David H. Souter

Speaker, Title, Party Statements
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. Welcome, Judge Souter. The committee is delighted to have you here this morning. Let me, before I make my opening statement, just go through very, very briefly the procedure we hope to follow this morning. As is the custom of the committee, Judge, each member of the Judiciary Committee, on such a solemn and important occasion as this, makes an opening statement. We will limit our opening statements to 10 minutes apiece. But with the number we have here, you can see that is going to take a while, at which time we would then proceed, Judge, to made their opening statements. If there is still time, we will ask Senators Humphrey and Rudman to make their statements and you be sworn. If not, that will be put over until the afternoon. I again, Judge Souter, welcome you to this committee. Seven weeks ago, President Bush discharged one of his most important constitutional responsibilities, one of the most important responsibilities assigned to the Chief Executive of this Nation, by selecting you to be his nominee for Associate Justice to the Supreme Court of the United States. Today, we, the members of the Judiciary Committee and the Senate as a whole, embark on a solemn task that article II of the Constitution commits to this body: The Senate's responsibility to offer its "advice and consent" to the President's nomination. As these hearings begin, I believe this committee's role in that process is threefold: First, and foremost, in my view, we must conduct a fair and thorough hearing that will provide you with a full opportunity to present your constitutional philosophy to the Senate and, I might add, to the Nation; Second, we must explore those views with you, to try to identify the meaning you would give to our Constitution, if you become Justice Souter; and Third, we must decide—each Senator, bound by his own conscience—whether that constitutional vision is the one that this Nation should have. These have been our obligations for many years now, obligations that the Constitution makes it our duty to complete. And to fulfill our constitutional duties, Judge Souter, we will need your help. You come before us without an extensive record that details your views on important constitutional questions of our time. And I say that not critically. I say that as an observation. You are an extremely bright man with an extremely admirable record. But the past responsibilities you have had have not required you to enunciate your views in any detail on major constitutional issues and questions. As a result, we need your help for us to be able to understand your constitutional philosophy, the philosophy that you would bring to the Nation's highest court. We need you to join us in a meaningful and important dialog about the Constitution. And let me be clear on one point, Judge. As chairman of this committee, I am not asking you for any commitments as to how you would vote on any specific case, nor am I trying to pry nor am I attempting to pry into your personal views on publicly debated issues. Rather, we want to know what principles you would apply, what philosophies you would employ as you exercise the awesome—and I emphasize awesome—the awesome power you will hold if you are confirmed as an Associate Justice of the Supreme Court of the United States. The Supreme Court holds far-reaching power over the constitutional rights and daily lives of every American. Throughout the course of our history, its impact—upon what we can do, what we can say, and how we can live—has equaled that of any President or any Congress. The fact of the matter is that we hold many of the freedoms we enjoy today because of the wisdom and the courage—and I emphasize the courage—and foresight of the 104 Justices who have sat on the Supreme Court. But there have been moments in our history when the Court, like other institutions in this Nation, has come to a crossroads, moments when the Court's future has confronted its past, moments when its long-term direction is at stake, or at least in question. It is at these moments in particular when the Court is most shaped by the outlook and philosophy of individuals who serve as Justices. In my view, Judge Souter, we are witnessing just such a moment in our history. Today, our Nation, our Constitution as interpreted by the Court, is at a crossroads. There are some very fundamental choices to be made: Will the first amendment's guarantee of freedom of religion continue to protect the rights of all Americans—Protestant and Catholic, Jewish and Moslem—to practice their faith and practice it in a way of their choosing? Or will we begin to change the standard by which we judge whether a religious practice can be impacted upon by a governmental body? Will the fourth, fifth, and sixth amendments protecting our civil liberties—of a fair trial, of freedom from unreasonable searches— remain intact as it is today? Will it be scaled back, giving government more power, or changed, giving individuals more impact and control? It is a question, as they say in the vernacular, that is up for grabs today. Will the power of the 14th amendment's equal protection clause—used to root our discrimination against racial minorities and women in our society—be diminished? Again, will government be given more control? And will the majestic sweep of the 14th amendment's due process clause, which protects the right of privacy of all Americans, be curtailed, changed, or in any way affected? Judge Souter, because of the close division on the Court on the meaning of these constitutional guarantees, many of which are divided 5 to 4 or, in essence, now will be 4 to 4, you, Judge Souter, are the single man in this room who can affect in the near term the outcome of all these issues. With this close division, will you have and how will you exercise and determine which way you will vote, deciding which direction the Court will go on a dozen issues we could probably both name? You will have the power to determine which direction the Nation will take, which path we will follow, as we reach this critical crossroads. Let there be no mistake about it, Judge Souter. If confirmed, the fate of our private lives and our public responsibilities will be placed in your hands in a very significant way. Judge, I sincerely hope—and expect, quite frankly—that you will join me in a dialog on the Constitution, a dialog in which you respond with specific answers to specific questions, specific questions about the due process clause and its protection of our right to private and individual liberty; the equal protection clause and its guarantees of racial equality and equal rights for women; the first amendment and its protection of freedom of speech and freedom of religion; and other important constitutional issues of our day. At this fateful moment in our history, Judge, we have a right to know, a duty to discover, precisely what you, Judge David Hackett Souter, think about the great constitutional issues of our time. I believe we can engage in a real discussion on these issues while respecting your judicial independence. We value impartiality in our judicial officers, and it is not a function of these hearings to trespass upon any boundaries that are set by or need to be maintained to guarantee that independence. Yet the office of a Supreme Court Justice inures to no one by birth, no one by right, and no one as a consequence of a nomination by the President of the United States. To attain that post, a nominee has the obligation to persuade the Senate that he or she is the person in whose hands we should agree to vest this awesome power and responsibility. No one is entitled to be a Supreme Court Justice any more than a member of this committee is entitled to be a U.S. Senator. Judge, put bluntly, the burden of proof is on you—Judge Souter, the nominee—as it is on us when we stand for election. If a majority of the electorate deems us to be the right person for the job, given the particular time and circumstances facing this country, then we will be. And a Supreme Court Justice can assume his post only if the Senate is persuaded that the nominee is the right person for that position at that particular juncture of American history. Judge, as I said, the power is awesome, the duty is profound, the obligation is yours, and the responsibility is ours. No one knows, Judge Souter, what questions the Supreme Court will have to resolve in the year 2024, the year until which you will serve on the Court, God willing, should you be confirmed and serve as long as your predecessor—2024. Of one thing, though, we can be sure. If the history of this great Nation is any guide, tomorrow's issues—whatever form they take—will pit governmental power against individual liberty; majority tyranny against personal rights; the danger of discrimination against the dream of equality for all Americans. For 200 years, the Supreme Court of the United States has served as the court of last resort in such struggles—the final guardian of our fundamental rights. So it was for our parents and our grandparents, and so I hope it will be for our children and our grandchildren in the 21st century. If confirmed, you, Judge Souter—more than any other person in this room—will decide what the Constitution means for the next generation. We will long be gone from this bench while you are still sitting on the Supreme Court of the United States, helping decide the fate of this great Nation. To consent to your nomination, we must have considerable guidance as to what kind of Supreme Court, what vision of the Constitution you will provide for our grandchildren. For the next few days, Judge Souter, open for us a window into your mind, and give us a little bit of a glimpse into your heart. [The prepared statement of Chairman Biden follows:] JUDGE SOUTER, I WOULD LIKE TO WELCOME YOU TO THE SENATE JUDICIARY COMMITTEE. SEVEN WEEKS AGO, PRESIDENT BUSH DISCHARGED ONE OF THE MOST IMPORTANT CONSTITUTIONAL RESPONSIBILITIES ASSIGNED TO THE CHIEF EXECUTIVE, BY SELECTING YOU TO BE HIS NOMINEE FOR THE UNITED STATES SUPREME COURT. TODAY, WE EMBARK ON A SOLEMN TASK THAT ARTICLE II OF THE CONSTITUTION COMMITS TO THIS BODY — THE SENATE'S RESPONSIBILITY TO OFFER ITS "ADVICE AND CONSENT" TO THE PRESIDENT'S NOMINATION. AS THESE HEARINGS BEGIN, I BELIEVE THIS COMMITTEE'S ROLE IN THE PROCESS IS THREE-FOLD: * FIRST — AND FOREMOST — WE MUST CONDUCT FAIR AND THOROUGH HEARINGS THAT PROVIDE YOU WITH A FULL OPPORTUNITY TO PRESENT YOUR CONSTITUTIONAL PHILOSOPHY TO THE SENATE AND TO THE NATION; — 2 — * SECOND, WE MUST EXPLORE THOSE VIEWS WITH YOU, TO TRY TO IDENTIFY THE MEANING YOU WOULD GIVE TO OUR CONSTITUTION, IF YOU BECAME "JUSTICE DAVID SOUTER;" AND * THIRD, WE MUST DECIDE — EACH SENATOR, BOUND BY HIS OWN CONSCIENCE — WHETHER THAT CONSTITUTIONAL VISION IS ONE THAT THE NATION SHOULD EMBRACE. THESE HAVE BEEN OUR OBLIGATIONS FOR MANY YEARS NOW — OBLIGATIONS THAT THE CONSTITUTION MAKES IT OUR DUTY TO COMPLETE. TO FULFILL OUR CONSTITUTIONAL DUTIES, JUDGE SOUTER, WE WILL NEED YOUR HELP. YOU COME BEFORE US WITHOUT AN EXTENSIVE WRITTEN RECORD THAT DETAILS YOUR VIEWS ON THE IMPORTANT CONSTITUTIONAL QUESTIONS OF OUR TIME. AS A RESULT, WE NEED YOU TO HELP US IN UNDERSTANDING THE CONSTITUTIONAL PHILOSOPHY YOU WOULD BRING TO THE NATION'S HIGHEST COURT. WE NEED YOU TO JOIN US IN A MEANINGFUL AND IMPORTANT DIALOGUE ABOUT OUR CONSTITUTION. AND LET ME BE CLEAR ON ONE POINT, JUDGE: WE ARE NOT ASKING FOR ANY COMMITMENTS AS TO HOW YOU WOULD RULE ON ANY SPECIFIC CASE — NOR ARE WE TRYING TO PRY INTO YOUR PERSONAL VIEWS ON PUBLICLYDEBATED ISSUES. - 3 - RATHER, WE WANT TO KNOW WHAT PRINCIPLES YOU WOULD APPLY — WHAT PHILOSOPHIES YOU WOULD EMPLOY — AS YOU EXERCISE THE AWESOME POWER YOU WILL HOLD IF YOU ARE CONFIRMED AS A JUSTICE OF THE UNITED STATES SUPREME COURT. THE SUPREME COURT HOLDS FAR-REACHING POWER OVER THE CONSTITUTIONAL RIGHTS AND THE DAILY LIVES OF EVERY AMERICAN CITIZEN. THROUGHOUT THE COURSE OF OUR HISTORY, ITS IMPACT — UPON WHAT WE CAN DO, WHAT WE CAN SAY, AND HOW WE CAN LIVE — HAS EXCEEDED THAT OF ANY PRESIDENT OR ANY CONGRESS. THE FACT OF THE MATTER IS THAT WE HOLD MANY OF THE FREEDOMS WE ENJOY BECAUSE OF THE WISDOM, COURAGE AND FORESIGHT OF THE 104 JUSTICES WHO HAVE SAT ON THE SUPREME COURT. BUT THERE HAVE BEEN MOMENTS IN HISTORY WHEN THE COURT -- LIKE OTHER INSTITUTIONS IN THIS NATION — HAS COME TO A CROSSROADS; MOMENTS WHEN THE COURT'S FUTURE HAS CONFRONTED ITS PAST — MOMENTS WHEN ITS LONG-TERM DIRECTION HAS BEEN AT STAKE. IT IS AT THESE MOMENTS WHEN THE COURT IS MOST SHAPED BY THE OUTLOOK AND PHILOSOPHY OF THE INDIVIDUALS WHO SERVE AS JUSTICES. IN MY VIEW, WE ARE WITNESSING SUCH A MOMENT TODAY. TODAY, OUR NATION — OUR CONSTITUTION AS INTERPRETED BY THE COURT — IS AT A CROSSROADS. THERE ARE SOME FUNDAMENTAL CHOICES - 4 - TO BE MADE: * WILL THE FIRST AMENDMENT'S GUARANTEE OF FREEDOM OF RELIGION CONTINUE TO PROTECT THE RIGHTS OF ALL AMERICANS — PROTESTANT AND CATHOLIC; JEWISH AND MUSLIM — TO PRACTICE THE FAITH OF THEIR CHOOSING? * WILL THE FOURTH, FIFTH, AND SIXTH AMENDMENT'S PROTECTION OF CIVIL LIBERTIES ~ OF A FAIR TRIAL AND FREEDOM FROM UNREASONABLE SEARCHES ~ REMAIN STRONG? * WILL THE POWER OF THE FOURTEENTH AMENDMENT'S EQUAL PROTECTION CLAUSE ~ USED TO ROOT OUT DISCRIMINATION AGAINST RACIAL MINORITIES AND WOMEN IN OUR SOCIETY — BE DIMINISHED? * AND WILL THE MAJESTIC SWEEP OF THE FOURTEENTH AMENDMENT'S DUE PROCESS CLAUSE — WHICH PROTECTS THE RIGHT OF PRIVACY OF ALL AMERICANS — BE CURTAILED? JUDGE SOUTER, BECAUSE OF THE CLOSE DIVISION ON THE COURT ON THE MEANING OF THESE CONSTITUTIONAL GUARANTEES, IF YOU ARE CONFIRMED, YOU WILL HAVE THE POWER TO DETERMINE WHICH DIRECTION THIS NATION WILL TAKE ~ WHICH PATH WE WILL FOLLOW AS WE REACH THIS CRITICAL CONSTITUTIONAL CROSSROAD - 5 - LET THERE BE NO MISTAKE ABOUT IT, JUDGE SOUTER. IF CONFIRMED, THE FATE OF OUR PRIVATE LIVES AND OUR PUBLIC RESPONSIBILITIES WILL BE PLACED IN YOUR HANDS. I SINCERELY HOPE, JUDGE, THAT YOU WILL JOIN ME IN A DIALOGUE ON THE CONSTITUTION — A DIALOGUE IN WHICH YOU RESPOND WITH SPECIFIC ANSWERS TO MY SPECIFIC QUESTIONS ABOUT: * THE DUE PROCESS CLAUSE AND ITS PROTECTION OF OUR RIGHT TO PRIVACY AND INDIVIDUAL LIBERTY; * THE EQUAL PROTECTION CLAUSE AND ITS GUARANTEES OF RACIAL EQUALITY AND EQUAL RIGHTS FOR WOMEN; * THE FIRST AMENDMENT AND ITS PROTECTION OF FREEDOM OF SPEECH AND RELIGION; * AND OTHER IMPORTANT CONSTITUTIONAL ISSUES OF OUR DAY. AT THIS FATEFUL MOMENT IN OUR HISTORY, WE HAVE A RIGHT TO KNOW — AND A DUTY TO DISCOVERY — PRECISELY WHAT YOU, JUDGE DAVID HACKETT SOUTER, THINK ABOUT THE GREAT CONSTITUTIONAL QUESTIONS OF OUR TIME. I BELIEVE WE CAN ENGAGE IN A REAL DISCUSSION OF THESE ISSUES WHILE RESPECTING YOUR JUDICIAL INDEPENDENCE. WE VALUE IMPARTIALITY 10 - 6 - IN OUR JUDICIAL OFFICERS, AND IT IS NOT A FUNCTION OF THESE HEARINGS TO TRESPASS UPON ANY BOUNDARIES THAT ARE SET BY THE NEED TO MAINTAIN THAT INDEPENDENCE. YET THE OFFICE OF SUPREME COURT JUSTICE INURES TO NO ONE BY BIRTH OR BY RIGHT — OR BY VIRTUE OF A PRESIDENTIAL NOMINATION ALONE. TO ATTAIN THAT POST, A NOMINEE MUST PERSUADE THE SENATE THAT HE OR SHE IS THE PERSON IN WHOSE HANDS WE SHOULD AGREE TO VEST AWESOME POWER AND RESPONSIBILITY. NO ONE IS ENTITLED TO BE A SUPREME COURT JUSTICE, ANY MORE THAN ANY MEMBER OF THIS COMMITTEE IS "ENTITLED" TO BE A SENATOR. THE BURDEN OF PROOF IS ON YOU, JUDGE SOUTER, THE NOMINEE — AS IT IS ON US, WHEN WE SEEK ELECTION AS SENATORS. WE HOLD OUR POSTS ONLY IF A MAJORITY OF THE ELECTORATE DEEMS US THE RIGHT PERSONS FOR THE JOB, GIVEN THE PARTICULAR TIME AND CIRCUMSTANCES FACING THE COUNTRY. AND A SUPREME COURT JUSTICE CAN ASSUME HIS POST ONLY IF THE SENATE IS PERSUADED THAT THE NOMINEE IS THE RIGHT PERSON FOR THAT POSITION, AT THAT PARTICULAR JUNCTION IN HISTORY. THE POWER IS AWESOME, THE DUTY IS PROFOUND, THE OBLIGATION IS YOURS, THE RESPONSIBILITY IS OURS. NO ONE KNOWS, JUDGE SOUTER, WHAT QUESTIONS THE SUPREME COURT 11 - 7 - WILL HAVE TO RESOLVE IN THE YEAR 2024 — THE YEAR UNTIL WHICH YOU WILL SERVE ON THE COURT SHOULD YOU BE CONFIRMED AND SERVE AS LONG AS YOUR PREDECESSOR DID. OF ONE THING, THOUGH, WE CAN BE SURE. IF HISTORY IS ANY GUIDE, TOMORROW'S ISSUES — WHATEVER FORM THEY TAKE — WILL PIT GOVERNMENTAL POWER AGAINST INDIVIDUAL LIBERTY; MAJORITY TYRANNY AGAINST PERSONAL RIGHTS; THE DANGER OF DISCRIMINATION AGAINST THE DREAM OF EQUALITY FOR ALL AMERICANS. FOR 200 YEARS, THE SUPREME COURT HAS SERVED AS THE COURT OF LAST RESORT IN SUCH STRUGGLES — THE FINAL GUARDIAN OF OUR FUNDAMENTAL RIGHTS. SO IT WAS FOR OUR PARENTS AND GRANDPARENTS; AND SO I HOPE IT WILL BE FOR OUR CHILDREN AND GRANDCHILDREN IN THE 21ST CENTURY. IF CONFIRMED, YOU, JUDGE SOUTER — MORE THAN ANY OTHER PERSON IN THIS ROOM ~ WILL DECIDE WHAT THE CONSTITUTION MEANS FOR OUR NEXT GENERATION. TO CONSENT TO YOUR NOMINATION, WE MUST HAVE CONSIDERABLE GUIDANCE AS TO WHAT KIND OF SUPREME COURT — WHAT VISION OF THE CONSTITUTION — YOU WILL PROVIDE FOR THEM. FOR THE NEXT FEW DAYS, JUDGE SOUTER, OPEN FOR US A WINDOW INTO YOUR MIND. The CHAIRMAN. Senator Thurmond.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Mr. Chairman, today the committee begins hearings to consider the nomination of Judge David H. Souter to be an Associate Justice of the Supreme Court of the United States. This marks the 6th nominee to the Supreme Court that this committee has considered in the past 9 years and, once confirmed, would be the 105th person to serve as a Justice. As well, I might say, it is the 23d Supreme Court nomination that I have had the opportunity to review during my 36 years in the Senate. As we begin the hearing process, we must remain keenly aware that it is a solemn responsibility. Those chosen for appointment to this Nation's highest court occupy a position of great power and authority, as this appointment is one of life tenure granted without accountability by popular election. With this position of great status comes a greater responsibility to the people of this Nation— to the concept of justice, and to the Constitution. Mr. Chairman, I have always believed that the Constitution is the greatest document ever penned by the hand of man. The Constitution creates the basic institutions of our National Government and spells out the power of these institutions, the requirements for holding office, and the rights of our citizens. Our Constitution is the fundamental law of the land. It is the basis for laws written by Federal, State, and local governing bodies, and it defines the separation of power between the individual States and our National Government. The fact that our Constitution has survived since its adoption in 1787 is a true testament to its enduring nature. Our magnificent Constitution confers tremendous responsibility on both the House and the Senate to declare war, maintain the Armed Forces, borrow money, regulate commerce, mint currency, and make all laws necessary for the operation of Government. However, the Senate alone holds exclusive to "advise and consent" on all judicial nominations, without a doubt one of the most important responsibilities undertaken by the Senate. It is a responsibility that takes on greater significance when a nomination is made to the highest court in the land. The Senate has assigned the task of holding hearings and reviewing judicial nominees to the Judiciary Committee. It is our duty to make the recommendation to the full Senate. This critical role in the judicial process must be equitable, thorough, and diligent. It is this committee that will be called upon to cast the first vote which will in all likelihood determine the fact of this nomination. I am not aware of any nominee to the Supreme Court in this country who has failed to attain a majority of the votes of the members of this committee and then been confirmed by the full Senate. This track record clearly underscores the importance of our responsibility. 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 to address such issues as criminal law, privacy rights, church-state relations, freedom of speech and press, the death pen- 13 alty, 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 difficult, controversial, and important issues which must be resolved by the Court and the impact of its decisions, great responsibility is placed upon each Justice. An Associate Justice must be an individual who possesses outstanding qualifications. In the past, I have reflected upon the judicial qualifications. The attributes I believe a nominee to the Court should possess are: First, unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair and just. Second, courage. The courage to decide tough cases according to the law and the Constitution. Third, compassion. While a nominee must be firm in his decisions, he should show mercy when appropriate. Fourth, professional competence. The ability to master the complexity of the law. Fifth, proper judicial temperament. The self-discipline to base decisions on logic, not emotion, and to have respect for lawyers, litigants, and court officials. Sixth, an understanding of the majesty of our system of government. The understanding that Congress makes the laws, that the Constitution is changed by amendment, and that powers not delegated to the Federal Government are reserved to the States. An individual who possesses these attributes cannot fail the cause of justice. My review of the background of this nominee convinces me, as we start these hearings, that he possesses the necessary qualifications to be an outstanding member of the Supreme Court. His intellectual credential are impeccable: Phi Beta Kappa, Rhodes scholar, undergraduate and law degrees from Harvard, and graduate study at Oxford University. His experience is extraordinary: Currently serving as a member of the U.S. Court of Appeals for the First Judicial Circuit, formerly an associate justice of the New Hampshire Supreme Court for 7 years, previously served as a judge on the New Hampshire Superior Court for 5 years, served as the attorney general for the State of New Hampshire, held positions as deputy attorney general, assistant attorney general, and practiced law in the private sector. Recently, Judge Souter's professional experience and qualifications were scrutinized by the American Bar Association in connection with his appointment to the first circuit and his nomination to the Supreme Court. For both positions, the ABA gave Judge Souter the highest possible rating based on his professional competence, integrity, and judicial temperament. Without question, Judge Souter has the professional credentials to serve on this Nation's highest court. He has long been known as a man of keen intellect and devotion to the law—a perception certainly warranted by his distinguished professional record. Mr. Chairman, our critical role in the selection process of a Supreme Court Justice requires us to carefully examine and review the intellectual capacity, moral character, and background of a 14 nominee. However, it does not convey the right to question a nominee about how he or she would decide a particular case. It is inappropriate to ask a nominee how he would rule for several reasons. A nominee cannot, and should not be expected to, indicate how he would rule until there has been an opportunity to fully examine precedent and relevant law, to study briefs, and to listen to oral argument. Only after a complete review of all the facts and relevant law, and after sufficient time for calm, rational deliberation, should an individual be called upon to render a decision. Direct questioning about sensitive issues that may come before the Court could impinge on the concept of an impartial, independent judiciary. We must take all precautions to ensure that the judiciary is shielded from the political pressures that are imposed on the legislative and executive branches. For these reasons, I urge all members of this committee to be diligent, thorough, and thought-provoking in questioning this nominee, but not to exceed the appropriateness to the purpose for which these questions are intended. Mr. Chairman, a member of the Supreme Court must consider hundreds, even thousands of issues during his or her tenure. No one issue should be the sole criteria by which a nominee is judged fit to serve. While any one issue may now be more prominent than others, as times change so will the issues before the Court. A Supreme Court member is confirmed for life, not put in place to make short-term decisions to satisfy any political constituency. A member of the Supreme Court makes decisions in a vast array of areas which affect all the people of this Nation and not just one individual or a particular group. To expect otherwise would diminish this august institution. Mr. Chairman, I believe a nominee selected by the President of the United States for the Supreme Court comes to the Senate with a presumption in his favor. As well, a man who has been recently considered by the Senate and unanimously confirmed comes with an even greater presumption in his favor. The Framers of the Constitution established the judicial branch as a coequal branch of government, along with the legislative and executive branches. In 1803, Chief Justice John Marshall stated that "it is the duty of the judicial department to say what the law is." Because the Supreme Court is the final arbiter of legal disputes, its authority is immense. With that view in mind and a keen awareness of the great responsibility facing each of us, I look forward to a fair, thorough review of Judge Souter's intellectual capacity, background, and his sense of justice. Judge Souter, we welcome you to the committee and look forward to your testimony. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Just before I yield to Senator Kennedy, let me explain, Judge. I noticed you heard that buzzer. The way this place works is the Senate is in session as we conduct this hearing; that is, over on the Senate floor. I failed to mention that for you and for some in the audience. Those buzzers indicate whether or not there are votes, and we may at some point during this hearing today have to—some will get up and go vote and come back while we are trying to keep this thing going. So that is what that buzzer was about, and I 15 apologize. They do tend to break one's concentration. But if we don't show up when those buzzers ring, it tends to break our longevity in the Senate. The Senator from Massachusetts, Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Good morning, Judge Souter. I don't know how you are enjoying it up until now, but it will get better later on. [Laughter.] Today, the Senate begins one of the most important tasks entrusted to it under the Constitution: consideration of a nomination to the Supreme Court. In this remarkable time when democracy is spreading through Eastern Europe and Latin America, the Constitution stands more than ever as a timeless ideal for peoples throughout the world, a charter that protects the fundamental rights and liberties that are essential to human dignity. And it is more important than ever that we uphold these values in our own country. The Constitution itself is silent on what standard the Senate should apply in weighing a Supreme Court nomination. The very notion of Senate confirmation of judicial nominees selected by the President was a last minute compromise reached by the Framers. Those who drafted the Constitution had originally proposed that the Senate alone select judicial nominees. The final compromise, which assigns shared responsibility to the President and the Senate, was adopted as one of the key checks and balances to assure that neither the President nor the Senate would have excessive influence over the Supreme Court and other Federal courts. The true genius of the modern Constitution and Bill of Rights is also apparent in the establishment of an independent Federal judiciary, sworn to protect the fundamental rights and liberties of individuals against the excesses of government. The Supreme Court has the last word on the meaning of the Constitution, and its decisions have a profound impact on all our lives. In the past half century, the Supreme Court has played a central role in the effort to make America a better and fairer land. The Court outlawed segregation in the schools, removed barriers to the right to vote, strengthened the basic rights of minorities, and took major steps to end the second-class status of women in our society. In considering a Supreme Court nomination, the Senate must make two inquiries. The first is a threshold issue: Does the nominee have the intelligence, integrity, and temperament to meet the responsibilities of a Supreme Court Justice? But that is not the only inquiry. The Senate must also determine whether the nominee possesses a clear commitment to the fundamental values at the core of our constitutional democracy. In this second inquiry, the burden of proof rests with those who support a nomination. Our constitutional freedoms are the historic legacy of every American. They are too important, and the sacrifices made to protect those freedoms have been too great, to be entrusted to judges who lack this clear commitment. If a Senator is left with substantial doubts about a nominee's dedication to these 16 core values, our own constitutional responsibility requires us to oppose the nomination. This is not to suggest any single-issue litmus test. Nominees should be judged on their overall approach to the Constitution. I have frequently supported nominees whose views on particular constitutional issues are very different from my own. But the Senate should not confirm a Supreme Court nomination unless we are persuaded that the nominee is committed to upholding the essential values at the heart of our constitutional tradition. Recent developments at the Supreme Court have increased the importance of this inquiry by the Senate. Over the past few years, the Court has retreated from its historic role in protecting civil rights and civil liberties. In case after case, the Court has adopted narrow and restrictive interpretations of important civil rights laws. The Senate is entitled to ensure that nominees to the Nation's highest court share Congress' view that these laws must be interpreted generously, to provide effective remedies to eliminate unfair discrimination in all of its forms. Judge Souter has a distinguished intellectual background, and he has spent the great majority of his legal career in public service. But aspects of his record on the bench and while serving in the New Hampshire attorney general's office raise troubling questions about the depth of his commitment to the indispensable role of the Supreme Court in protecting individual rights and liberties. While on the New Hampshire Supreme Court, Judge Souter wrote a dissenting opinion arguing that the meaning of the State constitution should be confined to the specific intent of those who drafted it in the 18th century. Applied to the U.S. Constitution that view would have prevented the Supreme Court from outlawing school segregation in 1954. It would effectively stop the Court today from applying the Constitution to protect our fundamental rights from government intrusions not anticipated by the Framers two centuries ago. In this day and age our constitutional freedoms are too important to entrust to Justices who would turn back the clock on these basic issues. While Judge Souter was serving in the New Hampshire Attorney General's office, he took a number of very troubling positions. He argued that Congress does not have the constitutional authority to ban State literacy tests for voting, even though such tests place needless barriers on the exercise of the most important right in a democracy—the right to vote. He argued that Congress did not have the constitutional authority to require employers to file reports with the Federal Equal Employment Opportunity Commission showing the overall racial composition of their work force—reports that are vitally important in investigating claims of discrimination. He questioned the standard adopted by the Supreme Court to ban most forms of sex discrimination. He referred to abortion as the "killing of unborn children" and opposed the repeal of an unconstitutional State abortion statute. He defended the constitutionality of an order by the Governor of New Hampshire that flags on State buildings must be lowered to half-mast on Good Friday—an order enjoined by the courts because 17 it clearly violated the constitutional requirement of separation of church and state. In a commencement speech, Judge Souter, stated that affirmative action programs are affirmative discrimination and suggested that the Government should not be involved in promoting such programs. It is true that all but the last of these positions were taken by Judge Souter while serving in the New Hampshire Attorney General's Office in the course of defending actions taken by the State government, and the views that he expressed as the State's lawyer are not necessarily his own. But these positions are troubling. There is little in his record that demonstrates real solicitude for the rights of those who are weakest and most powerless in our society, and who have historically had the most difficulty in obtaining these rights from the majorities that rule the legislatures in our democracy. It is the responsibility of this committee to find out whether Judge Souter is committed to these rights and to the other basic values enshrined in the Constitution. It is these values that make America America and that determine the kind of country that we will be in the years ahead. That is why these hearings on Judge Souter's nomination are so important and I look forward to his testimony.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator from Utah, Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. I would like to welcome you, Judge Souter, to our committee and I hope that your hearing goes well. Having met you, and having chatted with you and having looked at you for better than 3 years now, or about 2V2 years, I want to tell you that I am very impressed with your impeccable educational and legal background, and also with your experience in both the executive and judicial branches of government, at least State government at that time. We have already heard, and of course we are going to hear some more today about your distinguished legal career. Judge Souter, incidentally, is the first Supreme Court Justice or nominee from New Hampshire in 145 years. This is rather surprising given New Hampshire's prominent role every 4 years in the first step in the judicial selection process—namely the selection of the President. I might add that people across the political spectrum in New Hampshire have told me of their high regard for you as both a man and as a jurist. I share President Bush's view that a Supreme Court Justice should interpret the law and not legislate his or her own policy preferences from the bench. The role of the judicial branch is to enforce the provisions of the Constitution and the laws that we enact in Congress, among other things, as their meaning was originally intended by those who framed those laws. That does not necessarily mean that they cannot adjust to the needs of a modern society. 18 Any other philosophy of judging requires unelected Federal judges to impose their own personal views on the American people in the guise of construing the Constitution and Federal statutes. There is no other way around this conclusion. This other approach is judicial activism, plain and simple and it can come from the political left and it can come from the political right. When judges depart from these principles of construction, they elevate themselves not only over the executive and legislative branches, but over the Constitution itself, and, of course, over the American people. These judicial activists, whether of the left or right, undemocratically exercise the power of governance that the Constitution commits to the people and their elected representatives. These judicial activists are limited only by their own will— which of course is no limit at all. I would also note parenthetically that Judge Souter must be evaluated on his own merits, not on how four other Justices might vote. Judge Souter is going to cast one vote on the Supreme Court, if confirmed, and not five or not four others. So we might say that that is an important consideration. Now, we have all read and we have all heard of the anxiety of many private interest groups which prefer an activist Supreme Court to impose certain political outcomes on the American people. They are disappointed that they have been unable to ascertain exactly where Judge Souter stands or how he might vote on many issues of concern to them. Having been unable to do so, but fearing that Judge Souter will actually be faithful to the Constitution rather than to their own particular policy preferences, when the latter cannot be justified by the former, some of these groups seem to be hoping that there will be something uncovered to derail
David H. Souter
Nominee
(R)
Judge Souter. In the words of William F. Buckley, Jr., in National Review Magazine, he said, "If only he had smoked marijuana or streaked at an American Bar Association banquet, no such luck." I want to respond to one of the misguided observations we have heard about this nominee. That is that Judge Souter does not have a record on which to evaluate him and that he lacks a paper trail—that is nonsense. Judge Souter has authored over 200 opinions during 7 years as a justice on the New Hampshire Supreme Court and additional opinions as a New Hampshire Superior Court judge. He has joined in the decisions in hundreds of other appeals. Scarcely a dozen Justices in the 200-year history of the Supreme Court have been nominated with a more extensive judicial background. His legal reasoning is on record in those opinions and I note that those cases indicate that Judge Souter is a solid law and order jurist—tough but fair with criminal defendants. This balance is of the greatest importance to the citizens of Utah and of other States. We Utahns welcome visitors from everywhere and we try to provide a safe environment for them and our own people. By the same token we like to travel around the country and to do so in safety. That safety greatly depends on our criminal justice system. We need sufficient numbers of police, prosecutors, tough trial judges, and prisons. But at the top of our criminal justice system sits the Supreme Court. When the Supreme Court con- 19 cocts ingenious theories and rules to help criminal defendants and criminal convicts as it began to do in one case after another under the Warren Court, the cumulative effect of these pro-criminalrights decisions is felt in our Nation's streets and in our subways. I think Judge Souter's experience as a State trial judge, having seen and sentenced criminals with a first-hand knowledge of the harm they caused will provide a useful perspective to the High Court. Let me note that a nominee's legal brief filed on behalf of a client are available as a review as examples of a nominee's writing ability and ability as an advocate. Probing a nominee about such briefs, however, would in my view be a very disturbing development. The role of advocate in our legal system is a cherished one. A client is entitled to a zealous representation regardless of the advocate's personal views. At the Bork hearings, a majority of this committee, and then of the Senate, sent a clear message to the legal profession—be careful about what you say in academic writings. No matter how speculative and even if you change your mind about what you write, your academic writings will be used against you. Will we now witness the misuse of an advocate's legal briefs? Will this committee send this further message to prospective nominees: Be careful about which people, which institutions, and which causes you represent, especially unpopular ones, and be careful about which arguments you make as an advocate. Now, Judge Souter is not running for a political office, nor has the President nominated him to a policymaking position in the executive branch. He has been nominated for the High Court in a coequal branch of the Federal Government. In my view, the Constitution clearly gives the President principal responsibility for judicial selection. As such, the President is entitled to nominate a person who reflects the President's view of the general role of the judiciary in our tripartite system of government. He is not entitled to seek assurance on how a nominee will vote on a particular issue, or on particular issues. The Senate is given a checking function through its advice and consent power. It does not have the license to exert political influence on the other branches or to impose litmus tests on nominees. Nor is the Senate entitled to seek assurances on how a nominee will decide particular issues that the President, himself, may not seek. As Alexander Hamilton wrote in Federalist 76 about the Senate's advice and consent function in general, the Senate's: Concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon the spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In my view, senators are free to ask a nominee any question they wish, no matter how misleading, abusive, unfair, or foolish. A Supreme Court nominee, however, should answer questions related only to his ethics, competence, legal ability, general view of the role of the Supreme Court in our Federal system, and independence of mind. That is, did he make any commitments on issues that may come before him in order to be nominated or confirmed. 20 Judge Souter, I hope you will stand your ground when you sincerely believe you are being asked for answers which you clearly cannot provide and have the good faith to be able to act as a Supreme Court Justice later. The Senate should not probe into the particular views of the nominee on particular issues or public policies, let alone impose direct or indirect litmus tests on specific issues or cases. If it does, the Senate impinges on the independence of the judiciary. It politicizes the judging function. The confirmation process becomes a means to influence the outcome of future cases on issues of concern to particular Senators. This course is an inappropriate as it would be for the President to seek such influence, himself. The judiciary is one branch which should be above politics. Judge Souter, we are happy to have you here and we look forward to hearing your testimony. We look forward to getting to know you better and we look forward to seeing you sit on the Supreme Court. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, as you can already see, there is unanimity on the committee. Senator from Ohio, Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I did not like the fact that you said that just before you introduced me. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, we all follow you, Howard, and that is why I mentioned you.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Souter, there is something reassuring about this hearing. Reassuring in the fact that probably no other nation in the world has this concept that a President makes an appointment, nomination, and then the U.S. Senate has the right, as the peoples' representative to vote up or down on your confirmation. Our Founding Fathers, how they were able to come up with this structure, I do not know; but I do not know of any other nation that has that same structure—to their credit. They could not have known at that time that there is another factor that is in place now and that is that it is possible for us, as we meet here today, to open the vista of the American people so that the American people can hear you respond, hear us inquire of you, so that the American people can be a part of the process, itself. I must say to you that there are many comments and criticism about how the committee does this or does that, but there is something wonderful about this entire concept that the President nominates and the Senate either confirms or refuses to confirm. I feel privileged to be a part of that process. The fact is that you cannot become a member of the Supreme Court in this country simply because the President and those around him are comfortable with a nominee's views on the law. We have an obligation, it is a constitutional responsibility, to make an independent examination of your constitutional views, your judicial philosophy, and your approach to law. 21 We also have a further responsibility and that is to try to determine, as best we can, what kind of person is Judge David Souter? This is a different type of nomination from others that we have had in the past, because it is a fact—although some have challenged the statement—but it is a fact that when you look at the record you find little that you have written on many of the critical constitutional issues which face the Court. Therefore, it makes it all the more important that we inquire fully into your views on these subjects. But there is probably another, maybe equally as important a reason, for us to undertake a full and complete inquiry. When the President nominated you he stated that he did not solicit your views on any of the controversial issues facing the Court. But just a day later, John Sununu, his Chief of Staff, went out of his way to reassure political advocacy groups on the right that Judge Souter could be counted on to vote with them. Sununu reportedly stated, that the far right should consider the Souter nomination "a home run that is just about to leave earth orbit." I say to you, frankly, does John Sununu know something which we, on the committee, do not know and I think we are entitled to try to learn? Much has been said about the impact of your nomination on the right to privacy and the right of a woman to choose to have an abortion. I am concerned about that subject, and I will, with appropriate questions ask you about these matters. Less has been said about you in the civil rights issues facing the country. On that subject, frankly, the nominee's record is practically blank. I believe it is necessary to ask whether Judge Souter can understand and empathize with the aspirations, the concerns, and the frustrations of blacks, hispanics, women, minorities. I want to know would you, as the nominee, have a feel for the conflicts and problems which arise from our diverse and heterogeneous population? Since this nomination, I have had the opportunity to meet with you, Judge, on two separate occasions; once for over an hour and to speak with you over the telephone as well. I am frank to say that I enjoyed those meetings much. I found you to be a thoughtful, caring, and personable man. I respect your deep feelings for and commitment to the community in which you were raised. Like most of the people who have met you in the last few weeks, I have no doubt about your legal intelligence nor your legal acumen. It is clear that you possess a keen legal mind. But I think most Americans want to know more about the kind of person you are. Justice Oliver Wendell Holmes, who was the subject of a thesis written by you once wrote that "The life of the law has not been logic; it has been experience." Legal acumen is, indeed, important. But I think many Americans would not be comfortable with a Judge whose logic and reason were not tempered by experience and compassion. Judges must understand and have a feel for the human situations which underlay the disputes which come before the court. The dilemma faced by an unwed pregnant teenager; the sting felt by women and minorities victimized by discrimination; the temptation of the majority to ignore the consciousness of the religious minorities; or censor on popular expression. 39-454—91- 22 These are not simply abstract, technical matters; they are realworld controversies whose resolution directly affects the degree of liberty, fairness, and diversity which Americans enjoy. The quality of justice rendered by judges depends upon their capacity to grasp both the human and legal elements which underlay the case before them. Do you have that capacity? You are obviously a community-spirited man and you are obviously a caring human being. We know that you have devoted considerable time—in some respects it might be said an unbelievable amount of time—and energy to the Concord Hospital. As you know, I asked you for a list of your charitable contributions, though I made it clear that I was not interested knowing the amount of those contributions. I thought that it would give this Senator some insight into the kind of human being you are. You were kind enough to share that list with me and I will make that list available to the Chair and to the public. I found that you have given to an impressive variety of groups. I have a copy of the letter which you sent to me in connection with that, and unless the Chair has some objection, I would like to place it in the record.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection. [The letter of Judge David Souter follows:]
