing here, but you have some unrestrained action pushing there. Do they square? 168
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I hope they square.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Can the courts make them square?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Absent an abiding respect by the people for the judgments of the court, the judgments of the court will not work. And the Constitution does not work if any one branch of the Government insists on the exercise of its powers to the extreme. One of the great landmarks in constitutional history was when President Truman complied within the hour with the Supreme Court's order to turn back the steel mills. President Nixon did the same thing with the tapes. That is what makes the Constitution work. The Constitution fails when a governor stands in front of the courthouse with troops to prevent the integration of the schools subject to a Supreme Court order. The Constitution does not work very well when that happens.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me just go back a bit, if I might. Judge. In a democracy, any branch of our Government exists only if there is respect for that branch, only if it can be heeded. If we did not respect the constitutional mandate for a President to leave office at the end of his term and the new President to come in, where would we be?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I think it is a very powerful statement to the rest of the world when we see a President who may have been defeated in an election riding with the incoming President up for the oath of office. It is a very powerful statement if we have a President die in office and another President comes in immediately with total continuity. But I think you were suggesting more of what happens with the courts. In the last generation, have we pushed that parameter where faith or confidence or respect for the courts may have been damaged?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I do not think so. I think courts have the obligation always to remind themselves of their own fallibility in this regard. They have the obligation to announce their judgments in neutral, logical, accepted terms that are consistent with the judicial method. And the courts have, of course, the obligation to respect the legislative branch. Your example of the President leaving office is probably a better example than any one that I have thought of on this mystic idea of this unwritten constitution. I think it is an important example; it is a good one.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But we have courts stepping into areas of great controversy. Without going into specific cases, we do it in areas of busing, of abortion, of civil rights, voting rights. Some of these things are very explosive, and we have had instances where Federal troops have had to be brought out, Federal marshals, local police, State police, to enforce the ruling of a court. But yet if the court is right, you are not suggesting that they should then refrain from issuing that kind of a ruling, even if it may well require strong and controversial executive action to carry out the ruling?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. The courts, except in perhaps rare instances, have never shrunk from their duty to interpret the Constitution and they never should. But as you indicate, one of the really 169 great ironies of our system is that a branch of the Government that is not supposed to be political in nature has historically resolved disputes of great political consequences. One of the great issues for the first 30 years in this country was whether or not Congress had the right to establish a national bank. And the Supreme Court stepped right into the middle of that—and fairly early in the controversy—and it has not been successful in extricating itself since. But the point is that a court must recognize that its function is not a political function; it is a judicial one. We manipulate different symbols. We apply different standards.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, let me ask you about another right that was not mentioned in your Stanford speech—the right of the press and the public to attend criminal trials. In the case of Richmond Newspapers v. Virginia, the Supreme Court recognized this right, though the court acknowledged that "The Constitution nowhere spells out a guarantee for the right of the public to attend trials". You have had occasion to enforce what apparently is an unenumerated right to attend trials. I believe that in one of the DeLorean trials, you did. Do you think the Supreme Court made a right or wrong turn when it recognized the right of public access in the first place, in the Richmond Newspapers decision?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, rather than comment specifically on the opinion, I would say that right of access generally is an important part of the first amendment and is properly enforced by the courts. Should I wait?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NO. Just a bomb going off. Senator Heflin does sort of a bomb alert, but we never clear the room for little things like that.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In the DeLorean case, incidentally, the question was whether or not newspapers could inspect sentencing documents.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU say that from the first amendment, but that is an expansive reading of the first amendment, is it not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not so sure that it is that expansive.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU would not consider that expansive? You would not consider it an expansive reading of the first amendment, the right of the public to be
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That the press is allowed to be at trial?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Press to be at a trial.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I think perhaps we could characterize it as an expansive reading.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But a justifiable one? I am not trying to put words in your mouth. I am really not trying to put words in your mouth.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think a very powerful case can be made for the legitimacy of that decision.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. What about the right to teach a foreign language to one's children? In the Stanford speech, you point out that such a right might be found from an expansive reading of the first amendment. The Supreme Court did not find the right there but recognized the right anyway in the case of Meyer v. Nebraska. 170
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. Meyer v. Nebraska has a whole catalogue of rights that the Supreme Court thought were fundamental, some of them quite expansive—the right to pursue happiness. The first amendment, it seems to me, has tremendous substantive force and can easily justify the result in Meyer and Pierce.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But that was not what the Supreme Court found.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. The Supreme Court at that time, I think, was essentially unaware of the expansive nature of its first amendment decisions. Those cases were 1916. Well, the laws were passed in 1916, and then it took a few more years to get up to the court.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But were they wrong in their decision? I mean, did they have the right result, the wrong reasoning?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, my point was that the statements in the opinion, the broad statements of the opinion, I was not sure could support a whole body of jurisprudence.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, that whole list of rights: should they recognize and enforce each of the rights they listed out in Meyer?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Did they
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NO. Should they recognize and enforce each of the rights in Meyer? You have got the right to marry, to establish a home, bring up children, worship.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Again, I think that most Americans think that they have those rights, and I hope that they do. Whether or not they are fully enforceable by the courts in those specific terms is a matter that remains open.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO are those rights—you find a right of privacy— but as to the rights in Meyer, I did not quite follow your last answer. That threw me a bit. Would you repeat that, please?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it is not clear to me that each and every one of the rights set forth in Meyer can sustain a complaint for relief in a federal court. I would be very puzzled if I received a complaint that alleged that the plaintiff was denied his right to happiness.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, in fact, that is sort of like what you said in the Stanford speech. Let me just take one quote out of there. You say, "It seems intuitive to say that our people accept the views set forth in Meyer, but that alone is not a conclusive reason for saying the court may hold that each and every right they have mentioned is a substantive, judicially enforceable right under the Constitution". What do you look for beyond just the feeling that our people accept these rights to make them such fundamental rights that they are judicially enforceable?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, there is a whole list of things, and one problem with the list is that it may not sound exhaustive enough. But, essentially, we look to the concepts of individuality and liberty and dignity that those who drafted the Constitution understood. We see what the hurt and the injury is to the particular claimant who is asserting the right. We see whether or not the right has been accepted as part of the rights of a free people in the historical interpretation of our own Constitution and the intentions of the framers. 171 Those are the kinds of things you look at, but it is hardly an exhaustive list. You, of course, must balance that against the rights asserted by the State, of which there are many.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What if some of those rights that you see felt by our people, strongly felt, conflict with your own personal views? What then?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that the judge, in assessing what the society expects of the law, must give that great weight rather than his or her own personal views.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Where do you look, what do you look to to find out, you know, what these rights are—and I realize we are talking in a very gray area: Probably to some who might be listening this may seem like an academic discussion that is wonderful for a classroom. And somebody suggested yesterday your students will be watching to see how you answer this. I have to think that these are the same kinds of questions that have gone through judges' minds to a greater or lesser degree when we have made some of the major moves in our Constitution—some of the cases we now refer to as milestones and others would refer to as abrupt and unforgivable changes, depending upon which side you are on. But what do you look to when you try to determine what those rights are that are so solid in our people, those senses of right? How do you find them?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I wish I could give a good, clear answer to the question. I think in that same speech I said in frustration, Come out, come out, wherever you are, looking for the sources and the definitions of unenumerated rights. You look in large part to the history of our own law. This is what stare decisis is all about. You look to see how the great Justices that have sat on the Court for years have understood and interpreted the Constitution, and from that you get a sense of what the Constitution really means. An English representative in the House of Commons once said that "History is Philosophy teaching by example"; and I think that the law can be described the same way.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, you are 51 years old. If you are confirmed, you are going to serve on the Supreme Court well into the next century. Anybody just looking back at the history of the Supreme Court in the last 20, 25 years knows that it has had to go—it has been faced with very difficult questions—and it has had to move the Constitution forward—or backward, depending, again, how people look at it—but certainly move it, change it from what people thought of as being a settled Constitution at that time. And you have to know that you are going to be faced with that same position, once, twice, maybe many times if you are on the Supreme Court. Does that cause you any apprehension, or do you look forward to that? Have you thought about that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It causes me some apprehension, some awe. No jurist, no lawyer, no nominee could aspire to be on the Court that was occupied by Holmes and Brandeis and Cardozo and the two Harlans and Black, not to mention the great Marshall, without some of those feelings. On the other hand, the very fact that those judges were there and that they wrote what they did gives the Constitution and the 172 judicial system great strength and great power. It enables the judge to continue to explore for the meaning of the Constitution. That is what I wish to do. If you had a visitor coming to this country, and he asked: What is it that makes America unique? What is the gift that we have for civilization? What is it that America has done for history? I think most people would say America is committed to the Constitution and to the rule of law. And I have that same commitment.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Judge. Thank you, Mr. Chairman. I would ask unanimous consent that written questions from Senator Simon be submitted on his behalf.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection. [Senator Simon's questions appear on p. 739.] The CHAIRMAN. Senator Humphrey, who has waited patiently. The Senator from New Hampshire.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Good morning, Judge Kennedy. I have been patiently waiting, anxiously waiting. I so much enjoy these hearings. This is really what I had in mind when I offered myself as a candidate for the U.S. Senate, this sort of thing. This is what I envisioned, not the passing out of money to the gimme groups, which is our daily fare around here. These are very interesting hearings. I have found them fascinating. Frankly, I would not mind if we had another three or four after your confirmation, may I say. I would not mind if we had another three or four in the next year. I find these to be so fascinating. That might have a good effect on the court, may I say. I happen to believe that it would. Fascinating though they are, the hearings do become a little oppressive at times, so I want to begin with a joke which comes at the expense of lawyers. If you have heard this, pretend you have not. A woman called a law firm and asked for Mr. Smith, who was—I guess it was a man. I beg your pardon. A man called a law firm and asked for one of the senior partners whose name was Mr. Smith. The receptionist said, "Oh, I am very sorry. I guess you have not heard the news. Mr. Smith passed away three months ago." And the caller said, "I want to talk with Mr. Smith." The receptionist said, "You do not understand. He is dead. He is deceased." And the caller said, "I want to talk with Mr. Smith." "Sir, he is dead. Don't you understand?" And the caller said, "Yes, I understand, but I cannot hear it often enough." [Laughter.] Well, while it is true that we make jokes about lawyers, certainly the profession of the law is very important, and the role of the Supreme Court, the Judiciary, particularly the Supreme Court, is critically important. The Supreme Court is the Super Bowl of the law profession, and you are auditioning, in a way, for a place on the team.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will have order in the room. Thank you. I know the joke was funny but * * * [Laughter.]
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. NOW, to get down to serious matters, you write your own speeches; is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, Senator; for better or worse. 173
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, they are very good. The ones I have read are very, very good. Inasmuch as you write them yourself, that gives us some insight into your thinking. I find your logic to be very clear. The Stanford speech is one that has been examined a number of times. That is an important speech. It is a very good speech, would you not say so?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I enjoyed it. I want to make clear that I never speak from notes.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I gave the Senate what notes I had. I think that speech came out about that way.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. One of the dangers is you sometimes forget the principal part of the speech until after you have given it.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, we all understand that. I think it is a very good speech. I want to examine a few parts of that and then parts of some other speeches, if I have time. Let me quote from your Stanford speech. One can assume that any certain or fundamental rights should exist in any just society. It does not follow that each of those essential rights is one that we, as judges, can enforce under the written Constitution. The due process clause is not a guarantee of every right that should inhere in an ideal system. Is that a correct quote?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is a correct quote, and I think it is a correct concept.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. YOU have not changed your mind since 1986?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO, sir.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. "The due process clause is not a guarantee of every right that should inhere in an ideal system." So it is not a blank check?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Certainly not.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. HOW about the ninth amendment?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, as I indicated yesterday, the meaning of the ninth amendment, and even its purpose, is shrouded in doubt, and the Court has not, in my view, found it necessary to refer to that amendment in order to stake out the protections for liberty and for human rights that it has done so far in its history.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Never used the ninth amendment to ground an opinion
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. There may be some quarrel with that statement because of an isolated reference by Mr. Justice Douglas in the Griswold case, and by the concurring opinion of Mr. Justice Goldberg in the same case.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, if judges—in your opinion—if judges cannot enforce each of the essential rights which should exist in a just society, what should the Court do to move us toward a more ideal system when the political branches fail to act?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I suppose the Court can cry in protest if it sees an injustice in a particular case. The law is an ethical profession, and the law is designed to seek justice. 174 And if courts see an injustice being done, I think the oath of our profession requires us to bring that to the attention of the Congress. On the other hand, judges who are appointed for life cannot use the judiciary as a platform for their own particular views. So there is a duality there.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. What do you mean by "judges bringing that to the attention of the Congress"?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, from time to time, in our opinions we tell the Congress, please look at this statute and see the way we are enforcing it. Do you really want us to do this? I think that is quite a legitimate function of the Court. I have said that in some of the RICO cases. Some of my other colleagues have, too. It is just not at all clear to us that the way we are enforcing RICO is what Congress really had in mind, but we are following where the words lead us.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I want to go back to the ninth amendment. Yesterday, you said it seems to me the Court is treating it as something of a reserve clause to be held in the event that the phrase liberty, and the other spacious phrases in the Constitution appear to be inadequate for the Court's decision. You say, it seems to me the Court is treating, has been treating it as a reserve clause. Is that your view, that it ought to be treated as a reserve clause, to be held in the event that the spacious phrases are inadequate to the matter at hand?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. My characterization was what I thought the philosophy of the Court was to date, and I think it is important that the Court not confront such an ultimate and difficult issue unless it has to. A case grounded solely on the ninth amendment requires the judge to search in the very deep recesses of the law, where I am not sure there are any answers.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, if I have time, I want to come back to the ninth amendment and discuss the historical context, the intent of the authors and the framers, which seems to have been ignored in some of the discourse in this hearing so far. May I ask the Chairman his intent with regard to a second round.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will stay as long as the Senators have questions.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Good. Quoting again from your Stanford speech, Judge, you said: "The unrestrained exercise of judicial authority ought to be recognized for what it is—the raw exercise of political power." If in fact that is the basis of our decisions, then there is no principled justification for our insulation from the political process. Why did you feel constrained to raise the subject of unrestrained exercise of judicial authority in that speech?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think there is a concern in society that the courts sometimes reach results simply because the courts think in their own view that those results are right, and I think it is extremely important for judges to remember that they are not political officers in black robes. 175 On the other hand, I think it is also important for the public to know the limitations of our own powers. Perhaps the public is, from time to time, disappointed with the cases that we write. Perhaps the public thinks that we should reach out to rectify an injustice, to amend a complaint, to change a lawyer's theory of the case, and the constraints of the judicial process simply do not always allow that.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. YOU speak of the public concern, but your audience was judges. It was not a public speech, was it? Was it judges, or lawyers?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. These were judges from Canada who have a new constitution.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. They had been under a parliamentary system where the legislative authority is supreme, as have the English judges for many, many years, and they were curious to know what the extent of their authority was. And I think it fair to say most of them were looking forward to exercising it, and therefore, I was sounding a note of caution.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, you say the public is concerned that judges have sometimes overreached. Is Anthony Kennedy concerned that judges have sometimes overreached?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think it is always a legitimate concern, and that we must remind ourselves, constantly, of the limitations on our authority.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. But I mean the question in more than the abstract sense. Is it your view that at times in our history, the Supreme Court has overreached, has exercised, rawly exercised political power?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. There are a few cases where it is very safe to say that they did, the Dred Scott case being the paradigmatic example of judicial excess.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. SO it is more than an abstract matter. How about in modern times? Is it your view? This is a modern speech, a contemporary speech. You felt constrained to make a rather strong statement about abuse of the judicial prerogatives. I have got to think that it is almost a cri de coeur. Is it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I did not really have a list of cases in mind. I had more in mind an approach, an attitude that I sometimes see reflected on the bench.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. An approach and an attitude?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That I sometimes see reflected on the bench in my own court.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. SO irrespective of ultimate decisions, you are concerned at least about an approach and an attitude in certain instances, in contemporary times?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, and this can affect the decisional course of the court.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If I understand the answer to the question the Senator asked, is that there are no specific cases which you had in mind when you referred to the unrestricted exercise
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is correct. None come immediately to mind. But that concern always underlies the examination by a 176 judge of his own writings, or her own writings, and of the writings of their colleagues. It is something you must constantly be aware of as you are trying to evaluate the pulls and tugs, and the impulses and the constraints that come to bear on the decisional process.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY This approach and attitude which caused you to make the statement cautioning against unrestrained exercise of judicial authority, as raw exercise of political power—this concern about the approach and the attitude that you have seen in contemporary times, in some cases—is that something that bothers you, professionally?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I do not think the judiciary of the United States, as a whole, has departed from its mandate or its authority, but I simply think it is a concern that must always remain in the open, so that judges are aware of the limitations on their authority.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Moving from general concerns over your viewT s on judicial restraint to the privacy issue, in your Stanford speech you noted that Bowers v. Hardwick upheld the Georgia law which proscribes sodomy, yet you noted the decision did not overrule Griswold, the case which announced the right of privacy. And then you asked, "Are the decisions then in conflict over the substantive content of the privacy right?" My first question is, when you speak of decisions, are you speaking of Bowers vis-a-vis Griswold, or are you speaking of Bowers visa-vis Dudgeon, which the Court, in your opinion
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. There is a case called Dudgeon, decided by the European Court of Human Rights, under the Convention of Human Rights, and it reached a result that was absolutely contrary to Bowers v. Hardwick, and as I indicated in the speech, the Supreme Court had enough to wrestle with with its own precedents without trying to incorporate the European court. But I thought that it was an interesting exercise to compare the European court case with the Bowers case.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I am still not perfectly clear