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. On the other hand, in some of your opinions, I am frank to say that you seem to have sprinkled an extra dose of logic in places where a dash of common sense or compassion would have been, in this Senator's opinion, more appropriate. Moreover, having combed through your record as a judge and attorney general, I am frank to say that I am hard-pressed to find many instances in which you broke new ground, provided additional legal protection for the poor, the elderly, minorities, and women. These are people whose progress in integration in the mainstream of American life has been aided immeasurably by judges who grasp the special role which the Supreme Court plays in ensuring fairness and equal dignity for all Americans. Frankly, Judge Souter, I do not expect your views on the law and the Constitution to accord precisely with mine. If they did, President Bush would not have nominated you. But the diversity and strength of this Nation depends upon the Court's willingness to continue to fulfill its role as the guarantor of individual liberty, equal justice, and fundamental fairness. The American people need to b 26 tude, intelligence, superior legal scholarship, and proper temperament for the Supreme Court bench. It is also my personal belief, I think shared by many, that a Justice should have a judicial philosophy of respect for the laws and the Constitution, a Justice should interpret the laws and uphold the Constitution, but he or she should not legislate from the bench. This is the painful part of this operation for the special interest groups. They have had free rein in that area for so many years, and this is a very difficult thing and we must wean them away from it very carefully, else they be in shock. We are hired on in this tripartite form of government to do just that, to legislate. That is our job. We do that rather imperfectly, but with good intent, expressed through a pretty able group of Democrats and Republicans alike. We try. From my time with you and from all that I have read and heard, you surely appear to possess all of these important traits, and I fee1 that you will make a very fine addition to the Supreme Court. However, many on the committee, including our able and energetic chairman, have expressed their interest in having your views on key constitutional issues. I do certainly believe that judicial nominees should respond to appropriate questions, but overly explicit questions are not only unwise, but I think even impermissible from a legal ethics perspective, because you, sir, are a sitting Federal judge and you are, as a judge, then bound by the Code of Judicial Conduct, and I believe it is vital and critical for all to know and keep in mind, as we do these proceedings, that canon 3(a)(6) of that code provides that, "A judge should abstain from public comment about a pending or impending procedure in any court." You are a judge. This would apply to you. We all well know how politicized the abortion issue has become and we know how hard the purists among the special interest groups are pushing and pounding and howling to get you to reveal your views on this topic. But we are also all very well aware that there will be abortion cases argued before the Supreme Court in the coming term. I happen to be personally prochoice. I deeply believe that women should have this right, this freedom, this right of privacy, even, if you will, even though it was stretched like a drum head in Roe v. Wade, with the use of the words like ''penumbra." But extremists on both sides are now controlling that debate, extremists, and I would humbly suggest that legislators, especially male legislators, should not even be involved in the decision. But be sure to read all I have said on that intimate personal issue before you write. [Laughter.] I would also point out to my colleagues that abortion is most clearly a pending or impending issue before the courts, and I personally believe that Judge Souter, you, sir, are prohibited from public comment about that issue, not as a nominee, but as an invested sitting Federal district judge. That is my personal view. We heard from our chairman on Tuesday that "questioning directed particularly at issues on which the Court is closely divided has long been our practice." But let me remind you that in 1981 we were all admonished by our chairman that "a nominee can speak in general terms about the law, but should not be forced to state 27 opinions on controversies likely to come before her." That was the chairman's statement at Sandra Day O'Connor's nomination hearing. We were also advised on Tuesday by the chairman that Judge Souter must answer questions on particular issues, because if he wants the job, the burden of proof is on the nominee, as it is on us when we seek election as Senators. But in 1981, we were once again admonished by the chairman on the same Senate floor that the nomination process is "unlike the situation with respect to Senators, in which the electorate can demand of us what our philosophic background is or what we think about a particular issue." Let us be very refreshingly candid and honest with each other. Really, the only thing that has ever long been our practice with regard to judicial nominations in this arena in these recent years is politics, pure politics. We have a certain and perfect right to inquire about your judicial philosophy, but we do not have the right to know a nominee's position on specific issues, and certainly not with a sitting judge. So, which is it? We cannot have it both ways. Was it true in September 1981, or is it true now in September 1990? Some of the panting and hand-wringing special interest groups are very disturbed about your quiet lifestyle, the fact that, according to media reports, you spend much of your time with the law, music, books, and nature. Good heavens. Some even seem to be concerned that you are a bachelor, and it is even clumsily and desperately suggested that you are somehow out of touch and not in "the mainstream of humanity." It is thus expressed that a doctor, then, I guess, or a priest or a judge or one who has not been married and who seeks solitude and contemplation, rather than the excitement and the bright lights is unfit to counsel, advise, or judge his fellow humans. Are we saying that a priest who took the vows of celibacy was not able to counsel the estranged and anguished wife or husband, or comfort the tormented child, because he or she had none? That logic surely diminishes and denigrates the doctrine and process and practice of several of the world's significant religious orders. Well, I would suspect that most thoughtful Americans would like to take more time to engage in just those pursuits—music, books, and nature—if they had the ability, in their hurried existence. So, let us, if nothing else, let us be fair. Let us follow our constitutional responsibility, as the chairman may see it, as I may see it, determine whether Judge David Souter has the—this is what the chairman asked—whether you have the "intellectual capacity, background and training, character, and judicial temperament to serve on the Supreme Court." Those are also the words of our chairman. I do know him well. I know him as a very fair man—I really do—vigorous, energetic, full of spirit—you are going to get it all—but he is fair. You are going to be alright here. In the West we would say, "sit deep in the saddle," and you will ride it out well.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I might say to my colleague from Wyoming, while those who he said were ensconced here, staff scurrying through statements, obviously yours was on vacation, because they 28 did not give you the whole quote. The remainder of the quote was, I believe nominees should be required to answer all questions, except for those questions that would necessitate an opinion as it applies to a specific set of facts that is likely to come before the Court for decision. I will be happy to give your staff the rest of the quote, when we go on.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. We will put it in the record.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I now yield to my colleague from Arizona.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Judge Souter, another welcome. You will have many and, I suspect, after several days you may wonder what kind of a welcome the Senate might give you. You are going to have some difficult days in the sense of being asked a lot of questions. A lot of information about your life has already come out, I am sure some of which you would rather not come out, not that there is anything embarrassing that I have seen, but we all have our private lives, those of us that choose some public service, as you have, realize that it is part of the price we pay. I do not like it all the time and I have had accusations and things written about me I would rather not have been written, but I realize that it is part of the process and I suspect that you do, too. The process demands that we go through exactly what we are doing today and exactly what the Senator from Wyoming said has been happening over the last 5 to 6 weeks. Yes, people are scratching, people are interested in knowing about you, because President Bush has nominated you to the position of extraordinary importance in our country. Whether one believes the framers intended it or not, no one can deny the immense power that Supreme Court Justices wield through their opinions. Decisions by the Supreme Court affect the lives of each and every one of us every day. Whether you label them conservatives or liberals or tag them as activists or constructionists, Supreme Court Justices are unquestionably active participants in the national policymaking. Once the President appoints and the Senate confirms, a Supreme Court nominee never has to look back. There are no strings attached, if you are confirmed here. He or she has been set free to interpret that great document our Founding Fathers signed over 200 years ago. Each Justice defines the great ideas of freedom, liberty, and equality embodied in that Constitution. For these reasons, the constitutional responsibility of advice and consent conferred on the Senate is crucial to our system of government and laws. I am sure that no one on this committee or in this body takes his or her role in this process lightly. In nominating Judge Souter to the Supreme Court, I believe President Bush has chosen an individual with a keen intellect and solid judicial background. His colleagues speak of his dedication. Lawyers who appeared before him praise his hard work. The American Bar Association has found that Judge Souter meets their highest standards of professional competence, judicial temperament, and professional integrity, as well. 29 You have two sponsors, and one of them, Senator Humphrey, sits on this committee. Senator Humphrey has been an active and wellrespected member of this committee since 1987. Senator Rudman, his colleague and your close friend, is well respected and liked by members of this committee and the entire Senate. That goes a long way, I believe, because it is inportant as to who put you forward, as well as the President in the White House. I was left with some very positive impressions, Judge Souter, after our office visit over a month ago. I found you to be thoughtful and a sensitive person. Since that time, I have had a chance to read a number of your court opinions. These opinions lead me to believe that you have an open mind and that you will be an openminded jurist. Judge Souter's opinions, in my judgment, are thoughtful and well written. Though I did not agree with every one, that is not why I was reading them. His unique approach to an issue, in certain cases, reflects great thought on the case before he wrote out his particular opinion, at least that is my observation. I saw no evidence of any tendency toward carrying out a personal agenda. But as important as these attributes are to your confirmation, we still know very little about you. From all indications, it appears that President Bush did not apply a litmus test in choosing you for the Supreme Court. This Senator never has and never intends to apply such a test. I will not keep a scorecard on the number of areas upon which I may agree or disagree. Instead, I hope to find through these hearings that Judge Souter is indeed an advocate of judicial restraint and not a judicial activist. I hope to find a jurist who is respectful of precedent, rather than a jurist who is on a mission to impose his personal beliefs or hidden agenda on the country through the broad, sweeping opinions that he may write. In the past, some Supreme Court nominees who have come before this committee have been evasive in answering valid and what I believed necessary questions posed to them by myself and my colleagues. I find that practice to be disturbing. Neither this Senator, nor do I believe any other Senator on this panel, is looking for a nominee to pledge how he or she will vote on specific cases that may come before the Court. We all understand and agree with the need to protect the interests of future litigants who will appear before you. However, it is essential that the committee ask and that you, Judge Souter, provide some answers to questions regarding your judicial philosophy, your views on constitutional interpretation. To settle for less would be a great disservice to this body and to this country. As I do with all judicial nominees, I presume the President's nominees should be confirmed and that they are qualified and competent. In my 14 years in the Senate, I have only voted against three judicial appointments. I have in the past voted for conservative judges, as well as liberal judges, including recommending William Canby and Mary Schroeder for the ninth circuit, who did not agree with me on some particularly sensitive issues. But I knew them and I knew their competence and capabilities. Unfortunately, in a practice that is becoming all too common, interest groups are attempting to turn a Supreme Court nomination 30 hearing into a referendum on Roe v. Wade. Those who view these procedures as just a question of how a nominee will vote on one case, in my judgment make a mockery of this process. If confirmed, Judge Souter, you will serve on the Court long into the future, as it has been pointed out. Like any other Justice, you will face countless opportunities to cast a deciding vote on issues that can shape our society for decades. It is a nominee's ability to interpret the Constitution for these as yet unforeseen issues that we must evaluate in this process starting today. Thus, Judge Souter, your opinion on a particular case is not as important as your approach to judging and your understanding of the Constitution. Will you be able to separate your personal beliefs from your judicial duties and your constitutional oath? Will you respect the traditions of precedents of the Court? Will you wield your judicial power with restraint and respect for the two other branches of government? Will you acknowledge that the Constitution should not only protect the haves, but also the have-nots? I hope to be satisfied with the answers to these questions as we conclude these hearings. I am most favorably impressed with what I know about you and have read about you. I hope and, quite frankly, expect, Judge Souter, that you will be forthcoming and candid in answering my questions and those of my colleagues. I also hope that after a thorough examination, the committee and the Senate and this Senator will be able to vote for you. It certainly appears today that that is where we are headed, and I am pleased that that is how the process is moving. In closing, I join my colleagues once again in extending a warm welcome to you. From what I know of you, it appears that you are qualified, that you have the education, that there is no question of your intellectual capacity. And the American people now will have an opportunity through this democratic process, second to none, equaled no place that I know of, to get a glimpse at perhaps the new Justice of the Supreme Court. I hope, Judge Souter, whatever the questions are, as uncomfortable as they might be, that they are taken in the spirit of this committee and certainly this Senator as trying to understand you and fulfill our constitutional responsibility. Thank you, Mr. Chairman. Thank you, Judge.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator from Iowa, Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. More than 200 years ago, Alexander Hamilton, the architect of much of what became the judiciary article of the U.S. Constitution, wrote, and I quote, "the complete independence of the Courts of justice is * * * essential" in a Republic governed by a "limited Constitution." Hamilton reasoned that the courts, the weakest of the three branches, must declare the "sense" of the law made by the other two branches, but if they should be disposed to exercise "will" instead of "judgment," the consequence would be the substitution of 31 their pleasure for that of the democratic bodies and, hence, the people. Unfortunately, over the past 30 years or so, the Federal courts have exercised more power over a broader range of social and economic issues than the framers of the Constitution ever imagined. Therein, I believe, lies the reason why the confirmation process in recent years has come dangerously close to looking like the electoral process. Unelected and unaccountable judges have come to play the preeminent role in virtually every aspect of American life—in many cases supplanting the politically accountable branches of government. This erosion of the principle of the consent of the governed has, at the same time, undermined public confidence in the judiciary. I have served in the politically accountable branches of government—Federal and State—for 32 years. I am looking for a judge who understands his or her role in a democratic society, to interpret the laws made by others, rather than to second-guess them based on personalized notions of enlightened social policy. To be sure, judges have an obligation to enforce the rights guaranteed by the Constitution. When a law clearly conflicts with that Constitution, a judge is right to nullify the will of the people. But let us never forget that perhaps the most fundamental of those rights in the Constitution is the right of our people to democratic self-government. As the second Justice Harlan explained, "the vitality of our political system is weakened by reliance on the judiciary for political reform." The fact is that not every major social ill can find its cure in a Supreme Court promoting reform when democratic government is slow to act—that is, not unless we are to abandon the more than 200-year-old axiom that the Constitution is an instrument of government founded on the idea that only in a diffusion of governmental authority lies the greatest promise of the most liberty. Therefore, I do not prefer politicians disguised in robes on the Federal bench, nor ones who are compelled to make campaign promises to be confirmed. Judges ought not to be "pro-this" and anti-that. They should, rather, be judges of cases, not causes. As expected, we have heard a great deal about the nature of the Senate's "advice and consent" role. It is often said—in fact, we have already heard it this morning—that our role in scrutinizing and voting on Supreme Court nominees is the most important function that we have as Senators. This has become some sort of confirmation catechism. But why is this? Is this process more important than, for example, voting to declare war? Is it more important than voting to solve the budget deficit so that future generations won't be condemned to a lower standard of living? Only those who desire the courts to be more powerful than the coequal branches, or the States, could answer "yes" to that question. Now, true, the framers of the Constitution granted judges lifetime tenure; we are told that this makes all the difference. But that was to insulate judges from the passing political pressures of the day, not to make them more susceptible to that pressure. It is also asserted that the Senate and this committee in particular have an equal role in this process, and thus we must scrutinize 32 the nominee as if we were the President of the United States. In fact, this nominee has for the past few weeks been studied in great detail. No stone in his life has been left unturned. Until very recently, of course, the historical practice was quite to the contrary. With only a couple of exceptions, it was not until the 1950's that nominees regularly appeared before this committee. As recently as 1922, the President nominated and the Senate confirmed a Supreme Court nominee on the very same day, a mere 1 day after the vacancy occurred. Of course, only five nominees have been denied confirmation during the entire 20th century. Now, I point this out not to advocate a return to the past, but rather to provide some historical context to our proceedings. Similarly, our clear practice has been to refrain from seeking commitments on specific questions likely to come before the Court. I think that we would find it quite a paradox on the one hand to shield judges from political pressures through lifetime tenure, while on the other hand subject them to the same pressure through litmus-test questions as a condition for confirmation. President Abraham Lincoln put it another way, at the time of his nomination of Chief Justice Chase: "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it." To be candid, I did not always share this view of the Senate's role. But as with Supreme Court Justices who are faced with an old precedent, I do not believe that Senators ought to be forever bound by past practice, particularly when the force of better reasoning suggests a better way. So, Judge Souter, the ultimate question for me is whether [Audience disturbance.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Will the police officers please clear the folks— the committee will suspend. The committee will stand in recess until the police can restore order. [Recess.] The CHAIRMAN. The committee will come back to order and out of recess. Welcome to Washington, Judge. [Laughter.] You think this is bad, you ought to run for President or run for the Senate. I thank my colleague.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, I apologize to everybody for what I said. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. There is no need to, Senator. I, on that score, completely concur with you.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I am just about done, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Keep going, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. SO, Judge Souter, the ultimate question for me is whether you are the kind of judge who will be truly faithful to our written Constitution and the system of government that it supports. This quality, together with an open mind—or what Justice Frankfurter called "the capacity for disinterested judgment"— is what I hope to find by the time we have completed our questioning of you. I congratulate you on your nomination, Judge Souter, and I look forward to hearing from you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I thank the Senator. The best part, the most interesting part is, Judge, I don't know why they were for or against.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Welcome, Judge Souter. Being from New England, I will try not to say anything as inflammatory as Senator Grassley did. [Laughter.] Chuck has a way of stirring us up around here. Judge, we do welcome you here, and though there may be a moment of levity here and there, you know—as we do—the seriousness and the importance of this hearing. I think that you as well as the Senate welcome it, and that you have enough of a dedication to the Constitution to know its importance for all of us. Your nomination comes at a historic time. The individual who takes a seat on the Supreme Court today is going to have a dramatic impact on that institution, on our Nation well into the next century, long after the President and the Members of the Senate are gone. The 105th Justice to this country's High Court is going to affect the lives of individual Americans on issues ranging from personal privacy to equal protection to the free exercise of their religion. That power is not bestowed on an individual unless and until the U.S. Senate is confident that he or she will exercise it fairly. The Senate's duty to advise and consent to nominations to the Supreme Court is, in my opinion, one of our most profound and meaningful responsibilities. It brings together the three distinct branches of our Government. It proves the wisdom of our system of checks and balances. The constitutional separation of powers is envied and emulated by emerging democracies around the world. In fact, the genius of our Nation's Founders denied the possibility of tyranny here in the United States, and it did that by devising our system of checks and balances. Now we, the members of this committee, and the rest of the Members of the U.S. Senate, have to demonstrate our own wisdom and fairness in undertaking a thorough review of Judge David Souter's record. The Constitution mandates it. The times demand it. Now, the President has said that this nomination was not subject to a litmus test and I applaud President Bush for that. He did not apply a litmus test and I do not apply a litmus test. I do not think any Senators will do so. Look at where we are. Justice Brennan, whose departure precipitated the nomination, viewed the Constitution as a "sparkling vision * * * of the human dignity of every individual." He never sacrificed the liberties of the individual—no matter how unpopular—for the sake of appeasing the majority. Justice Brennan resisted the anti-individual direction the Court has taken over the last decade. He never lost sight of that institution as the Nation's legal tribunal of last resort. Justice Brennan's intellect, leadership, and compassion represented the best of a public servant. His seat on the Court is immensely difficult to fill. Today we consider whether the President should receive the consent of the Senate in the nomination of Judge David Souter. Judge Souter, you are an articulate and intelligent man with an engaging 34 sense of humor. In fact, I passed on last night to my son your comments about the motorcycle. He got a laugh out of it, too. You also have a strong streak of Yankee individualism. By most accounts, you are a scholar and have dedicated your life to the law. Now, those qualities are admirable, but we are all agreed that they are not enough by themselves to entitle a person to a seat on the Supreme Court. We must be persuaded that Judge Souter has the commitment and the capacity to preserve the freedoms the American people have fought for two centuries to protect. Will Judge Souter serve as a trustworthy guardian of our fundamental rights? I want to be sure that the next Supreme Court Justice understands the extraordinary nature of the position he or she assumes. That Justice must never forget, in the words of our great Chief Justice Marshall in 1809, that "it is a Constitution we are expounding"—a Constitution in a living, breathing, changing society on the threshold of the 21st century, a Constitution that can fit in this little book, but that has meant so much for the last 200 years in this country. Any nominee to the Supreme Court must recognize that discrimination is not a high-minded issue about standards of review, but a daily struggle for minorities and women in this country; that rights for the disabled are not academic fodder in the debate over federalism, but the opportunity for an individual with a disability to lead a rich, full life; and that privacy is not an abstraction but a critical issue for a woman struggling with the dilemma of an unwanted pregnancy. These are not esoteric hypotheticals. They are vitally important issues that affect the basic principles and fundamental values of the American people. We 100 Members of the Senate, representing 260 million Americans, are sworn to uphold the Constitution. That Constitution requires us to offer our advice and consent to the President's nomination. We are in this body to represent the American people. This hearing process is how we must satisfy their concerns about a potential nominee. These proceedings are the public's sole opportunity to assess the qualifications of an individual who could greatly influence their daily lives. We owe it to the American people to proceed carefully, thoughtfully, and fairly. We will hear from interest groups on both the right and the left, and that is as it should be. They are exercising their first amendment rights, and very properly so. But my decision will not be influenced by any group on the left or the right. My decision is going to be determined really, Judge, based on what I hear from you, in the answers to my questions and the answers to the questions of the other members of this committee. I have a number of questions—ranging from the first amendment to the right to privacy to Judge Souter's views on criminal law. In addition, Judge, I will explore fully your involvement in the Seabrook incident, an issue I have already discussed with you. In fact, I first raised it with you when I sent you a telegram in 1977, and we have since talked about it. Judge Souter, it is incumbent upon you to be forthcoming in your responses so that we have an adequate basis on which to make our recommendation to the full Senate and the American 35 people. That recommendation gets made only once, only once in your lifetime. Thank you, Mr. Chairman.
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 Souter, I join my colleagues in welcoming you here today. We are giving you a lot of advice. You really have to run between the raindrops in a veritable hurricane here. But we are very much concerned about the successor to Justice Brennan because so many major issues are decided by 5-to-4 votes, and a single Justice can decide questions of enormous importance to this country. If you are fortunate enough to be confirmed and to serve as long as Justice Holmes did, you will serve until the year 2031. There has been overriding concern about the abortion question, and while it is of great moment, there are many other matters of tremendous importance to this country. We talked about some of them: Civil rights and freedom of religion and freedom of the press and freedom of speech and right to die and death penalty as a deterrent to violent crime. In looking over next year's docket on the Supreme Court, there is a major desegregation case. There are major matters on employment discrimination, taxation, antitrust, citizenship, death penalty. And even beyond the range of importance for the United States, the Supreme Court may be called upon to make a decision which will have international implications as to what is happening in the Persian Gulf today. There is much concern at the moment about the authority of the President to dispatch U.S. troops under concerns of the War Powers Resolution with the very vital constitutional provisions on the President's authority as Commander in Chief contrasted with the congressional authority, sole prerogative to declare war. Those are the kinds of issues on which you may be the decisive vote, and your influence may be greater than many Presidents', certainly many, many Members of the Senate. So we have very strong reasons to be extremely careful in this very important confirmation process. My reading of several dozen of your opinions tells me that you have a very extensive record—not a complete record, but a very extensive record to consider. Some of your opinions are restrictive on criminal defendants' rights and some are expansive. You have an opinion on the Dionne case which is candidly very narrow on interpretism and original intent, something that if others don't cover first I will, about how much emphasis is appropriately placed. That opinion you cite goes back to matters in 1663 and 1781 and 1768, and it is narrow. And we will be concerned, I will be concerned, about how you apply the equal protection clause as to women and indigents. At the same time, your opinion in Richardson has a broad interpretation of the liberty interest in a very difficult case involving a charge against a man allegedly French-kissing a 14-year-old girl under his charge. In an employment rights case, you found an ex- 36 pansive liberty interest. And the issue of stare decisis, the fancy legal word for whether you follow precedent, is very instructive. One of your opinions says that "The consequences of what I believe was an unsound conclusion in that case are not serious enough to outweigh the value of stare decisis," which is an important counterbalance in the law. So I think you have quite a record and we have very important matters to discuss with you. The standards of confirmation are not clear. There has been a lot of debate on it for a long time, and perhaps it originated with an early draft of the Constitution which gave to the Senate the authority to appoint. Can you imagine the Senate agreeing on—we can't agree on a budget, let alone on an appointment. We had very interesting hearings on the American Bar Association's role, and we all agreed that the ABA should limit itself to qualifications as opposed to the political question. But there was considerable opinion that the Senate had equal standing with the President. I am not prepared to go that far. I think we owe deference to the President's selection. But, candidly, it is becoming a complicated matter as the Supreme Court moves farther into public policy issues and functions as a superlegislature. I make no bones about my concern about the Court's expansive role there, regardless of whose agenda it is. We have a very difficult matter now pending before the Congress on the Civil Rights Act interpretation. We had a decision in Griggs, a unanimous Court. The Chief Justice wrote an opinion in 1971, and it was overruled in 1989 on what is a clear-cut change in law where four Justices appeared before this committee, put their hands on the Bible, and made commitments for judicial restraint, to let the Congress change the law. Now, of course, I speak for myself, my interpretation here, but I think it was clearly an overruling, burden of proof on employees and business necessity. There is a conclusive presumption of congressional intent when a case stands for 18 years. If that trend continues, I believe there will be greater pressure on nominees to answer ultimate questions on issues of public policy. And you have the important issue on Federal-State rights, and you have Garcia y. National League of Cities, and I won't go into them now but will later. You have the Chief Justice and Justice O'Connor saying as soon as we get one more person we are going to change the law of Garcia. So if the law becomes personalized, depending on who is on the Court, then I don't think it will be possible to restrain Senators from demanding ultimate answers. I hope we don't get there because judicial independence requires that you not make commitments, that the nominee not be asked to make commitments, and that the decisions be rendered in the tradition of the judicial process, where cases in controversy—that is what the Constitution says—are decided with specific facts, briefs, argument, judicial conference, and then a decision. And I do not believe that any interest group is entitled to a Justice predisposed to their views any more than a litigant is. They are entitled to someone who is qualified and has an open mind and will apply the Constitution. The process here today, Judge Souter, I think is the—well, you might call it the quintessential interaction of the three branches, 37 where the President nominates, the Senate is called upon to confirm or not, and then a Justice takes the Court. When the Constitution was written, article I was meant for the Congress, article II for the executive branch, and article III for the Court. And I believe if the Constitution were to be rewritten today, article I would be for the Court. The Court has taken the dominant authority under our system in deciding the tough questions, questions of competing authority between the President and the Congress, questions that may involve the Persian Gulf, the big issues of the day. So that when we look forward for the next several decades, perhaps four decades, and we know that the future will hold many 5-to-4 decisions, and Justice Brennan's successor may pass the key votes on matters of overwhelming national and international importance, we are very concerned. And it is an important task we have. I think you come to this nomination with fine credentials, and part of the picture is filled out by your opinions. But there is a great deal more which we have to find out to make our determination as best we can whether you should be in the position to cast that critical vote for so many years on so many issues of tremendous importance. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. The distinguished Senator from Alabama, Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Mr. Chairman, once again, our Nation stands at a crossroads, a constitutional crossroads, as the President nominates and the Senate, through its elected membership, must under our Constitution "advise and consent" on the nomination of Judge David Souter to the U.S. Supreme Court. Our task is important, for the future course of the constitutional jurisprudence of this Nation could rest upon the collective judgment of this Senate. In the Supreme Court term ending this year, 1990, 38 out of a total of 129 written opinions were decided by a 5-to-4 vote. It is my belief that the American public deserves a Justice who evidences a clear commitment to basic constitutional values. I ascribe wide latitude in our President's right to nominate who he chooses, especially with regard to a nominee's qualifications, integrity, and judicial temperament. These are all hallmarks of a good judge. I believe that all Presidents have endeavored to select nominees that meet these qualifications. I further believe that Presidents have the right to nominate individuals that belong to the President's political party and that possess his political and philosophical views, even if they differ from the views of most of a Senate controlled by another party. However, our Founding Fathers felt that such a Presidential right to appoint judges should not be unlimited, and provided a check and balance by requiring a role for an element in the legislative branch. That check and balance is the Senate confirmation process. Historically, the rejection of Presidential nominees has rarely been exercised. Usually, when it has been exercised, arguments for good cause have been made. Nevertheless, the confirmation process 38 is a constitutional mandate, and for good reason. Federal judges, once confirmed, are not subordinate to the President nor the U.S. Congress. They are members of a coequal branch of our Federal Government and hold their jobs for life, not subject to the political processes as we in the executive and legislative branches are. Therefore, I also believe that the Senate, as an independent body, in exercising its constitutional mandate to advise and consent, must peel beneath the veneer of a nominee to try and better ascertain what role that person intends to play as an Associate Justice on the highest court in this great Nation. Judge Souter, this committee will do a lot of peeling beneath your veneer, for you are, indeed, a stealth nominee. It is thought by many that little is known about your reasoning process, thinking, and predictability of how you would decide certain issues that are expected to come before the U.S. Supreme Court. While you left a paper trail in the 219 opinions you wrote as a member of the New Hampshire Supreme Court, there are few blips on the radar screen on the major issues that will face the Supreme Court of the United States in the upcoming crossroad years. So peel we must. But we must do this in a fair and impartial manner, and certainly not cause you to prejudge an issue or a case without benefit of briefs, arguments, and research on the issue of the case in point. It is our constitutional role to probe, cautiously but firmly and fairly, any s nominee on his or her past actions as a public official; his or her general views on political, economic, or social issues facing our Nation; his or her views on how, as a judge, he or she might expect to approach the analysis of a case in general; and, finally, his or her judicial philosophy. To do less would be a dereliction of our responsibility to the American public and to the constitutional process by which the President is "advised." I believe the majority of the American public supports the concept of judicial restraint—that is, judges who will interpret the U.S. Constitution, respect prior decisions, and give presumptions to the validity of laws passed by the Congress and State legislatures, so long as they do not violate the U.S. Constitution. I believe the people of our Nation do not want to see a Justice appointed who will try to legislate from the bench. Nor does the public wish to see a judicial extremist of either the right or the left who would proceed to force his or her peculiar political ideology through opinions rendered by the highest court in the Nation. Extremism is a dangerous commodity, and we on this committee have a duty to the American people to guard against this in any such potential nominee. Given these facts and acknowledging the critical nature of the task before us, Judge Souter, I welcome your appearance before our committee today and look forward to your comments through a dialog with the members of this committee. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. We would ordinarily go to Senator Humphrey next, but he has indicated that he is going to waive his opening statement because he will be joining Judge Souter when we conclude our statements to introduce Judge Souter, along with his senior colleague, Senator Rudman. Now I yield to Senator Simon from Illinois.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. The good news, Judge Souter, is we are getting near the end of this part of the process. As my colleagues would tell you, I do not ordinarily prepare a written statement. In fact, in 6 years on this committee, I don't believe I have ever done that. But last night, late last night, I sat down at my old manual typewriter and pounded out my reflections on where we are right now. No task is more awesome than the one we now confront—approving or disapproving a nominee for the U.S. Supreme Court. Seven months ago, I became a grandfather for the first time. Perhaps no vote I cast this term in the Senate will have a greater impact on my granddaughter's future, Judge Souter, than whether I decide for or against your nomination. After reading your opinions and various writings, even including your senior honors thesis, I come away with some uneasiness. Candidly, I am not sure how to vote. In your senior honors thesis, you wrote about a struggle in the philosophy of law, and I quote: "I cannot offer a solution to the controversy. I have tried, rather, to describe the alternatives which are open in settling what I believe to be the most important point at issue." In the only article you wrote over the next quarter century, you paid tribute to Justice Laurence Duncan in the New Hampshire Bar Journal for his sense of what is appropriate on the bench; for his keen sense of words; for his attention to the small things—but hardly a hint about any judicial philosophy that motivated him. And then at the end of the article, you say, and I quote: He was my kind of judge. He was an intellectual hero of mine, and he always will be. But after reading your article, I have no idea what his philosophical moorings were, nor what yours are. Because David Souter may have such an influential voice in the destiny of this Nation, we must know a little better who the real David Souter is. I hope these hearings will assist in that, and I hope you will make every effort to help us. What am I looking for? The two essentials I mentioned to you in your visit to my office: I want a champion of basic civil liberties, because the Supreme Court must be the bastion of liberty; and I want someone who will champion the cause of the less fortunate, the role assigned to the Court in our system. I also want someone to whom every American can look and say, There is a champion of my liberty. That should be true of men and women, for the able and the disabled, for people of every religion and color and national background and station in life. That is an extremely high standard, but it is an extremely high court to which you aspire. During these hearings I also want to get some sense of whether David Souter has an ability to grow. The great Justices were not suddenly great Justices, any more than great Senators are suddenly great Senators. Great Justices and great Senators emerge gradually. 40 There are those who are concerned because you come from a small New Hampshire community of 2,000. Coming from an Illinois community of 402, that does not bother me. But if your intellectual and emotional horizons are bounded by that community that would bother me. Checking your background I talked to an African-American classmate of yours, now practicing law in this city. His comments about you were positive. He allayed some of my fears. But I also want to know if you empathize with a woman on the west side of Chicago who did not go to Harvard, who barely made it through the fourth grade. You will be her voice for justice. Is there some understanding of her plight? Will there be an attempt on your part to grow and understand our society with all its richness and diversity and with all its joy, often within sound of its cries of anguish and hopelessness? In a new book, Justice Richard A. Posner of the Seventh Circuit Court of Appeals has written, "Our legal certitudes are pragmatically rather than analytically grounded." He was speaking of Brown v. Board of Education when he wrote that. From case to case his statement may not be applicable, but in the broad sweep of history it is. When the Supreme Court has lacked vision or compassion or practicality or passion for liberty, as in the Dred Scott case, the Nation has paid a terrible price for the Court's shortcomings. Above the entrance to the Supreme Court, just a few steps from where we meet today, are the words etched in stone "Equal Justice Under Law." I want those words to live. And I want a Supreme Court Justice who will make them live. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, very much, Senator. Senator Humphrey did wish to make a brief statement?
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you, Mr. Chairman. Welcome, Judge Souter. Are you having fun, yet? I hope so. You might as well enjoy it. Mr. Chairman, I have the honor and privilege of formally introducing the nominee to the committee in just a few moments, so I will, for my part, at this juncture pass on an opening statement.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. I misspoke. I made Senator Rudman the senior Senator and he is not. He is the junior Senator. Senator Humphrey is the senior Senator.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. He is senior in age.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS Senator Baker used to say, I do not have any dog in that fight. I understand. So, Senator Kohl, from Wisconsin.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Thank you, Mr. Chairman. I am a person who has not sat through any Supreme Court nominations before and I think Judge Souter, you would agree with me that these opening statements—although we are probably all happy they are coming to a conclusion—have been most outstanding and say something unusual about our American system and the way in which we go about selecting Supreme Court Justices. 41 Judge Souter, the President of the United States has asked you to serve on the Supreme Court. And if confirmed, you will be making decisions which will shape the fabric of American society for the rest of your life. You will be interpreting the Constitution in which, we as the people, place our faith and on which our freedoms as a nation rest. During your tenure on the Court you will be free of all political constraints, unaccountable to the people, and unrecallable by the Congress—absent some severe dereliction of duty. Before we place that power in your hands, we need to know what is in your heart and in your mind. While the issues the Court must address are well known, your views are not. Indeed, some cynics have even suggested that you were nominated precisely because you have not spoken to those issues in any detail. They even implied the President believed that a nominee would be more easily confirmed if his views were largely unknown. Those cynics do not understand, as I am sure the President does understand, the role of the Senate in this process. The Constitution requires us to give our advice and consent to this nomination. The oath of office we took obligates us to examine your fitness to serve on the Supreme Court. We must conclude that the quality of your thinking deserves our respect, that you will relate the law to the basic values we have embraced as a nation, and that you are interested in doing justice as well as giving logic to the law. In this process, a number of groups have told us to use this hearing to determine your views on one single issue or another, and they have told us that our decision to confirm you ought to depend on whether you pass their litmus test. Well, let me add my own personal single-issue litmus test to the mix; and that is judicial excellence. Judicial excellence, it seems to me, involves at least four elements. First, a nominee must possess the competence, character, and temperament to serve on the bench. He or she must have a keen understanding of the law, and the ability to explain it in ways that the American people will understand. Based on the record developed thus far, Judge Souter, certainly you appear to have those qualifications. Second, judicial excellence means that a Supreme Court Justice must have a sense of the values which form the core of our political and economic system. No one, including the President, has the right to require ideological purity from a member of the Supreme Court. But we do have a right to require the nominee to understand and respect our constitutional values. We do not elect Justices. They do not have the representational role that Members of Congress have. The Framers of the Constitution gave the Supreme Court Justices lifetime tenure for a reason—they wanted the Court to be insulated from the momentary pull and tug of our daily politics. We do not want Justices who will change their legal opinions as the tide of public opinion turns. Indeed, we charge the Court with the task of defending the rights established in the Constitution even if those rights are, for the moment, reviled. In my opinion, that means that a Supreme Court Justice must, at a minimum, be: Dedicated to equality for all Americans, deter- 42 mined to preserve the right of privacy and the right to be left alone by the Government, committed to civil rights and civil liberties, devoted to ensuring the separation of church and state; willing to defend the Bill of Rights and its applications to the States against all efforts to weaken it, and able to read the Constitution as a living, breathing document. Third, judicial excellence requires a sense of compassion. The law is more than an intellectual game, and more than a mental exercise. As Justice Black said, "The Courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement." Indeed, the courts are our refuge, our sanctuary, and our safe haven. The courts are where people seek justice, not just the application of law. A Supreme Court Justice must understand that. He or she must recognize that real people, with real problems are affected by the decisions rendered by the Court. They must have a connection with and an understanding of the problems that people struggle with on a daily basis. Justice, after all, may be blind, but it should not be deaf. And finally, judicial excellence requires candor before confirmation. We are being asked to give you enormous power. We want to know, in general, how you will exercise it. We want to know what you think about certain issues—abortion and privacy, civil and individual rights, the balance of power and separation of church and state. We do not want to know in advance how you will rule on cases that will come before you, but we do want—and we need and we deserve—to know what you think about these basic issues. Judge Souter, let me be presumptuous enough to give you just a bit of advice. Do not hedge. Do not give us prepared answers. Do not hide behind the argument that you cannot talk about this or that. We are not trying to trap you and we are not trying to obtain a commitment from you about how you will vote. But, Judge, I believe you have thought about the great issues of the day and I believe you have some views on them, and I do not believe that those views will require you to vote in any specific way. I trust your ability to remain openminded about the specifics that may come before you. But I believe the country is entitled to know, before you take a seat on the Court and tell us ex-cathedra, how you view basic constitutional doctrine. On behalf of the American people, we will be having a conversation with you over the next few days. If you are confirmed it is the last conversation we can have about basic constitutional issues. So, in these next few days, we must make an extra effort to get to know you and you must make an extra effort to help us do that. The burden of proof rests on you, and only you can discharge it. Let me conclude on this note. Much of this hearing will focus on facts, but behind all of this is a sense of mystery. The Supreme Court is one of the most majestic institutions in American life. By its nature, the Court makes decisions which people oppose, but so far it has had the moral standing to compel compliance with those decisions, no matter how unpopular they are. We have made a covenant with the Court; we have given it the power to make ultimate decisions and in return, asked the Court to 43 exercise that power responsibly. As Justice Stone once observed, and I quote, "The only check upon our own exercise of power is our own sense of self-restraint." This hearing will help us to determine, as a Congress and as a country, how Judge Souter intends to exercise that power and that restraint. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, very much, Senator. Now, Judge, what I propose to do before we break is to have our two distinguished colleagues, both of whom strongly favor your nomination, join you at the table. I will ask the senior Senator, Senator Humphrey, to speak first, and then Senator Rudman. At which time, after that is done, Judge, with your permission, unless you would prefer to do it another way, I would suggest that we break; we will come back; I will swear you in and we will hear your opening statement and then begin the questioning. Is that all right with you?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Humphrey.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you, Mr. Chairman. With my colleague, Senator Rudman, I take pride in introducing to the Judiciary Committee, Judge David Souter, of Weare, NH. I have to, because we are so very proud of our State, I have to correct my dear friend from Utah, it has not been 145 years since someone from our State sat on the Supreme Court. In fact, Chief Justice Harlan Fiske Stone was born in New Hampshire in the town of Chesterfield and he served, of course, until his death in 1946 The uninformed suggest that David Souter is from a small town. Well, Mr. Chairman, I think perhaps you are better informed on this point than others, because you visited our State extensively drawn by its natural beauty and conservative politics. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I wish I had been able to stay longer. [Laughter.]
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. SO do we. Drawn as you are by its natural beauty and conservative politics, but the uninformed, Mr. Chairman, think that David Souter is from a small town. Nothing, in fact, could be further from the truth, because where is a town so very large in area that it has no less than five separate metropolitan centers? There is the village of Weare, itself; there is East Weare, from which the Judge hails; there is South Weare; by now you might have guessed there is a West Weare; and, in fact, in the north, Mr. Chairman, is the village, which is sometimes abbreviated on signs as No. Weare, and sometimes pronounced by tourists as Nowhere. But we do not mind tourists laughing at our signs, or even laughing at us, as long as they spend all of their money before they go home because that helps to keep down our taxes. Mr. Chairman, the elegant pundits here, inside the beltway, think that David Souter may not be quite up to the big city or the big time because he drives a clunky old car, because he believes in conserving energy by not mowing his lawn until the grass begins to 44 block his view from the window. They think maybe a small-town fellow is not good enough for the big city of Washington, DC. Well, my dear colleagues, I believe that you will find David Souter to be as smart as anyone in this city. I believe you will find him to be as sophisticated as anyone living up in Georgetown. I think you will find that he has a wonderful sense of humor. That he does not take himself too seriously. On that point, I want to quote from a letter sent to the New York Times, and published in the New York Times by William Bardell who was a law school classmate of David Souter's and a fellow Rhodes scholar during their student days. He says, "What I remember is David very gentlemanly, with his hands in the pockets, telling stories especially with his imitations of New England accents." He added, "I am pretty sure also that he climbed in a few windows with me after midnight when they locked the college gates." Mr. Chairman, I believe that our colleagues will find that David Souter enjoys the company of others every bit as much as he enjoys the company of his famous collection of books on history, philosophy, and the law. Here is a man who works hard, yes, very hard, in a very disciplined way. But he is a man who also, for example, enjoys stopping by to visit older folks on his way home from weekly worship. He is an admirable human being. On the professional side, for 22 years, David Souter has faithfully gone about the business of enforcing the law, and dispensing sound justice. He has enforced the law as our State's attorney general. He has presided over jury trials as a superior court judge, and he has served with distinction on our State's highest court, the supreme court. Judge Souter's selfless commitment to public service surely tells us something about the qualities, the human qualities that he would bring to the Supreme Court. With his sterling credentials, as a graduate of Harvard Law School and as a Rhodes scholar at Oxford's Magdalen College. Every one of us knows that he could have been earning millions these past years as a partner in a prestigious firm in Boston or New York, but instead, he has devoted himself to positions of very high responsibility, but rather modest financial compensation. Shunning personal aggrandizement and self-promotion, he has found his compensation, instead, in pursuing the interest of justice in the public good. But the best measure, surely the best measure is the opinion of those who know him best. In a close-knit State like ours, anyone who has been in public service as long as as David Souter is wellknown by people across the State. So it is especially revealing that folks of all political persuasions, Republicans and Independents, Conservatives and Democrats, women, men have offered high praise for Judge Souter's fairness, for his fairness, for his diligence, and his grasp of the law. Support and respect for Judge Souter among members of the legal profession in our State has been virtually unanimous and let me read a few brief quotes. The New Hampshire Bar Association president, John Broderick—who is, by the way, a Democrat—says this: "He is the finest legal mind I have ever encountered. He gets 45 to the bottom line faster than anybody I have ever seen." He adds, He is a judge's judge, extraordinarily talented and impeccably fair. He will not cast his lot with the conservatives on the Court merely because they are conservatives. He is fiercely independent in his legal reasoning. Kathy Green, president of the New Hampshire Association of Criminal Defense Lawyers, who has tried many cases before Judge Souter, says this: "He was an excellent trial judge, though he was the kind of judge you knew was really going to hammer people at sentencing." I am a Liberal/' Green concluded, but I have tremendous respect for Judge Souter. I think he will honor the Constitution." Paul McKechern, a well-known political activist, candidate for Governor, a Democrat, past president of the New Hampshire Bar Association says this: "My impression is that he is a first-rate scholar. He is going to be confirmed and deservedly so." Finally, a resolution passed by the New Hampshire Bar Association unanimously adopted and I will just read the resolve clause: Be it resolved that the New Hampshire Bar Association on behalf of its 3,400 members, acting through its Board of Governors, unanimously and enthusiastically supports and endorses the nomination of David Souter and proudly commends its respected member for confirmation to the Federal Bench by the United States Senate. Mr. Chairman, David Souter is well seasoned. This is interesting: No current member of the Supreme Court had the breadth of judicial experience at the time of nomination as Judge Souter has, as both a trial and appellate judge. Two of the Justices now on the Court had no judicial experience at all when nominated. Five of them had varying amounts of experience as appellate judges, but none as a trial judge, and only Justice O'Connor had both trial and appellate experience when she joined the High Court, but then not nearly as much as Judge Souter. By any measure, then, Judge Souter is ideally prepared to serve on the Supreme Court. He has been actively engaged in the trenches, rather than offering commentary and criticism from the sidelines. Judge Souter's 12-year judicial record is there for all to see, and it provides the strongest possible proof of his judicial excellence. This point was expressed well by Prof. Joseph Grano, a distinguished professor of law at Wayne State University Law School, who in a detailed report he prepared on Judge Souter's opinions in the criminal law area, said this: From the cases I reviewed, I can find no legitimate basis for either side of the political spectrum opposing this intelligent jurist. Of course, those who want politics, rather than law from the Supreme Court, those few, Justice Souter is not the right person. For those who know better, it should be evident that President Bush has made an excellent selection. Mr. Chairman, it is a credit to Judge Souter's spotless record that the critics have resorted now to the game of "trivial pursuit" in their efforts to find something negative to write about. Frustrated in their search for a smoking gun, some pundits have lamely suggested that a scholarly bachelor somehow lacks the perspective to be a good Supreme Court Justice. 46 Such critics need to be reminded that one of the Nation's most eminent and humane Justices, the great Benjamin Cardozo, was a scholarly bachelor. As always, my colleagues, we need persons marked by fairness, wisdom, and self-restraint sitting on the bench. Judge Souter fits that description in every way. President Bush has made an excellent nomination. I am honored, therefore, to introduce him to my colleagues on the Judiciary Committee and confident that he will leave them impressed in every way. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator, for a thorough and entertaining and informative opening statement. Senator Rudman.