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And the answer is the comparison was between the Dudgeon case and the Bowers case.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well nonetheless, do you see any conflict between Bowers and Griswold?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the methodology of the cases, it seems to me, are nol easy to square, although that is nothing to be particularly upset about. The law accommodates a certain amount of contradiction and duality while it is in a state of growth. Absent a perfect society, justice and symmetry are not synonymous.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. YOU say there should be a certain amount of—how did you phrase it a moment ago?—a certain amount of ambiguity?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think I said duality and tension. I do not know.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, that seems to contradict what you said yesterday, when you said that judges are not to make laws, they are to enforce the laws. This is particularly true with reference to the Constitution. That judges must be bound by some neutral, definable, measurable standard in their interpretation of the Constitution. 177 Are you not contradicting yourself?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, between the idea and the reality falls the shadow. We attempt, of course, to have symmetry. We attempt, of course, to have cases that are all on fours with each other. To the extent they are not, that indicates that the court has further work to do.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I think in the meantime, it strikes me that in the meantime, while the Court is doing its further work, some citizens are suffering injustices. I suppose we cannot hope for perfection in the courts, but I would certainly hope for objectivity, to the greatest possible extent.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would agree with that, Senator. I think that is perhaps the correct resolution—objectivity.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. The problem with judges is that they are human beings, and that is why the theory does not quite work out.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Madison said if men were angels we would not need a Constitution.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, I want to discuss your Beller opinion, not that I want to take up the subject of homosexuality, or discuss the merits, or the demerits, or the immorality of homosexuality, but I want to discuss your Beller opinion because there is certain language in there that worries this Senator. You said that, quote: "We recognize, as we must, that there is substantial academic comment which argues that the choice to engage in homosexual activity is a personal decision that is entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual's right to privacy." Why did you feel in writing that, that you must recognize substantial academic comment? My goodness, you can find academic comment to justify almost anything. There is just as much, and far more weighty opinion in centuries of law, and thought, and writing, which you did not bother to mention in your opinion.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I had read extensively in preparing for this opinion, in order to understand the right approach, and I usually think it is fair to the parties to set forth the things that I have read. This was the first case involving a challenge to the discharge of homosexuals from the military, and I spent a great deal of time on it, and I thought it important for the reader, and for the litigants to know that I had considered their point of view.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. DO you find something commanding about academic opinion versus societal mores, when they differ?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it is interesting that the legal profession is the only profession that is intimidated by its initiates. We have law review articles written by students who are not even lawyers and they get paid a great deal of attention, I guess that is one thing that keeps the law vigorous and vital. But I am not overly persuaded by academic comment. I frankly do not have time to read very much of it.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. YOU referred, likewise, in your Stanford speech to the responsibility of the political branches, quote, "to determine the attributes of a just society." How much weight, as a judge, or as a Justice, will you give to the political—the responsibil- 178 ity, indeed, the prerogatives of the political branches to determine the attributes of a just society?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think it is the prerogative and the responsibility of the political branch to take the leadership there. As I have indicated yesterday, I think the political branch has the obligation to assess each of its actions under the standard of constitutionality, and I think when the Court confronts an act by a legislature, it must know, it must recognize that the legislators understood the Constitution, that they acted deliberately with reference to it, and the legislature is entitled to a high degree of deference. This is not just the political system at work. It is the constitutional system at work.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY, Let us turn to criminal law. In your speech to the Sixth South Pacific Judicial Conference this year, you said, Equally disturbing is that Goetz—referring to the case in New York of the subway shooting—"Equally disturbing is that Goetz emerged from the subway incident as a hero in the eyes of a large portion of the citizenry: the victim who finally fought back. If the rule of law means that citizens must forego private violence in return for the State's promise of protection, then the public acclaim with which Goetz's actions were received in some quarters indicates that the present criminal justice system breeds disrespect for the rule of law." If that is so, must the judiciary share in the responsibility for a criminal system which breeds disrespect for the rule of law?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Absolutely. The judiciary system is responsible for the immediate supervision and the immediate implementation of the criminal system. The judiciary has itself made many of the rules that are binding upon the police, and it is the obligation of the judiciary to constantly reassess those rules as to their efficacy and as to their reasonableness. In this connection, we were talking about violent crime. We were talking about victims who feel helpless in the wake of crime, and courts must be very, very conscious of their front-line position here.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, did you mean to say in your speech to the conference that the present criminal justice system breeds disrespect for the rule of law? Is that what you were saying?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that it can in some quarters. Everybody can point the finger to each other, but I think the courts bear a large responsibility. I know in some States, some States represented by the members of this committee, there simply are not enough funds for courts, for law enforcement officials, for correctional facilities. And it is a tremendous problem. What we do is take care of society's failures. We have very little to do with preventative measures other than the deterrent value that quick and efficient enforcement of the criminal system brings.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. The courts must share some responsibility in this present system which breeds, to some extent, disrespect.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Of course.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Including the Supreme Court?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would include the Supreme Court, of course.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Quoting further from the same speech, "The significant criminal law decisions of the Warren Court focused on the relation of the accused to the State and the police as an instru- 179 ment of the State. Little or no thought was given to the position of the victims." Why did you choose to criticize the Warren Court in this?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it was that court, of course, which implemented the great changes that we have had in the criminal procedure system, changes which are now really a part of that system. I was pointing out the fact that really there has been a lack of awareness by all parts of the Government of the position of the victim. I had indicated yesterday that victim was a word that I never even heard in law school, and, frankly, I do not think I heard of it until the last 6 or 7 years until the Congress of the United States and commentators brought it to our attention when you passed the Victims Assistance Act.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. HOW much time do I have left?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU have about 2 minutes, but why don't you take more time at this break. We have had you sitting a long time, Judge. What we are going to do is we will break for the luncheon recess when Senator Humphrey finishes, which will end the first round. But before we leave, I would ask the audience please do not get up. We have a little business to conduct here, so if you are going to leave, leave now and not at the end so we cannot hear what we are about to do. It will take 3 minutes after the Senator from New Hampshire finishes. At that time, we will break. And if you need another 5 minutes or so, you go ahead, Senator.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. IS that all right with you, Judge?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Certainly.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I have a speaking engagement off the Hill at 12, so I cannot take too much time. I am sure you will be glad to hear that, Mr. Chairman. I want to go back to the ninth amendment, Judge Kennedy. If I understood some of the questions correctly, some Senators seem to be trying to get you to say that there are some privacy rights hiding there in the ninth amendment waiting to come out, come out, wherever you are. That seems to me to be a very generous reading of the intent of the authors and ratifiers of the ninth amendment. Wouldn't you agree? Would you give us your understanding of the historical intent of the ninth amendment?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, as I have indicated, the intent is really much in doubt. My view was that Madison wrote it for two reasons. Well, they are really related. He knew, as did the other framers, that they were engaged on an enterprise where they occupied the stage of world history; not just the stage of legal history, but the stage of world history. These were famous, famous men even by the standards of a day unaccustomed to celebrities. And he was very, very careful to recognize his own fallibilities and his own limitations. So he first of all wanted to make it clear that the first eight amendments were not an exhaustive catalogue of all human rights. Second, he wanted to make it clear that State ratifying conventions, in drafting their own constitutions, could go much further 90-87 8 0-89- 7 180 than he did. And the ninth amendment was in that sense a recognition of State sovereignty and a recognition of State independence and a recognition of the role of the States in defining human rights. That is why it is something of an irony to say that the ninth amendment can actually be used by a federal court to tell the State that it cannot do something. But the incorporation doctrine may lead to that conclusion, and that is the tension.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. May lead to that conclusion.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. May. May lead to that conclusion.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, let me ask you this, finally. I do hope we will have an opportunity to think about matters further and ask further questions of you. Let me just ask you this, finally, with regard to privacy rights. What standards are there available to a judge, a Justice in this case, to determine which private consensual activities are protected by the Constitution and which are not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. There are the whole catalogue of considerations that I have indicated, and any short list or even any attempt at an exhaustive list, I suppose, would take on the attributes of an argument for one side or the other. A very abbreviated list of the considerations are the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential. On the other hand, the rights of the State are very strong indeed. There is the deference that the Court owes to the democratic process, the deference that the Court owes to the legislative process, the respect that must be given to the role of the legislature, which itself is an interpreter of the Constitution, and the respect that must be given to the legislature because it knows the values of the people.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Those, especially the first category, sound like very subjective judgments.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The task of the judge is to try to find objective referents for each of those categories.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you, Mr. Chairman. Thank you, Judge.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Let me ask my colleagues who are here, so we can plan the rest of the day and give Judge Kennedy some notion of how long we will be asking him to stick around today. Can my colleagues who are here indicate those who would think they would want a full second round of 30 minutes apiece? Senator Humphrey, Senator Specter, Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I only have a few questions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Thurmond, are you going to take 30 more minutes?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. NO, I will not. I may take 5 minutes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I might be able to do it in less, but I think there is a good possibility of 30 minutes, Joe.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. I am told that Senator Heflin has a second round and Senator Metzenbaum and Senator Grassley. So 181 we are up to at least 5 hours if that is the case. I would hope my colleagues might not find it necessary to take the full time. It would be my intention, Judge, if we can, to have your testimony end today. I know that would disappoint you not to be able to come back tomorrow. But if you will bear with me, with the Chair, we will try, by accommodating 15-minute breaks every couple hours, to finish up today. I would hope we could finish relatively early, but maybe as some of the questions are asked in the second round others will find it unnecessary to pursue, if their line of inquiry is the same, their full 30 minutes. What I would like to suggest is that, since we kept you so long, we not start another round this morning, and that we recess until, say, a quarter after 1. Well, let us make it 1:30. It will give you an hour and 45 minutes to get some lunch and be back here.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will start at 1:30 with a second round of questions, and we will see where that takes us. The hearing is recessed until 1:30. [Whereupon, r< 11*48 a.m., the committee recessed, to reconvene at 1:30 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. Judge, the reason for the absence of my colleagues, both the Democratic and Republican Caucuses are meeting until 2 o'clock, but we will begin.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. All right, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In an effort to see if we can finish today. And I will repeat this when some additional members are here, but although I will not limit anyone on the panel to anything less than 30 minutes, I would like to encourage them to be 20 minutes; and so at 20 minutes I am going to have that little red light go off—go on, I should say, and then we have 10 minutes after. Maybe that might encourage people to move a little bit more. And I will try to do that, and hopefully not even take the full 20 minutes. At the very end I may have a few concluding questions. Judge, you have, as you discussed with Senator Specter this morning, you have praised dissent in Plessy v. Ferguson, that infamous separate but equal case that Brown overruled, and you praised Harlan's dissent. As I am sure you are aware, Harlan's dissent in the Plessy case has been used by some scholars and officeholders alike to reinforce the notion of a colorblind Constitution; in a way, the idea that has been tremendously powerful in impacting upon one of the elements in the struggle for civil rights in this country, and that is the whole question of affirmative action. It also is being used by some to argue that Congress lacks the authority to take race into account in any context. The Congress does not have the right to pass any laws even if our action is designed to improve equal opportunity for a group previously discriminated against or to remedy past discrimination. 182 When you say that Justice Harlan was correct, do you give his opinion that kind of meaning, that it proscribes the Congress from passing any laws to take into account any issue relating to race?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I recognize the quotation that the Constitution is colorblind. It was, of course, in the context, as you point out, of a case in which affirmative action was not before the Court and has since been used, as an interpretation, to argue against affirmative action. I do not think that that is a necessary interpretation of the opinion.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Could you tell us whether when you say you agree with Harlan whether it is your interpretation? What do you mean when you say you agree with Harlan's dissent?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. My agreement with Mr. Justice Harlan's dissent is his reasoning as he was applying it to the facts of Plessy v. Ferguson.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Can you tell us what your views are on the permissibility of Congress engaging in legislative activity that is characterized as affirmative action?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The issue has not come before me in a judicial capacity as a circuit judge, and might well as a Supreme Court Justice, so I would not commit myself on the issue. I will say that my experience in law school taught me the arguments for the practice.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I beg you pardon?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. My experience in law school taught me the arguments in favor of affirmative action. Whether or not they would prevail in a court of law on a constitutional basis is by no means certain. But, in the law schools, in 1965, one percent of the nation's law school student body was black. After 10 years of effort by the law schools, including the one where I was privileged to teach, to encourage applicants from the black community, that had risen to 8 percent, an 800 percent increase. I know of no professor in legal education that does not think that it is highly important that we have a representative group of black law students in law schools. It has apparently stayed about that rate, at 8 percent. I will notice in some of my classes there are not as many blacks as the year before, and then I will notice it picks up again. So, it is an area that the law schools, and I am sure other professional schools, are continuing to pay attention to, and I think it is a very important objective on the part of the schools. I recognize that in the area of State schools there are different kinds of programs that may present constitutional questions that have yet to be resolved fully by the Court. As you know, the Court is still engaged in determining the appropriate rationale and the appropriate explanation for affirmative action under the Constitution.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am not sure, quite frankly, how to fairly pursue the issue further with you without getting into areas that you might have to decide on. Your answer indicates a sensitivity to the need to encourage minorities and give them access to all institutions, in this case law, but I am not sure that it sheds much light on whether or not the Congress has the right under the Constitution to pass legislation that in fact requires affirmative action on the part of various institutions over which it has control or indirect control.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS you know, the leading case on the subject is Fullilove v. Klutznik, a Supreme Court case which ratified, validated an affirmative action program for minority hiring for government contracts. That case is quite sweeping in its reasoning and in its rationale. But again, this is an area of the law where there is still much exploration and much explanation to be done on a caseby-case basis. I am not sure if there is any such case on the docket of the Supreme Court this term, but I know there are some cases in the circuits.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. DO you think that voluntary plans by employers, voluntary affirmative action plans are permissible?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, and incidentally, I said that I have not written in this area. Perhaps that was imprecise. Your question brings to mind one case where we had a unanimous court and I was the author of the opinion. It was called Bates v. The Pacific Maritime Association, and the question was whether or not a consent decree, which in a sense is voluntary action, was binding on a successor employer. The previous employer had agreed to the terms and conditions of the consent decree and thereafter sold the enterprise. But the employee pool was the same, the equipment was the same, and we held that the consent decree, which required affirmative action for racial minority hiring, was valid and was binding on the successor. And you might be able to obtain some insight into my approach in this area by looking at that case.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me move to a different area of precedent. I have been fascinated by your responses to my colleagues on the role of history in the evolution of the Constitution and the relationship of the text to the practice and societal values. And, in your remarks to the ninth circuit, you asked a question of Paul Brest, the dean of Stanford Law School, that I would like to put to you, because it bears upon our discussion here and may also tie this discussion into earlier exchanges you have had with some of my colleagues. You noted that the Canadian Constitution is only 5 years old, and then you asked Dean Brest, and I think I am quoting, "What do you think would be easier, to be a constitutional judge in Canada or a judge interpreting the Constitution of the United States? Would it be easier to decide a close question when you essentially are a contemporary of those who frame the document or does 200 years of history and experience and teaching give us insight the Canadians don't have?" That is the question.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Paul Brest is a great constitutional scholar and I wish he had answered the question. He did not. I thought when I first began teaching constitutional law that John Marshall was in the finest position of all of us to know what the Constitution meant, and in part because of my experience in talking about the Canadian Constitution with the Canadian judges I have changed that view. I think 200 years of history gives us a magnificent perspective on what the framers did intend, on what they did plan, on what they did build, on what they did structure for this country. 184 Holmes said that "A page of history is worth a volume of logic," and certainly 200 years of history is not irrelevant, so I think we are in a better position. The answer is, I think we are in a much better position. And the other point is that over time the intentions of the framers are more remote from their particular political concerns and so they have a certain purity and a certain generality now that they did not previously.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think I will stop there. I will reserve the balance of my time. The Senator from South Carolina.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Judge Kennedy, I want to commend you for the astute manner in which you have answered the questions during this hearing. You have answered them with credibility and with knowledge. You have shown the great respect you have for the Constitution of the United States, which, in my opinion, is the greatest document that has ever been penned by the mind of man for the governing of a people. You have shown that you are an independent thinker. In other words, you will draw your own conclusions after you get the facts. And you have shown a knowledge of the construction of the Constitution and the law, which I think is to be admired by all, and that it is your desire to construe it for the best interests of the American people. On the question of issues, you have impressed me as being openminded and will give careful consideration. You will follow stare decisis unless there is some overriding reason why you would act differently. For instance, in Plessy v. Ferguson the Supreme Court reversed itself. There may be instances in the future in which they will reverse themselves, and you would not hesitate to reverse a decision if you felt it was the right thing to do. You have shown I think that you are not prejudiced and that you will be fair to all. I have been deeply impressed with your testimony. And I am not going to take more time at this point, I think we can all cut these questions short. I think they have had a chance to size you up, and the only conclusion they can reach is you are a good man and ought to be confirmed.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU don't object to that, do you?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Not at all. I appreciate the Senator's most gracious remarks.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Kennedy, I have some questions in the antitrust area, and I know that is not your special field of expertise, so I am not going to get into what I call the nitty-gritty of some of the Court decisions.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I know that it is yours, Senator, so I would be pleased to learn.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Pardon?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I know that it is yours, so I would be pleased to learn.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I will at least make an overall inquiry. 185 As you may recall, Judge Bork wrote and testified that manufacturers should be able to fix the resale price of their product even though the Supreme Court has declared such price-fixing per se illegal. Letting manufacturers fix the resale price—and what we are talking about is where the manufacturer tells the retailer that you must sell at a certain price or else you lose the product—would actually drive discounters out of business and consumers would be forced to pay billions of additional dollars. I am frank to say to you that I consider this a very major issue, because to me the essence and bulwark of this whole system of free enterprise is free competitive forces working and being permitted to work. If manufacturers can say that you can only sell a refrigerator or a stove or a set of dishes, or whatever, at a certain price, I think that is hurtful not alone to the consumer, but also to the nation as a whole. I would sort of like to get your views on the subject as to whether you agree with the current law or with Judge Bork that manufacturers should have the right to fix resaie prices?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. At the outset let me tell you, Senator, that I did not hear Judge Bork's testimony on that point and I am simply not familiar with his views. There is a case on the Supreme Court's docket, and I am not sure if it is one that has been argued this term, in which the question cf whether or not vertical price restraints, which is the kind of restraint that you have described, are per se violative of the antitrust laws. So I should tread very warily about expressing a view on that case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not trying to get you into any specific cases. I am more tr}/ing to get you into this whole idea of vertical price restraints and the whole question of freedom of the retailer who owns the product to be able to sell at such a price as he or she determines the product should be sold at.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I understand. I just wanted to tell you why I am going to be very guarded in my answer, because it is such a specific issue that the Supreme Court is now considering. Generally. I think it is fair to say, and I think that the law should be this, that a per se rule is justified if in almost every event it has an anticompetitive effect. Only if a particular trade practice that is challenged is pro-competitive is there a justification for it when there is a restrictive agreement of the kind you describe. I take it that is the starting position for analyzing this kind of problem. And so the question, I suppose, would be whether or not there can be any demonstration that vertical price restraints are in any respect pro-competitive, and it is not clear to me exactly what showing would be made on that. You can get economists to testify on each side of any issue, as you know.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not sure how vertical price restraints could ever be shown to be pro-competitive. Almost by definition, the restraint precludes competition.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is the question. And, incidentally, by saying that economists testify on either side of the issue, I do not mean necessarily to denigrate them. There is just a great deal of disagreement, and we use experts in lawsuits this way all the time.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. There is a case called the State of Arizona v. Maricopa County Medical Society. You concurred in an opinion 186 that said doctors could fix prices—so long as it was a maximum rather than a minimum price—without automatically violating the antitrust laws. You rejected the State's argument that the agreement led doctors to charge the maximum, making it legal price-fixing by its very nature. The Supreme Court reversed, holding 4 to 3 that "the anticompetitive potential inherent in all price-fixing agreements justifies their facial invalidation even if procompetitive justifications are offered for some." Could you tell us why or how you concluded that maximum price-fixing for the doctors should not be per se illegal, and whether you still feel that same way today despite the Supreme Court's reversal of your opinion in Maricopa?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I thought it was a close case then, and I am quite willing to accept the Supreme Court's decision, although all of us were disappointed that there was not a majority in the Supreme Court—there were only four votes—because the district courts and the circuit courts need guidance and we wanted the Supreme Court to set the rule. My concern there was that I wanted a record. I wanted the case to go to trial. It simply wasn't clear to me from what I know as a judge, from what I am capable of understanding as a judge, that arrangements for health care services which use a pool of doctors and which allow the patient to choose the particular doctor are in all respects necessarily anti-competitive if they use a price schedule.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. If they what?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The issue, as I understood it, as framed by the plaintiffs, who were challenging the scheme, was whether allowing a health plan, where you have a choice of physicians and the physicians have a schedule that they agree upon, is necessarily anti-competitive. I simply saw no body of doctrine or learning or experience in the courts that would justify my coming to the conclusion that in all cases that must be anti-competitive. The health care field is sufficiently volatile and dynamic, and the cost problems in the health care field are so well understood that I thought that the courts could benefit from a trial where we could have experts testify one way or the other and then evaluate the record. It did not seem to me that the rules for fixing the prices of retail goods necessarily applied to the medical profession, which was attempting to provide this kind of group service. And the Supreme Court said, in the 4-to-3 opinion, that that was incorrect—that a horizontal price schedule is a horizontal price restraint, and that it is per se illegal. I recognize the utility of per se rules. Because if you have a rule of reason trial, which is usually at the other end of the spectrum, it is a global sort of judgment. It is a very expensive suit to try. The plaintiff has to go through an elaborate and costly trial, and, when the trial is over you often do not learn a lot. That is the argument against the rule of reason and the argument for per se rules. My concern was that in the health field—we knew so little about it that we should have a trial on the merits. But the Supreme Court disagreed, and I understand why. 187
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. While you haven't written a great many antitrust opinions, you appear to have written enough to have a working knowledge of antitrust laws and, undoubtedly, as so far indicated in this last few minutes, some views on it. I raise the subject not only because it matters a great deal to me, which really is totally unimportant, but because the Supreme Court, as you know, makes a great deal of law in this area. There will be more law made by the Supreme Court with respect to antitrust issues than in almost any other field. Some have felt free to substitute their own views for those of Congress in applying the antitrust laws. Now, there is no question the antitrust statutes are admittedly general and Congress' intent in enacting them is not all that clear. Give me your thoughts, if you will, as to what you think Congress had uppermost in its mind when it enacted the Sherman and Clayton Acts, our basic antitrust statutes, and what are your views on the obligations of the Court to ascertain and enforce congressional intent in this area?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the Sherman Antitrust Acts and the Clayton Acts were passed in an era when corporate acquisitions and mergers were proceeding at a tremendous rate. In the period, I think, from 1900 to 1930, over 7,000 small firms, each with a capital of over $100,000, simply disappeared. The concern was, in the acquisitions and merger field, that the capitalistic system simply could not work if there was not an opportunity for small and medium-sized businesses to invest capital, to have resources and talent in localities throughout the country, and to have some protection against being acquired by competitors and by large conglomerates. This particularly happened in the utility area. Unfortunately, what happened was that the Supreme Court, in the E.C. Knight case, gave a restrictive interpretation under the Commerce Clause to the reach of the Sherman Act, and at the same time they were willing to enforce agreements against price restraints, and the two in combination accelerated this merger pace. And it was only when the Supreme Court changed its rules under the Commerce Clause that antitrust enforcement became a reality in the merger field. So I think it is necessary to go back to that intent of Congress and to recognize that it is a central part of our national policy to have a capitalistic system which is free, which is open. So far as the consumer is concerned, the consumer is protected by aggressive price competition, and the antitrust laws make it very clear that price-fixing is improper and illegal. As you know, in some cases violations of the antitrust laws can be criminal, and in those cases I think the criminal law should be vigorously enforced. A price-fixing agreement that is unlawful can cause great damage and great injury, just as much as a bank embezzler can, and I am in favor of strict enforcement of the criminal laws when there is a violation.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Some have argued, Judge Kennedy, that mergers are a good thing even if they leave only two or three firms in the market. Would you go that far? And what would be your standards, generally speaking, for judging mergers? 188