Senator Warren Bruce Rudman (NH)
Senator
(R)
Senator RUDMAN. Mr. Chairman, Senator Thurmond, and my colleagues on the committee, it is a very rare event in a public career that one has the opportunity to recommend a close and dear personal friend, as well as a former colleague for the highest position the legal profession offers, that of Associate Justice of the U.S. Supreme Court. Therefore, this is a very special privilege for me personally, because more than 20 years ago, when I was attorney general of New Hampshire, I first met a young lawyer named David Souter and, like many, I recognized that this was a rare man, of great talent and extraordinary capacity for legal analysis, and quiet strength. We worked together for 6 years, but more importantly, we have been friends for 20. So, I do feel qualified, not only to introduce this nominee to the committee with my colleague Senator Humphrey, but also to discuss his enormous capability, his accomplishments, and his humanity. David Souter, throughout his distinguished career, has demonstrated that he possesses the intellectual judicial temperament, the personal qualities that will make him an outstanding addition to the Court. His scholastic credentials we have already heard, Harvard, the Rhodes scholarship, Harvard Law School, and the positions in public life. But his personal credentials are equally impeccable— fairminded, considerate, eventempered, warm, and compassionate. It speaks volumes that the consensus in New Hampshire, from lawyers, judges, Democrats, Republicans, liberals and conservatives, is that David Souter is eminently qualified for the U.S. Supreme Court. As a member of the superior court, the trial court of general jurisdiction of the State of New Hampshire, David Souter witnessed the panorama of life. As a trial court judge, he dealt with the gritty and oftentimes unappealing cases which, unfortunately, packed the docket and comprise a part of American life today. He presided over cases involving the full range of people who comprise our society, from the poorest to the most affluent. As a trial court judge, he confronted cases of violent crimes, the scourge 47 of drugs, economic disputes, family conflicts, and crimes of passion. In short, Mr. Chairman, David Souter has seen it all. When you speak to those who appeared before David Souter in his capacity as a trial judge, his fairness and even-handedness in the administration of justice is cited by all. On the New Hampshire Supreme Court, Judge Souter demonstrated that he is a classic conservative. Judge Souter respects precedent, applies the law to the facts before him, without predefined conclusions. He is committed to the application of the traditional rules of statutory construction and constitutional interpretation, and recognizes the proper role of judges in upholding the democratic choices of the people through their elected representatives. As recently as April 13, 1990, Judge Souter wrote, as a member of that court, "The basic scheme of the Constitution is a limitation of powers. Government is limited and courts and legislatures can only do what they are authorized to do." Judge Souter's opinion are admired for their crispness, their strength of reason, for their clarity, and for the intellectual attainment they demonstrate. His record makes clear his commitment to the rule of law, his full understanding of judicial restraint and precedent. I believe that his judicial philosophy reflects the thinking of the great Justice Oliver Wendell Holmes, as expressed in Missouri, Kansas and Texas Railway v. May. That quote says, Great constitutional provisions must be administered with caution. Some play must be allowed for the joint of the machine, and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. I know how carefully the members of this committee and your staff have worked to assess this nomination. I know that your exchange with David Souter will be enlightening and comprehensive, as it should be. I think you will find a first-rate legal mind, a writer of great precision and force, a jurist of uncommon quality, who brings no agenda, no ideology to the bench, only a singleminded commitment to serve justice in the greatest traditions of American jurisprudence. Mr. Chairman, Senator Thurmond, and members of this committee, I cannot let this moment pass without sharing with you my own observations of a man I have known and worked closely with for 20 years. Having sat for 10 years now in your positions at confirmation hearings, I know it is customary for a home State Senator to praise a native nominee. Indeed, I have done that, as we all have. I want to make it clear today that my association with this man is far beyond that norm. David Souter is my friend. I trust him, I respect him, and I like him. He has made me think, he has made me reflect, and he has made me laugh. When I became attorney general, our office was small. I recognized its potential to make a difference for the citizens of our State. To realize this potential, I needed to invigorate the office with new talent and new energy. David joined me in that task and succeeded me as Attorney general of our State. He oversaw the expansion of the attorney general's office during my tenure and his own. He did so by recruiting a staff of young, 48 able, dedicated lawyers and then reared them to maturity. He hired on the basis of talent alone, no political, no philosophical tests. We soon boasted a staff that was the envy of law firms in that State. Today, those lawyers have led distinguished careers in their own right. A number are familiar to the members of this committee. They are judges, public servants, partners in major firms in our State and beyond. To a person, they cite their relationship with the attorney general's office and David Souter, in particular, as the outstanding experience of their lives. That is because David did not just hire good lawyers, he hired good people. Once hired, he showed these people how a lawyer can and must balance all of the elements of a demanding professional career and a personal life. He stressed service to State and Nation, but also to your community and to your family. He brought the office together, not as a cheerleader, but as an understanding and concerned friend. Much has been made of David's New Englandness—I think that is a word. I am not sure what it means. You do not have to spend much time in our State or our region at this time to appreciate its special qualities. I know, Mr. Chairman, that several members of this committee have had firsthand experiences in New Hampshire. You know that it is indeed a very special and a very unique place. But New England and New Hampshire are not just states of mind. They are real places, where real things happen to real people. There is no demographic profile of the perfect judge. The people who we seek to discharge these responsibilities must have certain human qualities, not fixed life resumes. I know that David Souter, shaped by his experiences, knows that judges must understand that their decisions are not mere academic or scholarly exercises, but, rather, the best hope of resolving human dilemma. Judges must realize that real people are impacted by what they do, that the essence of judging is its humanity. I am confident that my friend David Souter knows that. Finally, Mr. Chairman, I must say that it is remarkable that there are some here in Washington who view a man who has a single-minded dedication to his chosen profession, the law, and possesses great qualities of humility, graciousness, frugality, charity, reverence to his faith and to his family is somehow regarded as an anomaly and somehow out of touch with life. I believe that most Americans see these as endearing and desirable qualities, all too often sacrificed in the frenetic pace of modern life. In closing, Mr. Chairman and Senator Thurmond, allow me to suggest that we in New Hampshire are enormously proud to sit here today and have David Souter appear before this distinguished committee on the occasion of his confirmation hearings to our Nation's highest court. His life has been rooted in our rocky soil and nurtured by a lifelong commitment to public service. I present to you a good person, one who will bring honor to the Supreme Court and to our constitutional system, with enthusiasm and with deep personal conviction. I urge your favorable consideration of a dear friend and a deserving nominee. I thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. 49 Judge Souter, you are a lucky man to have a friend like that, two friends, and we take their recommendations seriously and to heart. Now, what we will do, Judge, if it meets with your approval, is we will recess until 2 p.m., at which time we will come back, swear you in, and begin the hearing. We will recess until 2 p.m. [Whereupon, at 12:29 p.m., the committee was in recess, to reconvene at 2 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. Judge, would you please 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?
David H. Souter
Nominee
(R)
Judge SOUTER. I do.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We are going to wait a moment while the photographers have an opportunity to leave and get their lunch or whatever they would like to do. They are very angry with me. [Pause.] The CHAIRMAN. Welcome back to the hearing, Judge Souter. As I indicated before we left, we would welcome any opening statement you have to make for as short or as long as you wish to make it. Then we will begin with questions.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Mr. Chairman. I probably should begin by asking you if you can hear me as well as I can hear you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, we can, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Mr. Chairman, Senator Thurmond, and other members of the committee, as you know, I did not ask to make a formal and preprepared statement, but I would like to accept your invitation to say a few words before our dialog together does begin. I would like to start maybe in a very obvious way simply by saying thanks for some things, to begin with, to thank every member of this committee who, in the waning and the very hectic days that you went through prior to the summer recess, nonetheless found some time to see me when I came by to meet you, in most cases for the first time. I was grateful for the reception and the courtesy that every one of you gave to me. Equally obviously, I would like simply to say here what I have already said privately this morning, or at least quietly this morning, in thanking both Senator Humphrey and Senator Rudman for their generosity to me in their introduction and their sponsorship of me before you. And I will have to continue, as I have been trying to do for the past 7 or 8 weeks now, to say some adequate thanks to the President of the United States for the confidence that he showed in me in making that nomination. I have not succeeded in doing that adequately yet, but I will keep trying. In fact, I came to the notice of probably most of you on this committee when I stood next to the President and tried—again, with great difficulty—that afternoon in late July to express some sense 50 of the honor that I felt, despite the surprise and even shock of the event to me. It is equally incumbent on me to try to express some sense of the honor that I feel today in appearing before you, as you represent the Senate of the United States in discharging your own responsibility to review the President's nomination. I could only adopt what Senator Metzenbaum said earlier this morning about the grandeur of this process of which we are a part. I mentioned to you the great surprise that I had on July 23 in finding myself where I was. I certainly found very quickly that I had no reason to be surprised at the interest which the United States and, actually, a good deal of the world suddenly took in me as an individual. And despite the reams of paper and I suppose the forests that have fallen to produce that paper in the time between July 23, I would like to take a minute before we begin our dialog together to say something to you about how I feel about the beginnings that I have come from and about the experiences that I have had that bear on the kind of judge that I am and the kind of judge that I can be expected to be. I think you know that I spent most of my boyhood in a small town in New Hampshire—Weare, NH. It was a town large in geography, small in population. The physical space, the open space between people, however, was not matched by the interspace between them because, as everybody knows who has lived in a small town, there is a closeness of people in a small town which is unattainable anywhere else. There was in that town no section or place or neighborhood that was determined by anybody's occupation or by anybody's bank balance. Everybody knew everybody else's business, or at least thought they did. And we were, in a very true sense, intimately aware of other lives. We were aware of lives that were easy, and we were aware of lives that were very hard. Another thing that we were aware of in that place was the responsibility of people to govern themselves. It was a responsibility that they owed to themselves, and it was a responsibility that they owed and owe to their neighbors. I first learned about that or I first learned the practicalities of that when I used to go over to the town hall in Weare, NH, on town meeting day. I would sit in the benches in the back of the town hall after school, and that is where I began my lessons in practical government. As I think you know, I went to high school in Concord, NH, which is a bigger place, and I went on from there to college and to study law in Cambridge, ME, and Oxford, England, which are bigger places still. And after I had finished law school, I came back to New Hampshire, and I began the practice of law. And I think probably it is fair to say that I resumed the study of practical government. I went to work for a law firm in Concord, NH, and I practiced there for several years. I then became, as I think you know, an assistant attorney general in the criminal division of that office. I was then lucky to be deputy attorney general to Warren Rudman, and I succeeded him as attorney general in 1976. The experience of government, though, did not wait until the day came that I entered public as opposed to private law practice; because although in those years of private practice I served the private clients of the firm, I also did something in those days which was very common then. Perhaps it is less common today—I know it is—but it was an accepted part of private practice in those days to take on a fair share of representation of clients who did not have the money to pay. I remember very well the first day that I ever spent by myself in a courtroom. I spent in a courtroom representing a woman whose personal life had become such a shambles that she had lost the custody of her children, and she was trying to get them back. She was not the last of such clients. I represented clients with domestic relations problems who lived sometimes, it seemed to me, in appalling circumstances. I can remember representing a client who was trying to pull her life together after being evicted because she couldn't pay the rent. Although cases like that were not the cases upon which the firm paid the rent, those were not remarkable cases for lawyers in private practice in those days before governmentally funded legal services. And they were the cases that we took at that time because taking them was the only way to make good on the supposedly open door of our courts to the people who needed to get inside and to get what courts had to offer through the justice system. I think it is fair to say—I am glad it is fair to say—that even today, with so much governmentally funded legal service, there are lawyers in private practice in our profession who are doing the same thing. As you know, I did go on to public legal service, and in the course of doing that, I met not only legislators and the administrators that one finds in the government, but I began to become familiar with the criminal justice system in my State and in our Nation. I met victims and sometimes I met the survivors of victims. I met defendants. I met that train of witnesses from the clergy to con artists who passed through our system and find themselves, either willingly or unwillingly, part of a search for truth and part of a search for those results that we try to sum up with the words of justice. As you also know, after those years I became a trial judge, and my experience with the working of government and the judicial system broadened there because I was a trial judge of general jurisdiction, and I saw every sort and condition of the people of my State that a trial court of general jurisdiction is exposed to. I saw litigants in international commercial litigation for millions, and I saw children who were the unwitting victims of domestic disputes and custody fights which somehow seemed to defy any reasonable solution, however hard we worked at it. I saw, once again, the denizens of the criminal justice system, and I saw domestic litigants. I saw appellants from the juvenile justice system who were appealing their findings of delinquency. And, in fact, I had maybe one of the great experiences of my entire life in seeing week in and week out the members of the trial juries of our States who are rightly called the consciences of our communities. And I worked with them, and I learned from them, and I will never forget my days with them. When those days on the trial court were over, there were two experiences that I took away with me or two lessons that I had learned, and the lessons remain with me today. The first lesson, 52 simple as it is, is that whatever court we are in, whatever we are doing, whether we are on a trial court or an appellate court, at the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate judges, as far removed from the trial arena as it is possible to be. The second lesson that I learned in that time is that if, indeed, we are going to be trial judges, whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right. I am conscious of those two lessons, as I have been for all of the years that I was on an appellate course. I am conscious of them as I sit here today, suddenly finding myself the nominee of the President of the United States to undertake the greatest responsibility that any judge in our Republic can undertake: The responsibility to join with eight other people, to make the promises of the Constitution a reality for our time, and to preserve that Constitution for the generations that will follow us after we are gone from here. I am mindful of those two lessons when I tell you this: That if you believe and the Senate of the United States believes that it is right to confirm my nomination, then I will accept those responsibilities as obligations to all of the people in the United States whose lives will be affected by my stewardship of the Constitution. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Judge, for a statement that gives us all more insight into you. When I ended my opening statement, I said "maybe a little glimpse into your heart," I think you have given us a little glimpse into your heart as well as how you view the responsibility you hope to undertake. Judge, before I begin my questioning, I want to make it clear to you that under precedence—we can debate and argue, which we will up here, about how long they have existed—but under precedence dating back, as one of my colleagues said, at least to the 1950's, and arguably much earlier, each member of the committee can decide whatever questions he deems proper to ask you. We have never imposed a gag rule on any committee member. But, Judge, while we may ask any questions we deem proper, you are free to refuse to answer any questions you deem to be improper. No one is going to try to force you to answer any question you think in good conscience you cannot appropriately address. So, Judge Souter, I trust you are fully capable of deciding for yourself which questions you can and cannot speak to. And we or an individual Senator may not agree with your decision, but that decision is yours and will be protected. Everyone involved in the process, both the members of this committee and you, I think have to be guided by the most considered interpretation of our respective constitutional responsibilities. And I know from my first discussion with you weeks ago that that was a judgment, as I think you have said, to paraphrase you, when the photographs had left my office, and I said "How are you? What are you looking forward to?" And you said something to the effect: Going home to New Hampshire to think about how you can appro- 53 priately reveal to us and the Nation your constitutional philosophy within the limitations you think you are bound by. So to clear it up, to state it again, any member can ask anything. You don't have to answer if you think it is inconsistent with what your responsibilities are.
David H. Souter
Nominee
(R)
Judge SOUTER. I appreciate that. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, Judge, let me begin. You said in your statement, you used the phrase "the promises of our Constitution." That is the phrase you used, and that is really what I want to discuss with you—the promises of our Constitution. What does it promise? Because there are very, very different views held by very bright women and men, all experts in the law, many incredibly well informed, who have very different visions of what the promises of our Constitution are. Judge, it comes as no surprise to you, as I discussed with you a little bit yesterday, there is nothing intended that I am about to ask you that is designed as a surprise, so much to the extent that I think you were probably surprised yesterday when I told you what I was going to ask you.
David H. Souter
Nominee
(R)
Judge SOUTER. I was a little bit.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And it will not surprise any of the press I see out there because it is something I care deeply about, and they are probably tired of hearing me talk about it, but I am going to continue to talk about it. And as, Judge Souter, a close friend of yours, and I consider him, quite frankly, a close friend of mine, my colleague Warren Rudman, has said—he has said many things, but he has said that Supreme Court
David H. Souter
Nominee
(R)
Judge SOUTER. YOU should have been staying with him for the last 10 days. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, we each have our own jobs. That is your job, not my job.
David H. Souter
Nominee
(R)
Judge SOUTER. I realize that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. We live with him every day, let me tell you. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But he has indicated that one of the Supreme Court Justices you most admire was the second Justice Harlan, who served on the Supreme Court between 1955 and 1971, and who was widely regarded, is widely regarded as one of the great conservative Justices ever to serve on the Court. Now, Justice Harlan concurred in the Court's landmark decision of Griswold. That is the Connecticut case that said that the State of Connecticut, the legislature and the Governor couldn't pass a law that—constitutionally—said that married couples could not use birth control devices to determine whether or not they wished to procreate. Justice Harlan indicated that that Connecticut law violated the due process clause of the 14th amendment which says that no State can deprive any person of life, liberty, or property without process of law. Now, my question is this, Judge: Do you agree with Justice Harlan's opinion in Griswold that the due process clause of the 14th amendment protects a right of a married couple to use birth control to decide whether or not to have a child? 39-454—91- 54
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that the due process clause of the 14th amendment does recognize and does protect an unenumerated right of privacy. The
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And that—please continue. I didn't mean to interrupt. I like what you are saying.
David H. Souter
Nominee
(R)
Judge SOUTER. The only reservation I have is a purely formal reservation in response to your question, and that simply is: No two judges, I am sure, will ever write an opinion the same way, even if they share the same principles. And I would not go so far as to say every word in Justice Harlan's opinion is something that I would adopt. And I think for reasons that we all appreciate, I would not think that it was appropriate to express a specific opinion on the exact result in Griswold, for the simple reason that as clearly as I will try to describe my views on the right of privacy, we know that the reasoning of the Court in Griswold, including opinions beyond those of Justice Harlan, are taken as obviously a predicate toward the one case which has been on everyone's mind and on everyone's lips since the moment of my nomination—Roe v. Wade, upon which the wisdom or the appropriate future of which it would be inappropriate for me to comment. But I understand from your question, and I think it is unmistakable, that what you were concerned about is the principal basis for deriving a right of privacy, and specifically the kind of reasoning that I would go through to do so. And in response to that question, yes, I would group myself in Justice Harlan's category.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, let me make it clear, I am not asking you about how you would decide or what you even think about Roe v. Wade.
David H. Souter
Nominee
(R)
Judge SOUTER. I understand that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, in the Griswold case, I am curious what proposition you think it stands for. Do you believe it is a case in a long line of cases, establishing an unenumerated right to privacy, a right the Constitution protects, even though it is not specifically mentioned in the document?
David H. Souter
Nominee
(R)
Judge SOUTER. I think probably it would be fairest to say that it is a case in a confused line of cases and it is a case which, again referring to the approach that Justice Harlan took, it is a case which to me represents at least the beginnings of the modern effort to try to articulate an enforceable doctrine. My own personal approach to that derivation begins with, I suppose, the most elementary propositions about constitutional government, but I do not know of any other way to begin. I am mindful not only of the national Constitution of 1787, but of the history of State constitution-making in that same decade. If there is one generalization that we can clearly make, it is the generalization about the intended limitation on the scope of governmental power. When we think of the example of the national Constitution, I think truly we are at the point in our history when every schoolchild does know that the reason there was no Bill of Rights attached to the draft submitted to the States in the first instance after the convention recessed, was the view that the limitations on the power to be given to the National Government was so clearly circumscribed, that no one really needed to worry about the possible power of the National Government to invade what we 55 today group under the canon of civil liberties, and we know the history of that response. We know that there were States like my own which were willing to ratify, but were willing to ratify only on the basis of requesting that the first order of business of the new Congress would be to propose a Bill of Rights in New Hampshire, like other States, who was not bashful about saying would not be in it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Did you wish to continue?
David H. Souter
Nominee
(R)
Judge SOUTER. If I may. This attitude did not sort of spring up without some antecedent in 1787. I am not an expert on the constitutions of all of the original States, but I do know something about my own. One of the remarkable things about the New Hampshire Constitution, which began its life at the beginning of that same decade, is the fact that it began with an extraordinarily jealous regard for civil rights, for human rights. The New Hampshire Constitution did not simply jump in and establish a form of government. They did not get to the form of government until they had gotten to the Bill of Rights first. They couched that Bill of Rights with an extraordinary breadth and a breadth which, for people concerned with principles of interpretation, requires great care in the reading. But the New Hampshire constitutionalists of 1780 and 1784 were equally concerned to protect a concept of liberty, so-called, which they did not more precisely define. So, it seems to me that the starting point for anyone who reads the Constitution seriously is that there is a concept of limited governmental power which is not simply to be identified with the enumeration of those specific rights or specifically defined rights that were later embodied in the bill. If there were any further evidence needed for this, of course, we can start with the ninth amendment. I realize how the ninth amendment has bedeviled scholars, and I wish I had something novel to contribute to the jurisprudence on it this afternoon, which I do not.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is novel that you acknowledge it, based on our past hearings in this committee. [Laughter.] One of the last nominees said it was nothing but a waterblot on the Constitution, which I found fascinating. At any rate, go ahead.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think it is two things—maybe it is more. I have no reason to question the scholarship which has interpreted one intent of the ninth amendment as simply being the protection or the preservation of the State bills of rights which preceded it. Neither, quite frankly, do I find a basis for doubting that, with respect to the national bill of rights, it was something other than what it purported to be, and that was an acknowledgment that the enumeration was not intended to be in some sense exhaustive and in derogation of other rights retained.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. IS that the school to which you would count yourself a graduate?
David H. Souter
Nominee
(R)
Judge SOUTER. I have to count myself a member of that school, because, in any interpretive enterprise, I have to start with the text and I do not have a basis for doubting that somewhat obvious and straightforward meaning of the text. 56
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me ask you another question here, and I realize this is somewhat pedantic, but it is important for me to understand the foundation from which you build here. You have made several references appropriately to the Bill of Rights and the Federal Government. Do you have any disagreement with the incorporation doctrine that was adopted some 70 years ago applying the Bill of Rights to the States? Do you have any argument with that proposition?
David H. Souter
Nominee
(R)
Judge SOUTER. No; my argument with the incorporation doctrine would be with the proposition that that was meant to exhaust the meaning of enforceable liberty. That, in point of fact, as you know, I mean that was Justice Harlan's concern. The next really—I mean that brings to the fore sort of the next chapter in American constitutional history that bears on what we are talking about, because one cannot talk about the privacy doctrine today, without talking about the 14th amendment.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I am truly interested in us going back through in an orderly fashion the evolution of constitutional doctrine, but as my colleague sitting behind you will tell you, I only have a half hour to talk to you and I want to ask you a few more specific questions, if I may. The 14th amendment, as you know, was designed explicitly to apply to the States. Speaking to the liberty clause of the 14th amendment, Justice Harlan said: The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution, Which is totally consistent with what you have been saying thus far.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, do you agree with Justice Harlan that the reference to liberty in the 5th and 14th amendments provide a basis for certain—not all, but certain—unenumerated rights, rights that the Constitution protects, even though they are not specifically enumerated within the Constitution?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the concept of liberty as enforceable under the due process clause is, in fact, the means by which we enforce those rights. It is sterile, I think, to go into this particular chapter of constitutional history now, but you will recall that Justice Black was a champion at one point of the view that the real point of the fourth amendment, which was intended to apply unenumerated substantive rights, was the privileges of immunities clause, and not due process. Well, as a practical matter, that was read out of the possibility of American constitutionalism, at least for its time, and it has remained so by the slaughterhouse cases. What is left, for those who were concerned to enforce the unenumerated concepts of liberty was the liberty clause and due process, and by a parity of reasoning by the search for coherence in constitutional doctrine, we would look to the same place and the same analysis in the fifth amendment when we are talking about the National Government.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, let us follow on. We recognize, you recognize, you have stated that Griswold and the various means of rea- 57 soning to arrive at the conclusion that there was a constitutionally protected right of a married couple to determine whether or not to procreate, to use birth control or not, is a constitutionally sound decision. Now, shortly thereafter there was a similar case in Massachusetts, although in this case it did not apply to married couples, there was a Massachusetts statute, in the Eisenstadt case, that said unmarried couples, and the rationale was that there is reason to not be out there allowing unmarried couples to buy birth control, because it would encourage sexual promiscuity, and the Supreme Court struck that down, as well, saying that it violated a right to privacy, having found once again, most Justices ruled that way, in the 14th amendment. Now, do you agree that that decision was rightly decided?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, my recollection—and I did not reread Eisenstadt before coming in here, so I hope my recollection is not faulty, but my recollection is that Eisenstadt represented a different approach, because the reliance on the Court there was on equal protection. I know that my recollection is
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, the
David H. Souter
Nominee
(R)
Judge SOUTER. I am sorry.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. GO ahead. I am sorry.
David H. Souter
Nominee
(R)
Judge SOUTER. My recollection is that the criticism of Eisenstadt at the time was whether the Supreme Court was, in fact, reaching rather far to make the equal protection argument. But I think there is one point that is undeniable, without specifically affirming or denying the wisdom of Eisenstadt, and that is there is going to be an equal protection implication from whatever bedrock start privacy is derived under the concept of due process, and I think that then leads us back to the essentially difficult point of interpretation, and that is how do you go through the interpretive process to find that content which is legitimate as a concept of due process.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Also, to what extent you find it legitimate. Is it a fundamental right, or is it an ordinary right? In the case of Griswold, in the Griswold case, it was discerned and decided that there was a fundamental right to privacy relating to the right of married couples to use contraceptive devices. Do you believe they were correct in that judgment, that there is a fundamental right?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the way, again, I would express it without getting myself into the position of endorsing the specifics of the cases, is that I believe on reliable interpretive principles there is certainly, to begin with, a core of privacy which is identified as marital privacy, and I believe it can and should be regarded as fundamental. I think what we also have to recognize is that the notion of protected privacy, which may be enforceable under the 14th amendment, has a great potential breadth and not every aspect of it may rise to a fundamental level.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I agree. That is why I am asking you the question, because as you know as well as I do, if the Court concludes that there is a fundamental right, then for a State to take action that would extinguish that right, they must have, as we lawyers call, it is required they look at it through the prism of strict scrutiny. Another way of saying it, for laymen, is that they must have a 58 pretty darn good reason. If it is not a fundamental right and it is an ordinary right, they can use a much lower standard to determine whether the State had a good enough reason to preempt that right. So, as we talk about this line of cases, in Griswold and in Eisenstadt—let me skip, in Moore v. East Cleveland, where the Court ruled, extending this principle of privacy from the question of procreation, contraception and procreation, to the definition of a family. As you know, East Cleveland had an ordinance defining a family that did not include a grandmother and grandson, and so East Cleveland, under that ordinance, said that a grandmother and her two grandchildren could be evicted from a particular area in which they lived, because they were not a family, as defined by the local municipality in zoning ordinance. Now, the Court came along there and it made a very basic judgment. It said—if I can find my note, which I cannot find right now, and I think it is important to get the exact language, if I can find it—I just found it. [Laughter.] Justice Powell said, "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th amendment." Now, my question, Judge, is do you believe that that assertion by Justice Powell is accurate?
David H. Souter
Nominee
(R)
Judge SOUTER. I think that assertion by Justice Powell represents a legitimate judgment in these kinds of problems with respect to Moore just as in the discussion with Griswold. I am going to ask you to excuse me from specifically endorsing the particular result, because I recognize the implications from any challenge that may come from the other privacy case that is on everyone's mind. But the one thing that I want to make very clear is that my concept of an enforceable marital right of privacy would give it fundamental importance. What the courts are doing in all of these cases is saying—although we speak of tiers of scrutiny—what the courts are saying, it seems to me in a basically straightforward way—is that there is no way to escape a valuation of the significance of the particular manifestation to privacy that we are concerned with, and having given it a value we, indeed, have to hold the State to an equally appropriate or commensurate reason before it interferes with that value.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is exactly what I am trying to find out in your answering. So the valuation applied to a definition of family, is fundamental. The valuation applied to whether a married couple can use contraception is fundamental. The valuation applied to whether or not an unmarried couple can use contraception is fundamental. Now, I would like to ask you, as I move along here, as you look at this line of cases we have mentioned—and I will not bother to go through a couple of others that I have anticipated—is my time up? I saw the light go off and I thought my time was about up and the one thing these fellows are not likely to forgive me for—they will forgive me for a lot of things but not for going over my time. That when it comes to personal freedom of choice, as Justice Powell put it, in family and in marriage, one basic aspect of that freedom is the right to procreate. Now, early in the 1940's, in the 59 Skinner case, the Supreme Court said that criminals could not be sterilized. The Court made it very clear and it said, "Marriage and procreation are fundamental" and that sterilization affected "one of the basic civil rights of man." I assume that some of the civil rights that you are referring to that those who wrote the New Hampshire Constitution referred to. Do you agree that procreation is a fundamental right?
David H. Souter
Nominee
(R)
Judge SOUTER. I would assume that if we are going to have any core concept of marital privacy, that would certainly have to rank at its fundamental heart.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, the reason I am pursuing this is not merely for the reason you think, I suspect. It is because you have been categorized as—I believe you have described yourself as an interpretivist.
David H. Souter
Nominee
(R)
Judge SOUTER. I did and I have, yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU have begun—and I thank you for it—you have begun to flesh out for me on which part of the spectrum of the interpretivists you find yourself. Let me, in the interest of time, move on here. I am trying to skip by here. Let me ask you this, Judge. The value that the Court places on certain alleged, by many, privacy rights will dictate, as we said earlier, the burden placed upon a State in the circumstance when they wish to extinguish that right, or impact on that right.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, you have just told us that the right to use birth control, to decide whether or not to become pregnant is one of those fundamental rights—the value placed on it is fundamental. Now, let us say that a woman and/or her mate uses such a birth control device and it fails. Does she still have a constitutional right to choose not to become pregnant?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, that is the point at which I will have to exercise the prerogative which you were good to speak of explicitly. I think for me to start answering that question, in effect, is for me to start discussing the concept of Roe v. Wade. I would be glad—I do not think I have to do so for you—but I would be glad to explain in some detail my reasons for believing that I cannot do so, but of course, they focus on the fact that ultimately the question which you are posing is a question which is implicated by any possibility of the examination of Roe v. Wade. That, as we all know, is not only a possibility, but a likelihood that the Court may be asked to do it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, let me respectfully suggest the following to you: That to ask you what principles you would employ does not, in any way, tell me how you would rule on a specific fact situation. For example, all eight Justices, whom you will be joining, all eight of them have found there to be a liberty interest that a woman retains after being pregnant. That goes all the way from Justice Brennan—who is no longer on the Court—who reached one conclusion from having found that liberty interest, to Justice Scalia who finds a liberty interest and yet, nonetheless says, explicitly he would like to see Roe v. Wade, he thinks Roe v. Wade should be overruled. 60 So the mere fact that you answer the question whether or not a woman's liberty interest, a woman's right to terminate pregnancy exists or does not exist, in no way tells me or anyone else within our earshot how you would possibly rule on Roe v. Wade.
David H. Souter
Nominee
(R)
Judge SOUTER. I think to explain my position, I think it is important to bear in mind there are really two things that judges may or may not be meaning when they say there is a liberty interest to do thus and so, whatever it may be. They may mean simply that in the whole range of human interests and activities the particular action that you are referring to is one which falls within a broad concept of liberty. If liberty means what it is, we can do if we want to do it. Then obviously in that sense of your question, the answer is, yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is more precise, Judge, than that. I mean liberty interest has a constitutional connotation that most lawyers and all justices have ascribed to it in varying degrees. For example, Justices Blackmun, Brennan, Marshall, and Stevens, they have said a woman has a strong liberty interest, although Justice Stevens has phrased it slightly differently. Justice O'Connor has made it clear that she believes a woman has some liberty interest. Even Justices Rehnquist, White, Kennedy, and Scalia, all of whom criticized the Court's rulings in this area have said that a woman has at least some liberty interest in choosing not to remain pregnant. Now, each of these Court members has acknowledged what we lawyers call a liberty interest after conception. So my question to you is, is there a liberty interest retained by a woman after conception?
David H. Souter
Nominee
(R)
Judge SOUTER. I think, Senator, again, we have got to be careful about the sense of the liberty interest. There is the very broad sense of the term which I referred to before and then there is the sense of an enforceable liberty interest. That is to say, one which is enforceable against the State, based upon a valuation that it is fundamental. It seems to me that that is the question which is part of the analysis, of course, upon which Roe v. Wade rests.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, all liberty interests have following all liberty interest is a right. The question is, how deeply held and rooted that right is; and what action the State must take and how serious that action must be—the rationale for that action—to overcome that interest? But once we acknowledge there is a liberty interest, there is a right.
David H. Souter
Nominee
(R)
Judge SOUTER. But what—I am sorry.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO I am not asking you to tell me—I am just told my time is up—I am not asking you to tell me what burden of proof the State must show in order to overcome that. I am asking you is there a liberty interest and your answer is what, yes, or no?
David H. Souter
Nominee
(R)
Judge SOUTER. My answer is that the most that I can legitimately say is that in the spectrum of possible protection that would rank as an interest to be asserted under liberty, but how that interest should be evaluated, and the weight that should be given to it in determining whether there is in any or all circumstances a sufficiently countervailing governmental interest is a question with respect, I cannot answer.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. With all due respect, I have not asked it. 61 But I will come back to that. My time is up. I yield to my colleague from South Carolina. I thank you, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Judge Souter, the Constitution of the United States is now over 200 years old. Many Americans have expressed their views about 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 distinction as the oldest existing constitution in the world today.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, it is difficult to make a pronouncement which is commensurate with the magnificence of the document. If I have to explain it in a few words I would do it by reference to a very limited number of concepts. The first reason for the Constitution's success is its insistence and its recognition on the source of power. The source of governmental power is the people. The second concept which has guaranteed its endurance is that that power is no more granted to government than the people grant to government. The very concept of the National Government is one of limited power, was one of its motivating, one of its very forces of life from the moment that it was presented to the people. Third, I would look to the concept implicit in that document and as a basis of the bedrock of the structural sense of American constitutionalism that power is divided and that that division of power even granted, is a division of power which must be protected if the entire Government is to remain in the place that it was intended to have. That structural sense of the division of power encompasses not only what we speak of as the separation of powers doctrine within the National Government, itself, but the concept of the distribution of power in a federal system. I think the reasons then for the remarkable and blessed endurance of the American Constitution are extraordinarily pragmatic reasons. It rests upon a recognition of where its power comes from and it is structured with a recognition that power will be abused unless it is limited and divided and restrained.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the 10th amendment to the Constitution provides that powers not delegated to the Federal Government are reserved to the States or the people. Would you describe your general view about the proper relationship between Federal and State Governments, as well as how would you characterize the States' power to legislate in areas not specifically enumerated to the Congress.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, as we know—certainly you know better than I, having sat in this Congress as you have—there is a great overlap of subject matter in which we know the Congress under article I has authority, and which is equally covered by the States. We are familiar with the doctrines of preemption which have developed over the years and we are familiar, of course, with the provision of the Constitution that in cases of conflict in legislation within both the constitutional competence of the States and 62 the National Government, the National Government is, of course, going to prevail. One of the things that I think we have to recognize in dealing with problems of federalism today is a basic political problem which in those areas of overlap the Constitution, itself, cannot solve for us. That is a political problem that arises from the willingness or the unwillingness of the States to exercise the constitutional powers that they have to address the problems that are really before them. One of the things that I was reminded of in my preparation, my sort of autobiographical inquiry—which has preceded my coming here today and has been going on for the last 7 or 8 weeks—is a speech which I gave years ago in Newport, NH, in which I was talking about—which to most people and to me seemed—an erosion of power all in the direction of the National Government from the States. But the explanation for that erosion began with the fact that there were problems to be solved which the States simply would not address and the people wanted them addressed and therefore, the people looked to Washington. They looked to Washington, of course, because Washington had the means or exerted the means of raising the money to solve them. So one of the problems that has to be recognized, as underlying so much of the tension which sometimes gets expressed by focus on the 10th amendment, is, in fact, a political problem and ultimately a fiscal problem. We know that the concept of the 10th amendment today is something that we cannot look at with the eyes of the people who wrote it. At the very least, two developments in our constitutional history have necessarily changed the significance of the 10th amendment for us. The first, of course, is the concept of the commerce power which I think—whatever everyone's predilections may be—has grown to a, and has been recognized as having a plenary degree which would probably have astonished the Founders. The second development which has got to be borne in mind in coming to any approach to the 10th amendment is simply, the 14th. There was, very expressly, authority given to the National Government through the 14th amendment, which again, was inconceivable to the Framers of the 10th. It is those two developments that have led to the difficulty reflected in a number of cases in recent years, in trying to determine, whether in fact, there is a substantive basis, an objective basis, perhaps I should say, for identifying and protecting State power under the 10th amendment; or whether conversely, the 10th amendment, in effect, has been relegated to the expression of kind of a political truism. When I was in public practice, the case known as National League of Cities v. Usury was the law, which recognized a basis for enforcing limitation on national power in name of the 10th amendment under the wage and hour law. Subsequently National League was overruled by Garcia v. San Antonio, which has left the law, at the present time far closer to, in effect, a reflection of the politics of the Congress of the United States. 63 I do not know what the next step in that chapter may be, but I do know that any approach to the 10th amendment today is an approach which has got to take into consideration constitutional developments outside of the 10th amendment which we cannot ignore, and, as I have said, would have astonished the Framers.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the famous decision of 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 give the committee your views on this authority?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I suppose for anyone in the year 1990 to speak admiringly of Marbury v. Madison is a fairly conservative act, so I don't have any trouble in sort of going out on the limb in support of Marbury v. Madison. I recognize that the difficulty which may be facing us in assessing the significance of Marbury v. Madison today is a difficulty in defining the appropriate role of Congress with respect to the appellate jurisdiction of the Supreme Court of the United States. We might all hope that that kind of a contest would not come before us, but we cannot rule it out. The question, of course, is not whether Marbury can be overruled as such, but whether the force of Marbury can, in fact, be eroded by limitations upon the appellate jurisdiction of the Supreme Court of the United States. As I am sure you know as well as I, the existing precedent on that is not of very great help to us. We know that in the one case expressly addressing the Supreme Court's appellate jurisdiction, a post-Civil War case, McCardle, the Court seemed to say that there could be such an erosion through the exercise of congressional power, although there are times when I find McCardle a somewhat more ambiguous case than some have found it. On the other hand, we know in the Klein case that followed not long after that, which dealt with the jurisdiction of the lower Federal courts not the appellate jurisdiction of the Supreme Court, that the Supreme Court clearly put limits upon what the Congress could do in trying, in effect, to limit jurisdiction for the sake of bringing about particular results or avoiding particular results which were thought to be undesirable. But those are all post-Civil War cases. They seem to speak with conflicting and certainly not with consistent voices. And they are going to be the preface to any question about the ultimate vitality of Marbury in our time. But it is at least comforting to be able to end my response to you as I began it; that subject to that issue which has yet definitively to come before the courts, I trust everyone like me will accept Marbury as constitutionally essential to government as we know it.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the opinion of Miranda v. Arizona defined the parameters of police conduct for interrogating suspects in custody. Since th[e decision, the Supreme Court has limited the scope of Miranda in certain 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?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, of, course, Senator, I cannot speak expressly for the Court, but I thi^ik those comments must have had some 64 kind of effect. The legitimacy of that effect, the appropriateness of the Court's listening, I think has got to be assessed from two different standpoints. It is very important that courts not be swayed in any case merely by the politics of the moment. And there is, I think, a laudable tendency—I hope it will always be regarded as laudable—for the Court to keep itself above the momentary furor. It would be a mistake, however, from that, for a court to be unwilling ever to reexamine the wisdom of something that it had done. This is certainly true when we are dealing with decisions like Miranda, which are very pragmatic decisions. Whether one initially agreed or did not agree with Miranda, the point of Miranda was to produce a practical means to avoid what seemed to be unduly time consuming and sometimes intractable problems encountered in the Federal courts in dealing with claims that confessions were inadmissible on grounds of their involuntariness. But Miranda was a practical case on how to deal with it. The assumption of the Court was that if Miranda, in fact, was complied with, a lot of the very difficult voluntariness problems were just going to take care of themselves. When we are dealing with a rule like Miranda, which had a very practical objective which, as was said at the time, extended the fifth amendment to the police station for the sake of trying to avoid other more serious problems, of course it is appropriate to consider the practical effect that those decisions have. And I have no doubt that both in the briefs that have been filed before the courts and in the arguments of the specific parties, the satisfaction or the dissatisfaction of law enforcement with the practical effects of that decision have had an influence, and rightly so, on the courts. By the same token, I think it is important to note that when we look back on a decision which has been on the books as long as Miranda has now, we are faced with a similarly, I think, practical obligation, if one wants it modified or expanded or contracted, to ask very practical questions about how it actually works. That is a judicial obligation. If the judiciary is going to be imposing pragmatic rules.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, there are hundreds of inmates under death sentence across the country. Many have been on death row for several years as a result of the endless appeals process. Recently, the Senate passed legislation which would reduce the number of unnecessary appeals. Generally, would you give the committee your views on the validity of placing some reasonable limitations on the number of posttrial appeals that allow inmates under death sentences to avoid execution for years after the commission of their crimes?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator Thurmond, I am not familiar with the bill which the Senate has passed, but I am assuming that it was probably in response to the report of the committee headed by Justice Powell a couple of years ago, retired Justice Powell, who was—the committee, rather, was addressing the problem of what you describe rightly as the seemingly endless appellate process and frequently of the confusion in haste which tended to characterize it at the Federal level. I think there was great wisdom in the recommendation of the Powell committee, because what the Powell committee centered on 65 was not in the first instance a strict rule of limitation, but on the problem which, in fact, was leading to the resort, frequently at the last moment, to the Federal courts in death penalty cases. What the Powell committee identified as one of those reasons was the fact that, although counsel is guaranteed to a criminal defendant through the direct appellate process, in most States counsel was, in any event, in the process of collateral review by habeas corpus after the direct appeal process had been exhausted, there was not a mandate under the national Constitution to the States to provide counsel at that level, and most States were not doing so. The practical result was that in the attempt at collateral review at the State level, death row inmates were, in fact, trying to raise constitutional issues without counsel competent to do so—they were issues of sufficient subtlety that a pro se litigant simply could not handle them—and that time was being consumed in what was really unproductive, almost helpless, litigation in State court collateral review. And it was only when that was exhausted and only when, in fact, an execution date was set that the prisoners would then find it appropriate to try to go into the Federal courts for collateral review. What the Powell Commission recommended was that if we are going to place reasonable limits on Federal collateral review, we have got to accept the reality that there has got to be some kind of genuinely significant representation by counsel at the very point collateral review can begin, so that it can be worth something both at the State level and at the moment the petitioners enter the Federal scheme. And if that can be provided, if counsel can properly be provided at the initial stages, then it is fair and appropriate to place limitations upon the time in which collateral review can be sought. I can only say that I think that is an eminently fair approach to the problem.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, you are currently serving as a member of the U.S. Court of Appeals for the First Judicial Circuit. Previously, you served on the New Hampshire Supreme Court for 7 years and the New Hampshire Superior Court for 5 years. How beneficial, in your opinion, will this prior judicial experience be to you if confirmed to sit on the Supreme Court?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator Thurmond, for someone who has never sat on the Supreme Court, there is great difficulty in answering that question, because the one thing that I think we all hear about the Supreme Court and its workload is that the combination of the task, the volume of the task, and the responsibility of the task is something for which no one really feels prepared at the beginning of service on that Court. And probably it would be impossible that anyone could be. There are at least some bits of background which I hope would fit me to work into the responsibilities of the Court as fast as possible if I am confirmed. Although the supreme court on which I sat, without question, did not have the demands on me that the Supreme Court of the United States would have, it shares the problem of all appellate courts in the United States today of having a series of requests for review which, as a practical matter, tend to exceed the capacity of the court to deal with the depth that the court would like. In New Hampshire, before I ever went on the New Hampshire Supreme Court, we had gone necessarily to a system of discretionary review because it was impossible to review every request for an appeal on the merits. So I am familiar, in fact, with the business of the Court and the need to set some kind of limits to make any worthwhile adjudication possible. More than that, though, I think the important thing is what I alluded to in the remarks that I made before the questioning began today. There is one overriding responsibility that any judge on an appellate court has. It will not guarantee that he will get the right result, but it will guarantee that he will try as best he can to get the right results. And that is a recognition that however far removed from the bench of that court, the decision that the court renders, the ruling that the court makes is going to affect a life. I have learned that lesson, and it is a lesson which, if I am confirmed, I hope will stand me in good stead.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, I believe that judges should impose tough sentences in criminal cases, especially when the crime committed is one of violence. Society demands tough punishment for violent offenders. In the past, victims of those who committed violent crimes have often played a diminished role in the criminal justice system. However, recently, the number of victims who participate in the prosecution of criminal cases has increased. In your opinion, should victims play a major role in the criminal justice system? If so, to what extent should a victim participate?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, there are certainly two respects in which victims should be recognized in the system, and there is a further interest of victims which the government as a whole should recognize. The most obvious role of the victim, of course, is the role which any victim must play in establishing the fact of the crime. Your central witness, theoretically, in a criminal case is the victim. The victim also, it seems to me, has a claim to the attention of the court in a criminal case if there is, in fact, a conviction. We try to avoid disparity in sentencing, hue one of the subjects which is appropriate to bear in mind is exactly the one that you raised a moment ago, and that was: What was, in fact, the conduct of the defendant? What degree of either mild or outrageous behavior can we assign to the conduct of the defendant in relation to the victim in causing harm? The heinousness of a crime is an appropriate subject in any sentencing decision. I think going beyond that, one of the happy developments of the law in the last few years is the recognition by the government that after the criminal case is tried, whatever may be the result, the victim is still left, in many cases, in a mess not of the victim's own choosing; and that, in fact, there is a need to provide some help. The victim assistance acts which the States have been passing, it seems to me, is a step in the right direction.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the doctrine of stare decisis is a concept well entrenched in our legal system and the concept that virtually all judges have in mind when making decisions, especially in difficult cases. I am sure that the issue of prior authority has 67 been a factor which you have considered many times in your years on the bench. Could you please briefly state your general view of stare decisis and under what circumstances you would consider it appropriate to overrule prior precedent?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, as you know, the doctrine of stare decisis which we speak of in that shorthanded kind of way is a series of considerations which courts bear in mind in deciding whether a prior precedent should be followed or should not be. Some such doctrine or some such rule is a bedrock necessity if we are going to have in our judicial systems anything that can be called the rule of law as opposed simply to random decisions on a case-to-case basis. The problem that the doctrine of stare decisis addresses is the problem of trying to give a proper value to a given precedent when someone asks a court to overrule it and to go another way. And I suppose the complexity of the doctrine is such that, contrary to the terms of your question, I suppose I could talk about it for a very long time. And there may be other members of the committee
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. YOU need not do that.
David H. Souter
Nominee
(R)
Judge SOUTER. I was going to say, I think you have made it very clear that that is not what you had in mind, and I don't know whether any other members of the committee may be greater bears for punishment to go into it further than you have or not. Let me, though, in compliance with your terms, just state in a very kind of outline way what I think we should look to, without meaning to be exhaustive. The first thing, kind of the threshold question that, of course, you start with on any issue or precedent, is the question of whether the prior case was wrong. We don't raise precedential issues unless we are starting with the assumption that there is something inappropriate about the prior decision. Now, that decision may have been right at the time and there now be a claim that, in fact, it is wrong to be applied now. But the first question that we have to ask is: If we were deciding the case today, if we were living in a kind of Garden of Eden and we didn't have the precedent and this was the first case, would we decide it the same way? If the answer is no, we would not do so, then we look to a series of factors to try to decide how much value we ought to put on that precedent even though it is not one that we particularly like or would think appropriate in the first instance. One of the factors which is very important I will throw together under the term of reliance. Who has relied upon that precedent, and what does that reliance count for today? Have people
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me, Judge. Did you say if the answer is no or if the answer is yes? You said when we look back
David H. Souter
Nominee
(R)
Judge SOUTER. My problem, Mr. Chairman, is I forget what the question was.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am sorry. You indicated that one of the things you looked at is whether the prior case was wrongly decided, isn't that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Then the answer should have been yes. I said no?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes. OK. I got it.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you for amending that. 68
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I was getting confused.
David H. Souter
Nominee
(R)
Judge SOUTER. If you are going to ask me for a statutory interpretation, I would be as liberal as that, then you may have me in a corner. But assuming we start with a precedent which is wrong for this time, considered by itself, one of the things we are going to start by looking at is the degree and the kind of reliance that has been placed upon it. We ask in some context whether private citizens in their lives have relied upon it in their own planning to such a degree that, in fact, it would be a great hardship in overruling it now. We look to whether legislatures have relied upon it, in legislation which assumes the correctness of that precedent. We look to whether the court in question or other courts have relied upon it, in developing a body of doctrine. If a precedent, in fact, is consistent with a line of development which extends from its date to the present time, then the cost of overruling that precedent is, of course, going to be enormously greater and enormously different from what will be the case in instances in which the prior case either has not been followed or the prior case has simply been eroded, chipped away at, as we say, by later determinations. Beyond that, we look to such factors as the possibility of other means of overruling the precedent. There is some difference, although we may have trouble in weighting it, there is some difference between constitutional and statutory interpretation precedent, which Congress or a legislature can overrule, so we look to other possibilities. In all of these instances, we are trying to give a fair weight to the claim of that precedent to be followed today, even though in some respect we find it deficient on the merits.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, former Associate Justice Lewis F. Powell once stated: Those of us who work quietly in our marble palace find it difficult to understand the apparent fascination with how we go about our business. However, as our decisions concern the liberty, property and even the lives of litigants, there can be no thought of tomorrow's headlines. Judge Souter, would you share with the committee your thoughts regarding Justice Powell's statement, especially his comment that there can be no thought of tomorrow's headlines?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I hope there is no judge in the Republic who would not agree with that statement of Justice Powell. If there is one thing that
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. That is sufficient. [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. YOU are going to turn me into a laconic Yankee, if you keep doing that, Senator. [Laughter.]
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I have just been told that my time is up,
David H. Souter
Nominee
(R)
Judge Souter. Thank you. I was trying to get in another question, but it is too late. Judge SOUTER. Thank you, sir.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. 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. I would like to direct the judge's attention to the issue of civil rights. I am sure you understand, as all Americans understand, that the issue of slavery, when it was discussed at the Constitution- 69 al Convention almost ruptured that whole process and compromises were made during the consideration of the Constitutional Convention. As a consequence of accepting slavery, we saw a vicious Civil War that took place in the 1860's on that issue. We saw this country go through enormous convulsion in the late 1950's and early 1960's, with loss of life, as we were trying to move toward a fairer, more equitable society, to breath real life into the Constitution when it talks about equal protection of the laws. I am interested in your own views about the majesty of the Constitution and about providing guarantees for the citizens of this Nation, whether black or white, man or woman, of whatever religious, in assuring that the words "equal protection of the laws" really mean equal protection of the laws. I am most interested at this point in having your view about the authority and the legitimacy of the Congress in implementing the 14th amendment, through the 5th section. So, I would like to direct your attention to a couple of these areas, firstly that you took positions on as attorney general and assistant attorney general of New Hampshire. Both of these areas relate to the questions of pursuing equal rights and liberties. First of all, I want to talk about eliminating discrimination in the workplace and guaranteeing equal opportunity in employment. I am sure you are aware of the case which I am directing your attention to, decided in 1973, when the Equal Employment Opportunity Commission regulations required State and local communities and private firms with over 100 employees to file annual reports, listing racial composition of the employers' work force, to assist the Commission in its mission. In many circumstances, we see Evan Kemp, President Bush's head of EEOC, talking about how necessary such statistics are today and recognize the importance of the accumulation of that type of material. Now, unlike every other State, New Hampshire rejected the regulation and it refused to supply the data for 1973, 1974, and 1975. When the U.S. Government sued to enforce the requirement, you defended the refusal, as New Hampshire Attorney General, and when New Hampshire lost in the Federal district court, you appealed to the circuit court of appeals, which unanimously rejected your position, and then you tried to take the issue to the Supreme Court, which refused even to hear your case, let alone accept your argument. Your office took the position in all three courts that it was unconstitutional to require employers to compile reports of those statistics. A reading of the brief would indicate that you did not believe that Congress had the power to implement and develop that legislation of their work force. As far as I can determine, no other employer, public or private, pressed such an excessive claim, so hostile to civil rights. Your brief even went so far as to make the extraordinary argument that it violated a worker's constitutional right to privacy, for employers to report the overall racial composition of their work force. My question is this: Did you agree with the position of the State of New Hampshire that it is unconstitutional for Congress to re- 70 quire employers to provide statistics about racial composition of the work force?
David H. Souter
Nominee
(R)
Judge SOUTER. At the time that case was litigated, Senator, I did not know whether it was consitutional or not. That case, as I think you realize, was
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What I am directing your attention to is your view about the power of the Congress, under section 5 of the 14th amendment, that when it finds that there is discrimination, that we have the power to try and take steps to eliminate the discrimination as best we can. We are not going to argue that laws are going to resolve all of these problems. Clearly, they are not. But the issue and the question, the basic issue and question is whether you recognize the authority and the power of the Congress to develop legislation, in this case the EEO Act, which required the kind of information that I have mentioned, in order for the American people to be able to gain these rights.
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question that, under the law as it is understood today and under the law as I understand it, that Congress has a preferred and unique role of power in enforcing the 14th amendment under section 5. There is probably no question that there will be further years of litigation before the exact limits of that power are defined, but there are some things that are clear now. It is clear now under the law that the Congress certainly does not stand on the same footing as the State and county and local governments may do in devising remedies for a broader societal discrimination than may come to light in specific cases. We know that the Congress has a preferred position in that respect.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you certainly had the opportunity to develop your own personal view at the time that you were developing the position, as the Governor's lawyer. Did you form any position on your own, as to whether that was the correct position? Did you do it reluctantly? What can you tell us? We know that the lawyer who assisted you in the case, Mr. Edward Haffer, was quoted in the press as saying that you were supportive of and involved in the effort to challenge the regulation. Governor Thompson has said that you did not discourage him from pursuing the case to the Supreme Court. So, did you at the time formulate any personal view about the legitimacy of the Congress in attempting to root out discrimination in the workplace?
David H. Souter
Nominee
(R)
Judge SOUTER. I came to no comprehensive personal view of section 5 at that time. The views that I came to grips with at that time were these: The first, of course, is that I was representing a client. The issue before me, as a lawyer in that case, was whether the client, whose policy was being set by the executive branch, speaking through the Governor, had a legitimate position which could in good faith be pressed before the courts. It was my judgment at that time that the State did, in fact, have a case which could be pressed in defense of the Governor's position. The most remarkable thing about it and the reason for coming to this conclusion which I drew as a lawyer, is indicated in an unusual way in our constitutional history. In a footnote in a later opinion by Justice Powell that came about years later—and I cannot cite it 71 from memory, but I can produce it, if you would like—Justice Powell referred to a survey of discrimination by State and local governments on racial grounds, and I do not recall now whether it was strictly State employment discrimination or discrimination in voting, but it illustrated the truth that lay behind the decision that New Hampshire could take that position and press it before the courts, for whatever disposition, and that determination was that there was no indication that there had ever been racial discrimination, what we would today broadly call title VII discrimination, by the State or local governments. The issue that the Governor wished and the State wished to press forward was whether the power of section 5 of the 14th amendment, whether the congressional power could in fact be used to require the assembly of racial data by a governmental entity with respect to whom there was absolutely no historical indication of any discrimination. As I think you know from the briefs which I know have been brought to your attention, one of the concerns raised is that if you have not been thinking in racial terms and you are suddenly forced to start classifying nor at least to classify statistically in racial terms, you are running the risk that race is, in fact, going to play a role and a wrong role, which it has never done. The issue before me, as attorney general of New Hampshire, in carrying on with that litigation which had in fact begun before I became attorney general, was whether in fact there was an argument that could be made to that effect. I believed that there was an argument that could be made to that effect. The courts rejected it and it is, of course, not an argument that would be made today.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Of course, first of all, as attorney general, you take the oath of office in upholding the Constitution. Second, the New Hampshire statute says the attorney general will represent the public interest in the administration of the department of justice, be responsible to the Governor, the general court, and the public for such administration. So, what we have to gather here, and when you give a response that you are just acting as the lawyer for the Governor, we have to give some weight to the fact that you are sworn to an oath of office, both in terms of the Constitution and the New Hampshire statute. Very clearly you are not only the lawyer for the Governor, but you also represent the public interest. You have stated that you support that concept as a matter of personal belief now and, as I gather, you were uncertain at the time when you filed the brief, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. The question that I thought could be legitimately raised at the time was whether, in fact, as against a governmental entity which had not practiced any discrimination, either specific or reflective of societal discrimination, that was an appropriate exercise of section 5 power. I think we now know very clearly that it is.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the point that we are talking about is a national determination by the Congress that this kind of information is necessary in order to try to gather discrimination information that is necessary before any action can be taken, and also to try to measure some progress in this area. 72 Tell me, why did you file information with regard to gender in employment, and not with regard to race? I found that somewhat puzzling. You submitted the information to EEOC with regard to gender, but not with regard to race, and the 14th amendment clearly is about race and about gender—in terms of that—why did you file that?
David H. Souter
Nominee
(R)
Judge SOUTER. As you indicate, I think the 14th amendment is about both.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Right.
David H. Souter
Nominee
(R)
Judge SOUTER. I think, in fact, the answer to that is one which, with respect, I would almost have to direct to my client. If you were to ask me cold whether the State was filing gender information at that time, I could not have told you.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me go to a second area of civil rights, and this is with regard to the literacy tests. You are familiar that in 1965 the Congress took action to abolish literacy tests in the limited number of States that were included in the 1965 act, and then in the 1970 act we abolished literacy tests generally across the country?
David H. Souter
Nominee
(R)
Judge SOUTER. I think they were suspended, were they not, for 5 years by the 1970 amendments?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Exactly. The State of New Hampshire vigorously defended the State law, arguing that Congress did not have, again, the constitutional authority to ban literacy tests. Your name appears on the brief. Do you remember whether you drafted it or not?
David H. Souter
Nominee
(R)
Judge SOUTER. I was assistant attorney general at that time, and my recollection is that I filed aposttrial memorandum with the U.S. district court after that case was argued. I remember I was the assistant attorney general assigned to argue
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, your name is on the brief, the third one down.
David H. Souter
Nominee
(R)
Judge SOUTER. Pardon me?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Your name is on the brief.
David H. Souter
Nominee
(R)
Judge SOUTER. I was not trying to get you to read the names off, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. We have got two of them. Now, when this was brought up in the district court, the position was rejected 3 to 0, and then when it was brought up eventually in the Supreme Court, the position was rejected 9 to 0. Again, the question I think is how you view the Congress' power to try and provide remedies against discrimination against minorities and women. Very little was given me when I heard you talk about the questions of limited power. You talk about the overlap of power that exists and the power of preemption by the National Government. You say that the National Government will prevail when there is conflict, and speak of the movement toward greater power to the National Government, primarily political and fiscal in recent times, but did not mention what has been the most, I consider the most important reason in the past several years, and that is to try and guarantee civil rights and liberties to minorities. This is something that we have to make a judgment on. 73 Another part of that brief that concerned me that I want you to speak to, is in the brief you said that if people who could not read were permitted to cast ballots, it would dilute the votes of literate citizens. You went on to say: To this harm, must be added the impossibility of providing any means whereby illiterate voters could intelligently vote upon the constitutional proposals which are presented on the ballot in narrative form. The result of allowing illiterates to make a choice in such matters is tantamount to authorizing them to vote at random, utterly without comprehension. Yet, in a letter to the President on the issue, when Congress was considering the Voting Rights Act of 1970, Father Hesburgh, who was Chairman of the Civil Rights Commission, said this: The lives and fortunes of illiterates are no less affected by the actions of local, State and Federal governments than those of their more fortunate brethren. Today, with television so widely available, it is possible for one with little formal education to be well-informed, an intelligent member of the electorate. What troubles me is that you said that the Congress did not have the power to collect data on race discrimination. Now, you say that Congress does not have the power to ban literacy tests for voting. Congress is attempting to deal with the profound historical, national problem that this country has ached at over its history and continues to do so today. Yet, we have seen these fundamental areas—you seem to interpret the powers of Congress so narrowly that we cannot achieve our purpose—even fundamental areas such as race discrimination and the right to vote. *
David H. Souter
Nominee
(R)
Judge SOUTER. Well, with respect, Senator, let me address a couple of points that you raise. Maybe the best place to start is with the fundamental one. That is about me today, as opposed to me as an advocate in a voting rights case 20 years ago. I hope one thing will be clear and this is maybe the time to make it clear, and that is that with respect to the societal problems of the United States today there is none which, in my judgment, is more tragic or more demanding of the efforts of every American in the Congress and out of the Congress than the removal of societal discrimination in matters of race and in the matters of invidious discrimination which we are unfortunately too familiar with. That, I hope, when these hearings are over, will be taken as a given with respect to my set of values. The second thing that I think must be said, with respect to that case of 20 years ago, is that I was not giving an interpretation 20 years ago. I was acting as an advocate, as a lawyer, in asserting a position on behalf of a client. Maybe it is unnecessary to add, but I know that you recognize that the identity of the Governor has nothing to do with the responsibility of the attorney general to bring a case. This voting rights case, by the way, did not arise during the administration of the Governor that you have just been referring to. It arose during the Peterson administration which preceded his. The issue that was presented to the State was, in one respect, similar to one we have already discussed. New Hampshire had a literacy test. The literacy test had never been used or, indeed, ever have been claimed to have been used for any discriminatory purposes whatsoever. There is some question as 74 to what its practical effect was in those days. But it had never been used for discrimination. There was one thing that we did know very clearly about the law in those days, and that was that the use of a literacy test for a nondiscriminatory purpose was constitutional under the 14th amendment. That had been litigated. So that New Hampshire's practice was, in fact, a wholly constitutional practice. The issue which the Governor requested the attorney general to raise was: Is it within the power of Congress, under section 5, to suspend a literacy test in a State in which there is absolutely no history or evidence of any sort, at any time, of its discriminatory use, in such a way as to be unconstitutional under the 14th amendment? That issue was not ultimately decided until about 4 or 5 months after our case began. That issue was decided in Oregon v. Mitchell, and as you indicated a moment ago, the Court under varying rationales—some under 14th and some under 15th amendment analyses—decided that it was, in fact, within the power of the Congress to deal with literacy and the discrimination frequently associated with it, as a national problem, and to suspend the test without regard to any particular history of discrimination in the States. But that case had not been decided at the time that ours was brought. Therefore, the attorney general at the time was in the position, No. 1, of being requested by the Governor to defend a constitutional action under existing State law. I think that was within the appropriate role of an advocate, and it did not represent a personal opinion, either by the attorney general or anyone else involved in the litigation about the ultimate scope of Congress' power under section 5.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, Judge, I must say that you keep coming back to the role of the Governor's lawyer. It is very clear to me that the oath of office that you take, as attorney general in the statute requires, and a part of your responsibility as attorney general is, your responsibility to the public trust and to the people.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. SO now we know where you are today. I think the question is, where were you then?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I think you have answered that question. Where we were then, where the attorney general was and where I was as an assistant attorney general in that case was in defending a State practice which the Supreme Court of the United States had ruled to be constitutional under the 14th amendment. I think that cannot be reasonably regarded as a derogation of the duty of the State to its people. It may have turned out to be a legal position which the Supreme Court of the United States ultimately rejected, but I think it is a defensible one.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you can see what the impact would have been if they had not rejected it, because then we would have had 50 different types of solutions which the Federal Government would have been attempting to deal with in a problem of major national concern. Let me go to the issue of the equal protection clause of the 14th amendment. The Supreme Court struck down virtually all laws that discriminate on the basis of race. On the other hand, they 75 used a weak standard, on other classifications, and upheld many laws under the rational justification test. Obviously they have drawn a distinction between trucks and automobiles and different laws for businesses of different sizes. Before the 1970's, the Supreme Court applied the weakest test to cases involving claims of sex discrimination. The Court accepted any rational basis for laws that discriminated against women. Under this approach women were routinely excluded from many occupations, including being lawyers, and many areas even serving as jurors. Beginning in the 1970's, the Court began to apply a higher standard of review to laws that discriminated against women. But evidently you did not agree with that standard. In 1978, you urged the Court to reexamine and perhaps eliminate the new standard. The issue here does not turn on the facts of the case. It involved the New Hampshire statutory rape law, and a man convicted under the statute claimed the law was unconstitutional because it did not apply to women, too. The Supreme Court refused to hear the New Hampshire case, but a few years later the Court, in another case, made clear that under even the higher standard of review, statutory rape laws were valid, even though they do not apply to women. What I find very disturbing is that in your brief you urged the Supreme Court to eliminate the higher standard of review. It seems to me that if you are genuinely concerned about the rights of women the obvious argument to make is that even under a higher standard review the statutory rape laws are valid. But you did not take that course. You suggested the Court should go back to the old law, which had permitted sex discrimination to flourish. In your brief, you call on the higher standard as amoebic, and you said it was in the "Twilight Zone" which are generally considered to be, I think, disparaging, perhaps even derogatory, ways of referring to a constitutional requirement that made an enormous difference in any discrimination against women in our society. So do you think the Court should go back to uphold statutes that discriminate by sex if there is any plausible reason for the distinction? *
David H. Souter
Nominee
(R)
Judge SOUTER. No. That is not my position. My position which was described in that, which was raised as an advocate in that brief, went to a problem which is a problem that is still with us. It is a problem which anyone who is concerned about sex discrimination and the appropriate standard of review, I think has got to face. What we are dealing with when we are asking what is the appropriate standard of review in an equal protection case is what kind of pragmatic approach should we adopt in order to find whether there is or is not a defensible classification? As you have pointed out, we have come up with, or the courts have come up with basically three tiers of review, so that the courts do not have to reinvent the wheel in every case. Economic matters get the lowest scrutiny, and racial matters get the highest. The difficulty which has bedeviled the middle scrutiny test, under which classifications of sex and illegitimacy have been examined, is the looseness of the test. 76 The rational basis test is fairly easy to understand. The strict scrutiny test is fairly easy to understand but the middle scrutiny test requires the court to determine whether there is a substantial relationship to an important governmental objective in deciding whether or not a discrimination, a classification on the basis of sex is appropriate. What is unfortunate about that standard of review is that it leaves an enormous amount of leeway to the discretion of the court that is doing the reviewing. The history of the middle-tier test illustrates this because we know there are examples, both State and Federal, in which the middle-tier test, in fact, has been treated as nothing more than the first-tier rational basis test—the lowest basis for scrutiny. I think the question that has got to be faced is whether there can be devised a middle-tier test providing a higher level of scrutiny for these classifications on the basis of sex and illegitimacy that does not suffer from the capacity of a court, as a practical matter, to read it back down to the lowest level of scrutiny, if it is inclined to do so. The trouble with the middle-tier test is that it is not a good, sound protection. It is too loose.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I—excuse me.
David H. Souter
Nominee
(R)
Judge SOUTER. No, I was just going to add, that has nothing to do with the question of whether sex discrimination should receive heightened scrutiny. I think that is to compare sex discriminations with common economic determinations seems to me totally inappropriate. The question is, what is a workable and dependable middle-tier standard for scrutiny.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In your brief, you talk about even eliminating that test.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I also talked about making the test more clear and eliminating this kind of protean quantity to it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And we will include the brief in the record.
David H. Souter
Nominee
(R)
Judge SOUTER. Surely. [The brief of Judge Souter follows:]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But you talk about clarification but you also talk about eliminating it. My question is, do you not think that statutes that discriminate on the basis of sex should receive very close examination.
David H. Souter
Nominee
(R)
Judge SOUTER. I do not think there is any question about it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I know my time is just rapidly going by. I mention these, Judge, because these are questions of fundamental equality and discrimination in all forms and shapes that have been, as I mentioned earlier, a matter of enormous concern and this country has experienced a lot of pain, a lot of tears, a lot of blood. I do not think the American people want to go back. We have seen—and this is subject to many members understanding—we have seen recent judgments and decisions that have been made by the Supreme Court which many of us feel have been a significant retreat from protections for both women and minorities. So it is important, at least for this Senator, to understand your recognition of the authority and the responsibility that we, in the Congress, have in terms of fulfilling our responsibility under the 14th amendment, clause 5, to make sure that when laws are necessary that we are going to pass them. And that we are going to have someone who is going to be sitting on the Court who is going to recognize the importance of interpreting them to deal with the problems of discrimination, and also who is going to give the adequate remedies for the enforcement of those laws. That is why I am most interested in understanding your views about it, but I appreciate your response to these questions. Thank you.
David H. Souter
Nominee
(R)
Judge SOUTER. I appreciate your concerns.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Before I yield to my colleague from Utah, I am a little confused, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU say there should be a standard between strict scrutiny and rational basis.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I suppose there has got to be. It seems to me impossible to say that unless you are within those basically four categories that get the very strict scrutiny—race, alienage, national origin, fundamental rights—that there is no appropriate level of review except that bottom level of review which is reserved for basically the most garden-variety economic distinctions. That kind of a position seems to me not to take into account the variety of the importance of the interests that fall between them.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO there should be a middle level to define it more clearly?
David H. Souter
Nominee
(R)
Judge SOUTER. There has got to be something other than just threshold level scrutiny.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
David H. Souter
Nominee
(R)
Judge SOUTER. The tough thing is in writing—I have been saying and I will say it again—the tough thing is in finding—is in writing a test that does not have the undue flexibility in the middle.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I thank you. I will yield to my colleague.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. 107 I think you have more than adequately answered the concerns that Senator Kennedy has raised with regard to these issues, but I would like to just clarify them just a little bit, if we can.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would like to just make sure I correctly have the procedural history, say, of the EEOC case, the case regarding the racial data collection and the briefs you filed in that case. As I understand it, Governor Thomson refused to supply the EEOC with the racial, ethnic data information on State employees about 1973.
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that was the first year, 1972 or 1973, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Who was the attorney general at that time?
David H. Souter
Nominee
(R)
Judge SOUTER. My esteemed former colleague, Senator Rudman. I would not want to suggest that Senator Rudman counseled any executive decision on that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO. I am not trying to embarrass Senator Rudman here. But the point is that as I understand it Senator Rudman was then the attorney general when the Department of Justice sued the State of New Hampshire for this information in 1975?
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And as I understand, his name and Assistant Attorney General Edward A. Haffer, were on the answer to the Federal Government's lawsuit and they signed that particular answer, if you can recall.
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that was correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Was your name on that answer?
David H. Souter
Nominee
(R)
Judge SOUTER. I do not remember. I do not specifically remember.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The answer is, no, I do not think you were.
David H. Souter
Nominee
(R)
Judge SOUTER. YOU are a better student of my history than I am.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The names of the same two persons, Senator Rudman and Assistant Attorney General Haffer appear on the State's memorandum in support of the cross motion for summary judgment which was filed, as I recall, December 9, 1975. I think you would agree with that.
David H. Souter
Nominee
(R)
Judge SOUTER. I recall that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The Federal district court, later in December 1975, then granted summary judgment for the Federal Government. Now, who filed the State's notice of appeal to the Court of Appeals for the First Circuit?
David H. Souter
Nominee
(R)
Judge SOUTER. My best recollection is that the notice of appeal probably had been filed before I became attorney general, but I would have to check the dates.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Again, it was Senator Rudman and Mr. Haffer, I believe it was. Now, I believe that the notice was filed on December 31, 1975, and your name was not on it?
David H. Souter
Nominee
(R)
Judge SOUTER. That is right. I was still deputy at that time.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. On what date did you become attorney general of New Hampshire?
David H. Souter
Nominee
(R)
Judge SOUTER. I think it was January 20 of the next year, 1976.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO by the time that you became head of the office of attorney general of New Hampshire, the Governor had re- 108 fused to comply with Federal data requests and the Federal Government had sued the State to obtain the data and the State's answer and legal arguments had already been fully set forth in the Federal district court and the State had lost in that court. And the State's attorney general, our current colleague, Senator Rudman, had already noticed an appeal and all of this occurred before you became attorney general.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. OK. Now, is it accurate to say that the State's appellate brief filed in the first circuit and the State's petition for certiorari, after the first circuit upheld the lower court, generally tracked the arguments made in the district court filing, while Senator Rudman was attorney general?
David H. Souter
Nominee
(R)
Judge SOUTER. That is my understanding.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is true. Now, I am pointing out who was attorney general at what stage of the proceedings. I am not trying to suggest that you should seek to disassociate yourself from the briefs. You clearly have not done that. But I just want this episode and its perspective because I think that has to be said. Then I would like to also add that you and then attorney general, my good friend Senator Rudman, you were both advocates and you have made that point here.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It was your duty to do the best you could for your client who was, in this case, the Governor and the State of New Hampshire. And as such, it is not only appropriate but it is a part of your responsibility to advance the plausible arguments to try and win the case, is that a fair statement?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I notice that these briefs asserted—I thought that this was fairly ingenious—that these briefs asserted the right to privacy for State employees not to reveal their racial identity and the briefs based it on Griswold v. Connecticut.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Which, of course, was a 1965 decision and has been raised earlier by our distinguished chairman.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, this argument, I might add for the benefit of my colleagues who are concerned that you might not be an advocate of the right of privacy, this argument extended far beyond Roe v. Wade with regard to the right of privacy, in those briefs cited, because the line of privacy cases cited grew out of the marriage relationship and the personal interest in procreation. But as a critic of the Roe y. Wade decision, which I am—I am not the least bit troubled by its inclusion in your brief. As an advocate, you have to make plausible arguments based on then current case law, and the principles you find there. I have to give my old friend, Senator Rudman, a lot of credit, and you as well, for having the ingenuity for making the arguments based upon Griswold v. Connecticut.
David H. Souter
Nominee
(R)
Judge SOUTER. We did the best we could, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU sure did. 109
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU were wrong, but you made very, very good arguments. That is all I can say. I would be more concerned if as a judge you had accepted that inventive argument, you see. Now, let me just ask one other question. When you did become attorney general, did your office comply and provide the racial and ethnic identification data in response to the EEOC surveys?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes; I think by that time an order had been entered against the State.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO once you had taken a shot at it and tried to change the law and, as best you could, with innovative arguments in representing your client as an advocate and as one who inherited the case from prior ingenious advocates—and I say that with respect—you complied with the law once you lost.
David H. Souter
Nominee
(R)
Judge SOUTER. When the case was over, it was over.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It was over. Well, I think that makes the case pretty well that it is improper for us to try to use your position as an advocate to determine whether or not you have—or to determine your own beliefs as you exist here today as the nominee for the Supreme Court.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think the Senator from Utah has convinced me we should not confirm Warren Rudman to the Supreme Court. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Actually, I think
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I would stipulate to that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU will stipulate to that. [Laughter.] Actually, I think he would make quite a great Supreme Court Justice. I would be worried every time a case came down, however.
David H. Souter
Nominee
(R)
Judge SOUTER. I was going to say I think he would be a great Justice, too. I thought it was a question of him against me, and under those circumstances. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I wouldn't push that if I were you. I know Rudman too well. With regard to the literacy case, the law of New Hampshire had basically, in your opinion, been upheld before you tried that case.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes; it had. The use of a literacy test for a nondiscriminatory purpose had been affirmed by the Supreme Court.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS I understand it, the New Hampshire Constitution required all voters to be able to read and write and understand English.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. It was a requirement, and I don't think this was the point of any question so far. But needless to say, no one had authority to suspend the imposition of that literacy test except a court of competent jurisdiction.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, as I understand it also, that law required voters to be 21 years of age, and it restricted absentee voting to people who were actually outside of the State, at least as I understand it.
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The Department of Justice took the position that the Voting Rights Act of 1965 outlawed all of these practices.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct. 110
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO when you and Senator Rudman took that matter on, you had current law that seemed to support you.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In addition, you were both, as advocates, as attorneys general, if you will, you were both required by your oath of office to uphold the New Hampshire Constitution and statutory law.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes; we were.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In fact, it would have been unseemly if you had not tried to uphold the constitution that had been enacted by elected representatives in your State.
David H. Souter
Nominee
(R)
Judge SOUTER. The only case, Senator, in which our responsibility would have been different from the way we saw it would have been a case in which the national and State constitutions clearly conflicted. And in those circumstances, our oaths would have required us, if we so believed—and we believed that there was no reasonable argument that could have been made to defend the State position—our obligation would have been to state that to the court. We did not find ourselves to believe that we were in that position.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. IS it fair to say constitutionally that at that time back in 1970, the constitutionality of the Voting Rights Act was being legitimately disputed at that particular time?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. That was being litigated, and it was a final determination on that, or at least on the issues that concerned us, came with Oregon v. Mitchell, which was decided, I think, about 4 months after our own State case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It was disputed, basically, on the principles of federalism arguments.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes; it was.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. Well, as I understand it, the district court itself expressed some doubt about the issue but said that the act was "probably" constitutional.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes; they were at an injunction stage, and they made that judgment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I also understand that you and Senator Rudman, then attorney general of the State of New Hampshire, complied with all aspects of the Justice Department suit as soon as the constitutionality of the act was settled by the Supreme Court.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. My recollection is that after Oregon v. Mitchell came down I believe there was a joint stipulation filed by the State and Federal counsel, which ended the case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. We can go through a lot of questions on the other point that Senator Kennedy raised with regard to the gender issue, but let me just say this: In its petition for writ of certiorari, your State in that particular case did refer to the Supreme Court's case laws evincing a "middle-tier" approach and asked the Supreme Court to make it clearer and more precise and, in addition, to uphold your statutory rape law.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, there is simply nothing here giving rise to any legitimate concern, as far as I am concerned, about you because the brief made reasonable arguments back in 1977 seeking to Ill construe precedent in a manner which would uphold your own State's statutory rape law.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. A May 5, 1987, opinion of the New Hampshire Supreme Court, which you joined in, made reference to the socalled middle-tier level of heightened scrutiny with respect to gender. And so, even on the bench, you acknowledged this middletier gender characterization.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think I have to say that I don't see any reason to criticize you on the basis of any of those matters. As a matter of fact, I see every reason to say that in the fight for principle, you may be wrong but you fight for it. You may be right but you fight for it. And you are an effective advocate and an ingenious representative of the people and, I might say, a clever and good writer of the law.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But that once the decision is made, you immediately followed those decisions.
David H. Souter
Nominee
(R)
Judge SOUTER. We did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I don't know what more we could ask for in somebody who is here sitting as a nominee for the Supreme Court of the United States of America.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I want to compliment you for it because, you know, let's just be honest. If we are going to start criticizing advocates because they advocated for people who may have been wrong, we would hardly ever have an opportunity of putting a criminal lawyer on the Supreme Court, or any other bench, for that matter. Nor would we have an opportunity of putting people who actually go to bat for some pretty reprehensible people in our society and try and uphold their rights, which is time honored, one of the most important obligations of any attorney worth his or her salt. So, you know, I don't see any problems at all with you as an advocate. As a matter of fact, I would be surprised if you had not advocated the way you did at the time. It would have been nice if you had known how the Supreme Court was going to rule in advance.
David H. Souter
Nominee
(R)
Judge SOUTER. I could have been a very successful lawyer.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, you are also going to be in a position where I think you are going to know how it is going to rule in advance in the future. That will be great.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, you have sat on a State trial court, a State supreme court. You have had tremendously broad experience. You have heard domestic relations cases, right?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Child custody cases?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Criminal law cases?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Divorce cases?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In fact, you have heard cases of employment law. 112
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU have heard cases involving almost every aspect of human endeavor.