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not an economist and I would want to hear the arguments in the particular case before I ventured anything that I think would be of very much substance or help to you, Senator. I would want to look at the facts in the particular case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, let me ask you this. Some have argued, and I think it is fair to say that they are conservative antitrust thinkers, that only economic efficiency matters in antitrust analysis; that is, a merger or a monopoly is good if its efficient even if the net result or the bottom line is that it raises prices or hurt the consumer. Others, and I include myself in this group, believe Congress want our judges to consider other things as well, things like unfair exploitation of consumers, excess concentrations of corporate power, and the effect on small businesspeople. Where would you come out on this debate—not on any case, but on this whole question of economic efficiency, which is on one side of the issue, versus the questions of unfair exploitation of consumers, excess concentration of corporate power, and negative effects on small business? Where would you want to place yourself in that debate?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I would not want to do that because I really do not have a fixed position. I think my earlier answer indicates to you that I would be as sensitive to and most interested in those arguments that indicated that economic efficiency was not the sole controlling determinant.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. SO that you, are you saying that those who would maintain that economic efficiency is not the sole determinant would have the burden of proof to convince you that negative consumer impact, or loss of competition, or excess concentration of corporate power, outweigh or negate the efficiencies. Are you saying that the scale starts off being weighted in favor of economic efficiency unless you can prove the contrary? Are you saying that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that any person who argues for a simple conclusive formula always has the burden of proof to demonstrate to me that it is correct.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, you could say that factors relating to unfair exploitation of consumers, or excess concentration of corporate power, or effect on small business tie in with previous decisions of the Supreme Court, and that those who claim that economic efficiency is the only thing that matters should have the burden of proof. It is really a question of which comes first, the chicken or the egg. But let us assume that neither comes first, that both are evenly on the scale. And I am saying where does Judge Kennedy come down, without addressing yourself to any particular cases or any particular issues pending before the Court. I think this is a fundamental concept of antitrust law. I honestly believe that we are entitled to something further on your thinking on the subject than we have so far.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I just do not want to tell you that there has been a lot of thinking on my part when there has not been, Senator. To the extent that the precedents say that economic efficiency is not the sole determinant—and that is the way I understand most of the precedents in the area—the burden of proof would be on the 189 person who wishes to change that doctrine and change that approach.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think it is fair to say that this is not a field in which you have been that much involved. I would like to leave you with the concerns of this Senator that the antitrust laws are not liberal laws, they are not conservative laws. They came into being with Republican sponsorship, a Senator from my own State, John Sherman. And that when you have those cases before you I would hope that you would think seriously not just about the impact upon the consumer, not just about the impact upon the businessperson, not just about the impact of those employees who may or may not be forced out of work by reason of corporate mergers, but that you think about the overall impact upon the economic system, the free enterprise system, and recognize that our antitrust laws have served us well over a period of many years in protecting free competition in this country with many of the attendant benefits that have resulted in the system.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is an eminently persuasive statement of the antitrust laws, which commends itself to me, Senator.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you very much, Judge Kennedy. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Senator. Judge, I want to compliment you for the candid way you have answered these questions, and I think you have enlightened us in many ways.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I just have a few questions I would like to go over with you that I think need to be brought out and may be helpful to everybody concerned, and certainly in this bicentennial timr; of the Constitution. I would like to point out there is much value in a unanimous Court. When the Court is unanimous, it tends to put an end to further debate about the merits of any particular decision or issue. Supreme Court historians have recounted how Justice Burger labored diligently to get a unanimous Court in the U.S. v. Nixon case concerning executive privilege during the Watergate era. Similarly, historians report that Chief Justice Warren worked prodigiously to get a unanimous decision in Brown v. Board of Education. You are sworn to uphold the Constitution and we would want you to do nothing else. But there might be times when unanimity on a ruling is more important than your own dissenting view. Now, how would you weigh the merits of such a case, and what factors would cause you to submerge your own views in deference to the need for a unanimous opinion?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. We have confronted that on our own court, Senator, and it is a difficult problem. But I think, as you have indicated, that it is also a very important one. In some cases on the court in the ninth circuit you can not always tell really how long an author of an opinion has had a case because sometimes when a panel is in disagreement, one of us will say, well, why don't you let me try writing the opinion and I will see if I can solidify our view. 190 And the two polar tensions here are, on the one hand, the duty of the judge to speak his or her conscience and not to compromise his or her views. Judicial decisions are not a log-rolling or a trading exercise. That is inappropriate. And, on the other hand, there is the institutional need to provide guidance, to provide uniformity, to have a statement of rules that all of the court agrees on. And I think that the Supreme Court functions much better if it has fewer fragmented opinions. Fragmented opinions are terribly difficult for all of us to work with. I recognize that these are the toughest issues there are, and so views will differ. On the other hand, I think it is the duty of the judge to submerge his or her own ego, to accept the fact that his or her colleagues, too, have much wisdom and have great dedication to the law. Sometimes I have concurred in opinions simply because I did not think the majority had it right, but I can not say that those have added a great deal to the volume of the law. I think there is much in what you suggest, to commend judges to try to concur in other judges' opinions.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. There is much to that. There is the other side of the coin, too, and, you know, I want to give some thought to that as well. I am speaking about the need to stand courageously alone on matters of principle. Plessy v. Ferguson was a perfect illustration of that where Justice Harlan, you know, a single Justice, decided that this separate but equal doctrine established by that case was wrong. And, frankly, he issued a remarkable dissent reminding the Nation that the Constitution ought to be "colorblind." Now, what factors are going to enter into your decision to stand alone as a sole dissenter? -
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Holmes and Brandeis were also known for their freat dissents. You must stand alone. You may be vox clamatis in deserto, a voice crying in the wilderness, even though it is a lonely and difficult position. Judging is a lonely and difficult position. This is a very lonely job, Senator. The Federal system has its own isolation that it imposes on the judges. Within your own chambers, within your own thought processes, you wrestle to come to the right result. If you think there is a matter of legal principle that has been ignored, if you think there is a matter of principle that affects constitutional rule, if you think there is a principle that affects the judgment in the case, you must state that principle, regardless of how embarrassing or awkward it may be.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. One final pcrmt concerning the changing style of the Supreme Court, more than the substance of its rulings, and that is this. In recent years the Court's opinions have become far more complex. Plurality opinions have multiplied. I think you have noticed it, I have noticed it. Hardly any opinion is issued without an accompanying flurry of concurring and dissenting viewpoints. On the one hand, as we have discussed, this is an important part of the process because arguments are preserved for the future and develop more deliberately as the legal and political communities respond to an unresolved mosaic of opinions on any particular single issue. Yet again, when the Court issues an opinion which nods to both sides of an issue, or which includes a five-pronged analysis of com- 191 plex factors, what the Court has actually done, in my opinion, is abdicate, instead of giving clear guidance as it could do. And by abdicating it thus leaves up to the lower courts to give various kinds of emphasis to various parts of the mosaic which is wrong. Now what can be done to get shorter, more succinct and clear guidance in some of the Court's opinions?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I think, Senator, that Justices simply must be conscious of the duties that they have to the public, the duties they have to the lower courts, the duties they have to the bar—to give opinions that are clear, workable, pragmatic, understandable, and well-founded in the Constitution. More than that I cannot say, other than that judges also must be careful about distinguishing between a matter of principle and a matter that really is dear to their own ego.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I see you as a person, with your experience both as an eminent lawyer, as a person who has worked as a lobbyist, as a person who might have a great deal of ability on that Court to bring about consensus, and to help bring unanimity in those cases where it should be, and I also see you as a person who is willing to stand up for principle, even if you are the sole dissenter, which is an enviable position as well. So I just wanted to point this out, because a lot of people do not give enough thought to those various aspects of Supreme Court practice.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I agree that that is a very valuable characteristic in a Justice.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you. Let me shift ground just for a minute. I do not want to keep you too long, so I will only take a few more minutes. But earlier, you were engaged by one of my colleagues in a discussion about original intent. Now because there has been a great deal of concern and confusion about what is meant by original intent, I thought that maybe we could just return for a moment to that particular issue. In the first place, I prefer the term original meaning to original intent, because original intent sounds like it refers to the subjective intent of the legislators who wrote the Constitution, or its amendments, or in the case of other legislation, the Congress and State legislatures who wrote the legislation or amendments that were passed. When you use the term "original intent," I presume that you are in reality discussing the objective intent of the framers as expressed in the words of the Constitution. Would that be a fair characterization?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, and I am glad that you brought the subject up. I think there is a progression, in at least three stages. There is original intent in the sense of what they actually thought.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. There is original intent in the sense of what they might have thought if they had thought about the problem. I do not think either of those are helpful. There is the final term of original intent in the sense of what were the legal consequences of their acts, and you call that the original meaning.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right. 192
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I accept that as a good description. We often say intent because we think of legislative intent, and in this respect, we mean legislative meaning as well. Your actions have an institutional meaning. One of you may vote for a statute for one reason, and another for another reason, but the courts find an institutional meaning there and give it effect.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I appreciate that. Our fundamental law is the text of the Constitution as written, not the subjective intent of individuals long since dead. Specifically, you were asked if statements by the Members of the 39th Congress acknowledging segregated schools meant that the 14th amendment permitted a separate but equal reading, and I think you were absolutely correct in saying that the text of the 14th amendment outlaws separate but equal, regardless of the statements or subjective intents of some of its authors, and I appreciated that. In fact this example clarifies my thinking for using the term original meaning instead of original intent. Often, the framers write into the Constitution a rule which they themselves cannot live by. I think the 39th Congress was a perfect illustration of that. They never did completely live up to the aspirations that they included in the Constitution in the 14th amendment, but we should live by the words of the Constitution, not by the subjective intent or the practices of its authors. In a similar vein, the framers could not anticipate the age of electronics, but they stated in the fourth amendment, that Americans should not be subject to unreasonable searches and seizures. And so the words and the principles of the fourth amendment govern situations beyond the subjective imaginings of the actual authors back in 1789. Now do you agree that there are real dangers in relying too heavily on the subjective intent of the framers of legislation, or, in this case, the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. We always have to keep in mind the object for which we are making the inquiry, and the object for which we are making inquiry is to determine the objective, the institutional intent, or the original meaning, as you say, of the document. That is our ultimate objective.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, we hear criticism sometimes of original intent, or original meaning analysis, and these critics say that intent governs, or, they really ask the question, whose intent is the important intent? In this case, the authors', the ratifiers', the statements made contemporaneously with, the statements that were not fully recorded? That again, it seems to me, to confuse subjective intent with original meaning. And so I would ask you, in your opinion, whose intent does govern, or whose meaning does govern?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. It is the public acts of the framers—what they said, the legal consequences of what they did, as you point out and suggest by your phrase, not their subjective motivations.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is good. Well, let me just say this: that we could go on and on on this principle, and I think it is a pretty important principle, and one that we really do not discuss enough, and one that I think is very much mixed up. 193 I think many members of this panel misconstrued Judge Bork's approach towards original intent, as though it was some sort of a Neanderthal approach to just a literal interpretation of the Constitution, when in fact it was far more complex and far more difficult than that. Let me just say the cases may evolve, circumstances may change, doctrines may change, applications of the Constitution may evolve, but the Constitution itself does not evolve unless the people actually amend it. Do you agree with that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is all I have, Mr. Chairman. Thank you for the time. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. We reviewed, Judge Kennedy, yesterday, some of your decisions on the handicapped, and on fair housing; and we exchanged views about whether the decisions you had made were particularly narrow. We talked a little bit about the question of sensitivity on cases affecting minorities' rights, women's rights in the clubs issue, where you had been involved and participated in club activities, and then eventually resigned. I do not want to get back into the facts on those, but I want to get back into related subjects in terms of you, if you are confirmed and because a Supreme Court Justice, whether those, who are either left out, or left behind in the system, can really look to you as a person that is going to be applying equal justice under law. And there are some concerns that have been expressed through the course of these hearings, and 1 want to have an opportunity to hear you out further on some of these issues. I come back to one of the cases that was brought up earlier today, and that is the Aranda case.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. We discussed that earlier in the day, and I just want to review, briefly, the evidence in that particular case. You are familiar with it. —Ten of the fifteen polling places in the city were in the homes of whites living in a predominantly white section of town. —Although Mexican-Americans constituted 49 percent of the city's population, and 28 percent of the registered voters, only three Hispanics had been elected to the city council m 61 years. —During a voter-registration drive conducted by the MexicanAmerican community, the city clerk issued statements alleging irregularities, and the mayor issued a press release charging that unnamed activists were trying to take control of the city government. —In the preceding election there was evidence of harassment of Mexican-American poll-watchers by the city police. —And Mexican-Americans were significantly under-represented in the ranks of election inspectors and judges, the membership of city commissions, and the ranks of city employees. Now, the lower court indicated that they did not find that there was any violation of the law. It was appealed to you. You wrote a separate opinion, and I believe in the exchange earlier today, you had indicated that even if there had been a finding that all of these 194 facts had been true, that you did not believe that that would justify the kind of relief that was requested by the petitioners, which would have been a change in the whole citywide election process. Am I correct up to this point?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that is correct. Yes, sir.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am not trying to fly-speck you on this, but I want to get to the substance of my concerns.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that is a fair beginning.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. The concern that I would have, and I would think most of those Hispanics would have, is that discrimination today, whether it applies to women or minorities, does not appear on signboards. It is often hidden, and, given, if all of these facts were true, that there had been harassment of the poll workers, that there had been the conscious positioning of those polls in white homes that perhaps did not include Hispanics—given the record—if there had been the harassment of the Mexican-American poll-watchers, why wouldn't you believe that it would have been wise to let the jury, or judge hear out the facts on that, to make a judgment on whether that whole election process and system was sufficiently corrupt and sufficiently discriminatory, so that the kind of relief that the petitioner wanted might be justified?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In that case, I thought an adequate showing had been made to survive a summary judgment motion. I said that to conclude, "That plaintiffs evidence could not justify striking down the at-large election system, does not, in my view, necessarily mean that the plaintiffs may not be entitled to some relief. For example, plaintiffs statistics regarding placement of polling places in private homes"—this is a very long paragraph.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Right. The point is, don't you think if you heard, or that a jury heard, the testimony with these kinds of serious allegations about poll-watchers being harassed, and about irregularities by the city clerks, other kinds of these types of activities which obviously, if they are true, and you say even if they are true, might indicate that the whole system, the whole system within that community is sufficiently tainted, that the opportunity for a true election would be virtually impossible? Don't you think if a jury heard and listened to those witnesses that made those allegations, and heard their cross-examinations, given the significance and the importance of discrimination that exists in my own community, in the City of Boston, and in other parts of our country— did you ever think for a moment that we really ought to try to hear that out, or send it back and let a jury or a judge find out how invidious this really is, before we deny, effectively, these petitioners their day in court?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, it would be a judge in this case, and I thought that the action did justify further pursuit in the courts. I have indicated that I thought that a complaint would lie for these actions. I did think, Senator, that because of the insistence of the plaintiffs that they wanted only the at-large election remedy, that a judge could not reasonably conclude that the at-large remedy—or pardon me—that the maintenance of the at-large system was intentionally caused, because I did not think that the evidence supported that inference. 195 I did not think that inference could be drawn. Now, if you want to hypothesize, saying that because of this injury there should have been a remedy of district elections, then that is another point, and under the 1982 amendments to the Voting Act, I think that may very well be the case.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, it was because we went into an effects test. But we do not want to leave the record to suggest that you remanded for further proceedings. You affirmed the earlier decision. You could have remanded for further proceedings which
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I was a single judge. I did not have the dispositive power over the judgment.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me go into, again, this question about a different type of discrimination. We talked about it, briefly, yesterday, and that is the whole question of stigmatization and invidious discrimination, particularly with regards to women in our society. And we addressed that issue as it related to your former club memberships, and I do not want to go back over that ground. But I want to get back to what you think is necessary in terms of finding invidious forms of discrimination, again against a background where we have seen, with regards to women and minorities, that issues of discrimination are now much more sophisticated. They certainly have become so in recent times, and I think the American people understand that. Now as a practical matter, blacks were excluded from the Olympic Club because of their race, or sex, and during our discussion yesterday, you agreed that it is stigmatizing for a woman to be excluded from a club where business is conducted. In fact you said it is "almost Dickensian" and inappropriate, but, at the same time you indicated that in your view—and I quote: None of these clubs practiced invidious discrimination, Now the Bar Association, in its commentary, does not require that there actually is an evil intent, in its restrictions of membership in various clubs. And I am just wondering whether you think that there can be invidious discrimination—without trying to reach back into the mind of the particular drafters of a statute, or bylaw, or regulation—whether the effects of that type of a by-law, or regulation or statute effectively can discriminate invidiously, or whether you find that you have to go back to the mindset of the individual who either voted for or drafted that particular by-law or statute?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Invidious is the term that the ABA used, and it is the term that the Judicial Ethics Committee uses as well. It is not a term that so far as I know has a meaning that has been explored in the case law, and therefore, it is somewhat imprecise. I think that the dictionary definition would be evil or hostile.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have got it here. I do not want to be spending the time on it, but you know the point I am driving at.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The law in torts says that you can be charged with the natural consequences of your own acts. It is clear, to me, that if a discriminatory barrier exists for too long, if it is visible, if it is hurtful, and if it is condoned, that the person who condones it can be charged with invidious discrimination. I would concede that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I think I will leave that there. 196 Let me go on to another area, if I could, that involves both the availability and the sensitivity and the usefulness of statutes and laws to correct wrongs. What I am talking now is access to the courts. I am sure all of us understand the importance of having our day in court. It is part of our national heritage, but courts are especially important for those that lack the financial resources and the skills to be able to protect their rights. So as you know, class actions are often a means used by large groups of victims to pool their resources and bring a lawsuit for the benefit of all the members of the class. It may be women, it may be blacks, it may be senior citizens in terms of Social Security, which we saw reflected during previous nominations. In a decision in 1982, in the Pavlak v. Church case, you held that the fact that a motion to certify a class action was pending did not stop the clock from running on the statute of limitations on the claims of members of the class. The approach you took would severely undercut the usefulness of the class actions because each victim, effectively, wouJd have to file intervention papers in the class action in order to protect his or her rights if the courts denied the motion to certify the class. So in the hypothetical employment discrimination suit I referred to, every person who was discriminated against would have to file intervention papers. They, in effect, would have to get a lawyer and file in case the court decided not to treat the case as a class action. Now, the Supreme Court in 1983 vacated your decision because in two cases that year the Supreme Court unanimously rejected the view you expressed. Would you address the concern that your decision in the Pavlak case reflects a very technical and narrow view in terms of the access to the courts to American people, who may be poor or handicapped?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. TO begin with, you have to remember that the class action failed there. So the question is whether a person who has an individual injury can sue.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That is right.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And the Supreme Court decision does make it easier for those persons who are injured to file an individual suit after the class has failed.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Right.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Our concern was that by the pendency of the class action, of course, the defendant has an open-ended contingent liability, and there is some interest in terminating those contingencies and in encouraging people with individual claims to come forward so the defendant knows what it has to defend against.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Sure.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And in this case, the plaintiff did not seek to intervene even after the court gave leave to intervene. The court gave leave to intervene at the conclusion of the class action, and the plaintiff did not. That was our rationale for saying that the statute has run. I certainly do think it is a close case, and I am quite willing to accept the decision of the Supreme Court. I forget 197 where the other circuits were on that point. I think we followed the decision of the second circuit, but I am not sure.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. This is with regards to whether you have got individuals who have a grievance, and they are trying to find out if there is going to be certification of a class action.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That request or certification can be denied for any number of reasons—the size of the class dissimilar interest, any number of different reasons for which a class action, as I understand, can be dismissed. And we are talking about the statute of limitations, for example, that in some instances are not 7 years, but 60 or 90 days. Fair housing is 120 days. So we are talking about a relatively short period of time in areas, particularly in the area of housing, where there are some very serious, egregious situations and where this may have a significant effect. I hear your reasons for it. Let me ask whether these narrow rules really effectively have a booby-trapping effect on individuals. Just again on the issues of the statute of limitations, in Koucky v. Department of Navy in 1987, you affirmed a lower court decision dismissing a handicap discrimination claim against the Navy on statute of limitation grounds because the complaint, that was filed on time, named only the Department of the Navy, not the Secretary of the Navy, as required by law. Similarly, in Allen v. Veterans Administration, you affirmed a district court order dismissing a suit on statute of limitation grounds because the papers, filed on time, named the Veterans Administration, rather than the United States, as the defendant. What I am looking for is some assurance that these and other cases do not reflect any predisposition on your part to look for ways to keep worthy cases out of court.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. They do not. If you will look at our opinion in Lynn v. Western Gillette, I am tempted to say, you will see that I was quite capable of giving a generous interpretation to a statute of limitation in a Civil Rights Act case. The claims cases you mentioned against the Government are ones where I wish the Congress would pass just a little bill