David H. Souter
Nominee
(R)
Judge SOUTER. Anything that can come before a trial court of general jurisdiction.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes, and you have heard them in a more refined sense with arguments on both sides in the appellate courts that you have been on.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, I have.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. Well, having had that experience and now sitting on an intermediate Federal court, the highest court under the Supreme Court of the United States, could you describe for the committee the process by which you have reached your decisions in cases as they come before you? It is a generalized question, but I would like you to give us the benefit of how you go through deciding these cases.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, do you want me to refer to the trial court experience as well as appellate court?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO, just the appellate experience I think would be fine at this point, since it is closely parallel to the Supreme Court experience I hope you will have.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, the process is one which helps to discipline the mind as we go through it. I will leave aside the question of determining whether there should be discretionary review in a given case and start with the point at which the case is docketed before the court. In the normal course, sometime in the month before the case is going, to be argued, we get a set of briefs. My practice would be usually in the week or the weekend before the argument to read those briefs through, to make notes on the covers of the briefs of questions that I want to ask. And also, as a matter of curiosity, to try to settle a lawyer's argument, I engaged in a practice for the last couple of years of trying to get some sense in a way that I could measure of the effect of the oral argument on me, which would come after the briefs had been read. What I would do after I had read the briefs and noted the questions that I knew that I wanted to ask counsel, I would make a notation on my docket list, which I kept in my own file, of what I thought was the strongest position at the time, a kind of first, even prestraw-poll indication of where I thought I might come out on the case. Following the oral argument in the case, I would then compare my determination after oral argument with that first indication that I had put on the docket list. One of the things that I wish I had done before I came down here and I didn't think to do was to try to go down to my chambers and pull out my old docket lists and tabulate those points at which I had had some change of decision from the preliminary to the postargument decision. But I did change my mind in enough cases so that I remember there are enough little x's in the margin to indicate that the second look after argument suggested something that the first look before argument had not, to indicate to me that oral argument was a matter of substantial importance to me in deciding cases. 113 I would then, following that oral argument, of course, go through a preliminary discussion of the case and a preliminary vote with the other justices. We would decide how the case probably would come out, and the case in the New Hampshire Supreme Court would be assigned randomly. And if I got the case, I would then start working on the opinion. The way I happen to work on opinions was to ask a law clerk whom I would assign to that particular case to draft an opinion which followed a rough outline that I would give the clerk of the points that I wanted to cover and the basic reasoning that I wanted to go through. What I wanted the clerk to do was not to write me an opinion which I was necessarily going to use—because, in fact, on the New Hampshire Supreme Court I never did use a clerk's draft ultimately. What I wanted the clerk to do was, in effect, to make the run-through, help me with the research, reduce down the amount of reading that I personally had to do of the most important authorities, and to give a further preliminary look at whether there was some flaw in our reasoning that I was not catching or that the other judges in the majority with me were not catching. After I would get the clerk's draft back—we may or may not have argued about it in the meantime. But after the clerk's draft came back, I would then work my way through the briefs again. I would read the portions of the record sent up to us that were germane to the decision. I would then go through my own research process of rereading cases, even though I might think I was familiar with them, that the parties had relied on. At that point, I would make a final assessment myself as to whether there was any reason to change my view from what it had been when the court voted. If there was, I would either go back to the court or I would draft an opinion indicating the change and circulate that and explain why I was doing it. If there was no change, I would then write my own opinion. I would revise it an unfortunate number of times. And then I would let the clerk have a go at it again, and the clerk would try to tear it to pieces. Usually, another clerk would review it then, and ultimately it would circulate to the rest of the court, at which point I might or might not be in trouble. But that was at least the process that I went through up to there.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, that is good. I have other questions I would like to ask. I have about 10 minutes left, but I think I will just reserve that time and we will move on from here. But thank you, Judge. It has been great to be able to ask a few of these questions.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think it may be appropriate now for us to take a short break. But before we do, let me ask my colleagues to think about it while we are on break. We have 2% hours' worth of questioning left. I indicated we would stop around 6 o'clock, which is my preference this evening. But I would like my colleagues to think about that, and we will come in in the morning, and those who haven't had their first round would start off when we started in the morning. But I would just like to ask my colleagues to think about that while we take a break. We will have a recess until 4:30, at which time we still start promptly at 4:30. 114 [Recess.] The CHAIRMAN. The hearing will come to order. Judge, would you like a soda or some coffee or anything?
David H. Souter
Nominee
(R)
Judge SOUTER. No, I am fine. Thank you, sir. I was offered anything I needed out back.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We have done a little bit of a check here and I think this is consistent with my colleagues and the White House, I think we are all in agreement, which we usually always are. [Laughter.] That is that this is how we will proceed. I checked with the ranking member, Senator Thurmond, because we do not do anything he does not agree to, and this is what we will do: We will go next to Senator Metzenbaum, then to Senator Simpson, and then to Senator DeConcini, and we will stop after Senator DeConcini, and by that time we will have a consensus. Is there a preference when you wish to convene tomorrow morning, somewhere between 9 and 10? Before we close out, I will have that, because a lot of the press are asking. I do not—and we have discussed this—I do not intend to go late tomorrow afternoon. We will go into the middle of the afternoon, to the 5 o'clock area, but it will not be a late night tomorrow, and I expect, based on that, as we indicated before, have a reasonable prospect of finishing up early Monday and then begin with our witnesses, but we will see from there. Again, I thank you. You obviously have one advantage that most witnesses do not have, Judge. You are accustomed to sitting for a long time, and you
David H. Souter
Nominee
(R)
Judge SOUTER. That is the third lesson I learned as a judge. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU do it with great aplomb, your physical constitution as well as your understanding of the Constitution are matched.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, let me turn to my colleague from Ohio Senator Metzenbaum, for his questioning.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator Metzenbaum. Senator METZENBAUM. Thank you, Mr. Chairman. Judge Souter, I want to focus on your view of really what is at stake in the abortion debate. Now, we write the laws in Congress, the Court interprets the laws, but we all must be aware that the laws affect the personal lives and the hopes and the dreams of the people who must live with the laws we make. I want to start to talk with you on a personal level, not as a constitutional scholar nor as a lawyer. This year, I held hearings on legislation that would codify the principles of Roe v. Wade. I heard stories from two women who had had illegal abortions prior to 1973. They were women about your age. They told horrifying stories. One woman was the victim of a brutal rape and she could not bear raising a child from that rape along side her own two children. Another woman, who was poor and alone, self-aborted. It is a horrible story, just a horrible story, with knitting needles and a bucket. 115 I heard from a man whose mother died from an illegal abortion when he was 2 years old, after doctors told her that she was not physically strong enough to survive the pregnancy. I will tell you, Judge Souter, that the emotion that those people still feel, after more than 20 years, is very real, sufficiently strong to have conveyed it to those of us who heard their testimony. Each woman risked her life to do what she felt she had to do. One of those women paid the price. My real question to you is not how you would rule on Roe v. Wade or any other particular case coming before the Court. But what does a woman face, when she has an unwanted pregnancy, a pregnancy that may be the result of rape or incest or failed contraceptives or ignorance of basic health information, and I would just like to get your own view and your own thoughts of that woman's position under those circumstances.
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, your question comes as a surprise to me. I was not expecting that kind of question, and you have made me think of something that I have not thought of for 24 years. When I was in law school, I was on the board of freshmen advisers at Harvard College. I was a proctor in a dormitory at Harvard College. One afternoon, one of the freshmen who was assigned to me, I was his adviser, came to me and he was in pretty rough emotional shape and we shut the door and sat down, and he told me that his girlfriend was pregnant and he said she is about to try to have a self-abortion and she does not know how to do it. He said she is afraid to tell her parents what has happened and she is afraid to go to the health services, and he said will you talk to her, and I did. I know you will respect the privacy of the people involved, and I will not try to say what I told her. But I spent 2 hours in a small dormitory bedroom that afternoon, in that room because that was the most private place we could get so that no one in the next suite of rooms could hear, listening to her and trying to counsel her to approach her problem in a way different from what she was doing, and your question has brought that back to me. I think the only thing I can add to that is I know what you were trying to tell me, because I remember that afternoon.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I appreciate your response. I think it indicates that you have empathy for the problem. In your writings, as a matter of fact, you reveal real empathy for those who are morally opposed to abortion. For instance, in 1986, as a State supreme court justice, you wrote a special concurrence in a wrongful birth case called Smith v. Coat, outlining, in your words, how a physician with conscientious scruples against abortion—this is a quote: How a physician with conscientious scruples against abortion and the testing and counseling that may inform an abortion decision can discharge his professional obligation, without engaging in procedures that his religious or moral principles condemn. As a matter of fact, that was sort of dictum. That was dictum in the case, it was not necessary. As attorney general, you filed a brief in Coe v. Hooker, which emphasized that^ Thousands of New Hampshire citizens possess a very strongly held and deepseeded moral belief that abortion is the killing of unborn children. 116 That brief went on to conclude, It is not accurate to say that the moral feelings of other individuals and groups, both public and private, may not constitutionally interfere with a woman's otherwise unrestricted right to decide to have an abortion. I start off saying it is not accurate to say that. Now, you obviously indicated a concern for the doctor with conscientious scruples against abortion, you indicated your concern about feelings of individuals and groups, both public and privately. My concern is do you have the same degree of empathy for the woman who must make a difficult decision when faced with an unwanted pregnancy. That is really the thrust of my concern, and I think the thrust of the concern, frankly, Judge Souter, of millions of American women, not really wanting to know how you will vote on a particular case, but wanting to know whether you can empathize with their problem.
David H. Souter
Nominee
(R)
Judge SOUTER. If they were to ask me whether I could, I would ask them to imagine what it was like to be in that room that fall afternoon that I described to you. That is an experience which has not been on my mind, because it has not had to be, but I learned that afternoon what was at stake. I hope I have learned since that afternoon what is at stake on both sides of this controversy. You mentioned my opinion in the Smith v. Cody case. I do not know whether that was dictum or not. I did not think it was at the time. What I thought I was addressing at the time was as moral dilemma which had been created not unnecessarily, but which had necessarily been raised by the majority opinion of my court. If I were to generalize from that concurrence in Smith v. Cody, it would be that I believe I, indeed, can empathize with the moral force of the people whom I addressed, and I can with equal empathy appreciate the moral force of people on the other side of that controversy.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. My staff just points out to me that each year almost 3.5 million women face that problem of an unwanted pregnancy, much like the woman that you mentioned. Everybody talks about Roe v. Wade as a case. I do not think of it as a case. I think of it as those witnesses who came before my committee. I think of it as women generally. I think of it as my own daughters, who are married, and I can imagine a situation where they might need to have or want to have an abortion. Other women less fortunate than they would not be able to go to a different State, if there were no law. I think about what would happen if there were no constitutional protection, and I ask you not how you vote on the case, but what are your thoughts as to what would happen to those women in this country who might be able to go, if they had the money, to State x, but not get an abortion, not be able to stay in State y, because that State prohibits abortions. My concern is what does Judge Souter think about this moral, and it goes beyond being a moral question, it becomes a really heart-wrenching decision that actually goes beyond morality, it goes to the very heart of living, the kind of living that people experience.
David H. Souter
Nominee
(R)
Judge SOUTER. I think I have to go back to something that I said to all of the members of the committee when I was speaking at the very beginning, before my testimony this afternoon. If I have learned one thing, I have learned that whatever we do on any appellate court is not, just as you said it was not, just a case. It affects someone and it changes someone's life, no matter what we do. One of the consequences undeniably of the situation that you describe would be an inconsistency of legal opportunity throughout this country. Some States would go one way, others would go another. Some would fund abortions, some would not fund abortions. There is no question that that is a consequence that has to be faced. I do not think that, any more than any other given fact, as tragic as that fact may be, is sufficient to decide a case. We can never decide a case totally that way, and I know you are not suggesting otherwise. But you remember what I said is the second lesson that I learned as a trial judge, that knowing that any decision we make is going to affect a life and perhaps many lives, we had better use every resource of our minds and our hearts and every strength that we have to get it right. It is the imperative for conscientious judging.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge, I think you are a very sincere man and I think you are a very moral man. What is bothering me, maybe some others as well, is that you have already expressed concern for the conscientious scruples of physicians in connection with abortion, you have expressed concern for the moral feelings of others in connection with abortions. The real concern is, would the conscientious scruples of a physician or the moral feelings of others override a woman's decision when and whether or not to have 118 this committee have finished examining it, I will ask you to judge me on that basis. Senator METZENBAUM. We will. In Griswold v. Connecticut, Justice Douglas articulated the very important privacy concerns that were at stake if Connecticut fully enforced its anticontraceptive statute. He asked, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." This idea is obviously repugnant to everyone. Surely, the Court has to concern itself with the problems of enforcing statutes regulating reproductive rights. The Court must be willing to reap what it sows, if it overturns Roe and permits States to once again criminalize abortion. I do not have to tell you, until last November, what was occurring in Romania, the draconian regime, the manner in which they enforced their criminal abortion laws, each month police would enter factories to examine women to determine if they were pregnant. No question, that would not happen in this country. Romanian women who had miscarried were interrogated to make sure they had not had an abortion. We know that will not happen. But if the Supreme Court were to overturn Roe and a State passed a statute criminalizing abortion, would it then be constitutional to put a woman in jail for obtaining an abortion?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the only answer to that, Senator, is a reference back to the laws that preceded Roe. We know that in my own State there were misdemeanor statutes on the book for procuring an abortion. And it was exactly such statutes as that that Roe rendered unenforceable.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Excuse me, I did not mean to be rude.
David H. Souter
Nominee
(R)
Judge SOUTER. I was going to say it was exactly such statutes as that that Roe rendered unenforceable.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW, according to news reports at the time you were attorney general, you opposed repealing New Hampshire's criminal abortion statutes which had been passed before Roe v. Wade. The legislative archives of the bill that would have repealed the criminal statutes contain a memorandum from the attorney general's office outlining the effects of Roe v. Wade. Although it is unclear when the memo was written, it was likely written soon after Roe was decided in 1973, although I am not certain about that. At that time, you were deputy attorney general. The memo concluded that "the effect of the Supreme Court decision is to invalidate RSA 585:12, 585:13, and to make RSA 585:14 a nullity." Are you familiar with that memo?
David H. Souter
Nominee
(R)
Judge SOUTER. I do not recall the memo, no.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you agree then, or do you believe now that the Supreme Court's decision in Roe rendered the New Hampshire criminal statutes unconstitutional?
David H. Souter
Nominee
(R)
Judge SOUTER. The fact is I cannot give you a categorical answer to that. To begin with, it is an issue that I have not even given thought to for, I guess, 17 years and I do not recall the extent to which I may have been aware of that memorandum at the time. The further reason for the difficulty and a categorical answer is that you may recall that there are questions about the effect of Roe 119 or the Roe-type decisions depending on the form of the State statutes in question. Now, I am going to say something from memory and it may be inaccurate, so I want you to take it with that disclaimer. But my recollection is that the Court's indication of the enforceability of the statute in Roe v. Wade was different from its indication of the enforceability that came out of Doe v. Bolton. Quite frankly, Senator, without a reexamination of precisely what they were saying on whether the statute remained partially enforceable to the extent allowable under Roe v. Wade as opposed to becoming totally unenforceable, I would have to go back and reread those carefully and parse the New Hampshire statutes, which I have not done. It is—in one sense I think we are inclined to say, well, that ought to be an easy question, and I do not think it is an easy question.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I will change the subject. The day after President Bush nominated you to the Supreme Court, White House Chief of Staff John Sununu called in an advocate for the right, conservative movement and said that you would—to assure him and the right, that those on the right would be very happy and that Bush selected you over better known conservatives. He called a man by the name of Pat McGuigan. Mr. McGuigan works for or is involved with something called the Coalitions for America; Paul Weirich, national chairman; Eric Licht is the president; library, court/social issues; Stanton, defense and foreign policy; Kingston, budget and economic policy; 721 Group, judicial and legal policy; Siena Group; Catholic Coalition; the Omega Alliance; Young Activist Coalition; Resistance Support Alliance; Freedom Fighter Policy; Jewish Conservative Alliance. At that meeting, according to the memo that Mr. McGuigan then wrote to Paul Weirich and a number of others, it was stated that Sununu asked, how are you doing? I replied, well, John, you guys could have hit a home run if you had picked Edith Jones, a Texas judge. Instead, you hit a blooper single which has barely cleared the mitt of the first baseman who is backpedaling furiously and almost caught the ball. Sununu smiled and replied, Pat, you are wrong. This is a home run and the ball is still ascending; in fact, it is just about to leave Earth orbit. It was not too long after that the Coalition for America announced they were fully supporting your nomination. That original memo that I mentioned specifically provided that there were to be absolutely no leaks allowed. Judge Souter, what does John Sununu know about you that we do not know? Can you tell us what conversations you have had with him or with others at the White House either before the nomination or since the nomination concerning any matter of issues, points of view, that make it possible for Mr. Sununu to say that it is a home run; the ball is still ascending?
David H. Souter
Nominee
(R)
Judge SOUTER. I have never discussed the issue in question with Governor Sununu. After Governor Sununu came to Washington, I did not see him until one day last December. I think it may have been around the 11th or the 12th. I was in Washington that day in 120 connection with the nomination or the possible nomination to the court of appeals. The Governor invited me to lunch and I did have lunch with him. We did not discuss any substantive issue that his memorandum referred to. We largely, as I recall, talked politics in New Hampshire. I did not see the Governor again until the day before this nomination. I did not have discussions with him on the issue that you referred to.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. HOW about on other issues? Did you discuss other issues with John Sununu, or others at the White House or connected with representing the White House?
David H. Souter
Nominee
(R)
Judge SOUTER. I was going to just try to establish how far back in time we want to go with Governor Sununu.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I did not mean to interrupt you.
David H. Souter
Nominee
(R)
Judge SOUTER. NO. I just wanted to know how far back you want to go in time? To the beginning?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, anything that would give him sufficient knowledge to this kind of assurance and to call in the representatives of the far right and to assure them that you are going to be OK.
David H. Souter
Nominee
(R)
Judge SOUTER. I have not discussed that issue or given any assurance to Governor Sununu. I presume that Governor Sununu was drawing a conclusion based on what he understood to be principles of judging* But I can assure you that I gave no assurance to him at any time on that matter. And I did not discuss that matter with him at any time.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you have any discussions with him or any other persons at the White House concerning issues that may or may not come before the Supreme Court?
David H. Souter
Nominee
(R)
Judge SOUTER. The only discussion that I had with anyone at the White House in connection with this nomination or, for that matter the circuit nomination, was my conversation with the President which I think lasted about a half an hour on the afternoon that he announced his intent to nominate me. He asked for no assurance on any subject.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And at the time you were appointed circuit court of appeals judge, did anybody in the White House inquire of you concerning any of your political views, or views concerning matters that might come before the Supreme Court?
David H. Souter
Nominee
(R)
Judge SOUTER. NO, Senator. The only conversation I had or conversations, I should say, plural, with anyone at the White House at that time, was during the course of the lunch that I mentioned. Governor Sununu—the lunch was in Governor Sununu's office. He was there and his assistant was there; the Governor's legal counsel, Mr. Gray, and Lee Liverman, who is on his staff. I was not asked for any statement of position or assurance on any issue in that conversation.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you. Senator Biden, how much time do I have left?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I do not know. You have 1 minute. That is just about enough time to call Governor Sununu, who is doing a fundraiser in Delaware for my opponent. Maybe we can get a hold of him. 121
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO I understand that we will be in several rounds?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes. What we will do is this. We will have those Senators who have additional questions ask them tomorrow afternoon and/or Monday morning, or whatever the appropriate time is. Yes, there will be an opportunity.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I do, Judge Souter, wish to inquire of you concerning church-state issues, but time obviously does not permit it at this moment. Thank you very much for responding to my questions.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator Simpson. Senator SIMPSON. Thank you, Mr. Chairman. We lawyers often are out doing our business, like correcting the record. So I did want to—you will notice Senator Biden and I this morning, as I pungently gave a comment about his quote and he pungently spliced it back together. So I thought we would just put the whole thing in because we both said exactly that, and it is in the same paragraph. And we have already had that answered, I think, now. But it is clear that what I said and what Senator Biden said are the exact quote with regard to the specific attitude of questions. So I just wanted to get that on record, because my staff was not on vacation. They were here laboring diligently. They were not at Rehobeth or anywhere.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, mine were not in a hole clawing to get this information, or however you mischaracterized it.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I was talking about those poor law professors. I think that was the part I should have clarified. Diana and the staff were doing their work, but the poor law professors and the academics, they were clawing and scratching. We have to realize that they have had an arduous summer and an arduous August, without question.
David H. Souter
Nominee
(R)
Judge SOUTER. If they were reading my opinions, they were.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, we all did a little of that. In any event, your remarks when you spoke with hardly or nary a note at 2 p.m. today was very impressive. I think to me, as a person who practiced law for 18 years in really what I thought of as the real world—and it was; you know, I have represented some real weird people, and did some real weird cases with some weird results, too, I can tell you that. [Laughter.] So the thing that impressed me is to hear you able to describe yourself and then hear you describe answers and form answers to pretty piercing questions from Senator Biden, Ted, Howard, Orrin, Strom. All of those—your answers come back with the lucidity of very impressive degree. I have always had the peculiar view that legislating should be done in a way—as I said earlier, in a way that is understandable to the governed. And certainly I always had a view of the law practice that if your clients could not understand what you had drafted for them, what was the purpose of practicing law? I know that is a screwy view, but it was mine. In other words, if the client did not know and looked at a contract that you had 122 drafted and did not know what it said, what is the purpose of the law practice? And I think as a judge, writing opinions, what greater purpose of a judge is to write an opinion that the public can understand or to answer a question in a way that the public can understand, not just from some intellectual level, but from the gut level, from the commonsense level? And that is what has been most impressive to me—to hear you respond to these questions in a way that is extraordinarily understandable
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON [continuing]. And showing, in a hackneyed word in these times, sensitivity and empathy. I know my friend, Howard Metzenbaum and I know my friend, Ted Kennedy, and we get to know each other pretty well in 12 years, and Joe Biden and Orrin Hatch and all the men at this table, and our fine ranking member. And we do know each other pretty well after 12 years and going through these kinds of exercises. We have been through some grinders here. The Bork thing was extraordinary in its, you know, intensity, in what occurred, and I do not see any portent of that at all here. Yet, my friend, Ted Kennedy, speaks with power as he gets into those issues of—he and I are chairman and ranking—and it was more fun when I was chairman and he was ranking, but we have done tough work together on immigration, refugees, things filled with, I often say, emotion, fear, guilt, and racism. None of us on this panel are racists. I do not know any racists in the U.S. Senate. So it is always something that when you bang around the edges of it, you almost want to ask the question, David Souter, Are you a racist?
David H. Souter
Nominee
(R)
Judge SOUTER. The answer is, no.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. A crazy question to ask, is it not?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, far be it for me to say that a question from you, Senator, is crazy. [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. NO, do not. Just stop right there.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But we all agree.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. DO not listen to them, just go ahead.
David H. Souter
Nominee
(R)
Judge SOUTER. In a way, I think that answer might have been impressive to some people if I had grown up in a place with racial problems, and some people have pointed out that I did not. The State of New Hampshire does not have racial problems. So you can ask, well, what indication is there, really, as to whether you mean it or not. And you did not provoke this thinking on my part by your question immediately because I thought of it before I came in here. I can think of two things to say. The first is something very personal and very specific to my family. In a way, it surprises me when I look back on the years when I was growing up that never once, ever in my house that I can remember did I ever hear my mother or my father refer to any human being in terms of racial or ethnic identity. I have heard all the slang terms and I never heard them in my house. Now, as much as I esteem my family, I do not want to try to make them a race of saints, but the fact is, in that respect, they 123 were perfect. They were perfect in some other ways, too, but they were in that respect. And if there is a kind of homely vision for America, in my mind, it is simply the vision of my home. And I have lived long enough and I have lived outside of my home long enough to know what the difference is. I am glad that I am conditioned by my beginnings and I am glad that I do not have to overcome them. I am glad that I can have an aspiration for America which is as good as the circumstances that I came from. Another thing that occurred to me, and it is equally personal— and I think that I will not offend the two people involved by saying this—two of my closest friends in this world are sitting in the row behind me. You have already heard from Warren Rudman. I heard Warren Rudman talk about what it was like to be discriminated against when he was a kid because he was Jewish. Somewhere out there, there is somebody who is discriminating against a friend of mine who is close enough to me to be a brother. And there is another friend of mine in that category in the row behind me; you haven't heard from him today. His name is Thomas Rath. I can remember Tom Rath telling me once years ago—I don't know why, I don't know how it came up. I remember him telling me about his grandparents, and his grandparents remembered the days when there were help-wanted signs up around the city of Boston that said "No Irish need apply." And that meant them. So if you want to know whether I have got the vision, if you will, behind the answer to my question, I will be content to have you look to my friends.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I come from Wyoming, and people think that I don't have the sensitivity about race. I remember I was at a baseball game with Coretta Scott King. It was the World Series in Kansas City several years ago, and she said, "I don't know much about baseball." I said, "Coretta, you will when I finish with you." So when we finished the game, she said, "Now, I want to ask you what you know about racism in Wyoming. And how many blacks are there in Wyoming?" I said, "Well, probably less than 1 percent. I have a large Hispanic population of 11 to 12 percent or something of that nature, and a native American population." Funny how you can be from a small area and somehow be known as not sensitive enough. I don't know what that is, but it is not real. And on the immigration reform business, was I sensitive enough to Hispanics? I don't know. Three million of them have come forward under that bill, and they are now no longer living in some illegal subculture, and that just pleases me immensely—Hispanics and Germans and everybody else, all the way up and down the line. So it isn't just one. This is a line of questioning that destroyed Robert Bork because all he had done was be a judge on a Federal district court, just like you, for 5V2 years, and he did 106 opinions, and 6 of his dissents became majority opinions of the U.S. Supreme Court, and he was never overturned. And he was turned into a racist right here—in a different room—also a sexist, also a violator of the bedroom, also a sterilizer of women. That is what happened right here. I was here. You don't have to like him or not. You don't have to get into anything else. That happened. 124 So, you know, that is something we must be very careful about. That is not a good trait for any of us to say that somehow if someone does not agree with our views they are somehow, you know, racist or poll taxers or whatever or whatever. And that was uncomfortable. I didn't mean to drag that out, but it was all false. There was nothing in the background of the man that proved up one bit of it, and that is pretty tough stuff. That could happen to any of us. We saw John Tower, you know, with ballerinas dancing on pianos and things that were all fake. We had to go look at the FBI report on our colleague and found that witness T-4 said this. I said, Who is T-4? Some disgruntled former somebody? And that could happen to each one of us. That is what this committee, I think, should pride itself on, and we do pride ourselves in trying to assure that we do it right. I think we are going to do it right. The issue of abortion, that was a powerful, powerful response to my friend from Ohio. Those were not only eloquent answers; the questions were eloquent by Howard Metzenbaum. And he and I don't always agree, but I do enjoy that ornery rascal. And he is as spirited as I am in his causes, and I have enjoyed him in many ways. And the thing that—I guess I could almost ask that same question just the way he did. I really would, because it comes from real life. What we are dealing with here are real live people. I went through the abortion debate in 1975 when I was a State legislator. It was one of the most grueling, powerful, impressive debates of the State legislature that I had ever been involved in. From that and from my practice, I came to the determination that a woman should have the choice, and that I as a man and especially as a male legislator—a spouse would be different. That would be a whole new scenario God knows one would never want to go through. But as a male legislator, what was I even doing in the decision process, especially with, you know, a woman I remember— since we are speaking in some rather powerful little personal reminiscences of the woman who sat there and said, "I have five marvelous children, and now I know that if I am going to have the next one and I am pregnant, I am going to lose my mind. And I am here because you are a lawyer, and I am asking you what I should do." You know, I sat for over 2Vz hours with that lady, and she eventually made the decision to do that. And she also said that she, as I said, would destroy herself. She did not destroy herself. I had yet another situation that did destroy herself in that situation. So, really, it is so unfortunate that we get into this issue of extremism on both sides of this issue. In any event, there are two or three things that I would say, and then I do have a question. But I think you have said several times in just this short day that all activities and decisions and the things you have done as a judge or a lawyer, you have realized that the most paramount feature of it is that it has some impact on another life, somebody's life, some other person.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And that is your deep feeling. You have said that. 125 I would like to ask you a question. What else have you done in that little community where you grew up and where you practiced and what you did to tie you closer to the human condition? You have talked about a hospital board. You talked about these other things. What is it you are most proud of in the things you have done that would disclose the man I think that the American people are seeing here today? You have given us some. Who are you?
David H. Souter
Nominee
(R)
Judge SOUTER. If I had to pick one thing—you have already mentioned it—it would be that hospital board. It was like a second occupation for me. I went on it the way lots of people went on it. Somebody asked me to go on it. You say, well, why do you do it? Why do you do any of those things? You do it because you are paying your dues. You are in the group that is lucky. And the people in the group that are lucky have got an obligation to pay it back. And so we go on boards like that. Then the activities start taking sort of lives of their own. I went on in an unassuming way. I was a quiet trustee for a couple of years. Sooner or later, it became obvious that we were outgrowing a building, and in kind of an innocuous way, a lawyer who was a mentor of mine said, "Well, why don't you go on the planning committee and just make sure we don't do something foolish?" And I said, "Well, yes, I will do that." By increments, by short steps, I finally found myself back in the years when I first went on the superior court as the chairman or, as we called it, the president of the board. And I saw all sorts of conditions of people in doing that. We dealt with a regulatory bureaucracy because we could no longer just go out and build what we thought we needed. We dealt with a health care bureaucracy because whatever we built was going to affect the cost of health care throughout the State of New Hampshire. We dealt with the fact that there were people out there who did not have health insurance and who might or might not be eligible for governmental health benefits. Once a year, we all trotted around to the town meetings. I remember standing up in the town meeting of my town telling how much money the hospital had given away in free care in that town every year because there was a neighborhood tradition around there that the towns would chip in to offset the costs that the hospital would otherwise have to drain out of an endowment or recoup by raising rates to the people who did pay. So we all knew exactly what it was costing. We knew what it was costing our neighbors. We knew what health care was costing the people who couldn't pay for it. We knew what it was going to do to the cost of health care throughout the State when we had to build a building. And we finished, ultimately we finished the job. I am glad I did that. There are many other things, I suppose, that I might have done that would have given equal satisfaction. The reason it gave satisfaction I think is simply that in ways I never dreamed it would it was paying the dues. And I had a lot of dues to pay, and I got a chance to pay them.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And you paid those dues not only through that service but through pro bono activities, some of which you have described earlier today. 126
David H. Souter
Nominee
(R)
Judge SOUTER. I did some back in the time when I was in private practice. Of course, I couldn't do that as a public lawyer.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I have just a few minutes left, and I had a great temptation to ask about an issue. But since I have been railing about that most of the day, I can't really do much of that, but I will. That is the issue—here is the kind of tough stuff I would love to get into, but I think that you can see that 1 year with one nominee we will want to ask a lot of specific questions, and 1 year with another nominee we won't want to ask any. And we have all done that. I could bring out the quotes, seeing my friend from Massachusetts. But how about gun control? See there, there is one. There is a sign in Massachusetts on the border that says if you have a gun in your possession it is a $100 fine. And in Wyoming you carry a gun in the gun rack of your pickup truck. Now, that is a pretty big difference in the United States, and that is the kind of thing that you are going to be dealing with. And we fiercely defend the right to keep and bear arms, and my friend from Massachusetts has an ever more intimate and personal reason why it is deeper than anything any of us have ever hit on that one. Talk about crazies with arms, versus the legitimate citizen with his arms. So there is one for you. I guess I am not going to worry about you at all. I have read, and my President appointed you, and I think you are going to be a splendid, splendid judge. I can't wait to see you get on there with some of those others, get into some discussion. I wish we could record those. But the thing that is most critical and most important and the most exciting is that you are a listener. You are a listener, and that is the key. That is the very key. I would have very great difficulty voting for a politician who was not a listener or a judge, if I had the opportunity
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think you would have a great difficulty finding a politician who was a listener.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That is right. Finding one would be the tough part.
David H. Souter
Nominee
(R)
Judge SOUTER. That is why Senator Rudman and I have always gotten along so well. I listen. [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. We do know the propensities of your former employer.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. We do understand that, let me tell you.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Indeed we do. But that is so critical. And politicians need that and judges need that, and it is so important. That is impressive to me because there are people we deal with every day in this place, of either party, where you are talking to them and their eyes are just glazed over and you know they are not listening to one thing you are saying. You almost want to say, "Are you in there? Is anybody home back there? Are you just waiting to get out and get your suit boiled by the camera that is out in the hall? What are you doing?" And so enough. But I thank you for sharing a bit of yourself and your philosophy and your sensitivity—that is certainly not an overworked word and certainly a most appropriate one—and yourself. Thank you, Mr. Chairman.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. 127 The Senator from Arizona, Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge Souter, I was not going to mention the previous nomination hearing, but my good friend—and, indeed, he is a distinguished scholar—from Wyoming brought the Bork hearing to mind. So far, I don't think anybody sees any comparison at all. For instance, with regard to the equal protection clause, Judge Bork made some very strong statements about the Supreme Court's decision banning literacy tests as a prerequisite to voting. He stated that this decision, and another which abolished poll taxes, were very bad, indeed pernicious, constitutional rulings. I haven't found any similar statements like those you have made. Judge Bork's statements were written, and he admitted that he said them. You don't have any such statements some place that we have missed over the past 5 or 6 weeks, do you?
David H. Souter
Nominee
(R)
Judge SOUTER. NO, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I didn't think so. There is a great distinction here in these hearings as far as I see, and there was no racist approach toward Judge Bork at all—at least by this Senator, and I don't think there was by anybody on this committee. And I want that record at least explained from this Senator's point of view. There was a disagreement, a very strong disagreement, and that is what this process is all about. Chairman Biden touched upon the interpretivist approach, you stated in a recent interview on its relation generally as to the Constitution, and you said in an interview that you are not looking for original application, but, instead, are looking for meaning. Then, Senator Kennedy went on to the sex discrimination cases in that area, and I take it that it is fair to say, from your discussion with Senator Kennedy, that you have no qualms whatsoever about the existing three standards on discrimination cases vis-a-vis the equal protection clause that the Supreme Court has clearly laid out as the guidelines when they take up discrimination issues. Is that a fair assessment?
David H. Souter
Nominee
(R)
Judge SOUTER. That is a fair assessment. The only concern that I have expressed, and Senator Kennedy alluded to it in the course of his questioning, is whether any of us could do a better job in trying to articulate the middle-tier scrutiny. As I said, what the courts are trying to get at, whether it be the Federal courts under the 14th amendment or the State courts under their own equal protection guarantees, is a way of approaching classifications which the law makes which is going to, in effect, weight the State's interests or channel the question of trying to weight the appropriate State interest to determine whether there is a real justification for the classification in question. Trivial interests are not going to require tremendous overbalancing by the interests of the State. Fundamental interests do. What the courts are doing by coming up with a three-tier test is in trying to give some structure to this enterprise, so that in each case the courts at least can begin, and particularly the trial courts, can begin by saying, all right, we know roughly what the State counterweight must be, once we know how the particular private interest is to be classified, and the concern, as I said a minute ago, with the middle-tier test—and, by the way, we use it in New Hampshire, so I have expressed this concern only in terms of the 128 State Constitution in my own judicial writing—is whether we can come up with some kind of a standard which is less subjective, because the experience has been that the middle-tier standard tends to shade down into the first-tier standard, and if that happens, somebody with a classification claim is going to get shortchanged.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Sure, and there is no reason why it cannot shake up to the highest scrutiny standard, either, is there
David H. Souter
Nominee
(R)
Judge SOUTER. No, the
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Excuse me—particularly if the sex discrimination case is, as you say, fundamental?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, the Supreme Court's approach to that has been—and it was described very concisely in the Court's opinion in the Kleburn v. Living Center case—is to indicate that there were two factors foremost in their mind in putting the sex discrimination classifications in the middle-tier category. One was the likelihood that a classification might really have a legitimate reason behind it, a legitimate basis, and the case law, the experience with the cases coming up in the Court's view has simply been that there is greater chance that there may be a legitimate basis for some sex classification, in other words that it may not amount to invidious discrimination than would be the case in the racial area. The second thing that the Court has pointed to and, as I recall, did in the Kleburn case, is the likelihood that individuals against whom there really has been a discrimination have some effective political process by which to counter it, as well. And the Court, if I understood or recall correctly, the Court's opinion, the indication was that, in the area of sex discrimination, there was more likely to be some political responsiveness than our history has shown in racial discrimination, so that is why they put it in the middle.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, I know it is difficult to go back over all your cases—and I have read a number of your cases, a couple dozen of them during the recess—in one case State v. Dionne, you dissented from the majority, because you believe that the State constitution is required to be interpreted and understood strictly in the sense in which it was used at the time of its adoption. Do you remember that?
David H. Souter
Nominee
(R)
Judge SOUTER. I do remember that, yes, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. My concern there is with what I see as a very rigid use of original intent, at least in this dissenting opinion, and how you would apply this approach to the equal protection clause, in light of what I think is very encouraging—maybe because I agree with it—your explanation of the equal protection clause, particularly as it applies to race and sex and economics. How do you apply that particular dissenting opinion?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think the first thing that has to be understood about that dissenting opinion is that, whether it was written clearly or not, I referred to the test of—I believe I referred to the test of original meaning or original understanding of the terms. I have tended to shy away from the use of the term "original intent" in describing any approach of mine. I have done so, because the phrase "original intent" has frequently been used to mean that the meaning or the application of a constitutional provision should be confined only to those specific examples that were intended to 129 be the objects of its application when it was, in fact, adopted. It is a kind of a
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Excuse me. Original intent, then, in what you are telling me is not applicable to your interpretation of the equal protection clause in the 14th amendment?
David H. Souter
Nominee
(R)
Judge SOUTER. That is exactly right. I do not believe that the appropriate criterion of constitutional meaning is this sense of specific intent, that you may never apply a provision to any subject except the subject specifically intended by the people who adopted it. I suppose the most spectacular example of the significance of this is the case of Brown v. Board of Education. That case, I am glad to say, we may safely say that that particular principle is never going to come before the Court in any foreseeable future in my lifetime and we can talk about it. The equal protection clause was appropriately applied in Brown v. Board of Education. If you were to confine the equal protection clause only to those subjects which its Framers and its adopters intended it to apply to, it could not have been applied to school desegregation. I think it is historically accepted by people of all schools that it is a historical fact that those who proposed and those who adopted the 14th amendment never intended to require integrated schools. The Brown opinion itself alludes to that. The reason Brown was correctly decided is not because they intended to apply the equal protection clause to school desegregation, but because they did not confine the equal protection clause to those specific or a specifically enumerated list of applications, the equal protection clause is, by its very terms, a clause of general application. What we are looking for, then, when we look for its original meaning is the principle that was intended to be applied, and if that principle is broad enough to apply to school desegregation, as it clearly was, then that was an appropriate application for it and Brown was undoubtedly correctly decided.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I agree with you, Judge, and I think you highlight the difference between this hearing and the discussion that we have had with other nominees who have been here, some of whom have been approved and some that have not. You deal with the principle of the equal protection clause, and not its original background. As you pointed out, you cannot find a justification to apply the clause to segregated schools if you apply original intent.
David H. Souter
Nominee
(R)
Judge SOUTER. That is true.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me ask you this, Judge: Justice O'Connor in a case, Mississippi University for Women v. Hogan, stated that sex-based classification should be subject to the same standard of review, regardless of whether they harm women or men. Would you agree with that, in general, not with the Mississippi case, particularly, but
David H. Souter
Nominee
(R)
Judge SOUTER. I can think of no reason to disagree with it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. I read that case carefully and I was impressed with the logic and the writing of Justice O'Connor in analyzing that and coming to that conclusion, and I am pleased to hear your answer. 130 Justice Marshall, on the other hand, has his own distinctive approach to equal protection claims that you may be more familiar with than I am. Marshall believes that the Court does not apply a three-tier approach to equal protection claims, but, rather, "a spectrum of standing as to the review." Thus, the more important the constitutional and societal weight given to an interest, the greater the scrutiny that should be applied. How do you approach that Marshall thesis?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, there is no question about the correctness of the proposition, that the more significant the interest, the greater societal counterweight would be required to justify an interference or an abridgement of that interest. I think the question which this kind of a debate raises is whether it is useful to identify three places on the spectrum as a convenient basis for classification, and those who want to retain, as it were, the whole spectrum approach I think are saying to us in so many words, you are applying instruments that are too blunt when you try to identify just three points and say everything has to fit into one or the other of these three slots. I will confess that I have not come to the point, even though I have worried sometimes about whether we were articulating the middle-tier test as well as could be done, and maybe we are, but even though I have worried about that sometimes, I have not gotten to the point of saying we ought to scrap the whole notion of three tiers and just take, in effect, every issue as an original balancing issue in the first instance.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. But do you agree that the intermediate or middle test is not satisfactory for all of those cases that come before that seem to fall into that area, that you need to look at that middle tier more carefully and more on a case-by-case basis, to see whether or not that is really applying the equal protection clause in the manner of the history of that clause and its interpretation?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I am certainly satisfied that it would be too blunt a set of instruments, just to have one test at the bottom and one test, if you will, at the top.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I get a feeling from the little bit I have read of Justice Marshall that he has the same quandary you do about that intermediate or middle test, that he is concerned that it falls down, instead of falling up. Let me turn to another subject, Judge. Over the last few terms of the Supreme Court, almost 50 percent of the Supreme Court cases have involved issues of statutory interpretation. Your judicial experience has been in a State court, so you have not had much exposure to cases of Federal statutory interpretation, and that is why I would like to ask a few questions. I did notice in the committee's questionnaire, you stated, The foundation of judicial responsibility in statutory interpretation is respect for the enacted text and for the legislative purpose that may explain a text that is unclear. Based on that response to what extent do you believe the legislative history should be taken into consideration, if you were sitting 131 on the Supreme Court interpreting a statute passed by the Congress?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I am very much aware, in answering or in approaching an answer to that question, about the great spectrum of evidence that gets grouped under the umbrella of legislative history. It seems to me that the one general rule—and it is a truism to state it, but the one general rule that I can state is, when we look to legislative history in cases where the text is unclear, we at least have got to look to reliable legislative history. When we are looking to legislative history on an issue of statutory construction, what we are doing is gathering evidence, and the object of gathering evidence for statutory interpretation is ultimately not in any way different from the object of gathering evidence of extraneous fact in a courtroom. We are trying to establish some kind of standard of reliability, in this case to know exactly what was intended. And what we want to know is, to the extent we can find it out, is whether, aside from the terms of the statute itself, there really is a reliable guide to an institutional intent, not just a spectrum of subjective intent. I suppose a vague statute can get voted on by five different Senators for five different reasons, so that if we are going to look to pure subjectivity, we are going to be in trouble. What we are looking for is an intent which can be attributed to the institution itself, and, therefore, what we are looking for is some index of intended meaning, perhaps signaled by adoption or by, at the very least, an informed acquiescence that we can genuinely point to and say this represents not merely the statement of one committee member or committee staffer or one person on the floor, but in fact to an institution or to a sufficiently large enough number of the members of that institution, so that we can say they probably really do stand as surrogates for all those who voted for it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO, in looking at legislative history, I take it from that, the amount, the intensity of it, those that are associated with the subject matter are of importance in a judge's interpretation?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, indeed.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. More so than if it can be distinguished that someone merely put something in the record, because it appeared that it was the right place to put it in, but had no history in that legislation themselves.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What other sources should a judge rely on in a statutory construction case outside the statutes and legislative history?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, there is a kind of, I suppose, broad principle of coherence that we look to. The fact is we so frequently speak of interpreting sections of statutes. What we are really obligated to is to interpret whole statutes. We should not be interpreting a statutory section, without looking at the entire statute that we are interpreting. One of the things that I have found—and I do not know particularly why I learned it, but I found one thing on the New Hampshire Supreme Court which has stood me in pretty good stead, and 132 that is when I get a statutory interpretation issue in front of me, I read the brief, I listen to the argument. But if I am going to write that opinion, I sit down, I tell my law clerks to sit down, but I do it myself before I am done, and I just sit there and I read the whole statute. Fortunately, I do not have to construe the Internal Revenue Code, in which case I would be in serious trouble with that methodology. But within reason, I try to read the whole statute, and I am amazed at the number of times when I do that, I will find a clear clue in some other section that nobody has bothered to cite to me in a brief. We are trying to come up with statutory coherence, not with just a bunch of pinpoints in individual sections. So, the first thing to do, in a very practical way, is to read the whole statute. It is beyond the intent of your question, of course, to get into constitutional issues, but we do know it is accepted statutory interpretation that if we have a choice between two possible meanings, one of which raises a serious constitutional issue and one of which does not, it is responsible to take the latter, and, of course, we looked at that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, the term, textualism, has been used to describe a judge who attempts to limit the statutory interpretation to the text and ignores the legislative history. You explained what you do, and such an approach really fails to take into consideration, I think, the necessity—although I have never been a judge, I have certainly had a lot of association and argued enough cases where I have felt at least the judges have listened to legislative history propounded on both sides of it, maybe not always coming to the same conclusion. The fact that the matter is passed by a legislative body—often, those of us in those bodies are not clear ourselves as to the absolute interpretation or how it is going to be applied by the regulators or the bureaucracy that must implement our statutes. I think it is very important that you have laid out a record here. I am curious about your views as a judge who might disregard dispositive legislative history and create his own definitions. If that is a judge's final decision, would you consider that judicial activism, to ignore this discussion that we have just had?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I was going to say activism is a term that we all employ to describe the activities of any judge when we do not approve of the activities. And so given that definition of activism
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me interrupt you a minute. I do not quite agree with that definition because
David H. Souter
Nominee
(R)
Judge SOUTER. YOU are probably a more principled man than I am.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI [continuing]. Sometimes a judge will come to a conclusion that might very well be activism, and I can think of a few cases that I have argued before that I was very glad that he was an activist judge, even though I profess against that, but go ahead.