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That is asking a lot.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY [continuing]. To clean up the statute of limitations law. I could write it for you on the back of an envelope during a recess. We have been pleading with the Congress for years to give attention to this, to what we consider to be as the law of our circuit—the mandatory rule that you have to serve two different people. It is a trap. There is no question it is a trap. It is also, Senator, the law.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I thank you. I would be interested in your recommendations on it, and I know that the time is flowing down. But at least in these cases affecting minorities, affecting the handicapped, affecting access and discrimination, we welcome your response. I think the real question that certainly members hear across the country, which is the most important aspect, people want to know whether—not only as a nominee, but should you be confirmed—whether you are going to live by those four words that are above the Supreme Court, which you know so well, and that is 198 Equal Justice Under Law; and whether they are going to feel, particularly those that have been left out and left behind, that in Justice Kennedy they are going to have someone that will not be looking for the technicalities and the narrow and crabbed or pinched view of a particular statute, but a justice who is going to be sensitive to the basic reasons for why that statute was passed. That is something that we will be making judgment on. I do not know whether you care to comment.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, thank you, Senator. I think it is an important part of the advise and consent process that you make the judge aware of your own deep feelings and sensitivities. I would say that if I am appointed to the Supreme Court and I do not fully meet the great proclamation that stands over its podium, that I would consider that my career has not been a success.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. The Senator from Wyoming, Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman. First, Mr. Chairman, let me say that yesterday I mentioned—and I want this very important matter to be heard—a group called the National Women's Law Center as a group who had spoken out against Judge Bork on issues of discrimination based upon sex, and that they had no men in their organization. That was incorrect and in error and unfortunate. The group was not the National Women's Law Center, which is a Washington, D.C.-based group. My confusion was occasioned by the fact that one lady named Marsha D. Greenberger is the managing attorney of the National Women's Law Center and a member of their board. She is also a member-at-large and on the letterhead of a group called the Federation of Women Lawyers Judicial Screening Panel, which is a Washington organization. My confusion was caused by that dual membership of this lady attorney on that National Women's Law Center and this Federation of Women Lawyers Judicial Screening Panel. This group, the Women's Law Center, did object to Bork, in fact, in a letter they stated that they had never before ever taken a position on a judicial nomination, but because of the extreme nature of Judge Bork's legal views and the dramatic effect on the rights of women, the center felt compelled to take that step. But what I was referring to was the letter of the Federation of Women Lawyers with regard to Judge Sentelle where they were objecting to his being a member of the Masons because it was a male organization. I was saying there is the true irony because the letterhead of that group does not contain the name of any male. Now, before sinking deeper into the morass there, I do indeed owe an apology to the National Women's Law Center. The remarks I made with regard to the Federation of Women Lawyers Judicial Screening Panel I would leave on the record, but I certainly want to apologize to the National Women's Law Center as an error on my part. I would like to clear that record, and especially to Marsha D. Greenberger. And my apology, surely due, is certainly hereby expressed, and I earnestly hope accepted. With that, I shall move on. Mr. Chairman, you know, regardless of what we say, sometimes the needle does get stuck here, and we have reviewed old ground, 199 the things we reviewed in the previous nomination: unenumerated rights, framers' intent, ninth amendment, rights of privacy, precedent, States' rights, antitrust, civil rights, freedom of press, speech, criminal law, equal protection, race and gender, gender discrimination, Establishment Clause, death penalty, congressional standing, judicial restraint, voting rights. The only one I do not remember was comparable worth. But we have, indeed, plowed old ground.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Sounds like the Constitution, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It does. Should be. Lively little place in here. But let us keep the record quite clear that we have all dabbled in just what we dabbled in before, and will again because that is our role. So yesterday there was an interesting discussion on criminal matters. It did not come up as much in the previous hearings, but there were questions about imposing strict sentences on convicted criminals. I remember some of your comments on that. A tough one always for a judge. I know in my practice when the trial was ended and the sentence awaited, and the jury, having concluded their deliberations or a non-jury case, the sentencing was always the troublesome part for the judge. You know, those are the ones, as they say, that keep you up at night. But, anyway, you referred to that. We have just grappled with technical amendments to the sentencing guidelines legislation which established uniform sentencing for criminals across the United States. That was somewhat controversial. Senators Thurmond and Kennedy worked many years on the criminal law, sentencing guidelines, those things. The sentencing guidelines were designed, or at least we believe that they will work to bring uniformity in the sentencing of white collar criminals—white collar crime, more specifically—one that was tough to get at. There is a widespread public perception in society that white collar crime does not receive the same degree of strict sentencing which other crimes receive. I would appreciate having your comments on the importance of sentencing in the area of white collar crime as it is in this country today.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. White collar crime, as I have indicated in the initial exchange with Senator Metzenbaum, is, I think, an unfortunate term. It sounds as if it is a clean crime, which is, of course, a contradiction in terms. White collar crime can rob people of millions of dollars just as effectively as a person with a gun. I know bank officers who have congratulated me for my tough stance on crime because we put away bank robbers, but then they will turn around and they will, for fear of publicity, not prosecute one of their officers who has embezzled $50,000. I think that is wrong. White collar crime is very, very dangerous, particularly in the consumer fraud area where people are deprived of their life savings. I think the courts should be very vigorous with respect to socalled white collar crime, and I wish we could find another aphorism that indicates that it is really a very, very ugly deed that we are talking about.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Yes, it is a tough one because it often arises from a position of trust to embezzlement and other aspects of that crime. 200 Well, now I have a totally provincial question. I want to get right down to that. I would ask you about perhaps an expansion of your opinions on the importance of States' rights in the constitutional system. That is sometimes overused. I think we do overuse that; perhaps I do, too. "States' rights." But as a Westerner from the State of Wyoming, I think it is sometimes forgotten that here is a State of almost 100,000 square miles; 50 percent of the surface of it is owned by the Federal Government, and 63 percent of its minerals are owned by the Federal Government. In that State is 40 percent of the Nation's wilderness in the lower 48. So we have continual conflict on States' rights when you have the surface of a State owned 50 percent by the Federal Government. That means it belongs to the people of the United States and not to the people of the State of Wyoming. So I have this abiding interest in the opportunity for states to determine their own destiny on a multitude of issues without intrusive interference from the Federal Government, recognizing, of course, the federal nature of the public lands—or the public nature of the federal lands might be a better way to say it. Could you give me your philosophy briefly regarding that general issue of States' rights and the reservation of power to the States under the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Federalism is one of the four structural components of the Constitution. The framers thought of it as really one of the most essential safeguards of liberty. They thought that it was improper, that it was spiritually wrong, morally wrong, for a people to delegate so much power to a remote government that they could no longer have control over their own destiny, their own lives. That is the reason for the states. The framers were very concerned that the sheer problem of geographic size would doom their experiment in a republican form of government. Their studies had taught them that the only successful republican form of government or democracy would be a small city-State. In those times, there were great diversities. One of the framers at the convention from South Carolina said the differences that divided his State and Maine and New Hampshire and Massachusetts were greater than those that divided Russia and Turkey. And he might have been right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kennedy and Senator Thurmond, thank you. All right.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is the purpose of the Federal system, and it is the duty of all the branches of the government to respect the position of the place of the states in the Federal system. As I indicated yesterday, there are no automatic mechanisms, or very few, in the Constitution, to respect the rights of States. You can read all through the Constitution and you will see very little about States. This indicates, I think, that we have a special obligation to ascertain the effects of national policy on the existence of State sovereignty.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Obviously, you have made several references to the history of the Court, the history of the Constitution, the Constitutional Convention. That has been most interesting to me. 201 Obviously, you enjoy reading and studying Supreme Court history; is that true?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I would think that would be a tremendous asset to any Supreme Court Justice to have that appreciation and flavor of the historical analysis of the Court before a judge would go on that court. I am going to conclude with a question. I remember that Senator Humphrey waived his whole stack of comments yesterday—and in accordance with trying to get the job done, I am going to conclude. And you have been very good, Mr. Chairman, at accelerating things, and I hope we can continue to do that. But let me ask you this, Judge. In your knowledge of the history of the Supreme Court, and reading of it, have you come upon a favorite among Supreme Court justices down through history, those who have served, one on whom you might lavish just a little extra ration of praise among all the remarkable men who have served? I would be interested if you do have such a preference for a person?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I've sometimes tried to make up all-star lists of the Supreme Court. I will usually just put on seven in case somebody else has their favorites. Chief Justice Marshall foresaw the great destiny of this country. He knew the necessity for a national government. He had a power and a persuasiveness and a rhetoric and a morality to his opinions that few other justices have ever possessed. He went to law school for just 6 weeks. He had a remarkable grasp of the meaning of government and the meaning of the Constitution. The two Justice Harlans, the Justice Harlan in Plessy v. Ferguson, and the Justice Harlan of the not too distant past, were great, great judges because of their understanding of the Constitution. Brandeis, Cardozo and Holmes sat on the same Court, and were some of the greatest justices who ever sat on the Court. And one of your colleagues, one of your predecessor colleagues, Hugo Black, was one of the great justices of the Court. He had a hideaway office somewhere here in the Capitol, and he would read Burke and Marx and Hume and Keynes and Plato and Aristotle during the Senate's sessions. He was simply a magnificent justice. He carried around, as many of you know, a little pocket copy of the Constitution at all times, in case he was asked about it, a habit that has been emulated by many of his admirers. Those were all great men in the history of the court, Senator. To talk only of those who are not living.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, that is fascinating. Now, instead of reading those things, we read stuff from our staff while we are squirreled away in some warren somewhere. And maybe we ought to go back to some of those treatises in every way. A Wyoming man served on the Supreme Court, Mr. Van Devan ter. 202
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Mr. Justice Van Devanter. He was one of the greatest justices on the court for achieving a compromise among the justices. When they were searching for a common point of agreement, Mr. Justice Van Devanter could find it. He did not produce a lot of the opinions of the Court, because he found it very difficult to write; he was a slow writer. But he was valued very, very highly by all of his colleagues.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That is very interesting. Thank you so much, Judge.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me ask you a question about history, and I am not being facetious when I ask this. Didn't Justice Black, when he was Senator Black, also carry a book with a list of all his supporters and contributors? A little book? I am told that Justice Black, when he was a Senator, literally carried a book—was it Black? He was Senator Black from Alabama that had a list of all his supporters. So every county he went into, he would take out his little book. And he would know exactly who had helped him in the previous election. He carried that with him all the time, I was told.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not aware of that. He was from Clay County in Alabama.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Maybe our Alabamian at the end of the row could clarify it when we get to that.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. It would have had to have been the Encyclopedia Britannica.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I was told it was his contributors, but I will move on to the great State of Vermont. Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. I do not want to delay, but when Judge Kennedy and my friend Al Simpson talk about Hugo Black, I remember when I was in law school. I'm sure you remember a lot of things about law school, we all do, but for me one thing really stands out the most of all the matters in law school. Because we were right here in town, Georgetown, the law school, decided to have a luncheon inviting all the Supreme Court justices. They all accepted on one condition: there not be a head table. We were going to be in a bunch of small, round tables, and it would be run by either the student bar or something of the law school. They would draw lots, and different justices would sit at different tables. And that was the only way they would do it, so they could sit with the students. So we drew lots, and I ended up sitting next to Justice Hugo Black whom I had never met but just seen in the Court. And at the last minute one of the other students was sick. My wife came with me. And it was the most fascinating thing in 3 years of law school. He had no idea I was going to sit there. I mentioned I was from Vermont. And he said, oh yes. He said, Franklin—the first time he said it, I didn't realize he meant, of course, President Roosevelt—he said, Franklin sent me to Vermont to campaign during a contested election. He told me the towns he went to—this was back in the 1930s. Who he campaigned for. And what the votes were, the numbers. 203 We went back and checked with the Secretary of State's office subsequently, and he was absolutely right. Remember, they picked their lots as they came in, and ended up at their particular tables. But during the course of the thing, a couple of times when questions came from different students, the hand went to the inside pocket. Out came the copy of the Constitution. It was more worn than the one I carry. And he would refer to it. And it was a remarkable experience. I felt that it was worth at least one full year of law school, that one luncheon, just listening to this man.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. He had a remarkable memory. He could remember the score of every tennis game that he beat me. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, that really was not fair, him beating you, because he was younger, wasn't he, Senator Heflin? But let me just go back, and I will try to brief but to go back to this morning. You have been asked a lot of questions about your views on privacy, and you have answered me and other Senators. And those answers appear to establish that you recognize the protection of privacy as a value that the country should enforce in constitutional litigation, even though the word, privacy, is not mentioned in the Constitution; even though the boundaries of privacy or of the right to privacy may be unclear. Nobody is asking you to say here today just where those boundaries are, nor I suspect from your testimony, do you feel that anybody could say today just where those boundaries are. Am I correct so far?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that is correct, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU have also said that there are other rights not specified in the Constitution that you think the courts can enforce. You have given some clue as to where you go to look for those—to history, precedent, national values. Now, let us turn to an area where the issue is not what unenumerated rights should be recognized, but what the specific bill of rights means, and that is the area of criminal law. You have ruled, as I read your cases, you have ruled for the defendants in about a third of the criminal cases you have heard. You have done it for the government in about two-thirds of the cases. And going down—and I'm not suggesting anything by that number. One of the nice things about being a prosecutor rather than a defense attorney is that prosecutors win most of their cases, if they are at all smart about what they bring, and defense attorneys, by the same nature, would have to lose most of them. You gave a speech at McGeorge Law School in 1981, a commencement address, and you said, and I quote: "We encourage debate among ourselves and with anyone else on the wisdom of the rules we adopt. I question many of them myself. For instance, some of the refinements we have invented for criminal cases are carried almost to the point of an obsession. Implementing these rules has not been without its severe costs." Now, are you referring when you talk about the point of obsession to some of the detailed refinements that have been made in the application, for example, of the fourth amendment to warrantles,« searches?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I suppose I had the fourth amendment in mind generally. This is pretty broad rhetoric. 204 With the fourth amendment, we have, as I have indicated, extracted a tremendous cost for putting the system in place. Now that it is in place, it works rather well if it has a pragmatic cast to it. That is the purpose of the good faith exception. Whether the good faith exception is going to be so broad that it will swallow up the rule remains to be seen.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me go into that a little bit. Because, again, thinking of days when I was a prosecutor, I might chafe a little bit at the idea of the exclusionary rule, but I also realized, and anybody in law enforcement has to be honest enough to realize, that absent the exclusionary rule, there are some groups within law enforcement that would just push things as far as they could. Most of the better trained, better equipped, either State or local police, or groups like the FBI, have been able to work well within the confines of the exclusionary rule. But on gooc! faith—well let me just back up and make sure I understand this. You do not feel the exclusionary rule by itself is a mistake; is that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NOW that it is in place, I think we have had experience with it, and I think it is a workable part of the criminal system.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you do not
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. If it is administered in a pragmatic and reasonable way.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, I realize this is jumping to quite a hypothetical. But you do not see yourself as being one, back at the time the exclusionary rule came in, of being the one to be at the forefront initiating the exclusionary rule?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not sure I understood your question, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY, Well, you say, the exclusionary rule, now that it is in, you accept it.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But I take it by that you do not think you would have been the one to have been the first person to have put the exclusionary rule in?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I did not mean to imply that. I think that the courts were generally concerned that there was a lack of any enforcement of that provision.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, you said in the Harvey case, U.S. v. Harvey, the court has the obligation to confine the rule to the purposes for which it was announced. How do you see those purposes?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The purposes are in the nature of a deterrent. The purpose of the exclusionary rule is to advise law enforcement officers in advance that if they do not follow the rules of the fourth amendment, the evidence they seize is not going to be usable. Now if the rule goes beyond that point, and a police officer in all good faith, after studying the rule, makes a snap decision that a warrant is valid, or a considered decision that a warrant is valid, then I think the system ought to give some recognition to that reasonable exercise of judgment on his part. 205
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you do accept the idea that the expansion of that good faith exception could, to use your term, swallow the rule?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That could very well happen. And it remains to stake out the proper dimensions of that rule—of that exception.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I understand. And is that an appropriate place for the courts to act, in staking out those parameters?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The courts must act there, because it is their rule.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. There are areas where legislatively— well, I don't want to go into that. Let me ask you about the sixth amendment right to counsel for criminal defendants. Is that a principle that has been taken to the point of obsession?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. Although there may be cases where the right—no, I think not.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me just make sure I understand. Betz v. Brady, right to counsel in federal felony cases. You have no problem with that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, no, and of course that is ^re-Gideon.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And you have no problem with Gideon?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Even though that, some could say, erodes independent State law. You have no problem with Gideon v. Wainwright?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, as a general proposition of law, it is accepted. I know of no really substantial advocacy for its change.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Miranda. How do you feel about Miranda?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, we are going down the line here. The Miranda rule, it seems to me, again, we have paid the major cost by installing it. We have now educated law enforcement officers and prosecutors all over the country, and it has become almost part of the criminal justice folklore.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And you do not have any problem with that now?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Criminal justice system folklore. Well, I think that since it is established, it is entitled to great respect.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I suspect a sigh of relief might be given by most police officers. I can't imagine a police officer anywhere in the country who doesn't have the card.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is a remarkable example of the power of the courts. And it is a reason for judges reminding themselves that they should confine their rules to the absolute necessities of the case.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you want to expand on that? Did they confine themselves that time?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the Miranda rule, as I said, is in place. It was a sweeping, sweeping rule. It wrought almost a revolution. It is not clear to me that it necessarily followed from the words of the Constitution. Yet it is in place now, and I think it is entitled to great respect.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, one couldn't say it followed the absolute necessities of that case, could you? Even with the confusion that still existed following Escobedo? 206
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is right. I think it went to the verge of the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I often ask myself whether it would have if Escobedo had not preceded it
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [continued]. Which caused all kinds of confusion. I mention that only because there is the flip side of it. Escobido, I thought anyway, left a lot of confusion as to just what you are supposed to say and everything else. And Miranda, I happen to agree with you, went way out there. But I wonder if it was not a practical reality, because the Court had to know that there was confusion from Escobedo. And the confusion was laid down with the little card that one could carry out of Miranda. "'*"' ~
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the merit of simple rules is that they are workable. Their vice is that they may go beyond the necessities of the case.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And you think in this case they may have?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think they may have, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. Let me just ask you just one last area. It goes into what has to be the hardest and loneliest duty of a Justice of the Supreme Court. Now you act as a circuit justice. Every Justice of the Supreme Court gets the ability to act as a circuit justice. You have authority to act alone without the other justices on emergency matters that come within the geographical circuit to which you have been assigned. Now one of those matters, and it comes up often—it is almost impossible to go more than a couple of weeks without reading in the news—that someone on death row has filed a petition seeking a stay of execution. Now, sometimes there are motions still pending in other courts and so on. But let us take the instance of death warrants issued by the governor. The lower courts have refused to suspend them. Other courts are in recess. You're back home, and it is hours before the petitioner or the prisoner is to be executed. You are at the end of the line. The decision is up to you. You have got a few minutes to make it. Without going into a question of how you feel about the death penalty, how do you approach a decision like that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, we have had situations like that where we have had single judges acting in single motions.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In the ninth circuit?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir. The first thing you do is you take off your coat, and you sit down at the desk and you begin working it out. If there is merit to the claim you simply have to stop the execution until you get the information before you. You may end up increasing the suffering, and the aggravation, and the anguish of the defendant, but I just know of no other way to do it. It happens with every single execution. The courts do not look good. We act with the appearance of feverish haste. The defendant, who has been sentenced to die, has his deadline extended again. But the law of this country is that the Supreme Court of the 207 United States exercises supervisory power over its circuits, and if that is what the jurisdiction is, the jurisdiction must be exercised.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU are also saying that it is a case-by-case thing. There are no mechanical rules you can follow?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. There are no mechanical rules. Now there have been suggestions by task forces that we have fixed points for cutting off any petitions, but the problem was always that there is new evidence and new argument, and I just do not know how to cut that off.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO you do not agree with those task-force recommendations?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, they have not even come out with anything, that I have looked at, that looks very solid.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. It would be kind of hard to do it, wouldn't it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. We will now go to Senator Grassley, and after that, Judge, we will give you an opportunity to get up and stretch your legs, and break for 15 minutes.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, sir.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. Judge Kennedy, several times you have spoken of the tension between order, on the one hand, and liberty on the other. Constitutional scholars often speak of the tension between our American ideal of democratic rule and the concept of individual liberties, and we often refer to this as the "Madisonian dilemma." The U.S. was founded on a Madisonian system, one that permits the majority to govern in many areas of life, simply because it is the majority. On the other hand, it recognizes that certain individual freedoms must be exempt from being trampled upon by the majority. The dilemma is that neither the majority nor minority can be fully trusted to define the proper spheres of democratic authority and individual liberty. First, could I have your assessment of this "Madisonian dilemma." Would you agree that there is a tension there?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am not—of course order and liberty can be set up on a polar spectrum, but I think it was Mr. Justice Reed who said that, "To say that our choice is between order and liberty is an act of desperation." You may have order and liberty, and without both you only have anarchy. That is my addition.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. It is at least unavoidable?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Pardon me?