David H. Souter
Nominee
(R)
Judge SOUTER. I think probably a fair bedrock of activism is at least—or example of bedrock activism is ignoring any clear and positive source, objective source of law. I think what you are de- 133 scribing in your example is a refusal to accept an objective source of meaning.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge, because I think that helps me a great deal as to how I feel you will approach the constitutional questions, and certainly the statutory questions. I want to say, Judge, you have said many impressive things today; many of them have left a very favorable impression with me. Most important to me is that you are very convincing, that you are a listener; nothing is more important in communication than to listen. That, to me, leaves me with a very good feeling about the nominee that is before us today. Senator Thurmond touched a little bit on the principle of respect for precedents, and although I do not think he said stare decisis, but along that line, how does a judge treat a 5-to-4 decision differently from a 9-to-0 decision when he is asked to perhaps consider not following stare decisis? Have you thought about that, having sat on the State supreme court?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think that is one of those questions that you cannot answer in the abstract like that. If we are talking about a 5-to-4 decision that is 50 years old and has spawned a body of consistent, supporting precedent which is basically the foundation of the law that we have, the fact that it was 5 to 4 originally is a matter of small or no consequence at all. If, on the other hand, we are talking about a 5-to-4 decision which was rendered the year before and in between there are arguably inconsistent precedents with it, then, of course, you are not going to be able to give it that much weight. I suppose the real significance of its being 5 to 4 under those circumstances is that if it were unanimous it is virtually unlikely that there would be the arguably inconsistent precedents following it. So I just think the numbers analysis standing by itself is a misleading analysis.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO you would not put any more weight in a 5-to-4 decision to a 9-to-0 decision, as far as the application? Each case has to stand on its own in the history of that case?
David H. Souter
Nominee
(R)
Judge SOUTER. I would be wary of any abstract numerical principle like that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What about public opinion in a judicial decision? Does that play any role in a judge's objective decision?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, it better not play any role in the application of principle. We all know of decisions—there could not be a better one than Brown.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I agree with that. How does a judge—how do you, Judge, attempt to avoid that influence from the real world that you live in, as we all do—public opinion on a subject matter; that is, the abortion issue or some other issue where the polls demonstrate popular support another way? How do you attempt to mentally prevent yourself from being influenced?
David H. Souter
Nominee
(R)
Judge SOUTER. By being conscious, Senator, of the fact that you could be influenced. It is a problem like any other problem; you solve it by facing it. You face the fact that you are human and that you are subject to being pushed unless you guard against it, and you face that as a possibility. You keep it in your consciousness. And by doing that, I think you can come as close as a human being 134 can possibly do to eliminating that from a role in the decision which you otherwise might not even be aware it was playing.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, let me ask you one last question for today. I am gravely concerned about the so-called litigation explosion and its effect on the working of our judicial system. In the past 25 years, the volume of court cases has increased dramatically at all levels, State and Federal courts. There were 15,000 filings in the district courts of the U.S. Federal courts in 1915; 45,000 in 1950; 120,000 filings in 1975; today there are over 275,000 filings a year. There are 575 district judges to handle 275,000 filings; 168 circuit judges handling 33,000 filings, and 9 Supreme Court Justices handling over 5,000 filings. The number of pending product liability cases alone has increased 257 percent in 8 years. Part of the reason perhaps is that this country has 750,000 lawyers. I am concerned, Judge Souter, and maybe you can just give us your ideas of it. I realize you do not control the Judicial Conference. That is the Chief Justice's statutory area, but nevertheless, you have had a long experience. You have seen this growth. You witnessed it. I am sure you have been under the pressure of it. What role do you see, or how do you see any changes? Do you have any, quite frankly, observations about it?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I have not—as you know, I have not been a part of the Federal judiciary long enough to have any qualification to give a judgment about the problems of the federal system. I have virtually just arrived as a circuit judge when I suddenly find myself here. But I know that I have gotten used to thinking about that problem in the State context from which I came. I never wrote a definitive analysis of it, but I think I have some appreciation of the complexity of it. We tend, it is true, as lawyers and judges to be willing to stab ourselves to a degree, at least when we are really being candid, with some responsibility for the problem. We say, well, there are all of those lawyers out there bringing the cases, and the judges may say, well, there are all of those judges recognizing new causes of action that did not exist 10 and 20 and 50 years ago. I am wary of putting very much weight to those explanations. There are, of course, instances in which liability has been expanded. Products liability has obviously grown as a preferred cause of action. But what we overlook are two other things that have happened in the last 25 or 50 years. The first is, at least in my own State, we have got an enormously larger population. The litigation explosion in New Hampshire is, to a very significant degree, in civil matters, of course, a function of population. One thing the State of New Hampshire, I know, has not done or tried to do seriously until recently is to try to keep up with that population explosion. The fact is the population has grown far more exponentially than rights of action have grown during that period.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU do not think that we should be attempting to find new avenues to address the problem, or we should just 135 keep up with more courts, more prisons if it is the criminal matter, and more courts to handle the civil cases?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I think what you allude to with respect to civil litigation is what might be called the good news of the litigation explosion, and that is that it is forcing not just the judiciary, it is forcing society to ask seriously in a way that it did not do 20 years ago, whether there is now a new significant class of cases which belong not just in regulatory agencies to get them out of the courts, but belong outside the adversary process entirely. I mean, the good news is that alternate dispute resolution has become a respectable subject of concern. It is a subject of experimentation in my own State, and I would assume in every State in the Union.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you subscribe to it?
David H. Souter
Nominee
(R)
Judge SOUTER. I certainly do.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Thank you, Judge Souter, very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, the second to the last question the Senator asked about impact of public opinion—and you said you said you had to guard against it—I would respectfully suggest that you guard more closely against it when it comes from Rudman and less closely when it comes from Rath, McAulliffe, and Broderick.
David H. Souter
Nominee
(R)
Judge SOUTER. I will take that under advisement, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I appreciate your patience today, Judge. We will reconvene tomorrow at 9:30 a.m. [Whereupon, at 6:08 p.m., the committee adjourned, to reconvene at 9:30 a.m., Friday, September 14, 1990.] The CHAIRMAN. The hearing will come to order. Good morning, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Good morning, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome back.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We are going to begin our second round of questioning today. Judge, as you have probably discerned by now, we are a lovable bunch of people up here. All those stories that Duberstein told you about us are not true.
David H. Souter
Nominee
(R)
Judge SOUTER. I will claim the privilege on that, Senator. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Our first questioner today will be the Senator from Iowa, Senator Grassley. Before he begins, let me just warn the witness and all my colleagues. There is an important cloture vote at 10:15. If that vote is, in fact, going to be on time—and we are going to check about 10 after to make sure it is about to be called—rather than have a Senator start his questioning, if we are at that point, we will recess at that point, be prepared to vote, go vote, and come back immediately. That is how we will proceed unless the time begins to slide on that 10:15 vote. We don't want to be in the middle of a dialog and have to be interrupted. Now, Senator Grassley. Thank you for your indulgence, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. I want to tell you, first of all, that I reworked my questions through the evening so that I don't think they will provoke any demonstrations from the audience. [Laughter.] Senator GRASSLEY. Good morning, Judge Souter.
David H. Souter
Nominee
(R)
Judge SOUTER. Good morning, Senator. -137 138
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The morning papers, of course, are trying to confirm how well you did yesterday.
David H. Souter
Nominee
(R)
Judge SOUTER. They make me very nervous.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, if there is any one thing that a politician in this town respects, if not, in fact, envies, it is very good press. So you have passed a very important test. I also congratulate you again on your nomination, and I also want to thank you for the time that on two different occasions you spent with me in my office, allowing me to get to know you better. Under our system of government, our face-to-face meeting these few days is likely to be the last time any of us will be able to ask you questions. And so I hope that we can continue our dialog; not to seek commitment from you on specific cases but, rather, to more fully understand your approach to deciding these cases. And at the same time, Judge Souter—and I say this hopefully—our conversation will not only tell us more about your judicial method but will also educate the public on the role of a judge in our democratic society. So let me start with some general questions on that role. Judge Souter, some who have spoken highly of you—and most people have spoken very highly of you—term you "a lawyer's lawyer," someone entirely devoted to the law and to the profession. This phrase was often used to describe Justice Cardozo, who served, as you know, on the Supreme Court in the 1930's, after a long tenure on New York's highest court. I would like to read to you a passage from one of Cardozo's most famous lectures on the nature of the judicial process. And, I would like to get your reaction to that. I quote: The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. Instead, he is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. Wide enough in all conscience is the field of discretion that remains. I think I understand what Judge Cardozo said in this lecture. So my question to you is: What do you think that he meant? TESTIMONY OF HON. DAVID H. SOUTER, TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
David H. Souter
Nominee
(R)
Judge SOUTER. I think he was referring, although most obviously to the nature of the appellate process, I think he was referring to the constraints upon the legal process which applied to it in any level, whether it be trial or appellate. What the judicial process gives in return for the respect and the acceptance that it deserves is an assurance of objectivity, to the extent that it is humanly possible. We confront that assurance the first moment we go into a trial court. We are immediately constrained. We immediately constrain ourselves in the search for facts to make that a search for truth. The reason we have rules of evidence in trial courts is to try to bring a discipline of objectivity to what we do and what we ask the other components of the judicial system to do in arriving at a result which can be called just. When judges function at the appellate level, if they are following the ideals of Cardozo, they are also subjecting themselves to those 139 kinds of constraints. There is no area, certainly, in which that constraint is any more focused and any more difficult to keep in perspective than when we are dealing with what have been called the majestic generalities of the Constitution, when we are searching for meaning which is not spelled out in easy black-letter phrases, when we are trying to construe statutes and constitutions which are not written with the detail of the Internal Revenue Code. What we are trying to do to avoid that roving quality, that knight errancy that Justice Cardozo—or Judge Cardozo then—was speaking about, is to try to find an objective source of meaning which constrains us, as well as the rest of the republic, which was intended by the people who drafted and the people who adopted the constitutions and the statutes that we are dealing with, because it is only if we try to search for a source of meaning outside ourselves and our preferences or the preferences that may be fleeting at the moment do we really deserve, as members of a judicial system, the respect and the acceptance which ultimately is the foundation for the rule of law in this republic or in any republic.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, a recent nominee to the Supreme Court once said—and I think what this nominee said is fully consistent with the Cardozo passage that I just quoted and you responded to—and I give you this quote: "In a constitutional democracy, the moral content of law must be that of a framer or legislator, never that of the morality of the judge." Do you share that philosophy of judging?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. I share the demand that we look outside ourselves, the demand that we guard against simply imposing our views of morality or public policy, however passionately we may hold them and however profound our principle may be. We have not been placed upon courts, in effect, to impose our will. We have been placed upon courts to impose the will that lies behind the meaning of those who framed and by their adoption intended to impose the law and the constitutional law of this country upon us all.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. SO when it comes to the judge's own values and beliefs, there is little or no room for those in his constitutional interpretation?
David H. Souter
Nominee
(R)
Judge SOUTER. He has got to guard constantly against substituting his values for the values which he is sworn to uphold.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. If I could, I would like to discuss with you the issue of rights created by the courts. We have had heard a great deal of discussion, not only yesterday but in the past, about unenumerated rights and how they manifest themselves, whether it be a right to unlimited abortion, undefined rights of privacy, or other rights not spelled out in the Constitution. And where these other rights lead to, of course, is anyone's guess. This past January is an example. A Federal judge went so far as to find a constitutional right to panhandle in the New York City subway. Of course, from my point of view, thankfully the second circuit overruled him. Let me ask you, do you have any concern about Federal judges— and Federal judges are fallible human beings like everyone—creating such new rights? And I don't refer specifically to that right to panhandle. I don't refer specifically to those other rights that I lim- 140 ited in this immediate statement, just generally creating such new rights out of whole cloth.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, perhaps the only amendment I would like to make to the way you asked the question is I wouldn't single out the Federal judges. The Federal judges are confronted with a problem that confronts all judges. I have spent the last 7 years of my life as an appellate judge in the state system, so I know what I speak of from the State standpoint. That is going back to perhaps my earliest exchange yesterday with the chairman of this committee in which we began the discussion about one particular unenumerated right which is enforceable through the due process clause. As I indicated to him, I think that a fair reading of the Constitution of the United States, like a fair reading of the constitution of my own State, compels the conclusion that there were values, in the case of our discussion a value of privacy, which were intended to be protected even though they were not spelled out in blackletter detail. And the difficulty that the judges have facing that fact—if, indeed, like me they accept it as a fact—is the difficulty of finding a discipline process for giving content to what we call the unenumerated—or the category of unenumerated rights. This has been a source of great difficulty over the years. I think at one point yesterday in our discussion I mentioned my view that the incorporation doctrine is not the answer to the problem of how we keep from roving aimlessly in this quest. It seems clear to me that the concept of liberty is not limited by the specific subjects which the incorporation doctrine by bringing, as it were, the entire corpus of the stated Bill of Rights into the concept of the liberty clause. Liberty is not so limited. Facing this problem, judges have tried formulations, at least to give labels, if nothing else, to the enterprise that they are engaged in when they are searching for meaning and trying to put reasonable limits upon their search. One of those formulations was that the content of the liberty clause certainly includes whatever would be comprehended by the concept of ordered liberty without which liberty and justice would be impossible. I think perhaps I have preferred an approach which I indicated without a lot of discussion yesterday to the chairman, and that was the approach which is often identified—not exclusively but identified with Justice Harlan. Justice Harlan not only sometimes invoked the concept of ordered liberty, as, in fact, I think he did in Griswold. But he asked us to make a search somewhat further afield than that, but quite specifically to the subject of the American tradition, and search for evidence of that understanding of what might be called a bedrock concept of liberty, which is explained and indicated and illustrated by the history and traditions of the American people in dealing with the subject of liberty. I think my best approach to the problem of how to keep from a totally undisciplined and totally nonobjective approach to the search for meaning is very much like what Justice Harlan described. But this is a difficulty which the judges simply cannot avoid. If they accept the view that I espouse that a search for meaning and for content of the notion of liberty is necessary, then they have got to face this problem. And if they face it in the way that I do, they have got to look for some kind of objective limita- 141 tions that will guarantee that they don't fall into merely personal expressions of preference.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, in a sense, we as Americans have many more rights than ever, yet, by and large, the American people feel politically powerless. I sense a paradox when I read Supreme Court decisions like Missouri v. Jenkins from last year, where the Court permitted a Federal judge to order the Government to increase property taxes to pay the cost of a court order. I think it is fair to say that under our constitutional system, citizens simply can't understand that a court could assume for itself the taxing powers always thought to be reserved to elected representatives in their legislature. This is, in my view, a profoundly antidemocratic decision decided by a bare 5-to-4 majority. Of course, I am not going to ask you to comment on whether you thought this case was correctly decided, but I would like to ask you if you understand my point that when we depend on unelected and unaccountable judges for our rights, we are relying on something fundamentally antidemocratic.
David H. Souter
Nominee
(R)
Judge SOUTER. I think there is no question that one of the animations in the judicial quest for self-restraint is exactly the consideration that you have described.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, Abraham Lincoln warned about government by the judiciary in his first inaugural address. He said this, and I quote: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instance they are made in ordinary litigation the people will have ceased to be their own rulers." Do you share President Lincoln's fear of government by the judiciary, that sort of irrevocably fixed decisions?
David H. Souter
Nominee
(R)
Judge SOUTER. I certainly share the spirit in which President Lincoln made that remark. I think that what we have to recognize in assessing the significance of Lincoln's statement for today is some of the history that has passed in the time between when the President made that address and the time when we are living now. The most obvious and significant fact of history for our purposes is the adoption of the 14th amendment. The President was not contemplating the 14th amendment at the time that he made that statement, and he was not contemplating—he could not possibly have been contemplating the increase in national power in relation to the power of the States, which it was the object of the 14th amendment to effect. And that was in an increase in national power not only on the part of the judiciary but, of course, on the part of the Congress, too, as was indicated in some of our discussion yesterday about the significance of congressional enforcement power under section 5 of the 14th amendment. But it is undeniable that the very fact that standards for scrutinizing State action were enacted by the 14th amendment, and made subject to judicial overview is undeniable; that the Federal judiciary and, in fact, the State judiciary acting pursuant to the 14th amendment, assumed a power which President Lincoln could not possibly have envisioned at that time. We not only have to accept President Lincoln's admonition; we also have to accept the responsibilities that the 14th amendment have inevitably placed upon us. 142
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. It seems to me whether it is 1861 or 1990, though, the principle laid down by the President that if there is bad Supreme Court precedent—and as he used the terms, irrevocably fixed—that under our principle you can't accept bad law as a permanent fixture.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, as you know, Senator, without any lecture from me, the constitutional precedent is always, in theory, subject to reexamination. Our theory of precedent tries to give some indication of the force which a given precedent should have when reexamination is requested.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, those who advocate a greater activist role for the Court say that the broad and spacious terms of the Constitution lend themselves to Court-made solutions when the political branches fail to act. What is your sense of this perception that the courts, rather than the elected branches, should take the lead in creating a more just society?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the proper way to approach that is that courts must accept their own responsibility for making a just society. One of the things that is almost a factor or a law of nature, as well as a law of constitutional growth, is that if there is, in fact, a profound social problem if the Constitution speaks to that, and if the other branches of the Government do not deal with it, ultimately, it does and must land before the bench of the judiciary. One of the interesting developments—and I would suggest to you without trying to indicate to you in any way the direction that I think it should go—one of the hopeful developments or the developments that give me hope is the fact that we are living at a point of history right now where there is so much concern expressed in this committee yesterday and expressed in comment throughout the legal and political community in the legitimate extent of congressional power to act under the fifth section of the 14th amendment. Because if, in fact, the Congress will face the responsibility that goes with its 14th amendment power, then by definition, there is, to that extent, not going to be a kind of vacuum of responsibility created, in which the courts are going to be forced to take on problems which sometimes, in the first instance, might better be addressed by the political branches of the Government. I guess the law of nature I am referring to is simply the law of nature and political responsibility, constitutional responsibility, abhor a vacuum. I have spoken to this point before and I think I alluded to it yesterday.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Are you saying the Supreme Court should act because there is a vacuum there, or because there is a cause within the Constitution for the courts to act; as opposed to because the political branches have not acted?
David H. Souter
Nominee
(R)
Judge SOUTER. The Supreme Court should only act and can only act when it has the judicial responsibility under the 14th amendment or any other section of the Constitution. But the Supreme Court is left to act alone when the political branches do not act beforehand. We had Brown v. Board of Education as a decision of the Supreme Court, because we had no decision from any other branch of 143 the Government, at any other level of the Government, facing the undoubted constitutional problem that had to be solved. It seems to me that one of the changes we are seeing in the complex of power in this country right now is a greater willingness of the Congress of the United States to look to its authority under the 14th amendment, and for that matter, under article I, so that the Court is not left in the position of seeming to be the only guarantor of some of the very liberties that we must most be concerned with.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, yesterday, you mentioned the ninth amendment. I understand the historical context of the ninth amendment to view it as, I suppose, somewhat of a savings or reserve clause to foreclose application to the Bill of Rights the maxim that the affirmation of particular rights implies a negative of those not expressly defined. But at this point, I have a problem. There is a kind of "rights' industry" out there that we read about and we deal with all the time in the Congress and maybe the courts deal with it more than we deal with it. We have various groups making their essentially political claims in terms of so-called fundamental rights—whether it is people claiming an unrestricted right to taxpayer's financed abortion or an artist claiming an unconditional right to taxpayer subsidized art, or the right to, as I said before, panhandle in the New York City subways. You are an avid reader of Oliver Wendell Holmes. Is this situation I just described perhaps what he meant when he warned that all rights tend to declare themselves absolute to their logical extreme?
David H. Souter
Nominee
(R)
Judge SOUTER. I think what he was getting at there, yes, I think what he was getting at is if we simply focused on one interest and the desirability of that interest alone, there is a tendency to selfdevelopment that is simply unchecked. That is why, as I said a moment ago, it is important, in my view, to approach the problem much as Justice Harlan did. But in any event, whether by the Harlan approach or by any other, it is essential for us—as judges, who have got to declare in some objective way the extent of the interest that can be recognized—it is essential for us to have some idea of the criterion that we are going to employ to find values which are not simply reflections of our own feelings at the moment and our own feelings about the desirability of the claims that may be pressed before us.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, when unaccountable judges rather than legislators create these rights, I would like to ask you if you could imagine how that could lead to polarization, resentment, and even bitterness among the public?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the key to the response to that, Senator, is in one of the terms that you used, when an unelected judiciary creates these rights. There is a sense in which the judiciary, I suppose, particularly at the State level and dealing with common law issues, do create rights. They are dealing in areas which, by definition, the legislature has left to the courts to develop. But when we reach the level that I think you are talking, and I know that you are referring to this morning, it is essential to observe the distinctions between the creation of rights, which implies that the Court is simply sitting there and coming up with notions 144 of what it thinks may be desirable, and the recognition, on the other hand, of rights which are implicit in the text of the Constitution, itself, in which it is the responsibility of the judiciary to find and to state in ways that we can understand. The difference between the creation of rights and the recognition of rights is the difference between unbridled personal preference, that knight errancy that Cardozo was speaking of, and a disciplined approach to constitutional meaning, on the other hand. I think when the people who are, like us, subject to the decisions that ultimately appellate courts must make, have a sense that the courts are conscientiously engaged in a search for meaning, that their task is to decide what should be recognized and not what is created, that that will make and can make all the difference in the acceptance which is given to the decisions when they come down, even if they are not the most popular.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let me suggest that over the years Congress has objected probably far too little over this encroachment, mostly out of our own self-interest. After all, if we or any legislature just sit back and consciously let the courts make the tough policy decisions, of course, we can tell our constituents, blame the courts, don't blame us. But, in my opinion, we are paying a heavy price for this sort of silent conspiracy. Having given you my opinion, let me ask you— and this will probably be my last question, because we are out of time—in your personal opinion, is the tendency to increasingly turn every tough issue into an issue for the courts a healthy development of our constitutional democracy?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, it is not a healthy development for a couple of reasons. The first is that some of the issues that seem most intractable may well yield to political solutions and the kind of political judgments which—and I use politics with kind of a large "P", I guess there—that after all, it is the genius of the democratic system to entrust to elected representatives. In the longer run, there is an even more disturbing tendency, and that is to the extent that there tends to be a vacuum of response to problems that have to be solved and to the extent that, of necessity, those problems ultimately end up before the judiciary and without having had some solution proposed by the political branch of the Government, or branches of the Government, there is a tendency, I think, on the part of all of us, and on the part of the people of this republic who elect, who appoint and who watch what is going on, to assume that the only guardians of the Constitution are the judges. The judges have a particular pivotal responsibility in guarding the Constitution, but it is absolutely essential to remember that the judges are not the only people in our governmental structure who are sworn to uphold the Constitution and to try to make it work. The Executive, the President of the United States, takes such an oath. All of you take such an oath. And you are, just as all of you in the political branches, are just as much responsible for making good on the Constitution's guarantees as we are in the judiciary. 145 For the people of this Nation to forget that that is your responsibility, as well as the responsibility of people in my branch, is a very disturbing prospect to me.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, I appreciate the time that you have spent with me on this round. I guess in closing, I would just simply say that I see litigation as a very poor way of—because it is so blunt and cumbersome process that it is, and so adversarial, and not a very good instrument for social change. The consensus and compromise that can come through the people's branch, the legislative bodies of our society, is the proper place for that to be done. I just do not see the courts as a very good place to do that, and I hope that judges see that as well, not avoiding their responsibilities, but seeing themselves in terms of a coequal branch and with a very limited role.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, I am done.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Let me say to our witness and to the committee, in 4 minutes we have to vote on cloture. Our staff has checked and that is still scheduled for 10:15. My recommendation would be, rather than start with Senator Leahy, and then be interrupted four or 5 minutes into the questioning, that we recess now. I will vote and ask Senator Leahy to vote immediately when we get over there and come right back so that with a little bit of luck, by between 20 and 25 after, Senator Leahy and I, at least, will be back to reconvene the hearing. Until then, we will recess. [Recess.] The CHAIRMAN. The hearing will come to order. We have 3 hours' worth of questioning on the first round if everyone takes a half hour. We will make a judgment after we get through four, whether we will break for lunch at that point or go on and finish the first round and then go to lunch. We will not be going late this afternoon. I have spoken with the witness' people, they understand it, I do not think they disagree with that at all, and so I think this afternoon we will probably not be going much beyond 4 o'clock, the latest 5 o'clock, just so everyone can plan their schedules accordingly, unless for some reason it was possible to finish everything, and I do not see any realistic possibility of that today, Judge, but things are flowing along smoothly. I hope you think that, as well, and we will just keep moving on. With that, let me yield to my colleague from Vermont, Senator Leahy, for his round of questioning.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you very much, Mr. Chairman. I appreciate your courtesy in recessing for the vote, so as not to interrupt these questions. Judge, welcome back.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We have gotten word now from the chairman that the New England people can get back home this weekend. Judge, I was struck very much yesterday when you spoke of your close friendship with Senator Rudman and Mr. Rath. I did not know Mr. Rath before these hearings. I consider it one of my privileges in serving the Senate also to be a friend of Warren Rudman. 146 We have traveled back and forth to Vermont and New Hampshire, depending upon where the plane stopped first. With his clout, it usually stopped first in New Hampshire.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Since deregulation, does it stop in either State?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yes. [Laughter.] He, however, had to stamp my visa while I was there and applauded me for being one of the few U.S. Senators to land in New Hampshire and not declare immediately for the Presidency. [Laughter.] Because of my friendship with Warren, I was struck by your reaction to his experience as a young man when he faced discrimination because of his Jewish background, and Mr. Rath's encounter with discrimination because of his Irish background. It was a touching comment. If you and the committee would bear with me for a moment, I'll tell you why: My grandfather, who was also named Patrick Leahy, was a stonecutter in Barre, VT, who died when my father was only 12 or 13 years old. My father was the only male in the family and, at 12 or 13 years old, he had to go out and start looking for work which he did and worked all his life. When he was that age, the signs in Montpelier, VT, and Barre, VT, were either "No Irish Need Apply," if they were genteel about it or if they were more direct, "No Catholic Need Apply." I also know in my mother's family—her Italian parents emigrated to this country—faced some of the same things. Now, I like to think that in Vermont, in New Hampshire, throughout New England, those vestiges are gone and long gone. I believe they are, and I think those of us who have heard the stories know how painful it would be for those days to return. I remember the pain in my own father's voice as he told me about these stories. I have no question in my mind of your own feelings on this issue. I do not believe—from anything you have ever said here or in the past—that there is a discriminatory bone in your body, and I think you feel, as Senator Rudman does, as I do, and as everybody on this committee does, that discrimination based on religion or race or anything else is abhorrent. The scar of discrimination occurred in our country and still occurs in some places, but it is something any of us of conscience, especially in government, should do everything to eradicate. I would like to explore with you one particular area where such discrimination has to be hedged against and where the Constitution explicitly tries to avoid it. That is in the first amendment, in the establishment clause. In March 1978, back when you were attorney general of New Hampshire, then Governor Thomson issued a proclamation ordering that the flag over the State capitol and flags on other State buildings be flown at half-mast on Good Friday to commemorate the death of Jesus Christ. The proclamation said, among other things, if I could just read from it a little bit: Whereas in lands where the Christian religion prevails, and among churches throughout our land Good Friday represents a day of solemn prayer. We appreciate the moral grandeur and strength of Christianity as the bulwark against the forces of destructive ideologies, and I hereby appeal to my fellow citizens to reverently observe Good Friday. Flags flown at half-mast on our buildings will memorialize the 147 death of Christ on the cross, and I urge our fellow citizens to fly their own flags at half-mast and their lapel flags in a position of distress on Good Friday. Now, in my family, in my upbringing, we always observed Good Friday, and many others do, but I question whether that should be raised to this level of State action. So, let me go into your own views of the establishment clause. The Supreme Court has addressed this issue many times. We had the Abington School District v. Schemp case back in 1963, an 8-to-l decision, in which the Supreme Court struck down statutes that provided for reading of verses from the Bible or the Lord's Prayer to begin each school day, and the Court said the State must remain neutral among the various religions and between religion and nonreligion. It spoke of the wholesome neutrality the State has to maintain toward religion. It said that government action neither advances nor inhibits religion, taking the words of the Supreme Court in that case. My question is this: Do you agree that government has the obligation, under the first amendment, to remain neutral toward religion?
David H. Souter
Nominee
(R)
Judge SOUTER. I accept that as a personal principle. I recognize that it is a principle which is subject to much ferment at the moment, in trying to delimit its contours. I recognize that there is a school of thought which has received articulation within the present Supreme Court that the establishment clause was restricted to a more limited purpose, that it was restricted to the purpose of avoiding the literal establishment of a State religion, and was restricted to avoiding the expression of preference as between sects, which I guess in an historical context would, of course, be Christian sects or denominations. Whether, in fact, that school of thought is going to be pressed, as it were, as a claim for adoption, for a rethinking of the theory of the establishment clause, I do not know. I think we can reasonably anticipate that it will, and I think that particular position is probably going to be pressed before the Court. And I think the only thing that I could say to you with respect to that or with respect to someone who is pressing that issue before the Court is that, if I am there on any issue, I will listen respectfully to it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, I appreciate that and I would hope that all Justices would listen to the parties' arguments and consider them carefully. But you spoke of your accepting it as a personal principle in your answer. Do you accept it as a legal principle?
David H. Souter
Nominee
(R)
Judge SOUTER. I certainly accept it as the prevailing law of the United States, as it has been, for practical purposes, during my professional legal lifetime, and I do not have at this time either an agenda or a personal desire to bring about a reexamination of that position. The great difficulty that has come, as you know, in establishment clause cases has come from the difficulty of applying the three-part Lemon v. Kurtzman test, and the concerns that have been raised about that, naturally, provoke a search not only perhaps for a different test of the standard which we think we are applying today, but a deeper reexamination about the very concept behind the establishment clause. 148 But if I were to go to the Court, I would not go to the Court with a personal agenda to foster that, and neither would I go in ignorance of the difficulty which has arisen in the administration of Kurtzman. The only thing I was going to add is, in the oft-noted conclusion that we can find circumstances in which there seems to be an opposition between the theory of the establishment clause and the theory of the free exercise clause, and we have to recognize that as a problem for the Court to deal with.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU mentioned Kurtzman a couple of times. Kurtzman, like Abington, said the controlling test for determining whether government action violated the separation of church and state was the secular purpose and effect test.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Kurtzman was also the controlling law or controlling test at the time you were attorney general, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, the Governor issued the proclamation, you did not. I assume that you were not involved in the drafting of the proclamation, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. I was not involved in the drafting of the proclamation that was litigated in that case. One of the facts which I think may not appear of record, I frankly do not remember whether it does or not, is that following the original proclamation which led to the action that you refer to, the Governor revised the proclamation and he revised it to give it, to articulate a much more secular purpose to what he was doing than the first proclamation could perhaps have been read to indicate. When the litigation arose in that case, the position taken by the U.S. district court was that the second proclamation, what I will call the more secular proclamation of which I was aware, could not be considered in determining the validity of the Governor's action, without his making a formal withdrawal of the first proclamation by essentially the same formalities or with the same degree of publicity with which he had issued the first one. So, as a result, the second comparatively secular proclamation was never a pointed issue in the district court's order. I go into this, only because—although I do not remember the specifics of anything that was in that second proclamation. I remember well enough that there was discussion with the Governor about the fact that he was going to issue one and I probably saw the language of it before he issued it, although I do not specifically remember that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, let me ask you this: To the extent that there was a revision, it was because the district court ordered it, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. My recollection is that the revision took place after the district court action had been brought, but before the district court order was issued, because, as I recall the district court order, it included a determination that the district court should not take the second proclamation into consideration, unless the first had been withdrawn with the same formalities with which it had been issued. 149
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Without having to spend time here trying to figure out which came first and which came second, it should be fairly easy to doublecheck, and I am not asking you to remember everything that happened. This dispute moved on a fairly fast basis, as I recall in reading it, over a matter of hours and days. But we can, and I am sure you do, remember very well the basic elements. Now, to get your views today, I ask the question: The proclamation had references to the Christian religion, reverently observing Good Friday and flag lowering. How could those be considered secular, in light of Abington and Kurtzman?
David H. Souter
Nominee
(R)
Judge SOUTER. Let me, if I may, divide my answer to that question in two, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. GO ahead, but then I may end up repeating the question.
David H. Souter
Nominee
(R)
Judge SOUTER. I was going to say, you may revise it back, but let me start, if I may, with this: I think I have to respond to two different senses of that question. The first is how could I, as counsel for the State of New Hampshire, take a position in defense; second, how would I, if I were a judge with the identical issue before me today, tend to view it? And if I may, I would like to respond to you with those two distinctions in mind. As to the first question, my responsibility as counsel there was my responsibility as counsel in any case in which I was representing the State, speaking through the Governor, and that is was there a position which could be advanced on behalf of the position that he had taken, consistently with the law as it existed or as it might reasonably be argued that it ought to be, which was not a frivolous or wholly unreasonable position. I believe there was and took such a position. Essentially, the arguments which the lawyers in my office made were that although there were, of course, references to Jesus Christ as a religious figure. The tenor of the proclamation was to call into mind a set of moral principles which transcended the Christian religion. The reasonableness or the ethical appropriateness of taking this position I think is indicated by the responses which the various courts made to the action. In fact, the U.S. district court, through Judge Skinner from Boston, held against the State on that issue. The two extraordinary points which I think should be noted, in response to your question, is, first: The U.S. Court of Appeals for the First Circuit, to which the State took an immediate appeal, in fact, I forget the precise order, but it either reversed or stayed the district court's order, and the reason, as I recall, that it did so was that the first circuit thought the issue was such a serious issue, not a simple and clear-cut thing, that the plaintiffs, in fact, had come into court with dilatory hands, and that an issue of that importance should not be decided under the gun, because it was not an easy issue to decide. And what most concerned the court of appeals, as I recall, was the fact that the Governor had done exactly the same thing on Good Friday a year before. There had been plenty of time to litigate the constitutionality of what the Governor had done, and the plaintiffs, who were aware of what had happened the year before and likely to happen again, had not done so. 39-454—91 6 150 So, I took and take today the position of the court of appeals as a vindication of the one point which is most significant for my role, and that is did I have a reasonable position to advocate in that case. What is also interesting is that, although on what perhaps was the fastest appellate action I ever knew of in practice, although the U.S. Supreme Court later reversed the court of appeals, with the effect of reinstating the district court order, the U.S. Supreme Court did so on the basis of 5 to 4, so there was real division in the U.S. Supreme Court as to whether the court of appeals had acted properly on the basis of finding that there really was a serious issue here, and this was not some clear-cut constitutional violation.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But it was eventually found that the proclamation and lowering the flag went beyond, or did not meet the secular purpose and effect test, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, that is what Judge Skinner had found, and at the point at which the Supreme Court reversed the court of appeals and reinstated Judge Skinner's order, it was really too late to do anything about issuing new proclamations, and the case just petered out at that point.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Using this as an example, do you believe that the lowering of the flag met the secular purpose and effect test, do you believe so today, looking back at it?
David H. Souter
Nominee
(R)
Judge SOUTER. If I were sitting as a judge today, I would probably have ruled, given that proclamation, the same way that Judge Skinner ruled.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The reason I ask and what draws me into this is that you made reference to the fact that, as counsel for the Governor, you were upholding his position. Now, I am sure Governor Thomson had all kinds of advisers on this, and I recollect the source of some of it and some of his ideas were interesting, to say the least.
David H. Souter
Nominee
(R)
Judge SOUTER. They certainly were to me at the time.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yes, well, I am sure he could keep a whole office going with some of them. But one of the reasons I bring this up, Judge, is that I was struck very much by your last answer to Senator Grassley. All of us take an oath of office. Obviously, Senator Grassley and I and every other Senator is upholding the advice and consent role of the Constitution just in having this hearing. When I was a prosecuting attorney, every time I brought a charge, I brought it on my oath of office. My oath of office was written on the information. You had an oath of office to uphold the Constitution as attorney general. At what point does that oath make you say to the Governor This is not a constitutional action?
David H. Souter
Nominee
(R)
Judge SOUTER. The point at which it is clear that it is an unconstitutional action and that there is nothing that can be reasonably brought before the Court for adjudication. There is a great difference between the kinds of judgments which an attorney general must make when he is asked for an opinion as to what, in his judgment, is the most appropriate and most likely constitutional action, on the one hand; and when he is asked to ful- 151 fill his role as State's counsel when the elected representatives of the people have taken a different position. The Governor was, in fact, elected by the people of New Hampshire and he had a role in setting State policy which was undeniable. If his view of what was constitutional differed from mine, but was subject to a fair argument in its favor, whether I would have ultimately made the same decision or not, I believe that I had an obligation to represent that position. I think what is most important to me about that is that it is an obligation not simply because as an attorney general I was hired on as a lawyer. Part of the attorney general s and part, indeed, of any lawyer's obligation to defend the Constitution is to engage in good faith and with the utmost vigor in the process by which we hope will be sound constitutional adjudication comes about. We will not have sound constitutional adjudication in this country if we do not have a sound and vigorous adversary system. Whether or not in any given case, I might agree personally that my client's judgment was the best judgment, whether I might agree with the ultimate conclusion as to whether it was right or wrong, my own personal belief is that, as a lawyer, I will do my best fairly and honestly as an advocate. We have a constitutional system in this country in which we are going to get the right result. I took that position as attorney general, and I have taken that position when, in fact, in an indirect way I was being sued myself. There was a case recently that was brought before the U.S. Supreme Court about the residence requirement for membership in the New Hampshire bar. That was a requirement that was set long before I was on the court, although I had not taken any step to change it and I thought there was a reasonable basis for it. But I can remember—after the argument was made in that case, before the Supreme Court, in which the constitutionality of a rule of my own court was in issue—I said to the lawyer who had argued the case against us that I didn't know how it was going to come out. I thought there was, in fact, good reason in the court's disciplinary responsibilities to require some kind of a residence requirement. But, in point of fact, the only thing I was really worried about in the long run was whether the issue had been vigorously presented to the Supreme Court. I said to him that I knew counsel representing us had done so and that I knew that he had done so, and I wasn't going to worry about the result. That same attitude that we have a valid process which is going to get us through if everyone in that process does the best possible, I think, should be part of the constitutional animation of an attorney general.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In general principle, I agree with you and I suspect that everybody does. But there are also certain responsibilities that attorneys general, or prosecuting attorneys have because of the unique power they have and the oath of office they follow. I can think of a number of times when I declined prosecution because I questioned whether the methods used to gather evidence were constitutional or because of other issues—that, again, were based on my oath of office. 152 So, let me ask you about one other case—I know time is growing short on this—again, because of the issue you raised in my mind, in your answer to Senator Grassley. As attorney general you handled a case, Maynard v. Wooley, which went all the way up to the U.S. Supreme Court. That is the case in which a couple who were Jehovah's Witnesses had moral and religious objections to the State license plate "Live Free or Die" motto and they blocked it out. They felt so strongly that they ended up being prosecuted three times. I believe Mr. Maynard served a couple of weeks in jail—15 days in jail, in fact
David H. Souter
Nominee
(R)
Judge SOUTER. That is right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [continuing]. Rather than compromising his beliefs. Now, when they challenged the State law under which they were being prosecuted, you opposed the Jehovah's Witnesses. The Supreme Court, in an opinion written by Chief Justice Burger in favor of the Jehovah's Witnesses, held that the first amendment prohibited New Hampshire from requiring these people to put the State motto on their license plate. In fact, the Chief Justice said, "The first amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable." But in your brief, you dismiss the actions of the Jehovah's Witnesses as "bizarre behavior" and as "pure whimsy," even though they had been willing to go to jail for their beliefs. So my question is: Without relitigating that particular case, what is your view of Chief Justice Burger's statement about the first amendment as protector of the rights of minorities, even very small minorities, who hold views different than the majority?