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The tension there is at least unavoidable?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The tension does seem to be unavoidable.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, given the fact that there was very little debate during the Constitutional Convention of 1787 over the whole subject of the judicial branch, it seems somewhat unclear that the framers envisioned the leading role for the judiciary in the resolution of this dilemma. After all, you will recall that Alexander Hamilton spoke of our judicial branch as the "least dangerous" branch, having "neither force nor will, only judgment." 208 And over time, of course, people have come to assume that it is the job of the judiciary, particularly the Supreme Court, to decide how to resolve the tension. I assume that you agree with this role for the third branch, correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am uncomfortable with saying that the judicial branch has assumed a role that was not intended for it by the Constitution. On the other hand, we have to recognize that immediately after the Hamiltonian structure and the Madisonian—it was really a Hamiltonian structure that was in place—we had a Jeffersonian Bill of Rights added onto it. And so, from the outset, we built in a tension, and the framers did not pay very much attention to the courts, Senator, and I am not quite sure why that is. Perhaps it is because they never conceived of the courts exercising the broad jurisdiction, the broad authority to announce the law that they now have. I am just not sure why. It is fascinating. They distrusted the legislature. You have bicameralism as a principal check, and, of course, the President, and there are very few checks on the courts. And so that is why it is important for the court to check itself.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I think you are telling me that there is a role there for the Court in solving that, "Dilemma," and you see that as a proper role?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I do. Yes, sir.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Some judges and scholars believe that in resolving the "dilemma", that courts' obligation to the intent of the Constitution are so generalized and remote, that the judges are very free to create a Constitution that they think best fits into today's changing society. Now I am not saying that that is your approach, but I want to know what you think of that approach, because there are scholars who believe it and there are people that practice it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think when a judge defines, or articulates a constitutional principle, he should find very, very convincing and authoritative evidence to support his, or her, conclusion.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. SO then you would take some exception to some scholars' beliefs that the courts are free to create a Constitution that best fits today's needs?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I could not accept that formulation as being consistent with the Court's role in the constitutional system.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let me illustrate what happens, then, when Justices are not faithful to the original understanding of the Constitution, due to over-generalization, like I just expressed. Justice Brennan has characterized the Constitution as being, quote, "pervasively concerned with human dignity," unquote. From this basic point, he creates a more general judicial function of "enhancing human dignity", even when it is contrary to the intent of the framers. The problem with this theory is that every Justice's concept of human dignity is very personal with the thought process of that individual. Judicial discretion becomes, "untethered." It becomes a matter of each Justice adjudicating according to some personal bias or belief, not the Constitution. 209 Would you agree with that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would agree; I had an exchange with Senator Humphrey just before the luncheon break in which we were discussing the categories that a judge might look to in order to determine whether there was a privacy claim, and it occurred to me, as soon as I concluded my answer, that I had made an assumption but had not stated it. And the assumption is we are doing this in order to determine if this fits with the text and the purpose of the Constitution. That is why we are doing it. We are not doing it because of our own subjective beliefs. We are not doing it because of our own ideas of justice. We are doing it because we think that there is a thread, a link to what the framers provided in the original document.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Permit me to continue with the practical application of Justice Brennan's theory of constitutional interpretation. Brennan finds that capital punishment, even for those who commit the most heinous crimes, violates the Constitution, because capital punishment, to him, falls short of his "constitutional vision of human dignity." I disagree with Justice Brennan. First, because I believe that capital punishment is explicitly authorized by the Constitution. There are four or five references to capital crimes or the loss of life in the Constitution. I also have a problem with this type of constitutional analysis—Justices generalizing from particular clauses and then applying the generalization instead of the clauses. Can you comment on this theory of constitutional analysis—a theory that permits the creation of rights so general as to give courts no guidance in how to interpret them?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS you have stated it, that, it seems to me, would be an illicit theory.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. If I could, I would like to turn to the subject of the legislative veto. You and I discussed it briefly in my office. You know of my interest in it, and you have written on the subject at least in one outstanding case. Perhaps your most significant ninth circuit opinion is that one striking down the legislative veto in the Chadha case, in 1980. This opinion was affirmed and expanded upon considerably by Chief Justice Burger 3 years later. I have a real interest in the legislative veto. Senator DeConcini of our committee, Senator Levin, and I and others have introduced legislation to revive the legislative veto as a check on the bureaucracy that over-regulates our lives. And I am sure you are aware of all the business people in America who are complaining about too much government red tape, or the taxpayer that has been abused by the IRS. So I have a series of questions on both the constitutional and practical dimensions of the legislative veto. You would agree that federal agencies, which are routinely delegated legislative or quasi-legislative power, may issue regulations having the force and effect of law, without bicameral approval or presidential signature, isn't that correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, that is the existing law, and we had a colloquy earlier this morning in which I indicated that this is a rather 210 untidy area of the Constitution, so far as explaining the justification and the constitutional bases for administrative agencies. I think most of us recognize their necessity, and there is no question that agencies make law. We cannot avoid that fact. And so I think I would say that I do agree that that is what happens.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Would you also agree that sometimes these regulations can be excessive, burdensome, ill-advised, or just plain wrong-headed?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, and I could say the same things about decisions of courts. I agree.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, if agencies need not satisfy the article I requirement when they pass something that is wrong-headed, or however you want to characterize it, why, then, is the Congress's mere reservation—just the mere reservation of a veto subject to a more exacting article I test?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I thought that this was a tremendously difficult problem in the Chadha case. In the Chadha case, there was an adjudication of an alien's status, and he was granted leave to remain in the United States on the grounds of extreme hardship. They made an adjudication in an individual case. One House of the Congress, the House of Representatives, for no given reason, attempted to cancel that and he was to be deported. We found, in the ninth circuit, that this was impermissible, that this was an interference with the core function of the executive branch, and also with the judicial branch. The opinion was written very narrowly because we reserved the question of whether or not the Congress might have a veto mechanism over the rulemaking functions of agencies. We did not think that case was presented and we thought that that might present different considerations. Now we recognized, of course, that any broader formulation than the one we adopted would strike down 250 statutes, and we thought that one was enough for that opinion. The Supreme Court did affirm our court, but I have to say, on a different rationale. The Chief Justice, writing for the court, invoked the presentment clause and thereby I think pretermitted any evaluation of a one-House veto over rulemaking, and we did not come to that conclusion. But that is the law, and the Supreme Court has handed down the Chadha case, and I think that legislative veto in one House, or both House vetoes—
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. DO you think there is any way to validate the legislative veto through the use of the doctrine of original intent?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. I tried to find that. You know, it can work both ways for us, Senator. We do not always find the answer we want. I read all of "The Federalist Papers." I read everything I could find that Madison had written. I read what Jefferson had written, even though he was not at the Convention. I concluded that, in this case, the veto mechanism did violate the express intent of the framers. And it is a good example of the fact that the Constitution can teach you something.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I think it is important that we look at what the framers actually said in "The Federalist Papers" about the im- 211 portance of bicameralism. But could they have intended this result? It seems to me that the framers were very practical politicians. They knew how to resolve political dilemmas, and that is why the Federal Government was chartered with a great deal of flexibility. I do not think they could have foreseen in 1787 what would be developing in a modern government; that there would be whole industries to regulate, consumers' and investors' interests to be protected, government benefits to be distributed, and so on. We could make a longer list than you or I want to make, of all the things that government is involved in today. If they had known this, do you really think that they would have intended every bit of legislation to be done in this "civics-book" fashion?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, you are asking me for my legal opinion. In the case that we wrote, we found sufficient differentiation between an adjudicatory proceeding, on one hand, and generic rulemaking, which is what you are describing on the other, to confine our case to the former. I thought that the situation you described, with generic rulemaking, might present a different constitutional problem.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Doesn't this really get us back to the issue of how to find the original understanding
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think it is a good example of it, Senator, and it is one in which I thought the Constitution spoke rather clearly against interference with the core function of another branch of the government. I thought that the legislative veto in Chadha was violative of the provision of separation of powers, and I made it clear that the legislative veto, in other instances, might not violate that separation. What you had in Chadha was one of the highest officers in the executive branch of the government, making a determination in his executive capacity It was followed by court review or the possibility of court review, and, for one House of Congress, without reason, to simply upset that adjudication, seemed to me to violate separation of powers, and we so held.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Kennedy, on at least a couple of occasions, Justice Rehnquist has suggested that Congress has unconstitutionally delegated responsibilities to federal agencies. As you know, with the creation of the "modern administrative State', no federal statute that I know of, in the last 50 years, has ever been invalidated on the grounds that the congressional delegation to the agency was too broad. Do you think the Supreme Court ought to revive the so-called non-delegation doctrine, which was last used to strike down some of the New Deal legislation? Do you see any possibilities in that area, following Rehnquist's view, at least?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the non-delegation cases—and I think that is the right term to give them—seem to be lying dormant, don't they? And it is not clear, to me, the extent to which they still have vitality. But these questions go very much to the core of the functioning of the Congress, and I think that the Congress must give very, very 90-87 8 0-39- 8 212 careful attention to how it can control the agencies that it creates. I think that problem is pointed up by the opinion of the Supreme Court, and of our own court, in Chadha.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would like now to turn to a different area. Judge Kennedy, during the Bork hearings, much was made of the fact that many law teachers opposed Judge Bork's nomination. In his writings, Judge Bork was very critical of the prevailing academic establishment which tended to have a liberal political philosophy. Bork was critical of law professors who, once realizing that they could never convince democratic electorates to vote in their social policies, turned to judges as a fast way to make society over to their liking. Of course I suppose wanting judges to do "good things," simply because the electorate will not do them, and do them quickly enough, is not limited just to liberalism, I will admit. But I do sense an attitude among what I refer to as the "legal elites" of this country, that when the legislative process "malfunctions", judges ought to step in and deem themselves lawmakers. That is why I am so concerned about getting someone who believes in judicial restraint on the Supreme Court. You have been a constitutional law professor for many years. Can you comment on your perception of the ideology that eminates from most law schools today?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it might be somewhat presumptuous of me to characterize the legal education establishment nationwide in just a few words, particularly because I am a part-time law professor. It is true that the law schools throughout the United States have a tremendous influence on the way our system works. There is a high degree of uniformity in law school teaching and in law school curriculum, and this has some great benefits. To begin with, lawyers are taught, in effect, a national language and this makes for a very, very efficient legal system. The capitalistic system in this country, and the corporation system, was built by the legal profession. They are important as shipwrights were to England. And so the legal profession has, and the legal education system has presented a tremendous contribution to the capitalistic system of this country with the legal talent that it educates. Now, on the other hand, with this uniformity we can create perhaps a lack of diversity, a lack of creativity. I don't see that in the law schools. I think individual professors are willing and able to explore their own philosophies in their own terms. But the danger is always there and I think law schools should be aware of it—the danger of uniformity.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, regarding this "uniformity", tell me whether or not you agree that the prevailing judicial philosophy among many law professors is one that applauds judicial activism?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not particularly comfortable in making those judgments. I am certain that a number of law school professors do hold that view, but there are others who do not. 213
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Can I ask you then, in your own approach to teaching, how have you gone about teaching your students the activist decisions of the Warren and Burger courts.?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, as I indicated yesterday, I, within certain limits of tolerance, do not care what ray students think. I do care passionately how they think. The method is the important thing. Each case must be justified according to logic, according to precedent, and according to the law of the Constitution, and I insist that each student do that for every case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Could I ask just one last question?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Surely.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I don't think it is going to take a lot of time. Have you challenged your students to question the rationale, the reasoning, behind the Supreme Court's most expansionist of decisions like the Miranda case, the Griswold case, and the Roe v. Wade case?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. That is a routine part of the curriculum. It is a routine part of the exercise. Because if those decisions cannot stand rigor->us analysis, then they can be called in question. Senator GKA^ ,U: Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Tnar / rou. Before we b^e^k, Judge, as you can see, you are causing a dilemma for some on this committee. You are not turning out to be quite what anyboay thought. So with that, we will break for 15 minutes. [Recess.] The CHAIRMAN. The hearing will come to order. Judge, I realized as we broke you and others may have misunderstood my closing comment. What I meant to say was you are turning out not to be espousing the same philosophy that we heard before, and that is disturbing to some, reassuring to others, and confusing to still others; and you are turning out to be exactly what you advertised to be—your own man—and that is what I meant. I did not mean it in a way that was meant to be in any way insulting. I meant it in a complimentary way when I said no one knows for sure.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, thank you, Senator. I didn't take it in any other respect.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, before I yield to my colleague from Alabama, the Senator from Arizona would be the next to question, but he is tied up in a conference that is going on now which will determine when and if we, the Senate and the House, ever adjourn prior to Christmas. And he will, unless he is able to make it back prior to the closing out of your testimony, he ask unanimous consent that his questions be submitted for you to respond in writing.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would be pleased to do that, sir. [The questions for Senator DeConcini appear at p. 733.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, that will be done. Now, I yield to my friend from Alabama for his
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Senator Heflin was gracious enough to say he would yield to me just fcr one follow-up question on an earlier point. I want to make it absolutely clear that I understood the answer.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, fine. The Senator from Vermont, 214
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge Kennedy, on Miranda—aside from whether you would have written in the opinion "here are the four warnings to give," do you agree that defendants should be warned of their right to counsel and their right to free counsel if they cannot afford it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That, of course, is the law and I know of no strong argument for overruling the law that is now in place.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And you agree with that right?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I don't want to commit myself that I wouldn't re-examine it, but I think it would take a strong argument to require me to change it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. Thank you very much, Senator Heflin.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The Senator from Alabama, Senator Heflin?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Judge Kennedy, you were a witness in a criminal prosecution against Judge Harry Claiborne, as I understand it.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Would you give us the circumstances pertaining to your appearance as a witness, how you were called and basically, in a thumbnail sketch, the facts?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Judge Claiborne was a U.S. District Judge in the District of Nevada. He was indicted and tried for various charges, one of which was the solicitation of a bribe from a former client of his. The former client of his was one Conforte who operated a brothel in Nevada known as The Mustang Ranch. Claiborne had been Conforte's attorney when Conforte was charged by the U.S. Government for tax evasion. Conforte was convicted. Claiborne was not his attorney on the appeal because between the time of the ending of the trial and the taking of the appeal Claiborne became a judge. Conforte's case was appealed to the ninth circuit. There was a three-judge panel consisting of Judge Tang, a United States Circuit Judge from Arizona; Judge Palmieri, U.S. District Judge from the Southern District of New York, sitting with us by designation; and me, and I was the presiding member of the panel. During the oral argument of the case, the.panel was quite vigorous in questioning the government, and it might have appeared to someone who was in the audience that the panel was quite concerned about the conviction and might be disposed to overturning Conforte's conviction. The ninth circuit, because of its workload, historically has assigned district judges to sit with us on the circuit, and Claiborne himself, now a judge, had been assigned to our circuit and had sat with me a week earlier, and he subsequently sat with me a month later. At the time he sat with me earlier, a week or so before, I was not aware that the Conforte case would come up and I had no idea that he was connected with it. When I sat with him a month later I suppose I was aware of it, but we certainly did not discuss it. The allegation was that Claiborne solicited a bribe from his client of $50,000—I never did read the indictment—of a certain amount of money in order to influence the panel in its decision. Each of the judges on the panel, including me, testified to the fact 215 that Claiborne had not contacted us to influence the result of the case. I did not hear the testimony. I was careful not to hear the testimony or read the newspaper accounts or even read the indictment. So my information on the case may not be even as good as someone who read the newspapers. But, as I understand it, the testimony was that Claiborne, the judge, had told Conforte, his former client, that Claiborne had met with Judge Palmieri in Judge Palmieri's apartment in New York. Judge Palmieri had never met the man, and so testified. All of us testified that there had been no attempts to influence us in the case. I did say that Judge Claiborne, in a telephone conversation, with my clerk a party to the conversation, had asked when are you coming out with the Conforte case and I had said the case is under submission, which was a polite way of saying I am not talking about the case. My testimony and the testimony of the other judges before the U.S. district court, which was now trying Claiborne for the bribery charge and for the tax evasion charges, was to outline the circumstances, to explain how the court of appeals works, to give background, and to give in a capsule—and to say what I have just told you in a capsule form. The jury did not convict on any of the counts. It was a hung jury. Subsequently, Judge Claiborne was retried just for some tax evasion counts. They did not retry on this matter. And he was convicted in court and subsequently was impeached by the House of Representatives and convicted and removed by the U.S. Senate.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, you were called in by the government to testify largely as to how it worked, to deny this matter pertaining to approaches being made to the three-judge panel, and I suppose as to the inquiry as to when the Conforte case would come down. Is that basically correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. And you testified as a government witness?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, I testified as a government witness in the case.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. All right, sir. Now this brings up the issue of impeachment proceedings and the independence of the judiciary.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I know that Senator DeConcini will probably submit written questions to you pertaining to the Judicial Conduct and Disability Act of 1980, as I believe it was called, which was known as the DeConcini-Nunn bill, which deals with the activity of judicial councils and the circuits and the Judicial Conference I believe, and ultimately perhaps Congress' role relative to the impeachment procedure. You opposed pretty vigorously in a 1978 speech to the ninth circuit judges the Judicial Conduct and Disability Act.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. And I know that Senator DeConcini has told me that he appeared there with you and had quite a debate pertaining to that matter. You and I are on the same side. I voted against it and made a speech questioning its constitutionality when it was on the floor of the Senate. 216 But basically, I think you felt like it had some constitutional imperfections. Do you want to explain your opposition to that bill?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, Senator. The bill, incidentally, in the form that it was initially proposed, the Nunn-DeConcini bill, and the form that we were concerned with in the Arizona debate was much more far-reaching than the bill that eventually was adopted. And that bill would have permitted a national committee of judges to inquire into the fitness and the behavior of any sitting U.S. judge, and I took, as did a number of my colleagues, the position that this was a serious threat to the independence of the judiciary. The judges of the United States must be in a position where they can agree with each other and also disagree with each other very vigorously. And, if you are in a collegial body, and as you well know in the Senate, and you must constantly disagree and debate your colleagues, you need to rely on every bit of decorum, every bit of tradition, every bit of courtesy, every bit of etiquette that you can summon in order to maintain your professional friendship with each other. And we felt that this was one of the serious defects of Nunn-DeConcini. That it would set judge against judge in an arena where previously the Constitution had committed that responsibility solely to the U.S. Senate, and those were some of the grounds of our opposition to the bill.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, does testifying against a judge pit one against another?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I suppose it does, although there, in the context where we were called as witnesses for the government, it was not as if we, the judges, were bringing the case.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. After the Claiborne matter was heard by the Senate and he was impeached, a number of Senators felt that the procedure was cumbersome and perhaps may even lack some due process, in effect, the jurors being the members of the Senate, hearing evidence, hearing arguments, absences, and many of them having to do just like we are doing now, where people have to be at conferences. Very important issues are up on the legislative basis. They have their staff there but in some of the proceedings in the Senate, some of the arguments were done in secret, in closed session, and none of the staff was present. Do you have any thoughts on whether or not the impeachment procedure that is followed under the Constitution needs changing or needs some fine tuning, or a different method, perhaps looking at what some of the States have done relative to the issue of discipline and removal of judges?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The framers were very deliberate about this decision, as you well know, Senator, and what have there been? Something like, I am tempted to say nine impeachments before Claiborne. There have been ten impeachments and five convictions, or something like that, in the history of the United States. There have been about 10 or 12 other instances where the Senate was about to convict and the judge resigned. I adhere to my view that the existing constitutional system should be maintained. I am a little cautious about commenting at length on your impeachment procedures for two reasons: one, because I haven't given the matter much thought; two, because there 217 is a case in the courts now involving a judge and it is likely to come before the Supreme Court. I think we can say that most of the commentary in the literature has been that the design of the impeachment trial process and its conduct is for the Senate to decide, guided by the managers in the House, and that it is not judicially reviewable.