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question about its correctness. There was no question about its correctness at the time of Maynard v. Wooley. The first amendment would be worthless if that were not true. The issue—and I don't want to go into any more detail than you do, Senator—the issue in Maynard v. Wooley was whether requiring the display of a license plate with that motto was, in effect, requiring the person driving the car to appear to adopt or to affirm the truth or the soundness of the statement on the motto. I did not, in fact, believe that it was reasonable to construe a license plate requirement in that way. In fact, the New Hampshire Supreme Court had already ruled on exactly that issue, and it held that it was not, for first amendment purposes, that kind of an affirmation that would be violative of the first amendment. The issue in Maynard v. Wooley essentially came down to an issue of interpreting fact. The Supreme Court of the United States, although not unanimously, disagreed. My best recollection is that I think it was Justice Blackmun and Justice Rehnquist who happened to dissent in that case.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I recollect it as being an 8-to-l decision.
David H. Souter
Nominee
(R)
Judge SOUTER. Was it 8 to 1? I may be wrong on that. In any event, the Supreme Court of the United States had already ruled— not against the Maynards, it was in another case—but they had already ruled on exactly that issue. 153 So that I was not left simply to make a judgment on my own about what would be an appropriate case to defend, because that issue, in effect, had already been foreclosed to me by the New Hampshire Supreme Court ruling. So we might disagree about the application of the principle in that case, but the soundness of the principle is beyond dispute and it was beyond dispute then.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The reason I ask this, of course, is thinking back to wearing your judge's hat, for example, would you regard the interests of the State in putting its motto on license plates to be so compelling that it would justify prosecuting people who had religious objections to the motto?
David H. Souter
Nominee
(R)
Judge SOUTER. I am sorry?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Whatever the motto might be. I don't mean to pick on New Hampshire. New Hampshire has a motto, Vermont has a motto, and most other States do as well. I am not singling out a particular motto, but the basic principle, is the interest of the State in putting a motto on a license plate so compelling that it should be allowed to prosecute people who have strong religious objections to the motto?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, of course, as I think as you suggest the need to identify a motto on the plate, as opposed to identifying numbers and letters by which the car can be identified is, of course, not a particularly compelling interest, and it was not so regarded by the Court at the time.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. They were not trying to block the numbers on the plate?
David H. Souter
Nominee
(R)
Judge SOUTER. That is right, no, they just wanted that motto out.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. OK. Judge, I am told that my time is virtually up, and I am going to want to go back to this later on. I am not, as none of us is, asking you to prejudge cases that might come up, but you know the establishment clause in the past few years has been reviewed again. I hold the very strong feeling that one of the greatest bedrocks of our democracy is in the first amendment and the right of free speech, the right to practice any religion we want or not to practice any religion because those two things almost guarantee diversity. And if you get diversity, untrammeled diversity, you have, by definition, a democracy that is going to work.
David H. Souter
Nominee
(R)
Judge SOUTER. I think you have.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO I will go back into that, and I appreciate your answers.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, very much, Senator. The Senator from Pennsylvania, Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge Souter, let me give you a very brief roadmap of where I would like to go in my alloted 30 minutes. I want to pursue the freedom of religion subject for about one-third of that time, pick up the War Powers Resolution, and then discuss some of your testimony for Senator Grassley on what I would like to analyze as the differences between the original meaning from your Dionne opinion versus the Court filling the vacuum. 154 The beginning of the Bill of Rights refers to freedom of religion. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. I have two questions, and in the interest of time, let me put them both to you at the start. The establishment clause, and this goes to general approach, was defined by Justice Black in Everson, "In the words of Jefferson, in the clause against establishment of religion by law, was intended to erect a wall of separation between church and state." And the words, "a wall of separation between church and state" were Jefferson's words. There is a sharp distinction which Chief Justice Rehnquist makes in Wallace v. Jaffre where he says, referring to the separation between church and state, the wall of separation, Chief Justice Rehnquist says, "it should be frankly, and explicitly abandoned". I believe in terms of a general approach on the establishment clause trying to get a general philosophy that is as good a starting place as any and that is the first question on the first amendment. The second question goes to the free exercise clause and the opinion of the Court in Employment Division of Oregon v. Smith where Justice O'Connor is very direct in strong criticism, saying that the majority opinion dramatically departs from well-settled first amendment jurisprudence, unnecessarily resolves the question presented, and is "incompatible with our Nation's fundamental commitment to individual religious liberty". She says that because of the essence which she cites a few pages later, that there is the failure to require the Government to justify any substantial burden on religiously motivated conduct by a compelling State interest and by means narrowly tailored to achieve that interest. My second question to you is, Do you agree with Justice O'Connor that when you impede on the exercise of religion that there ought to be those two factors, a compelling State interest and means narrowly tailored to achieve that interest?
David H. Souter
Nominee
(R)
Judge SOUTER. Let me start with your first question on the establishment clause and the appropriateness of preserving Justice Black's adoption and the Court's adoption of the Jeffersonian view of a wall of separation. The difficulty, I think, that is focused by the Court today comes to the fore because of the difficulty in applying the—as I mentioned a moment ago—the Lemon v. Kurtzman test. But for that difficulty, there is some question in my mind as to whether there would be the present ferment to rethink the very conceptual foundation of the establishment clause, which, as you indicated a moment ago, Chief Justice Rehnquist has been doing in some of his own opinions. I think, like a lot of people approaching the establishment clause, I am loath to talk about scrapping Lemon v. Kurtzman, without knowing what comes next. With respect to Chief Justice Rehnquist's position, I have never done personal research on the issue of the original meaning on the establishment clause, as I said a moment ago to someone else. I would receive evidence on the issue respectfully, if there were reason to present it before me, but it is not something upon which I can pass a judgment at this point. 155 What I think I can helpfully say is the difficulty which I think those who do, indeed, adopt the Jeffersonian view, must face on the Lemon v. Kurtzman test. In fact, it is a difficulty which has ultimately nothing to do with the final conceptual rethinking that may go on, on establishment, if, indeed, it does go on. As you know, Lemon v. Kurtzman has sometimes seemingly been honored in the breech. In the first Kresh case, as I recall, the author of the Lemon v. Kurtzman opinion said, well, that is a general approach that we have to this issue, but it is not the exclusive approach that we have to it. The discomfort—I suppose there are many reasons that have been expressed for the discomfort with Lemon v. Kurtzman—but I will tell you what my discomfort is. It is a discomfort which relates to the relationship between Lemon v. Kurtzman as an establishment clause test, and the so-called Shurbert test which has, in a series of cases, as you know, prior to the Smith case this year, been used as the test for free exercise. The concern is this, that in the free exercise cases—and I think I would like to take the Amish school case as my favorite example— in the free exercise cases, individuals are claiming that a generally applicable State law unduly burdens their exercise of religion. Once it is determined that, in fact, their position is a genuinely religious position and that there is, as a matter of fact, a burden placed upon it by a generally applicable State law, the Court has traditionally, since the time of the Shurbert case, applied a standard, as you say, of very strict scrutiny. There must be a compelling State interest to justify that burden, and the law that does so must be narrowly tailored to have that effect alone. It was on that reasoning that, in the Amish school case, Wise v. Yoder the Amish parents were allowed an exemption, in effect, from the requirement that they send their children to school until they are 16 years old. The great difficulty that arises is that, when we ask the question, what would have happened in the Amish school case, if, instead of coming to the Court as a free exercise case, it had come to the Court with a slightly different statute as an establishment clause case, what if there had been a statute in effect which provided that there would be an exception expressly for Amish parents, from the State law? The immediate problem that would have been encountered under Lemon, is that the purpose of that law, the first of the Lemon tests would have been a religious purpose. The speculation is just inevitable that the Amish school case could have gone the other way. Therefore, my concern is, since I have not personally had any reasons to raise questions about the appropriateness of the strict scrutiny test, and have no reasons to raise questions about the appropriateness of the strict scrutiny test for free exercise cases, have we not got to take Lemon to some degree of refinement which has not yet been articulated to avoid what has explicitly been recognized as the potential conflict between the two tests in which
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge Souter, I don't want to interrupt you unduly, but I don't think that the broad analysis or treatise is required consistent with Kurtzman, to make an answer to a fundamental question about whether you agree with the Jeffersonian 156 principle articulated by Black and held by the Court for a long time about the "wall of separation". Nor do I think that the interrelationship, and it is a very complex issue, is necessary to come down to the basic concern about whether you are going to have a compelling State interest and narrow tailoring. I think those are two very threshold questions. I would press you for specific answers because I think those are within the range of general philosophy appropriate for this kind of an exchange.
David H. Souter
Nominee
(R)
Judge SOUTER. As I started to say and apparently got sidetracked on saying, I have had and have today no reason personally, in either research or philosophy, to want to reexamine the view which was expressed in Everson. But my concern is that that view has been identified with a Lemon v. Kurtzman test. And we have to face the fact that in the implementation of that view, there is a difficulty which sooner or later the Court has to resolve.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I will take that as a qualified yes. How about the free exercise question?
David H. Souter
Nominee
(R)
Judge SOUTER. On the free exercise question, I have to be circumspect to a point because I believe that the Smith case is subject to a motion for rehearing presently before the Court. And without any question, I think the development of that issue is something that if I were confirmed would come before me. But I think there are some things that with a reasonable degree of specificity I can say. The first is that I do not come here and prior to the decision of that case or after it I have not had personal reason to want to reexamine the strict scrutiny test which has been applied in a lot of cases since Shurbert. I recognize the reasoning of the majority opinion. I mean I can follow it; I understand what the Court was saying in the Smith case. But I also recognize I think the fact that that case could also have been examined under the Shurbert standard. And as you mentioned or indicated a moment ago, that, of course, is exactly what Justice O'Connor did in her concurring opinion in that case. I do not know at this point whether we should take the Smith opinion, if it stands, as being a total rejection of Shurbert. The one thing I do know is that the way the opinion was written, Shurbert seems to have been reduced to a rule for unemployment compensation cases. And I can tell you that I did not so read it, and I did not so read its application to, let's say, the Yoder case, the Amish school case, as resting upon the kind of analysis which the Court indicated would be its only justification for applying it there.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I hope the Smith case doesn't go that far, and I hope that your predisposition to side with Justice O'Connor comes to fruition if you are confirmed, because the basic requirement requiring a compelling State interest and a narrowly tailored means to achieve that interest seems to me very fundamental in the exercise clause, just as I personally believe that the standards of Jefferson and Black on the wall, however you articulate it, keeping that as a basic philosophy, to be very important.
David H. Souter
Nominee
(R)
Judge SOUTER. May I just add one thing, Senator? That is, I would not want you or anyone else to take what I said this morning as a commitment if I were on the Court to join with Justice O'Connor if this matter were brought before me. What I do want 157 you to understand is that I approach the issue, or would approach the issue, if it came before me, with exactly the view of the value of the strict scrutiny test which I described to you.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I accept that, Judge Souter. I do not believe that it is appropriate to ask you for commitments.
David H. Souter
Nominee
(R)
Judge SOUTER. I understand that.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The extent is to get a general approach. Let me shift at this point to the issue of the War Powers Act. The War Powers Act was enacted in 1973 because of concern about the involvement of the United States in the Korean war without a declaration of war and in the Vietnam war without a declaration of war. It was passed over the President's veto. It has been a bone of contention as to whether it is constitutional or not, whether the President has powers as Commander in Chief which make the War Powers Act unconstitutional, or whether, in fact, the President has exceeded his constitutional authority in what has happened in Korea and Vietnam, because Congress has the sole power to declare war. This is a matter of enormous current importance. Saddam Hussein even crowded David Souter off the front pages for a time.
David H. Souter
Nominee
(R)
Judge SOUTER. I had no objection to his doing that, I assure you.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Glad to see you are back on the front page, Judge. However contentious this may be, this is a lot better arena for contentiousness than Saudi Arabia. But there is a real issue now which is starting to percolate as to the President's authority to project U.S. forces into hostilities, and the President has taken the position that certain notification has been given to Congress, not a recognition of constitutionality, but it is a sort of a hedge. On this subject, I start with the question whether you believe it was constitutional for the United States to engage in a war, the Korean war, without a declaration of war by Congress as called for in the Constitution.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I think the only answer that can be given to that is that that is an issue which was never focused by the action of the United States and the Korean war because the issue was one essentially of congressional versus executive power, and that issue was never raised. The Congress of the United States, in fact, did fund the Korean war. The fact is that there was never a declaration, as you know, with the international law consequences that would follow from it. But the issue of constitutionality, as I understand it, is essentially an issue of congressional versus executive power in this area, and that issue was never raised.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Souter, if you are suggesting that to have a case in controversy or standing there has to be action taken by the Congress not to fund a military action, I would say that that might carry the matter too far; that Congress is not really in a position to stop funding when the U.S. military forces are on a front line or the planes are in flight; that there has to be some resolution beyond. And in a minute, I want to come to the question of standing and some of the litigation; 110 Members of the House of Representatives in one case took the matter to court in Lowry v. Reagan. But I think that the Korean war is sufficiently in the historical past that that issue is not likely to come before the 158 Court, and ask a flat question whether you think it was constitutional to fight that war without a declaration of war.
David H. Souter
Nominee
(R)
Judge SOUTER. I think that question, Senator, basically is a question about the constitutionality of the War Powers Act, is it not?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. NO, I don't think so.
David H. Souter
Nominee
(R)
Judge SOUTER. My concern is that I don't think
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. NO, I don't think so at all. There wasn't a War Powers Act. There wasn't an issue of withdrawing troops in 60 days. This is history. We all know the history. And I don't think there are any War Powers Act implications in it at all. Here you have a war which was fought and wasn't declared by Congress, and the issue is did the President have the powers as Commander in Chief, not an issue which is so impinging on any matter to come before the Court that I think a statement on that is well within the permissible ambit.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, the reason that I was concerned to suggest that I think that raises the issue of the War Powers Act is not because there was any such resolution on the books at the time of the Korean war, but because the War Powers Resolution which is on the books today basically articulates a congressional position. And the congressional position would today be the focus for asking that question. I think two things are necessary for me to say. The first is, of course—and I know you recognize this—that because of the reasonable likelihood that the constitutionality of the War Powers Resolution could come before the Court in some guise, I cannot give an opinion on the constitutionality of that.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I agree with that and do not ask that question.
David H. Souter
Nominee
(R)
Judge SOUTER. And I think the most that I can say with respect to looking beyond that specific issue is that it is recognized, though it is not a matter of litigation at this point, that the President as Commander in Chief is not limited in the commitment of the U.S. troops to a formal declaration of war. In fact, the War Powers Resolution itself recognizes that the President is obligated to take action and must have the power to take action. Therefore, it seems to me that the commitment of the United States troops in Korea in the first instance certainly could not be regarded, leaving aside the aegis of the United Nations, could not be regarded as itself an unconstitutional act. The only issue which it seems to me can be focused upon is: Is there an articulable way of limiting the President's authority as Commander in Chief which would focus this issue? And the only articulated attempt to do so that I am aware of has been the War Powers Resolution. I think, therefore, the only thing that I can properly say to you is we know—and it would, indeed, be my opinion—that the President is not certainly forbidden to commit United States troops without a prior declaration of war. How far he may go, in fact, I think can only be regarded today as a War Powers Resolution question. I will, in any event, be candid to say that I could not sit here today, even if we had no War Powers Resolution, and articulate to you a limitation on how far the President could go with or without the express approval of Congress.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I would ask you, Judge Souter, to rethink your refusal to answer the question as to the Korean war. I would 159 ask you to rethink it in terms of the proposition that it is a part of history, that the War Powers Resolution was not in effect at that time, that the President took certain action, and there was followup action. The circumstances are so far in the history that it may have some relevance—but it certainly wouldn't be conclusive—on what would happen if the War Powers Resolution came before the Court at the present time.
David H. Souter
Nominee
(R)
Judge SOUTER. May I just add one thing, Senator?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Sure.
David H. Souter
Nominee
(R)
Judge SOUTER. It seems to me that in approaching that kind of question, we really have to approach it in much the same way that we would approach a foreign relations question. One of the things that I think is standard analysis in the approach to questions of that sort is that when the President, in fact, is acting under the auspices of the foreign relations power and when he is, in fact, acting also with some expressed authorization by Congress, the issue of authority is probably an issue which does not arise or which is not focused. And I do think that in approaching the Korean war question, we have to face the fact that it was undoubtedly within the power to commit troops to some degree and some instance without congressional approval; that, in fact, congressional support was expressed throughout that period by congressional appropriation and by the authorization which Congress thereby expressed. And it is difficult for me to see—although I will rethink this when I have some time to be quiet, it is difficult for me to see how the combination of the President's power with that degree of approval and support from Congress could raise a genuine issue of unconstitutionality that would be subject to adjudication.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, when you start talking about foreign relations, that injects another element of complexity into a subject which is already complex enough.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. When you talk about appropriations, it isn't realistic for the Congress to stop appropriations at a time when a war is being fought. And if you follow through the logic of your last answer, that there is some implicit sanction—I left out Vietnam particularly because of the Gulf of Tonkin issue. I wanted to focus exclusively on Korea as a more distant event at any rate. But if you take that kind of implicit approval, then we have read out of the Constitution the congressional authority to declare war. The President does have authority to make a commitment to some extent, and once he makes that commitment, if the Congress has the options of not funding, as a way of litigating, it is no option at all.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think the only thing I could say to that is you make the assumption that Congress never has a funding option. Not being a Member of Congress, I can't second-guess you on that, but that is a position—it never has an option once the troops are committed and engaged. That is an assumption that I would be loath to make.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, we won't speculate about you becoming a Member of Congress.
David H. Souter
Nominee
(R)
Judge SOUTER. There is no chance of it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But I don't think we have that option, if I can answer one question. Let me turn in the 5 minutes remaining, 4% that I have, to the question of original meaning and expansiveness of constitutional interpretation, and your testimony both yesterday on equal protection, and your testimony given to Senator Grassley's excellent questioning this morning, where you testified in very broad and expansive terms about the Court's role in filling a congressional vacuum. If the Court is going to fill congressional vacuums, the Court is going to do a lot of filling because there is a lot of congressional vacuum around. You interpret the liberty clause very, very broadly as a starting point with the incorporation doctrine, taking into the due process clause of the 14th amendment the Bill of Rights, and then both yesterday and today you have expressly stated that that is just a starting point, which is very, very broad, indeed. I have some concern about the scope of those answers when I take a look at the cases which you have decided. There are some— one, in particular Richardson, concerning a liberty interest. But the bulk of the cases I think is more accurately characterized by Dionne. There is a case where you had in issue a fee schedule where the majority said that the payment for the judges "smacks of the purchase of justice"; that "the spectacle of the citizen returning giving cash in one hand and calling for a judicial hearing and decision in the other is one that can no longer be tolerated"; and saying that "it is inconsistent with the professional judiciary," and then referring specifically to the contemporary culture—rather, "a contemporary injustice." Then in your dissent, you start off with the proposition that you agree with the Court's disapproval of the fee system, and then proceed to look for original meaning by going to an unreported case from 1663 and statutes from 1781 and 1768 and 1878. And as I look at that opinion in the context of your description of Brown v. Board of Education, there was a situation where, if you look for original meaning, the District of Columbia schools were segregated, even the Senate gallery was segregated. Raul Berger in his analysis of the contemporary thinking was that the equal protection clause did not even give the right to vote or the right to desegregation. It seems to me that the thrust of what you have had to say in a solitary dissent—the other four justices of New Hampshire were on the other side in the stated Dionne case—is very much at variance with the broad expansive answers you have given to Senator Grassley today and that you gave yesterday on the equal protection clause.
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, you can pack a lot into one question.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I wish I had more time. I would ask it more simply.
David H. Souter
Nominee
(R)
Judge SOUTER. Let me start first with an issue of adjectives because I think it is an important issue. You have characterized my testimony about the recognizable liberty interest as taking a very broad position, and you have spoken of my reference to incorporation as just a starting point. I want to go back to them for a moment just by way of preface. 161 What I said in response to the question about incorporation was that I did not believe that the definition of the concept of liberty, which was subject to recognition and protection in the 14th and the 5th amendments, could be limited by the incorporation doctrine. Indeed, if it could be limited by the incorporation doctrine, there would be no question as to whether some core right of privacy was cognizable under those two amendments. With respect to how much further the so-called liberty concepts in those amendments should be treated as recognizing rights enforceable against the Government, I have not given an opinion. I have given an opinion that there is certainly a core concept of privacy which is to be recognized and that certainly aspects of marital privacy, which we discussed yesterday, are among them. How much further, how much broader the concept to privacy and, hence, ultimately how much broader the enforcement power under the liberty clause may be is something which is going to have to be developed by the courts over the course of probably a great many years. Going next to what you question is the inconsistency between my position in Dionne and my espousal of the correctness of the Brown decision, let me start by saying that, as you recognize, the interpretive position that I start with when I am looking at a provision which has not been construed is one of original meaning, and in discussion yesterday I distinguished that from the theory that would confine that meaning to those applications which were originally and specifically intended by the framers or by the adopters of that provision to be its application. I have read Raul Berger's book, and I think—although people will dispute about his constitutional interpretive views—I think his history is well accepted by most people today. There certainly was no intent whatsoever in the enactment of the 14th amendment to bring about school desegregation. And if in fact the meaning or the guarantee of equal protection were confined to specific intent, then of course, Brown, instead of being a correct decision, would have been a wrong decision. But my interpretive position is not one that original intent is controlling, but that original meaning is controlling. In construing the 14th amendment, the first fact that has to be faced is that the best index, the point at which you start the quest for meaning, is with the text. And as I said yesterday, the text of the 14th amendment is a very broad text. It is not in fact, as we well know by its terms, limited to race, although race was obviously the problem most on their minds. It was not limited as the 15th was by reference to prior condition of servitude. And therefore whatever troubles some people may have with the 14th amendment, I think the point at which we have to start in the process of construing the scope of the equal protection clause has got to take into account that it was not written in such a way as to be restricted either to race or to the specific racial applications intended or on the minds of the people when it was adopted. And given that as a starting place, as I said, I think there is no question that Brown was correctly decided and the provision correctly construed. 162 Now, is that inconsistent with my view on Dionne? It is not. Just as I said a moment ago, the text is the starting place from which we have to construe the 14th amendment; the text was the starting place from which we had to construe the provision of the New Hampshire Constitution that justice should be available freely and that right or justice should not be purchased. The question is how much freedom, if you will, from cost was that provision intended to embody. If we read that provision in a totally, literally, expansive sense, we could have said, well, certainly there can be no filing fee for someone who wants to come into court in a civil case. In a sense, there is nothing free if you have to pay $50 to file your case. And we could have gone on through a number of incidents of expense that are accepted in the system and have always been accepted in the system as being costs that could reasonably be levied. The question before the court was, then, how free did they intend it to be; what kinds of costs were they trying to outlaw? And that, in the context of that particular issue, came down to basically a choice between two principles—the principle against paying anything beyond a filing fee to get into court, on the one hand, saying that anything beyond that would be a violation of the provision; and the other principle, which was the one that I thought was supported by evidence of the original meaning of the framers, that what was trying to be outlawed by that provision was essentially, in a word, bribery. I think the provision was traced back to the kind of fines which the medieval courts dealt with and which were still in people's minds at the time of the adoption, whereby money payments could be made to the courts either to delay a case or to bring about its resolution at the convenience and with the result intended by a given litigant. And therefore the issue in the Dionne case was simply a narrower issue than the issue in Brown v. Board. The meaning came down to a closer choice between two possibilities. But the ultimate criterion of meaning for me in the Dionne case was exactly what I think the ultimate criterion should have been and was for the Supreme Court of the United States in Brown—not specific intent, but the principle intended. And of course, those distinctions will grow narrower and narrower the more narrow and exact the language it is that we are construing, but the ultimate criterion remains the same.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Judge Souter. We'll come back to that when I have some more time. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Our next questioner will be Judge Heflin, Senator Heflin, from Alabama. Senator HEFTJN. Following up on Senator Specter's question on the Dionne case, was the equal protection clause of the Constitution invoked in that issue?
David H. Souter
Nominee
(R)
Judge SOUTER. In the Dionne case, sir?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER. NO, it was not. The only issue that was raised there was the provision precluding the purchase—or, the requirement that justice be purchased. 163
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Does your supreme court have a rule, as do some, that in civil cases the court will not address issues unless they were raised in arguments or briefs?
David H. Souter
Nominee
(R)
Judge SOUTER. We do have such a rule. I think the only times that we ever depart from them are times in which it would be so misleading to decide a case based on an issue which on our examination we later realized was there and cannot be avoided, that we might be forced to refer to it, although even there the preferred practice, of course, is to call for a reargument so that that can be expressly addressed.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I have a little problem in the Dionne case. It seems to me that—you cite the Magna Carta, which is dealing with selling justice, which was bribery. The New Hampshire framers of their constitution chose to use the word "purchase" as opposed to sell. Do you see any distinction relative to the choice of that word, which might or could have been construed to be an attempt to change the language from the Magna Carta to a different meaning?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I can see the basis for making the verbal argument although, of course, you can't have a purchase without a sale. So I did not find when I looked really any basis upon which I thought I could really justify a distinction there. And as I think you know from the Dionne case, I would not have been unhappy to find that kind of a distinction because I thought the practice involved there was a bad one.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Of course, from a textual basis, as a method of interpreting, when you see words change that usually has some meaning to it. Well, that's quibbling over a point. I'm not going to spend a lot of time on that. Let me ask you this. Have you ever been a crusader for a cause?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, I have.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. WTiat cause?
David H. Souter
Nominee
(R)
Judge SOUTER. I guess my greatest crusade was the cause against bringing casino gambling into the State of New Hampshire, which I thought would destroy the political fabric of the State. I did not believe that we could maintain—in a State with the resources that we had, I did not believe that we had a very good chance of maintaining the integrity of the law enforcement structure of the State when the economy would have been so totally overbalanced by the amount of money that would have come in for that purpose. And I devoted a considerable period of my time one year as attorney general to that crusade, if you will. It was not entirely popular in some circles. It was an issue upon which the Governor, who had appointed me, and I broke. I am glad it turned out the way it did, and I enjoyed the crusade.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I gather, too, that you have had an interest in medical issues, as some writer has mentioned, and an aunt of yours had such an interest in it. What has been your interest in medical research and your activities in that regard?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, my interest there, Senator, has been perhaps less a research interest than an interest in local administration that brings health care to people. As I said yesterday, it all started when I was asked to serve on the board of a hospital, and it is one of those interests which sort of took off by increments, and I 164 ended up finding it virtually a second job for a period of about 5 years in my life. But the focus was not a focus on academic research so much as it was a focus upon the kind of administration that gets health care to people and determines the cost that they are going to have to pay for it.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLJN. IS there any other cause that you would say that you have been a crusader for?
David H. Souter
Nominee
(R)
Judge SOUTER. Not a public crusader, no. There are some causes to which I have contributed, but causes in which I have come out as a public crusader I think have been limited to those. One of the things, I can tell you that the inhibitions on crusading when you are occupying the position of attorney general or of judge, of course, are there, as I think you know as well as I do. The number of organizations that a judge finds himself slowly resigning from in order to avoid recusal problems can sometimes be one of the tragedies and in any case one of the prices that we pay for being on the bench. And I have been through that experience, as you know.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFIIN. Well, that is 7 years of your life. I mean, there are other years, too.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, 12 years, actually; I was 7 on the supreme court
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. That's right.
David H. Souter
Nominee
(R)
Judge SOUTER [continuing]. Then I was on the trial court for 5.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I want to go to the Seabrook demonstration issue. Critics of you contend that you acted too strongly against the demonstration. They contend that after demonstrators were arrested that they were not released on their personal recognizance, that bail was required; that when they refused to post bail that the State was required to house in the different instances as many as 1,400 detainees at enormous cost. The critics go on to say that in trials where first a judge gave suspended sentences that you, according to one critic, rushed to the courthouse to insist on the fact that there be sentences of hard labor; and that in the efforts to pay for the extra costs involved that there was an instance with the Governor's crime commission under an LEAA grant where you urged the crime commission to approve an application to LEAA to seek funds to help pay for the expense; and that then later, the State, through the Governor—perhaps some of your participation— sought contributions from corporations and other people to pay for it. They then cite that before a finance committee hearing on the cost of the Seabrook demonstration that you testified in answer to a legislator's question by saying that under certain circumstances that the State might use police dogs and fire hoses to keep the demonstrators from the site. Now, I recognize that if you are the attorney general, you have certain responsibilities, and I want to ask you to relate your position as to today. What would be your position today relative to these various issues in regards to the demonstration that took place here yesterday? How should that be treated? How do you view today the demonstrators that hollered out when Senator Grassley was testifying, and we all turned around and looked; we were basically eyewitnesses to it. 165 Would you give us your opinion on the issue pertaining to personal recognizance versus bail; give us your opinion of what ought to be done if they refuse to make bail; efforts to pay any extra cost; the question pertaining to whether or not there ought to be sentences in regards to those people that demonstrated?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, the first thing that I would have to say is that I wouldn't give any final opinion on what should be done with those demonstrators without hearing them; and the only place that I heard them was in the back of the room. I haven't heard them in a courtroom. I am happy that I haven't heard them in the back of the room again, and I probably will never see them in a courtroom, and I wouldn't make any final judgment about what ought to be done without doing that. What I think I can usefully do is give you a sense of the significant contrast between what went on here and what went on in the case that I was dealing with when I did have to take a position and did take a number of positions as attorney general of the State. The first thing you mentioned was the fact that I opposed their release on personal recognizance bail. That is correct. That position was taken on the night that the demonstrators were arrested following the second day of the demonstration. Now, the arrest occurred because the demonstrators at that time, or the remnant of them—I think there had been about 3,500 or 4,000 there that day, and as it turned out there were about 1,400 left who refused sort of the last and final request to get out before arrests started. At the time the arrests took place, those demonstrators were occupying the parking lot that was used on a working day by the work force that was building the nuclear power plant, and they refused to leave it. One of the reasons that the State police made the decision to arrest—a decision which I was aware of and certainly took no exception to—was that they knew, this being late on a Sunday afternoon, that at 7 on Monday morning the work force was going to arrive in that parking lot, and they knew that if that happened they had an extremely combustible mixture, and what had been in fact a demonstration of civil disobedience was not likely to remain one if that happened. When, therefore, they were arrested and arraigned at special sittings of the local district courts to determine what the bail should be, the question which confronted the State was: If personal recognizance is granted, what will be the effect of that? And, in fact, the demonstrators had indicated, as I recall it, quite publicly within the armories where they had been brought, that as soon as they were released on personal recognizance they were going to regroup and go back to the parking lot and presumably be there the next morning when the workers arrived. Therefore, I made a judgment that personal recognizance was, in fact, simply going to render the action of removing of no use, and the next morning we were going to have trouble on our hands. I therefore decided that the appropriate requirement would be some cash bail, conditioned upon good behavior and showing up for court on time. I therefore recommended that cash bail of $100—probably cash or bond, but that $100 be requested. As I think you know, that very issue was later litigated in a section 1983 action that was brought against a number of State offi- 166 cials, including me, and the U.S. district court concluded that that was perfectly reasonable bail, that there was not any indication that the people involved could not make it or that it was unreasonable. I think it is safe to say—well, maybe I shouldn't say, but I think it is safe to say that we do not need or would not need, probably, in the aftermath of yesterday's incident, that particular kind of prudential concern. The second thing you mentioned was my opposition to suspended sentences and a request for hard labor. I don t know. The first part of that is true, and the second is not, except in a very technical legal sense. I did oppose purely suspended sentences because, as a practical matter, they would not be sentences at all, and I thought they would have no deterrent effect. And I think they would not have had. I think I may safely say, although there is no record of the court in question that I am aware of, that never in the course of my recommendation did I make any reference to hard labor. The only reference to hard labor that occurs in connection with these cases occurs—or at least it did then—in the New Hampshire statutes. The New Hampshire statutes refer to any incarceration, any incarceration following conviction, whether it be in a house of correction or the State prison, as being at hard labor. I know that in some county houses of correction, of course, as you know, there are work details just as there are in the prisons. But for practical purposes, there is only a very attenuated sense of labor today. I was not interested in hard labor, and I don't believe I ever used the term. In point of fact, a substantial number—I don't know whether I could say most, but a substantial number of those demonstrators never, in fact, even saw the inside of a house of correction because most of them—because they refused to make bail— spent their 15 days in the National Guard armories where they had been taken awaiting trial. And at the end of that time, as I recall, I ordered them ejected because I didn't think they should be staying in the house of correction longer than they would have stayed if they had gotten the sentence that I had recommended. So, to the best of my knowledge, there was no labor involved in any aftermath. With respect to the crime commission, I was a member of the Governor's Commission on Crime and Delinquency at that time. I couldn't possibly tell you what the category of money was that might have been available as Federal help for unusual law enforcement expense. But, apparently, there was some such category of it, and because this was a very expensive proposition for the State, I urged and argued very strongly that the crime commission ought to approve an application for it. I couldn't tell you at this point whatever happened to the application. I don't know whether the State got a grant to help defray expense or not.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLJN. It did not. But the issue is that some of your critics say that you argued before that crime commission to the effect of almost threatening them with their existence unless they went forward with
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I—excuse me. I reread one of the newspapers that I had not looked at for 14 years, and I think I found the 167 passage that you referred to. There was one member of the commission at that time who claimed that I had—I forget whether he used the word "threats" or "extortion" or whatnot as an inducement to the members to vote for it. And I remember in the latter part of that newspaper article the reporter said that he or she could not find anyone else who was in the crime commission at that time who would support that particular view. I think it is fair to say on the record that that was an eccentric interpretation of what I had said, although there is no question that I had argued very strongly that the commission ought to support the request for the grant. And I have no doubt whatsoever that I indicated that the Governor felt very strongly that the commission ought to do so. It was standard practice to bring such opinions before the commission. The next issue about seeking contributions to defray expense is, again, luckily once which I trust no one will have to face in response to what happened yesterday around here. My understanding of the sequence of what happened on that is this: The demonstrations took place on the last day of April and the first day of May back in 1977. According to my own records—and I think this is also indicated in one of the discovery affidavits that I filed with the U.S. district court—by the 3rd of May, I had formulated a position on what the State should request in the trial of these cases, which, as I said, was the 15 days and a fine of $200, the fine to be suspended on good behavior. My appearance before the court that you referred to took place on the 5th of May, which was the middle or the latter part of that week. As I understand it, on the 6th of May, 3 days after I had formulated the State's position and 2 days or 1 day after I had appeared publicly in court to state it—on the 5th of May, the Governor issued sort of a request to the Nation to make contributions to help defray the expense. He sort of went out publicly and passed the hat. I have no recollection of discussing with the Governor the funding that this was going to cost except for the fact that there was money available in an appropriation known as the emergency fund, which was under the control of the Governor and council. And there was also at that time—and I think it was during that same week—a meeting of the finance committee of the New Hampshire Senate before whom a request for an emergency appropriation had been made to be appended to a pending bill. And I do recall discussing with him my appearance before the Senate. I did appear before the Senate. Some people were relatively happy to vote money and some were not, but that was the extent of my fundraising activity. I know—rather, I have been reminded in the last couple of weeks as material has been assembled on this—that subsequent to that, the Public Service Co. of New Hampshire, who was the principal owner at that time of the nuclear powerplant, made a contribution to the State of New Hampshire of around $70,000, in round figures. That came, according to the records that I have gotten, late in June. I think it was June 30. At least, that is the date on which I have a record of State action to accept the funds. 168 If there was any particular appeal to the Public Service Co., it was something that had nothing to do with me or my office. The one thing I do know about it beyond the date is that the amount was determined as the amount necessary to offset the extra law enforcement pay expenses for the weekend of the demonstration. And so far as I know, discussions about any contribution from the Public Service Co. took place between the department of safety, which includes the State police, and the company. In any event, it was the department of safety that made the accounting for funds, and it did not involve me or my office. The last thing you mentioned would similarly be happily unnecessary and inappropriate in the kind of disturbance we had yesterday morning, and that was police dogs and fire hoses. I was sort of unhappy to hear about the police dogs and fire hoses because I had spent a fair amount of my energy in the week or so prior to this big demonstration indicating that I was not going to use police dogs and fire hoses, and that I wasn't particularly happy to be facing the demonstration, but that a matter of civil disobedience did not call for police dogs and fire hoses. I think in the course of that senate hearing in which the expenses that was being accrued was not the most popular political subject in the State at the time, one of the senators—in fact, I think it was the senator from my own district—said instead of wasting all this money and putting them through the criminal justice system and convicting and sentencing them, he said, "Why didn't you just drive them away with police dogs and fire hoses?' My recollection is that I said that was, if appropriate, it was only appropriate in a riot situation in which there was no other way to control it. And I said that is not what we had. So I seem to have gotten metamorphosed from an anti-police dog and fire hose man into a pro-police dog and fire hose man. And I would kind of like to go back to the prior position and leave that as mine on the record.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. All right. Another issue that critics have brought up is your letter pertaining to the parental consent on a minor's abortion, in which, in 1981, you wrote to the chairman of the New Hampshire house committee on health and welfare on behalf of the New Hampshire Superior Court judges. Now, as I understand it from what Senator Rudman has informed me, you have a system of courts where the New Hampshire Superior Court judges go all over the State. They don't have limited geographical areas that they serve in, and they sort of travel a circuit relative to these matters. On that issue, of course, I read that you don't express any opinion one way or the other on the substantive issue, but it raises a question which has been always raised as to whether judges ought to become involved, in effect, in lobbying legislators. That raises an issue to what extent judges should participate in the legislative process. Now, I notice in reading further that at a later date, some 7, 8 years later, when you were on the supreme court, this issue arose again, and you as a member of the supreme court referred the person that was asking you about it to the superior court judges, which could indicate that you didn't think as a member of the supreme court that you ought to be involved in what you were in- 169 volved in when you were a superior court judge. If you would address that, or whatever you want to say about this particular letter.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir, I will. That letter actually came back to my attention within, I think, the first week of my nomination, so it was one of the earliest pieces of prior history that I reread. That letter was written by me in my capacity, I think at the time, as chairman of what was known as the legislation committee of the superior court. The superior court did not take, and very scrupulously avoided taking, positions on general social issues—or even law enforcement issues, for that matter—except insofar as they would impinge on the capacity of the court to do its job. To the extent that there was going to be an expansion of jurisdiction without an expansion of judges to handle the business, we would bring that to the attention of the legislature, for example. On this particular issue, the appropriateness of using a superior court judge as the deciding authority for permitting or refusing an abortion upon a juvenile when parental consent was not available, the court felt very strongly on two grounds that it was an inappropriate position to place the judiciary in. Those grounds were expressed in the letter. There were some judges who, for reasons of their own moral scruples, would not under any circumstances authorize an abortion as, in effect, a surrogate for parents. There was another group of judges who believed very strongly, not because they opposed abortion personally but because they believed that it was inappropriate for a judge to make what was in their view an unavoidably moral decision for another person, that they should not engage in that kind of an exercise of jurisdiction. The upshot of these two views was that if the bill was passed, it was a virtual certainty that a significant portion of the superior court bench—which at that time I think in the State was probably around 18 judges—would find itself, for one or the other of those reasons, unable to discharge the function that would have devolved upon them. And I think, as I said in that letter, the court's view was that this is necessarily going to lead to judge-shopping. No minor or no person on behalf of a minor would want to appear in front of a judge whose moral views were known to be opposed to abortion. And at the very least, the result was going to be that a very small number of judges were, in fact, going to find themselves exercising the entire court's jurisdiction in these matters. It was for that reason that the court, as I recall, unanimously believed that it would be inappropriate for the judges to be given that job. I think I was chairman of the committee at that time, and I drafted a letter to that effect. But that is representative of the limits on lobbying that the judges do. It was lobbying only to the extent of bringing to the attention of the legislature matters which they would not know, but which we as judges felt they had to know if they were going to make intelligent decisions. Now, you are quite right to recall to my mind the fact that the issue did arise later on when I was on the supreme court. And one of the members of the legislature came to me at that time and said, well, will you sort of reauthorize this letter as a statement of the judicial position. And I said that I could not do so for two reasons. 170 The first is it was the position of the superior court, and I was no longer on the superior court. The second and equally strong one was that if the legislature did not, in fact, take the advice—if that is what the superior court still wanted done, and the legislature did not take the advice—it was virtually inevitable that there would be issues brought before the New Hampshire Supreme Court involving matters of constitutionality, involving claims that judges, in fact, could not avoid this kind of responsibility. And it seemed to me necessary that I not become involved in the kind of legislation that might lead to that sort of an issue, and that I be very careful not to allow the name of the supreme court to be associated with it. My own guess is that if there literally had been an action brought before the supreme court, it probably would have been in a posture in which I would have felt it necessary to recuse myself. But it still would have been the case that there would have been a supreme court justice taking a position. And so, quite apart from the fact that it was not an issue for the supreme court, there was a very strong reason to keep the supreme court at a distance from the resolution of the issue in case eventually there was litigation about it.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Mr. Chairman, how much time do I have left?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU don't have any more time, Senator.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. That takes care of that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Senator Humphrey of New Hampshire.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Mr. Chairman, it is now after noon. Anxious as I am to have my turn here, I certainly would not object to your giving our esteemed witness a break, if you would choose to do so.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I have no objection to that. I have been talking with the witness and his people constantly, checking at every 15 minutes or so. Their preference is as follows—just so you know I am taking care of your brethren from New Hampshire.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. All right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Their preference is that we go through and finish the first round, have you speak, then have Senator Simon and Senator Kohl, and then break, and then have three of us ask questions in the afternoon and then stop. Do you have objection to that, Senator?
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. None whatsoever, as long as the witness still has a pulse, we can continue. Judge Souter, one of the things that we few non-lawyers on this committee have noticed is that the lawyers tend to get bogged down in what we regard, at least, as minutia and acrania, not to say that those things are not important sometimes, but for my part, I want to try to back off and approach from a fresh perspective. I want to start by reciting what for me is the most fundamental statement, indeed the most eloquent statement on human rights ever written: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator"—and I emphasize "creator"—"with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." As you know, and as I will point out for my colleagues, the New Hampshire Bill of Rights, the New Hampshire Constitution, the 171 first part, the Bill of Rights incorporates that very same concept, not as a lofty expression, but as a concrete part of our Constitution. I read articles I and II: "All men are born equally free and independent, therefore, all government of right originates from the people is founded in consent and instituted for the general good." Article II: "All men have certain natural, essential and inherent rights, among which are the enjoying and defending life and liberty, acquiring, possessing and protecting property and," in a word, seeking and attaining happiness. Do you agree with the declaration in the first two articles of the New Hampshire Constitution, Judge Souter, that there are certain rights which precede even the State?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, I think, in fact, that is the kind of concept which is recognized and which is reflected in the theory of limited governmental power and which is at the focus of our search for an appropriate meaning to the scope of liberty protections.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. SO, when you say, as you did yesterday, something to the effect that power comes from the people, you do not mean to suggest that a majority of the people have—that a majority of the people may violate, even through government, certain inherent rights of each human being?