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU, in regard to the DeConcini-Nunn bill, or the Judicial Conduct and Disability Act, have taken a pretty strong position. Now, if you are confirmed and sitting on the Supreme Court, what standard would you use in determining whether or not to recuse yourself from cases that would come before you as a judge on the Supreme Court if the issue of its constitutionality were to be raised? Do you feel like there are certain standards that you would use or follow on the issue of recusals pertaining to this issue and any other issue in which you have firmly stated a position, in effect, in a nonjudicial capacity.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS you know, Senator, there are two methods of recusal. One is automatic recusal. Automatic recusal is required under the statute whenever a judge has a financial interest, even the ownership of one share of stock in a corporation that is a party to a given case. So the first thing you do is you look at the statute—it is 18 USC Section 455—to determine whether or not recusal is required. Then there is a more flexible standard in which the judge in his discretion must recuse himself if his impartiality can reasonably be perceived as being affected in the case. In the instance you give, I do not think the fact that I gave one speech, even though it was a rather hard-hitting speech as I recall, would disqualify me, because I think I could keep a fair and open mind on the issue.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, following that same line of reasoning, relative to issues like privacy or abortion, if you made a statement on the issues here before this committee, in a similar manner that you may have made in a discussion before the ninth circuit court of appeals judges on the disability and the conduct matter, do you feel like that that would in effect cause you to have to recuse yourself under the perception ground?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I realize that some Supreme Court nominees have taken the position before this committee that the reason they cannot answer the questions is they have to recuse. I have some trouble with that. I think the reason for our not answering detailed questions with respect to our views on specific cases, or specific constitutional issues, is something quite different. I think the reason is that the public expects that the judge will keep an open mind, and that he is confirmed by the Senate because of his temperament and his character, and not because he has taken particular positions on the issues. The press is designed to keep politics and the judicial function separate. It is not because we would be compelled to recuse ourselves in cases.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU have made speeches pertaining to victims' rights, including a speech in March of this year to the Sixth South Pacific Judicial Conference. 218 And you came up with a number of suggestions in effect how to ease the problems that confront victims as they come before the court. Would you comment on the role that victim rights have played in the decisions you have written pertaining to criminal law.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. I cannot say at this time that I have given any specific consideration to the new provisions which involve restitution and so forth. I misspoke. I sat on one case on whether or not restitution could be required as a condition of parole. And I can't now recall if I authored the opinion or not. But we held that the judge was within his discretion in insisting that as a condition of parole, the offender make restitution to the victim. That is an important part of the criminal process. The whole point of awareness about the victims—is because we can expand our horizon somewhat. Sometimes the best way to impress upon the criminal defendant, especially if he is a first time offender in a domestic violence type of case, the best way to impress on him, on the defendant, the moral wrong that he has committed, the best way to encourage him to ask for the forgiveness of the victim, is to confront him or her with the victim in the proceeding. And that has worked in lower courts. In the State courts, they are doing this more than we are in the federal courts.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I remember reading somewhere, maybe in one of your speeches where you mentioned the Bernard Goetz case, I believe, relative to the fact that he had been mugged previously before this subway incident. That just comes to my mind. Do you recall what you had stated on that in the past?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think it was in the New Zealand speech, in which I indicated that the Goetz case had been a celebrated case, and simply speculated on whether or not this particular person felt abused by the system, not in anyway intending to excuse the act, but just attempting to point out that victims are a real party in interest in the crime. They have a certain standing in the proceeding. In many cases, the ordeal the victim faces requires him or her to relive the circumstances of the crime. It is very, very difficult. And courts can do so much just by the way of attitude, simple mechanical arrangements for the convenience and the comfort of the victim, to make it known that the law has an interest in the victim.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU have been on the television cameras here. There have been some feelings that the proceedings of the Supreme Court of the United States should be televised. Some of the State courts have televised their proceedings. Some make a distinction between appellate courts and trial courts. Do you have any initial reaction about TV in the courts?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. My initial reaction is that I think it might make me and my colleagues behave differently than we would otherwise. 219 Perhaps we would become accustomed to it after awhile. The press is a part of our environment. We cannot really excise it from the environment. But in the courtroom, I think that the tradition has been that we not have that outside distraction, and I am inclined to say that I would not want them in appellate court chambers. I once had a case—it was a very celebrated case—in the City of Seattle. The courtroom was packed. We were at a critical point in the argument. I was presiding. A person came in with all kinds of equipment and began setting it up. He disturbed me. He disturbed the attorneys. He disturbed everybody in the room. He was setting up an easel to paint our picture, which was permitted. If he had a little Minox camera, we would have held him in contempt. So the standard doesn't always work.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, there are certain courts that have given a lot of study to this issue. And they impose certain restrictions such as certain locations, certain places, no flash bulbs, etc. My observation has been that it can be done without interfering with the court. It does cause a few of the justices to wear blue shirts and red ties and dark suits. But that is not uncommon among judges anyway. I think there is one other question that I think should be asked with Senator Kennedy here. You are not kin to Ted Kennedy in any way are you?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, my father once announced that we probably were. And my mother came back the next evening and said, you know, we are related. And she began to smile, and she said, on the Fitzgerald side. So [Laugher.] So I'm not sure.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU would both be lucky if you were. The Senator from Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge Kennedy, when my first round expired, I was asking you about the comment in your speech concerning the distinction between essential rights for a just system, or essential rights in our constitutional system. And I am going to try to boil this question down, because I have quite a few questions to ask, and there is not a great deal of time remaining. And I know that Chairman Biden wants to finish up this evening.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Take as much time as you want. No Senator will be cut off.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, in that event, I will take it slow and easy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Seriously. We are going to stay with the rounds. Just like we did in every hearing I have ever conducted. That is, you have your half an hour. And if you have more questions, we will go to the next round, and narrow it down until there are only one or two left. You can ask questions until you exhaust questions. And I have never known you or anyone else in this committee to go on and ask questions that were not warranted. So take all the time you need. 220
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, thank you, Mr. Chairman. I think the questions |are warranted, and there are a number of important areas I think (yet to be covered. You have Written criticizing legal realism. You make specific reference, in one of your speeches, to three very important decisions, characterizing Baker v. Carr as being a matter where a revolution was wrought, and Brown v. Board and Gideon v. Wainwright. And in response to questions here today, you have stated your agreement with the Mapp v. Ohio search and seizure case and Escobedo and Miranda on warnings. And my question is, do you agree generally with the decisions of the Warren court, which have been characterized in many quarters as being a product of legal realism?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, there are two different questions at least, implicit in your statement. One is this question of legal realism altogether. And the second is the decisions of the Warren Court. I have indicated that I thought the decisions of the Warren Court went to the very verge of the law at least. We are talking about criminal procedure cases, the ones we have mentioned. That we have paid a heavy cost for imposing those rules on the criminal system; that they seem to be part of our constitutional system now; and that I think a very strong argument would have to be mounted in order to withdraw those decisions. I do think the decisions have evinced on an explicit basis, the fact that they involve pragmatic, preventative rules announced by the Court, and the Court itself has admitted that they are not necessarily demanded by the Constitution. Now, so far as legal realism is concerned, that is a philosophy which I think has a substantial grip on much of the profession, on much of the bench. And it is probably a description of how we feel and how we behave. But I think it has very little part in constitutional interpretation. Legal realism is really an offspring of the school of historicism, which is the idea that no principle, no institution, no charter, no rule, survives its own generation, its own time; that everything is up for grabs every generation. I think that is just completely inconsistent with the idea of a Constitution. I think it just has no place in constitutional law. Now, it is true that in the lower courts this may be a description of our process. Because we look at economics, and we look at sociology, et cetera, in order to make our judgments. But in those areas, the Senate of the United States and the Congress can correct us if we are wrong.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But as a generalization, you do believe, and I think you answered this in the prior question, that the American courts have not departed from their mandate, and that as the continuum or tradition of American constitutional law has evolved, the onlv case you picked out that you disagreed with was Dred Scott. So that as a generalization, the established precedents are satisfactory.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I have been rather cautious about going through a list of cases that I agree with and disagree with. Because 221 I think that the position of a Supreme Court Justice has to be that precedents can be reexamined and we cannot commit to the Senate Judiciary Committee otherwise.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Let me turn now to the Chadha decision, Judge Kennedy. And to the statement which I had referred to in my opening, which was somewhat critical of the Congress. And that was your statement at the end of the speech, which you made at the Stanford law faculty back in 1984. where you said, the ultimate question then is whether the Chadha decision will be the catalyst for some basic Congressional changes. My view of this is not a sanguine one. I am not sure what it will take for Congress to confront its own lack of self-discipline, its own lack of party discipline, its own lack of a principled course of action besides the ethic of ensuring its reelection. Those are fairly strong statements. And I do not bring them up to disagree, necessarily, but to ask you if that view of the legislative process, and that view of the Congress, played any part, however minor, in your decision in Chadha.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think the answer is no. That statement is rapidly rising to the top of the list of things I wish 1 hadn't put in my speech notes. It was designed to trigger a discussion with the Stanford law faculty, which I am not sure we ever got to, about whether or not the Congress of the United States is in a position, under the Constitution, to make essential and important changes in its operations so that it can police and supervise the regulatory agencies that we said it could not in Chadha. Certainly I did not in the speech or in the speech notes mean to indicate any disrespect for the Congress or the legislative process. It is really the heart of our democracy. And I have said here repeatedly that in my view, it is the Con gress of the United States that must take the lead in ensuring the fact and the reality that we have the basic conditions necessary for the enjoyment of the Constitution.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Kennedy, you have testified about your firm conviction on the propriety of Marbury v. Madison and of judicial review.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. There was a comment in a speech you made before the Los Angeles Patent Lawyers Association back in February of 1982, which I would like to call to your attention and ask you about, Quote: As I have pointed out, the Constitution, in some of its most critical aspects, is what the political branches of the government have made it, whether the judiciary approves or not. By making that statement, you didn't intend to undercut, to any extent at all, your conviction that the Supreme Court of the United States has the final word on the interpretation of the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is my conviction. And I think that the Court has an important role to play in umpiring disputes between the political branches.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. What did you mean by that, that in most critical aspects, it is what the political branches of the government have made it, whether the judiciary approves or not? 222
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I was thinking in two different areas. One in this area of separation of powers and the growth of the office of the presidency. The courts just have had nothing to do with that. Second, and even more importantly, is the shape of federalism. It seems to me that the independence of the States, or their non-independence, as the case may be, is really largely now committed to the Congress of the United States, in the enactment of its grantsin-aid programs, and in the determination whether or not to impose conditions that the States must comply with in order to receive federal monies; that kind of thing.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, this is a very important subject. And I want to refer you to a comment which was made by Attorney General Meese in a speech last year at Tulane, and ask for your reaction to it. He said this: But as constitutional historian Charles Warren once noted, what is most important to remember is that, quote, however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court. By this, of course, Charles Warren did not mean that a constitutional decision by the Supreme Court lacks the character of law. Obviously it does have binding quality. It binds the parties in a case, and also the executive branch for whatever enforcement is necessary. But such a decision does not establish a supreme law of the land that is binding on all persons and parts of government henceforth and evermore. Do you agree with that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am not sure—I am not sure I read that entire speech. But if we can just take it as a question, whether or not I agree that the decisions of the Supreme Court are or are not the law of the land. They are the law of the land, and they must be obeyed. I am somewhat reluctant to say that in all circumstances each legislator is immediately bound by the full consequences of a Supreme Court decree.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Why not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, as I have indicated before, the Constitution doesn't work very well if there is not a high degree of voluntary compliance, and, in the school desegregation cases, I think, it was not permissible for any school board to refuse to implement Brown v. Board of Education immediately. On the other hand, without specifying what the situations are, I can think of instances, or I can accept the proposition that a chief executive or a Congress might not accept as doctrine the law of the Supreme Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, how can that be if the Supreme Court is to have the final word?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, suppose that the Supreme Court of the United States tomorrow morning in a sudden, unexpected development were to overrule in New York Times v. Sullivan. Newspapers no longer have protection under the libel laws. Could you, as a legislator, say I think that decision is constitutionally wrong and I 223 want to have legislation to change it? I think you could. And I think you should.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER, Well, there could be legislation
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And I think you could make that judgment as a constitutional matter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, there could be legislation in the hypothetical you suggest which would give the newspapers immunity for certain categories of writings.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. But I think you could stand up on the floor of the U.S. Senate and say I am introducing this legislation because in my view the Supreme Court of the United States is 180 degrees wrong under the Constitution. And I think you would be fulfilling your duty if you said that.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, you can always say it, but the issue is whether or not I would comply with it.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I am just indicating that it doesn't seem to me that just because the Supreme Court has said it legislators cannot attempt to affect its decision in legitimate ways.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, but the critical aspect about the final word that the Supreme Court has is that there is a significant school of thought in this country that the Supreme Court does not have the final word. That the President has the authority to interpret the Constitution as the President chooses and the Congress has the authority to interpret the Constitution as the Congress chooses, and there is separate but equal and the Supreme Court does not have the final word. And, if Marbury v. Madison is to have any substance, then it seems to me that we do have to recognize the Supreme Court as the final arbiter of the Constitution, just as rockbed.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, as I have indicated earlier in my testimony, I think it was a landmark in constitutional responsibility for the Presidents in the Youngstown case and the Nixon case to instantly comply with the Courts decisions. I think that was an exercise of the constitutional obligation on their part. I have no problem with that at all.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, there has been compliance because it has been accepted that the Supreme Court is the final arbiter. I just want to be sure that you agree with that proposition.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, but there just may be instances in which I think it is consistent with constitutional morality to challenge those views. And I am not saying to avoid those views or to refuse to obey a mandate.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I think it is fine to challenge them. You can challenge them by constitutional amendment, you can challenge by taking another case to the Supreme Court. But, as long as the Court has said what the Court concludes the Constitution means, then I think it is critical that there be an acceptance that that is the final word.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I would agree with that as a general proposition. I am not sure there are not exceptions.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But you can't think of any at the moment?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Not at the moment.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Okay. If you do think of any between now and the time we vote, would you let me know? 224
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I will let you know, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Let me pick up some specific issues on executive power and refer to a speech that you presented in Salzburg, Austria, back in November of 1980, where you talk about the extensive discretion saying, "The blunt fact is that American Presidents have in the past had a significant degree of discretion in defining their constitutional powers." Then you refer to, "The President in the international sphere can commit us to a course of conduct that is all but irrevocable despite the authority of Congress to issue corrective instructions in appropriate cases." Then you refer to President Truman, saying he committed thousands of troops to Korea without a congressional declaration. And then you say, "My position has always been that as to some fundamental constitutional questions it is best not to insist on definitive answers." And you say further, "I am not one who believes that all of the important constitutional declarations of most important constitutional evolutions come from pronouncements of the courts." And, without asking you for a specific statement on the War Powers Act, that is a matter of enormous concern that engulfs us with frequency. Major questions arise under the authority of the Congress to require notice from the President on covert operations coming out of the Iran-contra hearings. What is the appropriate range of redress for the Congress? Do we cut off funding for military action in the Persian Gulf? Do we cut off funding for covert operations? Are these justiciable issues which we can expect the Supreme Court of the United States to decide?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, whether or not they are justiciable issues, of course, depends on the peculiar facts of the case, and I would not like to commit myself on that. But the very examples you gave indicate to me that there are within the political powers of the Congress, within its great arsenal of powers under article I of the Constitution, very strong remedies that it can take to bring a chief executive into compliance with its will, and this is the way the political system was designed to work. The framers knew about fighting for turf. I don't think they knew that term, but they deliberately set up a system wherein each branch would compete somewhat with the other in an orderly constitutional fashion for control over key policy areas. And these are the kinds of things where the political branches of the government may have a judgment that is much better than that of the courts.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But isn't it unrealistic, Judge Kennedy, to expect the Congress to respond by cutting off funds for U.S. forces in the Persian Gulf? If you accept the proposition that the President can act to involve us in war without a formal declaration, and the President and the Congress ought to decide those questions for themselves, isn't that pretty much an abdication of the Supreme Court's responsibility to be the arbiter and the interpreter of the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I don't know if it is an abdication of responsibility for a nominee not to say that under all circumstances he thinks the Court can decide that broad of an issue. If the issue is presented in a manageable judicial form, in a manageable form, 225 I have no objection to the Court being the umpire between the branches. On the other hand, I point out that having to rely on the courts may infer, or may imply an institutional weakness on the part of the Congress that is ultimately debilitating. It seems to me that in some instances Congress is better off standing on its own feet and making its position known, and then its strength in the federal system will be greater than if it had relied on the assistance of the courts.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, you testified earlier that you could say standing enhanced by legislative enactment.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And some of the legislation is now pending to give broader standing as was given in Buckley v. Valeo, so that you would—obviously, you have to reserve judgment, but you could see an appropriate role for a judicial decision on these tough constitutional questions, notwithstanding the generalizations that I just read to you?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think so. Dean Choper, of the University of California at Berkeley, has a book in which he proposes the idea that the Court should always withdraw from any dispute between the branches. He would, I think, say Youngstown is wrong, that the Nixon tapes case is wrong, and I disagree with that. I think there is a role for the Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I think that is an important proposition, and I think it may well be before you, and I obviously don't ask for any commitments or any statements on it except to hear what one Senator has to say about it and what is the prevailing view in the Senate, that at some point we feel the War Powers Act has to be tested. That it has been a very important response to the fact of life that the United States is involved in wars without declarations, that the constitutional authority of the Congress has eroded there, the impracticality of cutting off funds once there is a military action. You note the commitment of troops in Korea. There has been many others. And I was just a little concerned about your statements that the executive defines its own authority and your statements about the courts keeping hands off. And I am assured, as you have testified today, that there may be an appropriate role for the Supreme Court of the United States, depending on the specific factual presentation.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes. And, as I think we would both agree, much of what I was saying there was a recitation of simple facts. The Presidency has grown to have power of tremendous proportions.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Kennedy, I would like now to refer to a number of cases where I have certain concerns where you have reached conclusions as a matter of law which seem to me to undercut the fact-finding process. These are cases which you and I discussed when we talked informally in my office sometime ago. The case of the City of Pasadena School Board, quite a controversial matter, was decided in an opinion which you wrote, or you wrote a concurring opinion after a district court judge had sought to retain jurisdiction. And the memorandum opinion of the district court judge sets forth an extensive sequence of factual findings exT 226 pressing a concern about the conduct of the Board, election promises, which the district judge, the finder of fact, concluded required the district court to retain jurisdiction. And, without going through them at great length, there boil down in footnote 19 where the district court judge found "a majority of the defendants [those on the school board] have acted with unyielding zeal and overt antipathy to the desegregative concept of the Pasadena Plan. Promising return to neighborhood schools with a recognition that it cannot be accomplished without resegregation of Pasadena schools is bad faith not only to the principles of constitutional duty but also to their own constituency." One comment that you made in your opinion that I have a question about, one I read to you when we met privately about 10 or 12 days ago, where you said at 611 Fed. 2nd at 1247, "Where the Court retains jurisdiction a board may feel obliged to take racial factors into account in each of its decisions so that it can justify its actions to the supervising court. This may make it more, rather than less, difficult to determine whether race impermissibly influences board decisions. Where the subject is injected artificially into the decision process and the weight that racial considerations might otherwise have had is more difficult to determine." And my question to you before, and I repeat now, what is wrong with that, especially in the context of the very strong findings of fact by the lower court judge of bad faith by the school board?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. This case had a long history. It went to the Supreme Court on more than one occasion. It was in our court on I guess four different occasions. And this particular aspect of it presented one of the most troubling areas of desegregation laws, and that is when does a court's supervision cease? In this case the City of Pasadena had, in compliance with a court decree, been implementing a plan that was certified ultimately by the Supreme Court to be a plan for a unitary district, which is the parlance for saying a district that complies in all respects with a desegregation decree. The findings of the Supreme Court of the United States and of our court—and uncontradicted by the district court—were that the district had met full compliance for a period of more than 2 years. Now the question was how long does the district court's supervision last? This was a case in which the district court judge at one time, in response to that question from an attorney, had said that district court supervision will last as long as I live. Now, at some point school districts must assume responsibilities for their own affairs. At some point the jurisdiction of the court must cease. At some point we must allow the school districts to again resume charge of their affairs. And, if there is a further violation of the Constitution of the United States, an action can then again be implemented. We concluded that because there had been full compliance, because a unitary district had been achieved, the court was acting improperly in looking at election campaign promises and election rhetoric in order to justify its continued decrees. What happened here was there were some schools—I forget if they called them magnet schools or neighborhood schools—that had been proposed in a district in which unitary compliance had 227 been achieved, and we simply ruled that the district had to again stand on its own feet, and that if there was a violation there could again be a suit. It is a very difficult area of the law to determine how to withdraw. The very fact that the court is involved affects the equation.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. HOW much were you influenced by the judge's statement that he would keep jurisdiction as long as he would live? Did you consider having the judge replaced in the case, if that statement really amounted to a declaration of a bias or prejudice?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it didn't amount to a declaration of bias and prejudice but it indicated the difficulties that the district court had in extricating itself from the decree of the court. And we felt that the school district having been in good faith full compliance for a period of years was entitled to a release of the jurisdiction of the court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, but that is the question. The question is whether the school board was in compliance. You note in your opinion, "The district court found that the board has acted and failed to act with the same segregative intent that this court found in 1970," and the memorandum opinion of the board is replete with facts and, of course, we know that the lower court is in a better position to find the facts, especially questions of intent. And it was a little hard for me to follow the conclusion as a matter of law that the lower court was wrong in the face of those very extensive factual findings.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, we looked at the findings and concluded otherwise I think, Senator. I agree with you that the fact-finding functions of a district court cannot be usurped by an appellate body. On the other hand, they have to fit the ultimate remedy the court gave, and in this event we thought that the Pasadena School District should be restored to its own status.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, the other two cases that I want to talk to you about, and there are many more but I have limited it to three cases, are the AFSCME v. State of Washington case
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER [continuing]. And here again there were very strong factual findings by the lower court. The district court said at page 863 of 578 Fed. supp., "Evidence which when considered as a whole shows discriminatory intent includes the historical contacts out of which the challenge to failure to pay arose," and later in the district court's opinion the comment is made, "There is little doubt that the State produced evidence that the unlawful discrimination was other than in bad faith the Manard and Norse decisions would have persuaded this court that back pay would not have been in an appropriate remedy." Then going on to say, "Rather the persistent and intransigent conduct of defendant in refusing to pay plaintiffs indicates bad faith." This is a very complicated case and there is a great deal involved and you commented on it to some extent, and I don't cite it really to—well, I cite it on the substantive law, but really more particularly—and my time is up, and let me just finish it and then give you a chance to respond. 228 One of your concluding statements, as it appears on 77 Fed. 2nd at 1408, "Absent the showing of discriminatory motive, which has not been made here, the law does not permit the Federal courts to interfere in a market-based system for the compensation of Washington's employees." And, in this one, like the City of Pasadena case, I question in terms of your coming to a conclusion as a matter of law which overturns very strong findings of fact by a lower court in the civil rights area.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I suppose I would disagree with your conclusion about very strong findings, in that I don't think the findings at all related to the remedy. I don't think the findings at all related to the violation that the district court findings were—the part you quoted was simply conclusory. The actual findings were that the State of Washington had done a comparable worth study. The actual findings were that the State of Washington had advertised in some cases for male-only jobs and that it had ceased that. And we simply found that as a matter of law this was wholly insufficient to say that Washington was violating the law by not adopting a comparable worth scheme for every one of its female employees. So I would think that those are fact findings simply are not related to the judge's conclusion, and so I would disagree with the characterization as strong.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Judge Kennedy. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Senator Byrd.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge Kennedy, I am sure you feel you have had a very fair hearing here, and that the questions have been tempered and incisive, to the point; am I correct?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. YOU are certainly correct, Senator.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I am pleased to have had an opportunity to meet with you privately. I am sure that everybody else on here probably have done the same thing. But based on my own private conversations with you, and you didn't promise me anything or commit to anything in those conversations, and I didn't ask you to, and based on what I have read and heard and my observations of the hearing, I don't believe you are in any trouble. I am inclined to vote for you, barring some unforeseen happening. I am a conservative when it comes to the courts. Probably a liberal on some matters and moderate in others. I hope I am not an extremist in anything. Disraeli said that he was a conservative to conserve all that was good in his constitution and that the radicals would do all that was bad. I believe in the death penalty. I believe it is constitutional. The Constitution refers to capital crimes. What are your comments, or would you have any on the subject?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, with reference to the death penalty, Senator, I have taken the position with your colleagues on the committee that the constitutionality of the death penalty has not come to my attention as an appellate judge and that I will not take a position on it, but that if it is found constitutional I think it should be efficiently enforced. 229
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. We had a little difficulty with another nominee for this position recently in connection with congressional standing, and I was left to believe that the Congress would not be allowed in the Court in the event there were disputes between the legislative branch and the executive on that occasion. Perhaps others have asked questions on this subject, but would you care to indicate whether or not you feel that there is—do you have any problem with Congress being able to get standing to receive justice in the Court if you become a member of the Supreme Court and there is a serious question that arises between the executive branch and the legislative and the country's national security interests, let's say, are involved?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In a colloquy that we had earlier this afternoon, Senator
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. NO, I did not hear the colloquy.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Right. I mean one that I had before you came in. I made it clear that in my view it is quite appropriate for the Court to act as an umpire between the political branches of the government. The circumstances in which a case that meets the case or controversy doctrine are ones that we would have to examine in a particular case. I think that in the Youngstown case, the steel seizure case, and the Nixon tapes case, the Court acted completely appropriately in defining and determining the bounds of power between the two political branches. I think that is a completely appropriate role for the Court to play.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Why would you want to be a Supreme Court Justice? Has anybody asked you that question yet?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think Senator Leahy asked me that question.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, then you don't need to answer it for me.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I would be pleased to tell you, Senator, that I am committed to constitutional rule and I think every person in this Senate is, and I think every American is; and I want to do the best I can to honor that commitment.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I suppose you have been queried as to your position on judicial restraint, how you view the responsibilities and role of the Supreme Court under the Constitution.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I have, Senator, and I believe the role of the Supreme Court must be to maintain its independence but at all times to obey the Constitution and the law.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. And I suppose you would view the Court not as a traveling constitutional convention?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Absolutely.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Or as an erstwhile legislative branch?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Not at all, Senator. I would not so view it.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, what is the role of the Supreme Court? Is it merely that of interpreting the law and the Constitution and applying the law and the Constitution to the facts of the case, or is it that of blazing new trails and, in essence, changing the laws, enacting the laws, enacting new laws? I am sure you have probably been asked these questions already, and I apologize to you. You need not elaborate at great length on my questions if others have asked them because I will be reading the hearing. 230
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Senator, the Court can use history in order to make the meaning of the Constitution more clear. As the Court has the advantage of a perspective of 200 years, the Constitution becomes clearer to it, not more murky. The Court is in a superior advantage to the position held by Mr. Chief Justice Marshall when he was beginning to stake out the meanings of the Constitution in the great decisions that he wrote. And this doesn't mean the Constitution changes. It just means that we have a better perspective of it. This is no disparagement of the Constitution. It is no disparagement of the idea that the intentions and the purposes of the framers should prevail. To say that new generations yield new insights and new perspectives does not mean the Constitution changes. It just means that our understanding of it changes. The idea that the framers of the Constitution made a covenant with the future is what our people respect and that is why they follow the judgments of the Supreme Court, because they perceive that we are implementing the understanding of the framers. I am committed to that principle.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. HOW do you view previous decisions, precedent, the doctrine of stare decisis? Do you feel that precedent should be given a great deal of weight? Is precedent supreme, or is precedent to be given a strong place but in the light of changing circumstances, perhaps? That you would not have any great difficulty in overriding precedent?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. AS you know, Senator, stare decisis has an element of certainty to it, which most Latin phrases do, but it really is a description of the entire legal process. Stare decisis is the guarantee of impartiality. It is the basis upon which the case system proceeds, and without it we are simply going from day to day with no stability, with no contact with our past. And so stare decisis is very important, but, obviously, if a case is illogical, if it cannot be reconciled with all of the parallel precedent, if it appears that it is simply out of accord with the purposes of the Constitution, then it must be overruled.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, I congratulate you again, and I think that in due time the Senate will consider your nomination. I can assure you that your nomination will be given a very fair and thorough hearing in the course of Senate debate based on your testimony thus far and your conduct in these hearings and my perception based on what I have read and heard and seen and what I have listened to among my colleagues, I have a feeling that you are going to have the opportunity to don those robes and sit on that Court. And if the good Lord does his will and nothing happens to keep you from doing that, I certainly want to extend the hope that you will be there a long time. I have a favorable impression from the standpoint of my own measurements, my own standards, as one who believes that the legislative branch under this system was created to do the legislating and that the branches are equal, coordinate. I believe strongly in our system of checks and balances, and I believe the Court has the role of interpreting the laws and the Constitution. I think the judges should exercise restraint and not allow themselves to get over into the realm of the legislative branch. 231 And having said that, I will exercise a little restraint, Mr. Chairman, and say no more, except thank you for the hearing. I would like to thank my colleagues for the dedication that they always pursue in hearing the nominees, the questions that they ask, the preparations that they make in advance of the hearings. And again, to compliment you and wish you and your family a happy holiday season.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you for those gracious remarks, Mr. Chairman, and for the courtesy that all of your colleagues have shown me. The advise and consent process is a very meaningful one to me.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator from New Hampshire.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Back to judicial restraint, Judge, if you don't mind.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Not at all, Senator.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. The advise and consent role is very important. We exercise it only once with each nominee. I am not fully satisfied that I have your views in this area pgrfectly in focus. Just how seriously do you view the absence of judicial restraint, which I will call judicial activism? How seriously do you view that as misconduct by judges? If you were a Senator, would you reject, refuse to confirm a candidate to the bench who rejected the philosophy and the doctrine of judicial restraint?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, it is not clear to me that a Senator can always reject a nominee because of some disagreement with philosophy. But, if you have a nominee who tells you that he or she is not bound by the law of the Constitution, that he or she is superior to precedent, that he or she has some superior insights into the great principles that made this country devoted to constitutional rule, then I think you could very easily reject that nominee.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes, that would be easy but it doesn't present itself that way, as you know.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think there may be a problem in that I am not sure that, in the last 20 years, any nominee has not embraced the doctrine of judicial restraint because that is a phrase that is rather simple to adopt, and the question is whether or not it is given meaning and given application in the deliberative approach that the judge brings to his or her work. I can point to my record—12 years of opinions in which I think I indicate that careful approach.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Earlier you mentioned facts which judges might consider in determining what activities are covered by the privacy right. You mentioned things such as the essentiality of the right to human dignity, the inability of a person to manifest his or her own personality, the inability of the person to obtain his or her own self-fulfillment. It seems to me that such broad subjective concepts are an invitation, or can certainly lead to the exercise of political power, raw political power that you spoke of disparagingly in your Stanford speech.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. They are unless they are used with the view to determining what the Constitution means. The framers had—by that I mean those who ratified the Constitution—a very important 232 idea when they used the word "person" and when they used the word "liberty." And these words have content in the history of Western thought and in the history of our law and in the history of the Constitution, and I think judges can give that content. They cannot simply follow their own subjective views as to what is fair or what is right or what is dignified. They can do that so that they can understand what the Constitution has always meant.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I remain uneasy about what you said regarding the ninth amendment. You said, it seems to me, the Court is treating it as something of a reserve clause to be held in the event the phrase "liberty" and the other spacious phrases in the Constitution appear to be inadequate for the Court's decision. I don't know why you choose to be so vague, and in my mind so—leave things in such a worrisome suspension, when the Court has never used the ninth amendment to invent new rights. Indeed one of the most liberal of the liberals, William O. Douglas, said in his concurring opinion in Dole that the ninth amendment obviously does not create federally enforceable rights, and against that finding by Justice Douglas, against the history of the Court, against the clear—there are few amendments that have a clearer historical context, where the intent is clearer, than the ninth amendment. And now the thing has been reversed—if we apply the doctrine of incorporation illogically to it, and you seem to hold open that possibility, the thing is reversed in its intent
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY [continuing]. Intended application, and now you are saying that the Court is holding it in reserve. In case it can't find something else in the Constitution, why it always has this to fall back on.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, to begin with, don't shoot the messenger. I am describing the jurisprudence of the Court as I think it exists. The Court has simply not had the occasion to reach the ninth amendment for the resolution of its cases, and it seems to me inappropriate for me to announce in advance what its meaning is. I have indicated what I think, what I understand its original purpose to be, which was actually a disclaimer that the Constitution of the United States was intended to constrain the States in any respect in the adoption of their Bills of Rights.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, do you find a—do you consider the intent of the ninth amendment to be pretty clear?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Even given the historical——
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, the purpose of it is as I believe I have described it.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, what is the difference between the purpose and the intent?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Its meaning is somewhat unclear. The reason for Madison's using it as a device is not completely clear. I think the explanation I gave is the best one, but that is not completely clear.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, his words are pretty clear on the point, if I just knew where to find them. I am getting paper fatigue at this point. You have got fatigue yourself I am sure. Here it is. 233 He said that "It has been objected also against the Bill of Rights that by enumerating particular exceptions to the grant of power it would disparage those rights which were not placed in that enumeration, and it might follow by implication that those rights which were not singled out were intended to be assigned into the hands of the general government and were consequently insecure." And so this was a clarification on the part of the Federalists that even though certain rights were enumerated that didn't mean that everything else was denied to the States.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think that that is the most plausible interpretation of the amendment.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Jumps right out at you. Couldn't be clearer. And then I am concerned likewise by your vagueness, unwillingness to recognize 200 years or so of validation of capital punishment. The Court has never, even in Furman the Court has never suggested that capital punishment is unconstitutional per se, fundamentally. Why are you not willing to—why are you so vague on a point that is so well settled?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I guess we have a disagreement as to whether or not it is well settled, Senator. These decisions are very close. Some Justices have indicated that it is unconstitutional, and I simply think that I should not take a specific position on a constitutional debate of ongoing dimension. I have indicated that in my view if held constitutional it should be swiftly and efficiently enforced. I recognize also that capital punishment is recognized in the Constitution, in the fifth amendment.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I am sorry. I couldn't hear that last sentence.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Capital punishment is recognized in the Constitution.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. And you said something else that I didn't hear.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. In the fifth amendment.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes. In your Stanford speech you point out that in the post-Griswold privacy cases the debate shifts to the word "privacy" rather than to the constitutional—to a constitutional term such as "liberty." What is the significance in that statement? What are you trying to say?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I was trying to indicate that simply because we find a new word we don't avoid a whole lot of very difficult problems. It is not clear to me that substituting the word "privacy" is much of an advance over interpreting the word "liberty," which is already in the Constitution. And I indicated that, to illustrate that, that the Convention on Human Rights, which contains the word "private," produced a case which had many of the same issues in it that we would have to confront, and so that the woru "privacy" should not be something that convinces us that we have much certainty in this area.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Are you saying that these privacy cases would be better dealt with under the liberty clause?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That is why I have indicated that I think liberty does protect the value of privacy in some instances. 234
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. YOU would prefer then to deal with privacy cases under the liberty clause?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. AS opposed to dealing with them under emanations of penumbrae?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Ever seen an emanation? That is a real term of art, isn't it? I am not a lawyer. Had that ever been used before?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Certainly not in a constitutional case.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. That is really a, that one is really a shameless case of
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, excuse me.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The Senator from West Virginia would like to ask you a question.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Did you say emanation? To emanate? What is the word you are referring to?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Emanations.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Emanations?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Emanations, yes. "Penumbras and emanations" was the phrase used in the Griswold case.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Thank you. That word is not in the Constitution, though, is it?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Not at all. And I have indicated it is not even in any previous—the Senator indicated it was not even in any previous cases.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. But the word "liberty" is in the Constitution?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, sir.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I like that word "liberty" in the Constitution.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. DO you think there are a whole lot more emanations from this penumbra?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I don't find the phrase very helpful.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Good. Well, two hopes. Hope number one is that you will at least once a year read your Stanford speech. Hope number two is that you will not intrude on our turf. Thank you.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator. I will certainly commit to the former, and I will try to comply with the latter.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, have you had a chance to read "The Forgotten Ninth Amendment" by Bennett P. Patterson?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think I glanced at it some years ago, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, while we are hoping, I hope you read it again.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. All right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will have an opportunity, the Senator and I, as long as we are here to debate the meaning of the ninth amendment, but in here he liberally quoted from Madison's utterances at the time. It may be somewhat selective, I think not. And the point one of the authors makes is, "The last thought"—referring to the ninth amendment—"The last thought in their minds was that the Constitution would ever be construed as a grant to the individual of inherent rights and liberties. Their theory"—meaning the Founding Fathers—"Their theory of the Constitution was that it was only a body of powers which were granted to the government and nothing more than that." 235 And it seems, if you read the ninth amendment, how anyone could avoid the conclusion that the word "retained" means "retained." Now you can argue whether it is retained by the States, or retained by individuals. That is a second argument. I won't go into that at the moment. But it seems to me that one of the—I have not found any reason, which I think in part disturbs my friend from New Hampshire, to disagree with any of the points you have made about your interpretations of the Constitution. As I have indicated earlier, I find your reading of the Constitution, your finding of the word "liberty" in the Constitution and that it has some meaning and application, and your attitude about the fourteenth amendment in general, the fifth amendment, to be a conservative, mainstream and fundamentally different than Judge Bork's. But having said all that, let me ask you a few questions, and hopefully this will be the end of it for me. I indicated to you earlier that staff received a telephone call from a former student and subsequently, as we do with all these calls, followed up on the call and apparently contacted four of your former students, all of whom are supporters, and strong supporters, of your nomination to the bench. But the issue related to the question of a discussion you had in 1973 with students about the role of women in law firms at that time; that is, in the context of 1973. Could you for the record just tell us a little bit about it, without my characterizing it, because you indicated you remember it vaguely, the incident? Just tell us a little about it.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Both the incident and the class discussion are not very clear.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Quite frankly, I don't think they are very important, either.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. But I had the habit of talking to my students in the course of a 3y2-hour lecture about the problems that lawyers face in their practice, and I think it is imperative that lawyers realize that they have an obligation, first of all, to know themselves, to know their own motivations and to comply with the law strictly so that they can be a model for their clients. And I recited to my class, as I recall, the incident of a lady who had come to our office seeking employment, and at the time we did not have a position open in any event, but I was pleased to chat with her. She was extremely well qualified. She had sent in a resume I think and I had said that if she was in town we would be glad to talk to her. It wasn't clear to me from the resume that she was male or female. And when she was a female I told her that she might find some resistance in certain law firms and told her the story of a lawyer in San Francisco whom I know very well and who is a man of remarkable self-knowledge and remarkable honesty and who has a remarkable admiration for the law, who had taken the position that he would not have women in his law firm because he had a very close relation with his partners and he did not want to share that relation with another woman because of the respect he had for his wife. He behaved the way he did in front of his partners, in a way that he thought was very free, and he thought of his relations with the law partners as very intimate. 236 And I told her that this was an attitude that many lawyers had about their law partners. I said that in my own law firm that she would find certain problems of adjustment because of the way my partners behaved, but that I wanted to put this out in front for her, to tell her that this was the kind of thinking that some people that were sitting on the other side of an interview desk would be having, and that if I were ever to either hire or not hire her and I harbored those feelings that I wanted to make her sure that she knew that I was trying to explore, for my own satisfaction, my own motives, and my own intent. And I told her that the world was changing. I told her also the story of when I was in the Harvard Law School and a certain professor would have "Ladies Day," and ladies were not called on unless it was "Ladies Day." And today this would not only be seen as terribly stigmatizing and patronizing but probably actionable. And I recited this to my students to indicate that lawyers must always be honest with themselves about their motivation, honest with the people with which they deal about their motivation. And the lady, as I recall, was very appreciative of the conversation. She subsequently went to work in her own city of Los Angeles, I believe, which was where she was from. And that was all that the incident was about.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Have your views changed about the role of women in law firms since 1973?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, of course that wasn't my view. I was trying to indicate to her that I thought that the law was very much in flux and that it would change, and it has. Women now occupy
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. IS it good or bad that it has changed?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think it is good that it has changed.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Why?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Women can bring marvelous insight to the legal profession. Women, themselves, have been in a position where they have been subjected to both overt and subtle barriers to their advancement, and the fact that women are on the bench and on our court brings a very, very valuable insight and perspective. We now have, I would think, close to 35 or 40 percent women in the night division of our law school class, and they are making their way into the profession and are performing admirably. And it is too bad they were not in it a hundred years ago.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. DO you think the attitude of the profession has changed as well?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Absolutely. I have had female law clerks that I have worked extremely closely with and it has been a really very remarkable years when they have been with me. I have enjoyed it very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. When did you hire your first female law clerk, if you know?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think my second set of clerks had my first female—I guess my third set of clerks, my third year.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Roughly what year was that?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. 1978.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU indicated, and I am paraphrasing, in response to a question from one of my colleagues, you said if someone 237 had been sitting here 20 years ago and had been asked to comment on the law of the first amendment as it relates to the law of libel, not even the greatest prophet could have predicted the state of the law today. It may very well be that with respect to privacy we are in the same rudimentary state of the law. Now, Judge, there has been, obviously, we have just had some discussion about your view on the ninth amendment. As you know, Justice Goldberg, as you mentioned, in the birth control case and Justice Burger in the Richmond Newspaper case both treated the ninth amendment as a rule of somewhat generous construction, not just a reminder that States can protect individual rights in their own constitution, an idea that would have made the ninth amendment in my view redundant in light of the fact we had a 10th amendment that provides for just that. In the view of Justices Goldberg and Burger the ninth amendment announces that the word "liberty" in the fifth amendment and later in the 14th amendment is broader than specifically enumerated rights contained in the Bill of Rights. The ninth amendment, in other words, in my view confirms in the text of the Constitution that spacious reading of liberty, the so-called Liberty Clause, that you have said you thought was a proper reading. I understood you yesterday as embracing the view of Goldberg and Burger in the regard that the notion of liberty, the Liberty Clause as being one of those spacious phrases. Former Chief Justice Burger thought that the ninth amendment shows a belief by the framers that fundamental rights exist that are not expressly enumerated in the first eight amendments, and the intent of the rights included in the first eight amendments are not exhaustive. I would like to quote from a case. Justice Burger says: But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, the right to be judged by a standard of proof beyond reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or the Bill of Rights. Yet, this important but unarticulated rights have nonetheless been found to share Constitutional protection in common with explicit guarantees. The concerns expressed by Madison and others have been resolved. Fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined. Then there is a footnote, Footnote 15. It says, "Madison's comments in the Congress also revealed a perceived need for some sort of Constitutional saving clause, which, among other things, would serve to foreclose application of the Bill of Rights of the maximum that the affirmation of particular rights implies the negation of those not expressly defined. Madison's efforts, culminating in the ninth amendment, serve to allay the fears of those who were concerned that expressing certain guarantees could be read as excluding others. Now, Judge, in general terms do you share the view of Justice Burger about unenumerated rights?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, in general terms, it is not clear to me that Chief Justice Burger's position would be any different if the ninth 238 amendment were not in the Constitution. I think liberty can support those conclusions he reached, and the meaning, purpose, and interpretation of the ninth amendment, 1 think the Court has very deliberately not found it necessary to explore.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But I think Justice Burger used almost the same words you used yesterday that the Senator from New Hampshire would very much like for you to recant. He uses the phrase "saving clause."
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I think I used the words "reserve clause."
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU used the word "reserve" clause.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And I think the Court as a whole—I am not talking about individual Justices—has taken that view of the amendment, that they just find it unnecessary to reach that point.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Are they not also, with good reason, a little bit afraid of the amendment, because once you start down the road on that amendment—I find the ninth amendment clear, and I think most Justices have found it clear, in fact. But they are reluctant to use it because once you start down the road on the ninth amendment, then it becomes very difficult to figure where to stop; what are those unenumerated rights.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. And it is the ultimate irony that an amendment that was designed to assuage the States is being used by a federal entity to tell the States that they cannot commit certain acts.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, ironically, I think that it was, in fact, not designed, that amendment, in particular, to assuage the States as it related to the rights of the States. I think it was designed to assuage the representatives of the various States to allay their fears that any government—in this case, the only one they were dealing with at the moment, the central government—was going to, as a consequence of the first eight amendments, conclude that they were the only rights that, in fact, were retained by the people.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I understand that position.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is a very tactful answer and you would make one heck of an ambassador. Maybe there are State Department representatives, but I do not think it is appropriate for me to push you any further on this because I, quite frankly, think you have left us all where I think it is proper to be left, quite frankly, and that is I do not think anybody here and anybody not here, including the President of the United States, and I suspect, Judge, not even you, knows how you are going to rule on some of these issues. Quite frankly, I said at the outset when Judge Powell announced his resignation that, for me, that is just what I was looking for, as long as whomever came before us came with an open mind, did not have an ideological brief in their back pocket that they wished to enforce or move into law once they got on the Court, did not have an agenda. The one thing that has come clear to me is that you are extremely bright, extremely well informed, extremely honorable, and openminded. I suspect you are going to rule in ways that I am going to go, oh, my goodness, how could he have ruled that way. And I suspect you are going to rule in ways where Senator Humphrey is going to go, oh, my goodness, why did I let him get on the Court. But it seems to me that is the way it should be. We are not entitled 239 to guarantees. We are only entitled to know that you have an open mind. I just realized that I had told the Senator from Pennsylvania that I would allow more questions, and here I was about to wrap up. I apologize to the Senator from Pennsylvania. I will yield to the Senator from Pennsylvania and then to the Senator from New Hampshire if he has any further questions, and then
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I have no further questions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And then I will yield to the clock.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. I have just a few. When the last round ended, Judge Kennedy, I was questioning certain findings you made as a matter of law in the face of certain underlying factual situations, and have referred to the Pasadena school desegregation case, and also AFSCME v. Washington State on the comparable worth case. And the other case that I want to discuss with you, and I shall do so relatively briefly, is the Arnada case, which has already been the subject of some discussion.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Pardon me. Which case, Senator?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The case of Aranda v. Van Sickle.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Aranda v. Van Sickle, yes, sir.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And this is a voting rights case, a civil rights case, involving Mexican Americans, and I do not want to suggest, Judge Kennedy, that there are not many cases where you have been on the other side in the findings. The case of Flores v. Pierce where you made findings in favor of Mexican Americans, and the case of James v. Ball, you made a finding for civil rights, so that there is balance and representation on both sides. But the Aranda case is unique and, I think, significantly questionable, and the reason that I question it, Judge Kennedy, turns on the issue of summary judgment in a context where you say in your concurrence that it was not overwhelming. And the law on summary judgment—and you and I had discussed this in our last session in my office—the standard for summary judgment requires that it be entered only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, and where summary judgment is considered it is particularly inappropriate where there are issues involving intention and motivation, which were present in this case, and especially in the context where the lower court had denied a request for additional discovery. It just seems hard to understand the use of summary judgment and the refusal to allow the facts to be submitted to a factfinder in view of the very substantial constitutional issues involved here. And the other aspect of the case, and then I will ask you to comment on it, turns on your very thoughtful opinion which comes to the conclusion that other remedies were appropriate in terms of location of polling places and employment of Mexican Americans by commissions. And the case might have been remanded for further factfinding or it might have been remanded for an amendment on the pleadings or you might have considered, as we lawyers do, to conform 240 the pleadings to the proof in the case and you might have entered a remedy which was not specifically asked for. Most complaints in equity have the prayer or other equitable relief as may appear just and appropriate under the circumstances, and I understand your statement that the plaintiff sought to change the at-large representation here. But it just seems to me that all the facts of this case really cry out for some different result than was reached in this case as a matter of basic justice.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Weil, Senator, I have some obligation to be interesting and creative, and I am disturbed by the fact that I may sound very repetitive because I have been through this with the other Senators this morning and again earlier this afternoon. The parties and the attorneys have the right to determine the shape and the contours of their lawsuit. The repeated questioning in the court indicated to me that the attorneys were there for one remedy, and one remedy only, and that was the invalidation of atlarge elections and the substitution of district elections.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But, Judge Kennedy, was that not made in the context that that is what he wanted and did not want to accept any compromises? And when you say that the parties have the right to determine the shape of the lawsuit, I understand what you are saying. We had discussed in the context of this case the issue as to whether a court ought to consider on appeal issues which were not raised by the parties. And it seems to me that as to procedural matters, there is a broader responsibility on the court. Now, we are not talking about breaking new ground and about establishing new rights, and no generalizations, but a broader responsibility of the court to do justice where there are procedural issues involved. And I can see a lawyer making the argument to you, no, Judge, this is what I want, all or nothing. And it is really in the context, in a sense, of putting the court's back to the wall as a far as a litigant can. But in the context where the facts were as present here, where there was really injustice to Mexican Americans under this circumstance, and important factors on location of polling places and hiring by commissions, is there not a responsibility for a court of appeals to mold the verdict, to mold the finding to do justice under the circumstances?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. The law that we were applying at the time was that the remedy had to fit the violation, and the insistence was that this was the only remedy they wanted. And I was sufficiently concerned about it that I wrote the separate opinion indicating with every hint I could that I was very concerned about some substantive violations, but that I had to agree with my colleagues that the remedy was not permitted.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But another remedy could have been ordered.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Certainly.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Why not?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes, I think another remedy could have been ordered. So I think all we are talking about is whether or not I as a single judge should have said that I would remand. I certainly did not have that authority because I did not have the votes. I did not have the authority to write the mandate in this case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. DO you recall whether you raised that issue specifically with the other two judges on the panel?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I cannot recall.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. One final point, Judge Kennedy, and it follows up from our discussion earlier today with respect to framers' intent and then one of my colleagues had raised the subject again and had talked about the difference on electronic surveillance on the fourth amendment where electronic surveillance was not known at the time the fourth amendment was adopted. But that seems to me to be a very different consideration from the one which you and I had discussed previously, and that involves the framers' intent in the issue of segregated schools on the basic question to the propriety of the court in some extraordinary circumstances making a conclusion which is directly contrary to the framers' intent. And in the discussion which you had today you talked about the fact that it was not subjective intent that the framers were looking toward, and my question is what kind of intent is there besides the intent in the minds of the individuals who frame the amendment. Whether you call it subjective intent or objective intent, what is there besides what they are thinking about, as reflected by the facts surrounding the times when D.C. schools were segregated and schools were segregated all over the country and the gallery in the Senate was segregated? They must have had in mind the segregation because that was the only fact of life that they knew.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. That may have been, but they committed themselves to something that in legal consequence was entirely different, and they simply have to bear the consequences of that decision. They made an agreement among themselves that racial discrimination would not be permitted when it was at the behest of the State, and I think they are bound by the consequences of what they did, regardless of whether .
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge, when you say the legal consequences, they committed themselves to legal consequences which were something different. I agree with the morality, the propriety, and the prevailing law on the subject, but I just do not see how you can say that they agreed to those consequences, given their understanding of what was happening in, their world. Our world is different. The world was different in 1954 with Brown v. Board, but what seems to me to come through from your approach, and quite properly so, but I think this is an important principle, is that there are some extraordinary cases where there is an appropriate finding by the Supreme Court of the United States, as they did in Brown v. Board of Education, which goes right into the teeth of the intent of the framers who wrote the Equal Protection Clause of the fourteenth amendment.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, I guess, again, it comes down to a difference of the use of the term "intent." 242
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. IS there any question in your mind about the Equal Protection Clause applying beyond blacks to women, to aliens, to indigents, to mentally retarded?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO. In fact, once again, the framers could have drafted the amendment so that it applied to blacks only, but they did not. They used the word "person."
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And is there any question in your mind about the propriety of the longstanding rule in the Supreme Court of the United States about the clear and present danger test or freedom of speech?
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I am not sure that the clear and present danger test is a full description of the full protection that the Court gives to freedom of speech. I think Brandenburg goes a little further than the clear and present danger test.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. SO you have the clear and present danger test, plus Brandenburg v. Ohio
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER [continuing]. And Hess v. Indiana, and you agree with that statement of the
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I know of no substantial, responsible argument which would require the overruling of that precedent.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I know of none either, but some do. That concludes my questioning. Thank you very much, Judge Kennedy.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, you just proved that you did not listen to any of the Bork hearings. We take you at your word. Do you have anything to say, Senator?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I have nothing else to say. I again want to commend Judge Kennedy for the way in which he has handled himself, and I hope we will not extend these hearings unduly. If the members would stay here and listen to questions asked, they would not have to ask them over and over and over again, and that is what is happening. We apologize to you.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Well, no apologies are necessary, Senator.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Of course, they have a right to do that, but at the same time it takes a lot of time from all the people who are attending, and I just hope we can speed along.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. NO apologies are necessary, and I appreciate, Mr. Chairman and Senator, the great consideration and courtesy that you have shown to me and my family. We have enjoyed it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, as you can verify now, the Senator from South Carolina—when they said "with all deliberate speed," they really meant it. He wanted to schedule your hearing 1 week after the President had named you and 3 days before your name was sent up, so he is always moving along rapidly. I think that our colleagues asked very good questions, and we seldom disagree, but, Boss, it went smoothly. Here we are at 6 o'clock; we are about to close down, and so I hope you have a good dinner. Let me ask one thing of the staff. Is there any Senator on his way to ask further questions? [No response.] The CHAIRMAN. I have some| questions on criminal procedure which I will submit to you in writing, Judge. There is no hurry, obviously. As you know, because of the Senate schedule, we will not be back in until the end of January, so we will not vote on your nomination in committee until we get back.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Well, Mr. Chairman, I was hoping you would change your mind and vote tomorrow when we finish, or the next day.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I thought you might, Senator, in contravention of our own rules. You know, all the breaks I cut this man—he does not cut me any on this score. All kidding aside
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. I will abide by the will of the Senate, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, you have every reason, in my view, to have a happy holiday. I appreciate your answering the questions. You have kept your commitment that you would discuss in broad terms the issues and the constitutional questions. You did that; we much appreciate it. And unless Senator Thurmond has something good to say about the way the hearings have been conducted, I am going to close.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Well, I think you, Mr. Chairman, are very fair and I want to congratulate you for your fairness.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I hope you and your family go out and have a nice dinner, get a good night's rest, and we will see you tomorrow morning.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Hopefully, you will not have to see him tomorrow morning because I do not think we are going to have to call
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Are we through?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes. I do not think we are going to have to
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Well, if that is the case, we will excuse you, then.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In case you observed, I am no longer the Chairman. I just do this, you know. [Laughter.]
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Are you going to excuse him, too?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Senator, if you have excused him, then there is no reason for me to excuse him. I would just like to thank your family. I realize it is both boring and tedious to sit back there not able to move all this time for 2 days, but we truly appreciate it. With your permission, Mr. Chairman, I will recess for the day.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. What time are you going to meet tomorrow?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will start tomorrow—we were going to start at 10. You asked me to start at 9:30. We will start at 9:30 tomorrow.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you very much. You are very accommodating and I appreciate it. Judge, if everybody is through with you, again, I just want to compliment you on the great service you have rendered, and say again I do not think anybody could be selected who is better qualified for the Supreme Court. You have practiced law, you have taught law, you have been on the court, you have been a judge; you have been reasonable, you 90-87 8 0-89- 9 244 have been fair, and there is no reason in the world why anybody should raise complaints about your conduct and about your career and history. In my opinion, you will be confirmed. In the meantime, though, I hope you will have a nice Christmas and you will get a fine message from us. The Chairman and I are going to do all we can to confirm you when we come back. Thank you very much.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, Senator Heflin indicated he will have a few questions in writing. Now that I have gotten my marching orders from the Senator from South Carolina, we will recess. We will not call you back tomorrow, and I do not expect to call you back at all until this hearing is concluded. The next action would be a vote on your nomination in the committee. We will resume tomorrow at 9:30. The American Bar Association will be the first to testify and then we will have public witnesses who, in all probability will take Wednesday and Thursday, but we will see how the day goes. Thank you very much, Judge, and we thank your family.
Anthony M. Kennedy
Nominee
(R)
Judge KENNEDY. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing is recessed. [Whereupon, at 6:02 p.m., the committee was adjourned, to reconvene at 9:30 a.m., Wednesday, December 15, 1987.]