David H. Souter
Nominee
(R)
Judge SOUTER. I mean, as you suggest, that power can only come from the people, yes.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. That is not quite my question, though. You made it quite clear in the response to my first question that you believe that there are certain inherent rights that precede the State. My question now is can a majority of people, acting through government, even acting through government, violate such inherent rights?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, we know that some of those inherent rights, of course, are reflected in the specific provisions of the Bill of Rights, and I have also said in the course of my testimony today that it is one of the objects, as we now analyze these problems, is one of the objects of the liberty clause, both in the State constitution and in the National Constitution, to define and protect this point beyond which government simply cannot go or cannot go without the most strong justification.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, I am heartened to hear your subscription to the belief of the Founders that we have certain inherent rights that precede the State. I want to return again to the Declaration of Independence and pick up where so often people leave off. We all know that famous expression of Jefferson, "life, liberty and the pursuit of happiness." Unfortunately, he got the property part screwed up, but New Hampshire fixed it in their constitution and made it clear that pursuit of happiness means, as it was generally meant in those days, the possession and enjoyment of property. But to get back to that famous expression "for all people for all times, that they are endowed by their creator," and so on, "certain inalienable rights," and then pick up where people so often leave off, because this next part is so important, too, "and that to secure those rights, governments are instituted among men." 172 Therefore, would you agree with the Founders that the fundamental purpose of government then is to secure those inalienable rights in which we are all endowed by our creator?
David H. Souter
Nominee
(R)
Judge SOUTER. That is a fundamental purpose and, as you know from just the structure of the constitution in our own State, that was the purpose which the drafters and the Founders saw fit to express before they had even addressed the question about the appropriate structure of government.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes, indeed, they put it right up front. By this line of questioning, I do not mean to suggest that there are rights that are unlimited. When one's rights bump up against another's, then immediately we begin to have limits. We call for liberty, not license, and that is I think the concept on which our government was founded and has evolved in very great detail. Well, Judge Souter, under the Constitution, can there be the right of one human being to take the life of another, except in selfdefense, when threatened by that other human being?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, we know, Senator, subject to the Constitution, that there traditionally certainly have been circumstances. The example of the death penalty, as you know, is recognized right in the Constitution
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Permit me to interrupt there. What I mean was, is there the right of one human being, acting separately, not corporately as society or government, but one human being acting separately to take the life of another, except in self-defense, when threatened by this other human being?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, are you asking this as a question of constitutional law, now, not a moral, not a personal moral issue?
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I will ask it first as a personal moral question.
David H. Souter
Nominee
(R)
Judge SOUTER. I can certainly conceive of circumstances in which it would be arguably justifiable to take another's life, even though mine personally was not threatened. There is the object of war, the example of war, the example of protecting one's family. You would protect your child, even though your life was not threatened.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Fair enough, but the intent of my question was to focus on a situation where one individual, not acting with authority of government, as one does in war, and I did not anticipate the conditions of a family being threatened. But I am trying to focus on a situation where one human being elects to take the life of another, which other human being does not represent a threat to the life of the first.
David H. Souter
Nominee
(R)
Judge SOUTER. I think probably I and everyone in this room would accept the proposition, the general proposition that life, of course, morally should not be taken without justification. Where we would find our points of difficulty might come in either defining the concept of life or defining the very concept of justification that arguably would be brought up in argument.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Defining life seems to be a problem that the Supreme Court has encountered, inexplicably, from my point of view, but that is something I will put off for a later time, if I may. Would you agree with my understanding of Roe y. Wade and the subsequent decisions, the progeny, as the lawyers like to say? You know, there is certain lawyer language which is used to justify the 173 exorbitant hourly fees that they charge, so I will try to keep my language simple.
David H. Souter
Nominee
(R)
Judge SOUTER. Those were the millions that I could have been earning, if I
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes. [Laughter.] Those other decisions, Roe and the ones that followed, would you agree with my understanding that Roe and the progeny established an enforceable right to abortion during all nine months, if, for example, the mother asserted continued pregnancy represented a threat to her health, including mental or emotional health?
David H. Souter
Nominee
(R)
Judge SOUTER. The extent of recognition in the cases of mental or emotional health is something that I am not clear on the legal development on, but certainly there is recognition of the possibility of abortion to save the life of the mother or to save serious injury to her health.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, it is much more than that, and I am not mistaken on this point, that Roe and progeny establish—the reason I raise this, it is kind of a rhetorical question, really, and I know you are going to stay arms-length from this, and I understand your point of view. You know, there are a lot of people watching, including young people, for which this is a wonderful lesson in history and in constitutional government, who probably do not understand that Roe and the decisions which followed it and reinforced it and expanded it established a right to have an abortion during any time of the nine months of gestation, for the health of the mother, which includes the emotional or mental health. So that if a woman raises the claim that pregnancy affects here emotional health, that is sufficient to secure an abortion. That, of course, is the massive loophole through which 98 or, say, 95 percent upwards of the abortions in this country are secured. And when you look at the surveys, the interviews with women who have had abortions, they never say that—I should not say never— they rarely say that they sought the abortion because of emotional health or mental health, or even physical health in most cases, but, rather, because they were unmarried or it would interrupt school plans and things like that, which are not insignificant, but I just want to make the point that this is a massive loophole in existing law through which most of these abortions are secured. At least I view it as a loophole; others may not, but I certainly do. That is a critical bit of information, that one can secure abortion during any of the nine months of pregnancy by establishing that claim. Surely, you will be able to respond to this question: Roe v. Wade and progeny did not establish an obligation on the part of any individual or any institution to perform abortions. That is correct, is it not?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, we recognize that, and, of course, those issues have been raised in the funding cases, too.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. SO there is no obligation on the part of anyone, including the Federal Government, as we have known from many challenges, to facilitate abortion in any way, either financially or in any material way, because, as the Court has said, there is no obligation on the part of the government to subsidize the exercise of rights. 174 Judge, you were a member of the board of trustees of the Concord Hospital from 1971 to 1985. In 1973, the trustees voted to begin performing abortions in that hospital. Have you said for the record how you voted on that issue?
David H. Souter
Nominee
(R)
Judge SOUTER. I think I have, but I voted for the resolution, and my recollection is that the specific terms of the resolution allowed abortion consistent with was then the new legal era inaugurated in the terms of Roe v. Wade. My recollection—and this is simply something I am not clear of, after this time, but I think there had previously been probably a hospital or staff bylaw referring specifically to the preexisting New Hampshire statutes
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER [continuing]. And that, as a result of Roe v. Wade, there was need to revise them.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Right. So you voted in support of the policy change, the result of which the hospital began to perform abortions, consistent with the law, of course?
David H. Souter
Nominee
(R)
Judge SOUTER. That abortions could be performed within the hospital, and my recollection also is that the resolution was explicit in saying that this did not obligate a given hospital employee or medical staff member to do anything against conscience.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Good. Good. Well, I am not asking you in this next question to comment on Roe v. Wade, that is, its correctness, but I would ask you to explain your vote, as a trustee of the Concord Hospital. Clearly, the hospital was under no obligation to begin performing abortions. Why did you choose to support a change in policy such that the hospital began to perform abortions?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, the change in policy was to allow doctors who chose to perform abortions as a medical procedure in that hospital, to do so consistently with Roe v. Wade. The resolution was not—and I do not think this was the point of your question, but the resolution was not intended to make the performance of abortions a hospital function, as opposed to a function of the medical staff which practiced independently within that hospital. The reason the hospital took that position and the reason I voted for it was that Concord Hospital was a community hospital, it was not tied to any sectarian affiliation, it served people of all religious and moral beliefs, its medical staff represented all religious and moral beliefs, and so did the patients who went through the hospital. We did not believe that it was appropriate for us, whatever might be the moral views of a given trustee, to impose those views upon the hospital, when in fact it was the law of the United States that a given procedure was lawful. It was, of course, a further justification, and I cannot tell you offhand how much weight that justification played in the minds of any one trustee, but it, of course, was a serious one, and that was, given the fact that the hospital would be available for abortions, if a doctor chose to perform one there. One of the functions which the hospital was giving to the community was the function of the greatest degree of safety in medical care, and if abortions are going to be performed as, by law, they could be performed, it was appropriate in a nonsectarian hospital to allow the full range of backup services for the safety of the mother and, indeed, for the safety of all participants, and we felt— and I do now feel—the hospital had an obligation to do that.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. SO you did not feel in that case that it was appropriate to bring to bear any moral judgment, is that what you are saying?
David H. Souter
Nominee
(R)
Judge SOUTER. I did not.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Does your vote back then in any way indicate that you feel that unborn human beings are not persons?
David H. Souter
Nominee
(R)
Judge SOUTER. My vote has no such implication. My judgment with respect to the appropriateness of the procedure in a hospital of which I was a trustee is no more a reflection of a personal moral view of mine, pro or con, than would be any judgment that I was required to make as a judge of a court.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. It might be fun to explore why you feel such a decision should be value-neutral, why you should not bring your moral judgment to bear in such a situation. I have already used more than half of my time and I want to keep going, but I certainly am willing to yield to you, if you want to reply in any greater depth on that question.
David H. Souter
Nominee
(R)
Judge SOUTER. I will leave the questions to you, Senator.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Let's look at the other end of the continuum of human life. With respect to the 14th amendment, are there any precedents in our law that have stripped, for example, elderly persons of their right to life, without due process of the law?
David H. Souter
Nominee
(R)
Judge SOUTER. I am not aware of what you may be getting at or anything that I could respond to your question.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, I am not aware of any such precedents. I could be mistaken, but I am not aware of any. My point is that: One retains the protection of the 14th amendment; namely that one may not be deprived of life without due process of law, no matter what one's condition. If one is unconscious, one is still a person and protected by the 14th amendment. Is that not so?
David H. Souter
Nominee
(R)
Judge SOUTER. I think there is no question, 14th amendment liberty includes liberty in that situation.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes. If one
David H. Souter
Nominee
(R)
Judge SOUTER. AS you know, it raises very great difficulties.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Oh, yes. If one is unable to fend for one's self, unable to speak for one's self, unable to defend for one's self, unable to eat or drink for one's self, unable to attend to toilet necessities, even unable to breathe on one's own, one is still a person and protected by the 14th amendment.
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question, that liberty
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. NO question about that.
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question, that liberty interests extend to every living human being. In answering that, of course, as I am sure you do not intend, I am not giving opinions about the validity of living wills and things of that sort. But the appropriateness of the 14th amendment is an invocation of right and is open to everyone.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes. You say the liberty provision of the 14th amendment extends to every living human being. What is the difference between a living human being and a person? 176
David H. Souter
Nominee
(R)
Judge SOUTER. Without being more specific about the legal context, Senator, I don't know that I would see any point in drawing that kind of a distinction. I portend nothing by that answer, but I just think that is the kind of statement that one really cannot make without being misleading, unless one makes it in a very specific context.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, it is a very important question. It is a pivotal question. I may want to come back to that in a second round. Yesterday you said you counseled a couple whose union had resulted in conception, in this case an unplanned pregnancy. That was in 1966?
David H. Souter
Nominee
(R)
Judge SOUTER. I think that was in 1964 or 1965.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. My information is that in no State was elective abortion legal until 1977, California being the first State to permit it. I don't want to even approach an intrusion into the privacy relationship in terms of identity or outcome, but did you counsel the couple to remain within the law?
David H. Souter
Nominee
(R)
Judge SOUTER. Without invading the privacy which they have a right to expect, I think the only thing, Senator, that I can tell you is that I counseled them against taking the kind of, in fact, dangerous action which one of them had described to me they had in mind.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I think I misspoke a moment ago. The first law permitting elective abortion was enacted in 1967. Evidently I said 1977. Judge, you remember the old television program "Queen for a Day"?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, it wasn't something that I spent much of my youth watching, but I have heard the term. [Laughter.]
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes; going back to the days of black and white TV. Let's play Senator for a day.
David H. Souter
Nominee
(R)
Judge SOUTER. I still have a black and white TV.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I don't doubt it. [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. They were right about me on that one, I'll tell you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We are surprised you have that.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, I hope you don't watch it much. My theory is that nothing would do more good for this country than for everyone to smash his television set. So I outdo even you on that one because people would begin, especially parents and children would begin talking, and children would begin doing their homework instead of watching and having their minds filled with rubbish every evening from our wonderful networks. That is another subject and another speech. Let's play Senator for a day, Judge. Put yourself in our shoes, if you will, for a few minutes. If you were up here on this side of the table in the room, what would you be concerned about in confirming or not a Supreme Court Justice? In other words, what is important? What should we be trying to do here? What is it we should be concerned about, and what should citizens be concerned about? What are the dangers inherent in this massive power which the Supreme Court enjoys by virtue of the lifetime tenure of members who are accountable to no one in any practical sense? 177 This is, again, not so much for my benefit—although I have no doubt I will learn something from your insights—but especially the young people who are tuned in.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. On television.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. On television; yes. [Laughter.] I might have to make an amendment to my statement.
David H. Souter
Nominee
(R)
Judge SOUTER. Even network television.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. NO, cable; cable. The networks don't bother, too much.
David H. Souter
Nominee
(R)
Judge SOUTER. Of course, I would start just where you start, Senator. You have a responsibility to inquire into competence. You have a responsibility to inquire into personal integrity, a responsibility, certainly, to inquire into basic knowledge of the Constitution and its values. Then there is, as is frequently spoken of in connection with the ABA's inquiry, there is an inquiry into judicial temperament.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Maybe my question was too broad, and excuse me for interrupting. I would like you to comment on the dangers inherent in a judiciary appointed for life and accountable, really, to no one.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, the danger inherent, I suppose, is that the judiciary can devolve into an institution for the expression of purely personal values. The institution itself is one step removed from the democratic process. Fortunately, that is only one step because the democratic process is going on in this room. But
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator K ^'DHREY. Yes, it is. Permit me again to interrupt. It is a mighty big one step removed. This is our one opportunity. You are going to be over there for decades, for good, I hope and trust and believe. But it is not a small step removed; it is a huge step removed.
David H. Souter
Nominee
(R)
Judge SOUTER. Because of that step, as you point out or indicate, subject to impeachment, there is no recall. There is no secondguessing. I would not be true to my own sense of constitutional principle if I did not say that the Senate ought to be looking for someone who, in seeking the very difficult or in going through the very difficult process sometimes of seeking constitutional meaning, would seek for something outside that judge's personal views for that moment, who would seek to infuse into the Constitution a sense of enduring value, not of ephemeral value, and who would try to rest that process on as objective an inquiry as can be possible, given the great breadth that is necessary when we do search for value, for these massive generalities and magnificent generalities that are committed to us. But I could not end an answer to that without saying that with the best will in the world to avoid the changing and the ephemeral and the purely personal, a judge in the long run is going to go wrong unless that judge is willing to listen. The fact is we learn much from what goes on in courtrooms. I think some people tend to look upon—people perhaps who have not been through the judicial process, I think they tend to look at it with suspicion as to whether what goes on in courtrooms, including appellate courtrooms, is really capable of changing judges' minds 178 or influencing the way they think or forcing them to refine their views. One of the things I know from personal experience is that the process works. I mentioned yesterday that although I didn't come down with any statistics, I have kept track of my own performance listening to oral arguments and reading briefs. And I can think of instances, some specific and some in general, when my mind has been changed by what I heard and by what I read and by what I thought after an argument. Ultimately, you cannot choose, you must not choose, a judge who is not open to that kind of influence.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes; I quite agree with that. We all must be able to listen and to change our minds when the facts indicate. Have you seen any trends in the Supreme Court? The Court changes, of course, in tenor over a long period of time, oscillating back and forth. Have you seen any trends in the Supreme Court decisions in the last 40 years that give you any cause for worry?
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question that there have been times when I have been concerned about the wisdom of individual court decisions. I was in law enforcement once, and there were times when I used to chafe over the difficulty that law enforcement had in conforming to some of the Warren court decisions. One of the things I am glad of is that that is an era which has, in large measure, passed. We do not have the same problems that we had 20 years ago. There are some who would say there is a greater pragmatic appreciation on the Supreme Court. You know, there is also a much greater degree of practical pragmatism in the entities who come before the Court. We have learned to live with much in the last 20 years, and we have lived with it reasonably well. I am not standing here, leaving aside my position as the nominee, fearful of one trend or another. I could be critical about individual decisions. There are decisions which we will undoubtedly discuss in the course of the next afternoon or the next day or two, some of which I would have come out differently on. Any lawyer and any judge can say that. But I don't have an alarm to raise with you at this moment.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you. I may pursue that later, but my time is up. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Judge, let me apologize for getting up and down this morning myself. I happen to be chairman of the European Affairs Subcommittee of the Foreign Relations Committee, and I have drafted an alternative to the War Powers Act, which I have been attempting to negotiate with the administration since it came into office. One of the issues before us now is whether or not there will be a congressional authorization proposed for the action taking place in the Gulf, and I have drafted such a detailed proposal. That is in negotiation among Senators now, and that, coupled with new actions today in the Gulf, have required me to occasionally get up and attend to another duty. But it is not because I don't want to hear every word you have to say. So I do apologize.
David H. Souter
Nominee
(R)
Judge SOUTER. NO apology is needed, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me propose the following, and this is a moving target here: Let me suggest that when I finish saying this we just stand for 3 minutes to get a seventh-inning stretch here to 179 give you a chance to stretch your legs, then come back back and have Senator Simon. That will take us until about 1:30. If Senator Kohl doesn't mind, we will have him come and be the first person after lunch, and we will spend 2 hours after lunch. We will have four people question after lunch. I don't know who the four will be because I am not sure whomever the four in order will be here. That would take us until roughly 4 o'clock, unless any particular Senator has an overwhelming requirement to want to question today. It is now about 8 minutes of. We will recess until 5 minutes of, come back, and Senator Simon will begin with his questioning.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator. [Recess.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In order to stop Senator Rudman's press conference, I think we should [Laughter.] Actually, I haven't given the witness an opportunity to get back out here yet. He has not been warned. We are about to begin. Thank you very much, Judge. What we are going to do now, we will go to Senator Simon and then we will either break or, depending on what the Senator from Wisconsin has to entreat me, what he has to say, we will either go to lunch or go to him.
Senator Paul Simon (IL)
Senator
(D)
Senator Simon. Senator SIMON. Thank you, Mr. Chairman. Let me just digress for one moment, Mr. Chairman, if I may have your attention over here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am sorry.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. That is quite all right. I just wanted to call attention to one thing that Senator Thurmond just mentioned in passing. He said this is the 23d Supreme Court nominee that he is having a hearing on. That is a remarkable record. I wonder if any United States Senator has ever done that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I doubt whether anyone has, but I am beginning to tally them up so much that I would like to pass a resolution that there be no more. [Laughter.] Because I have nowhere near that number, but in half the number of years that I have been there, it has been an incredibly— it seems I have spent most of my life sitting here having the opportunity to be educated. I mean that sincerely. At any rate, I don't think there is anybody else, I would imagine, that had that many in any one time frame.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I would doubt it. I just thought it ought to be noted. Let me kind of tell you where I am at this point, Judge Souter. On the positive side—and some of these things perhaps some people will think are minor—your use of language is good. You speak clearly and concisely, not in convoluted sentences. We are going to get those kind of opinions out of the Court if you are there. Clearly, you are a listener and you are astute. I like that. Then there is one kind of amorphous quality I will simply call stability that I see in you, and I like that. You have indicated you are willing to stand against popular opinion. And when we look back, for example, on what the Supreme Court did in the case of Japanese Americans in 1942, I want a Supreme Court Justice who is willing to stand up to popular opinion. 180 What is less clear for me is in two areas, and that is what I want to question you about. One is whether you are going to be a leader for civil liberties; and, second, whether you will be a leader for those less fortunate. In the area of civil liberties, if I may follow through on the questions of Senator Specter, you indicated that you at least tentatively accept the tripartite test of the Lemon case that the Court has used since 1971. Let me give you a specific example that is long past and just kind of get, without any kind of a commitment, your visceral response. I remember when we had a school prayer issue before the House when I served in that body. Congressman Dan Glickman from Wichita, KS—who happens to be Jewish—told me a story about when he was in the fourth grade. Every morning he was excused while they had prayer, and then he would be brought in. Every morning little Danny Glickman was being told "You're different." All the other fourth graders were being told the same. Is your feeling that that kind of an exercise violates the Lemon test?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. I think to begin with it is an appalling fact. I happen to have a friend who is on the bench who described exactly the same experience to me growing up in Manchester, NH. He was Jewish. He didn't leave the room every morning, but he was cut apart from the rest of his class when the Christian Lord's Prayer was recited. The fact is the Supreme Court today I think has carried the law to the point where a period of time for silence which may be used for any meditative or non-meditative purpose that a child may want has not been declared to be a violation of Lemon v. Kurtzman. But I think it is probably equally clear that the use of prayer which has, as you describe it so graphically, the kind of exclusionary effect is by virtue of that very evidence a kind of use of prayer which, under the Lemon test, would have presumptive religious purpose and presumptive religious effect. As I understand Lemon v. Kurtzman, that would certainly violate it. It also calls to mind the alternative formulations which in some of the recent cases Justice O'Connor has been referring to, and she has been adverting to exactly the phenomenon that you have described. She has been saying what we should be looking for is whether the practice in question and its effect on people has the kind of effect of telling them that you are somehow outside the legitimate scope of our real community. She is looking for that kind of sometimes subtle and sometimes very gross exclusionary effect.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. When you are 13th on a list of questioners, you have to skip around a bit when it's your turn to question. Following up on what Senator Humphrey asked, in this case where you told Senator Metzenbaum about counseling the couple in Massachusetts, where the statute at that time prohibited all abortions, even if the life of the mother was at stake, did you reflect at all at that point on the wisdom of that statute in Massachusetts? Do you recall?
David H. Souter
Nominee
(R)
Judge SOUTER. On that particular afternoon, the immediate problem before me, as I recall, probably did not take me that far. I had a very immediate problem in front of me that afternoon, and I think we probably confined the philosophy to the immediate 181 danger. But that was a long time ago, and I don't remember the details.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I understand that, but afterwards even, not just that afternoon, did you reflect on that?
David H. Souter
Nominee
(R)
Judge SOUTER. No one could avoid recognizing the consequences of that statute for the options that were available. That was obvious to all of us.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. In discussing the right to privacy, you used the phrase "the fundamental marital right to privacy." Let me ask why that is fundamental more than other rights to privacy, including, say, the right to have privacy in a phone conversation or other things.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I used that not as an implicit exclusion of something else but as a subject matter that we have become familiar with. Our approaches to it, our judicial formulations of it have varied back and forth over the years. But going right back to the time of the often disputed cases of Meyer v. Nebraska and Pierce v. Society of Sisters, the Court has confronted, whether precisely or imprecisely, the fact that there is a core set of family values which, in the general understanding and the traditional understanding of the American people, are protected. And so we, in fact, have had a great deal of time in this century to be thinking in those terms, and that is the most familiar focus for what we are talking about. But I do not mean that to be a focus which implicitly excludes other interests. As I said a moment ago, there is no question that the judiciary of the United States is going to be spending a significant amount of time in the years ahead trying to give attention to other claims— indeed, giving attention to other claims and trying to adjudicate.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yesterday, in discussing the right to privacy, there was a discussion of the 9th amendment and the 14th amendment. But in the Constitution there are other provisions which guarantee the right to privacy as well. You can't come into my home without a very specific search warrant. The Constitution says you can't quarter militia in my home. There is in the Constitution a sense of a right to privacy. That is not a question. I guess I should reverse that. Is there in the Constitution a general sense of the right of privacy?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think perhaps it is wrong to go back and say you have answered my question for me.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER. But you have there. We find, as you point out on the provisions against the quartering of troops, the provisions against unreasonable search and seizures, the provisions against compelled self-incrimination, which gets you out of a kind of physical context. There are, indeed, reflections of what we could in a general way describe as privacy interests there. And as it goes without saying, the great debate has been the extent to which a privacy interest not so specifically recognized must be assumed under the concept of liberty. I have taken the position, although I cannot say here what its extent may ultimately be determined to be or what I would find it to be, yes, there is a core that goes beyond those specific pinpoints. 39-454—91- 182
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Then if I can, I am going to shift over to the general area of your concern for those who are less fortunate in our society. For one reason or another, I received a letter from the AFL-CIO saying all of the David Souter decisions have been on the side of management, not on the side of the workers. I frankly haven't made an analysis of your record in that regard. Perhaps you have not.
David H. Souter
Nominee
(R)
Judge SOUTER. I have not either, no.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Does that sound like it is possible?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the only thing I can say in the abstract is I have to decide the cases that come to me. I would only ask you to look at those cases and see whether in your judgment they were decided fairly. I do not have a pro-labor or a pro-management agenda. I can say that this gets us somewhat outside the labor area, but I can't help but remember that in one of the early weeks or so following my nomination, there was an article—I think it was in the business section of the Sunday Times—on "Is this a friend of business?" And I remember one of the conclusions in there was that this is not a nominee who is out to rescue business from its bad decisions or from its improvidence. And I hope in any such weighing as you may believe it right to do, you would bear that in mind, too, because I think there is, indeed, a record on that point.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. There is a newspaper article that quotes you as saying in a speech that affirmative action is affirmative discrimination. And I combine that with your statement, if I jotted it down correctly yesterday, that there is no discrimination in New Hampshire. My guess is that even the two percent or three percent of the blacks in New Hampshire would probably give a different answer than you provided yesterday. My guess is that there are a lot of women in New Hampshire who would give you a different answer. There might be some French Canadians by origin who would give you a different answer. I am concerned by a statement that says affirmative action is affirmative discrimination, if you were quoted correctly.
David H. Souter
Nominee
(R)
Judge SOUTER. I think that—I hope that was not the exact quote because I don't believe that. The kind of discrimination that I was talking about in that speech was discrimination, as I described it and as I recall being quoted in the paper about it, a discrimination in the sense that benefits were to be distributed according to some formula of racial distribution, having nothing to do with any remedial purpose but simply for the sake of reflecting a racial distribution. That is to be contrasted in two absolutely essential respects, from on the one hand affirmative action and on the other hand the kind of distributive remedy which it is appropriate for courts and, to a degree yet to be fully developed, appropriate for Congress to consider. I would suppose it would go without saying today that if we are in the United States to have the kind of society which I described yesterday as the society which I knew or found reflected in my home, there will be a need—and I am afraid for a longer time that we would like to say—a need for the affirmative action which seeks out qualified people who have been discouraged by generations of societal discrimination from taking their place in the mainstream 183 and in all of America and in all the distribution of its benefits and its burdens. That is an obligation of individuals, and it is an obligation of government. I think it also goes without saying that when we consider the power of the judiciary to remedy discrimination which has been proven before the judiciary, the appropriate response is not simply to say stop doing it. The appropriate response, wherever it is possible, is to say undo it. That is a judicial obligation to make good on the 14th amendment. And as I said a moment ago, one of the developments in American constitutional law which is at the stage, I would say, of exploration now is the development about the particular power of Congress to address a general societal discrimination as opposed to a specific remedy for a specific discrimination. That is a concern which will be played out in constitutional litigation for some time ahead of us.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me, may I interrupt for the purpose of clarification?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I would yield to the chairman at all times.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, when you say specific remedy for a specific situation, do you mean specific remedy for a specific individual, or do you mean specific remedy for a specific situation?
David H. Souter
Nominee
(R)
Judge SOUTER. Identifiable class within a situation, yes.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Societal.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. An identifiable class.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. I think the difficulty that you have—and I mean you and I will have it here—in talking in the abstract is to say, well, how far do you go when you are imposed a judicial remedy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, I am not asking you that.
David H. Souter
Nominee
(R)
Judge SOUTER. NO, I was just going to say how far you go to the point where you carry yourself across the line from a remedial order to an order which addresses a societal and not a remedial problem. And I don't know how you draw that line in the abstract, but you have to be conscious that you should not be either too shy or too bold in the use of the judicial power.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. TO put it in layman's terms, the debate among those on the court and constitutional scholars is whether or not you can remedy a situation for a specific individual, where that individual has to show I have been discriminated against, as opposed to I am part of a class of people that have been discriminated against. That is the debate, at least in part, that is taking place. And when you said specific remedy, I wasn't sure whether you were talking about the individual as you were describing this debate that is taking place right now. So you are not merely limiting the need for government to respond to stop, but as well as undo, to the case where a specific individual is asserting they were a victim of a specific act of prejudice that is outlawed. But you were talking about more broadly. Is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. That is right. I think no such abstract line can be recognized. There are going to be some cases in which the only thing that is going to be proven is going to be a specific act of discrimination. There are going to be other cases, in fact, in what is 184 proven is, in fact, a far broader but proven discrimination. And the remedy must be tailored to the proof.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Judge. I appreciate it.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Let me, if I may, rephrase where I think we are going. First of all, while the word "quota" wasn't used, clearly that is not a desirable thing in our society. And we don't want that; the Court doesn't want that. When you say "undo," sometimes that is not enough. Congress says we have some residual problems from the days of slavery, from other problems that have existed because of discrimination against African-Americans, Hispanics, women, and others. And so Congress takes affirmative action to say we ought to be encouraging—in a constructive way—a more open society where opportunities are here forever. Without being specific, do those affirmative actions that Congress would take in any way leave you with a feeling of unease?
David H. Souter
Nominee
(R)
Judge SOUTER. No, it leaves me with a feeling that we are on the verge of developing law, rather than in a situation in which we can say with clarity that the law has developed and we know what its limits are going to be. When we address the kind of issue that you raise, Senator, we immediately go back to the Fullilove case, in which the Court found that it did indeed pass muster under the congressional power to set-aside, I believe it was a 10-percent minority set-aside in that case. There is certainly one reading of the recent Metro Broadcasting case, in which the Court upheld a—I forget the precise articulation of it, but upheld the use of giving some extra credit to a minority application subject to the FCC, simply by virtue of its minority origin, and approved the use of restricting for sales in those cases to minority buyers. On the other side of the scale, we know that there is less flexibility available to the State and local governments to do that kind of tailoring to broader societal discrimination, and I think, without question, one of the most significant subjects which is going to be developed in the Court in the foreseeable future is a more precise definition of just what the congressional power is, whether it be under section 5 of the 14th amendment or under Congress' article I power.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And section 5 is a fairly sweeping kind of authorization.
David H. Souter
Nominee
(R)
Judge SOUTER. It was unprecedented, as you know, at the time it was passed.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Finally, just a suggestion that I am going to pass along to you. Growth is one of the things I talked about in my opening remarks. I think it is very important for Senators, I think it is very important for Justices on the Court, to be exposed to things in our society that maybe we have not been exposed to. If I can use a personal illustration, we do not have any Indian reservations in Illinois. I know there are serious problems and, while we have some native Americans in the city of Chicago, reactively it is a handful of people. I took the time to go to the Pine Ridge Indian Reservation in South Dakota and found 73 percent unemployment, 65 percent of 185 the homes with no telephones, 26 percent of the homes with no indoor plumbing, and 8 percent of the homes with no electricity. Now when an issue about American Indians comes up, it is not an abstraction for me. You know, I think this good, great, rich country ought to be doing better. I do not mean this disrespectfully to your fine background, but I want you to understand perhaps a little more than you now do some of the aches of America. If you were to get together—and I prefer you to not answer right now, but maybe you will want to respond in the second round, with your friend and mine Warren Rudman, maybe Fred McClure, who was here just a little bit ago, and think about some kind of an agenda, when the Court is not in session, where you would get to understand the west side of Chicago, or perhaps an Indian reservation. I am not going to spell out that agenda. But I think if that were to take place, you would be a better U.S. Supreme Court Justice. Justice Cardozo has been quoted here this morning. Let me just give you a quote here: "Where does the judge turn for the knowledge that is needed to weigh the social interests that shape the law? I can only answer that he must get his knowledge from experience and study and reflection, in brief, in life itself." When we get to this second round, I would like any reflections you might have on how David Souter is going to grow, as a Justice, not just sitting on the Court. I think your experience with that young couple at Harvard was a growing experience. I think your being on the hospital board was a growing experience. And when I talk about growing, I think of Justice Hugo Black, who started off as a Ku Klux Klan member, and ended up as one of the great champions of civil liberties. Anyway, you have my suggestion and I look forward to asking you for any reflections, when we get to the second round. Thank you, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kohl.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, I am the last questioner before lunch. Judge Souter, can I order you lunch?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, if it is all the same to you, I would rather take the questions and we will have lunch after. [Laughter.]
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. He has heard how parsimonious you are on buying lunch. [Laughter.]
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Souter, why do you want this job?
David H. Souter
Nominee
(R)
Judge SOUTER. I did not seek this job, as you know. I was asked by the President of the United States to do this. What I said to you yesterday afternoon is my answer to that question. If I am confirmed in this office, I will be given the greatest power that anyone in the judiciary of the United States can ever know, and that is, as I said, the power to preserve and to protect. With it, as with all power, goes a like degree of responsibility, and if I am confirmed in this office, I want to try the best that I can to exercise that responsibility, to give the Constitution a good life in the time that its interpretation will be entrusted to me, to preserve that life and to preserve it for the generations that will be sitting perhaps in this room after you and I are long gone from it. 186
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. SO, this is a job, even though you were not seeking it, that you very much want?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. For the reasons that you have just expressed?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. YOU will be replacing, as we all know, Justice Brennan. Would you say, in a general way, that you are similar, dissimilar, vastly dissimilar? And how do you think he is going to be remembered and if you would wish to surmise, do you hope you will be remembered?
David H. Souter
Nominee
(R)
Judge SOUTER. I will be candid with you, Senator. That last part of the question, I would not be presumptuous enough to answer. We will have to wait and see. But I know how Justice Brennan is going to be remembered. It has nothing to do with Justice Brennan's philosophical position, it has nothing to do with any distinction that may or may not be drawn between him and me. I am not going to draw such a distinction. Justice Brennan is going to be remembered as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have. No one following Justice Brennan, absolutely no one could possibly say a word to put himself in the league with Justice Brennan. All you can do is to say what perhaps once Justice Brennan said, "I will do the best I can."
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Judge Souter, you have got a reputation, well-deserved, as a fine writer, and you are a scholar. Usually, those qualities in a person of your kind do result in some substantial writing, and there is not any substantial writing that I am aware of that you have done. Would you care to comment on that?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, there are the 200-and-some-odd opinions which have represented a great deal of substantial writing to me, and I will not ask you to read all of those 220-odd opinions.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I was referring to public
David H. Souter
Nominee
(R)
Judge SOUTER. That is right. No, in point of fact, I guess there have been two things that have motivated me. One, I describe I guess with caution, but in a fine kind of way they go to what Senator Simon was speaking of a moment ago. I have loved the judiciary. I have been a trial judge, I have been an appellate judge, and I want to be nothing else. As the years have gone, I have found that my judging has become more all-consuming of me than I once thought it was going to be. In earlier days, including the days when I was on the trial court and, in fact, before I went on the bench, when I was in public law practice, but still practicing law, one of the things that I wanted to do with my time was to do something other than as a lawyer, and that is why I served on boards and I had experiences, which Senator Simon was right in saying, that changed me. They made me grow. Beyond that, I will admit that there have been some times when I have been tempted to write on things that concern me professionally very much, and I was once even given almost a cart blanche for a book publication, if I would write something. I have not done it or I did not do it in those instances, because the things that I would have wanted to write about most were the things that were coming before me, as a judge, and, frankly, I was afraid that if I 187 started writing too much, I was going to end up recusing myself too much, because, as I envisioned what I might have written, it would have been difficult to get into it without starting to take positions and do just what I should not have done. There are many judges who have handled the business of writing with great subtlety and they have managed to come up with extraordinary outputs, without compromising themselves in what they did on the bench. The thing in several instances that I would like to have written about I think probably would have either forced me into writing just generality, or into writing things that really would have started disqualifying me, and I chose not to do it.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Yesterday, when the protestors did their act, everybody in the room, of course, was startled and turned around or looked ahead to see what was happening, with one exception—you.
David H. Souter
Nominee
(R)
Judge SOUTER. Oh, I turned around.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Did you?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK. I had not noticed that.
David H. Souter
Nominee
(R)
Judge SOUTER. Actually, I had some practice for this. I remember that something very similar happened during one of Governor Sununu's inaugurations, and there was a sense of deja vu to the whole experience. No, I turned around.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. In connection with preparation for this hearing, it is our understanding that you have spent 4 or 5 weeks studying very hard to ready yourself for this hearing. You have had meetings and briefing books, and I am sure you have gotten a lot of advice. There are a couple of questions that I would like to ask about that. Did members of the administration help you prepare for this hearing?
David H. Souter
Nominee
(R)
Judge SOUTER. Only in the sense of doing things that I asked to have done. There have been some lawyers, as you know, from the White House Counsel's Office and the Justice Department who have been there to help me. But the ground rules were at the beginning—and they were, in fact, not ground rules that I even had to impose, I mean they were ground rules that were offered and they were the only appropriate ones—were that they would pull together material that I wanted to review. As you can imagine, I have been revisiting a lot of cases, some of which I have read almost on a daily basis certain times in my life and some of which I have not read for a long time. So, what was agreed upon at the beginning of the process was that we would work together on a suggested topic list. All nominees, obviously, are going to review certain subjects, so they had a topic list much in mind. We discussed it I think the first week of the nomination, and they then collected the kinds of material that I wanted to do my reading. There have not been the kinds of briefings in the sense of saying, Judge, this is the law or this is an appropriate position that you ought to maintain the hearings. There has been a very scrupulous regard for the fact that I am the nominee, and not the administration. 188
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, there are, I believe, four members of the administration sitting right behind you.
David H. Souter
Nominee
(R)
Judge SOUTER. That sounds like the right count, yes.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. And my question is, in terms of the future, in view of the fact that the administration comes to argue in court— and obviously the most disinterested attitude is the one that we need to have—do you think that we could sharpen up that process in the future, to create a larger, a bigger distance from day one, once a person gets nominated, a more independent distance than is what is normal, apparently, in the process, as I understand it?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Again, as a person sitting here for the first time, I just get the feeling—and I do not believe you are the kind of a man who would let it happen—that there is too close a relationship here.
David H. Souter
Nominee
(R)
Judge SOUTER. I appreciate exactly the issue that you are raising and I think it is good to raise it. I suppose there is no question, that Congress could sort of create an office of legal adjunct to nominees to try to provide the help that we need, and we do need help. I mean I wanted to do a great deal of reading and rereading, as I said, in the time prior to these hearings. One of the things I know is that I could not very efficiently have spent my time alone pulling all the material together in a very usable way. I would have spent a good deal of time just running back and forth between stacks and libraries, so that at least a candidate or a nominee who wanted to approach the hearings as I did, would need some help. It might be difficult, given the pace of Supreme Court nominations, to make that a very workable proposition. I must say I tend to analogize as closely as I can the role of the people who have helped me in a way, to the people whom I am very used to having help me, and that is the law clerks that I have on the court. The role which the Justice Department and White House lawyers have played for me has, in fact, been a far less intellectually close one than the role that a judge and his law clerk plays. For example, one of the things that I want my law clerks to do is to argue me out of a position, if they think I am taking the wrong one. So there is a very intense kind of intellectual interchange that goes on or one hopes will go on between judge and clerk. Yet, when that clerkship is over, that does not—and I think is not thought by anybody—to taint the possibility that some day that clerk can appear before the judge in court. My own personal rule has been, although I never formalized it, that I would not hear a law clerk's argument for at least a year had gone, and so
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. What I was looking for an answer to is the question, do you think in the future our country would be well advised, from the moment a person is nominated, to create the same distance between the nominee and the administration, as exists between the nominee and Congress, or any other party, for that matter? Why should there be a closer relationship, as there is obviously today? I mean it is clear. It seems to me that your independence, as a Supreme Court Justice, is more clearly apparent, if you are here today without their company. 189
David H. Souter
Nominee
(R)
Judge SOUTER. I see the point that you are making. I am glad to have the opportunity to say that nobody has been subtly or otherwise lobbying me on a particular position.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I believe it.
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question, a nominee needs help.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. He also needs independence.
David H. Souter
Nominee
(R)
Judge SOUTER. YOU are absolutely right and, fortunately, these people have given it to me.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I understand, yes. Just a couple of questions on Roe v. Wade. In 1973, when it was promulgated, you were in the AG's office
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL [continuing]. And it is hard to go back to what you did that day or in the days and weeks after, but I am just presuming that there was conversation between you and your colleagues at that time. Do you recall your feelings about Roe v. Wade back when it was promulgated?
David H. Souter
Nominee
(R)
Judge SOUTER. I frankly do not remember the early discussions on it. I mean everybody was arguing it. It was probably fodder for more argument among lawyers than any other case, certainly, of its time. The only thing I specifically remember is I can remember not only I, but others whom I knew, really switching back and forth playing devil's advocate on Roe v. Wade.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. YOU had no opinion about it, other than just to say "wow"?
David H. Souter
Nominee
(R)
Judge SOUTER. Oh, I doubtless had an opinion. No, I did not just say "wow."
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. What was your opinion in 1973 on Roe v. Wade?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, with respect, Senator, I am going to ask you to let me draw the line there, because I do not think I could get into opinions of 1973, without there being taken indications of opinions in 1976.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK. With respect, finally, to Roe v. Wade just once more, is it fair to state, even though you are not prepared to discuss it, understandably, that you do have an opinion on Roe v. Wade?
David H. Souter
Nominee
(R)
Judge SOUTER. I think it would be misleading to say that. I have not got any agenda on what should be done with Roe v. Wade, if that case were brought before me. I will listen to both sides of that case. I have not made up my mind and I do not go on the Court saying I must go one way or I must go another way. As you know, the issue that arises when an established and existing precedent is attacked is a very complex issue. It involves not only the correctness or the incorrectness by whatever lights we judge it of a given decision. It can also involve extremely significant issues of precedent.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER. And I do not sit here before you, under oath, having any commitment in my mind as to what I would do if I were on that Court and that case were brought before me.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, I think that is a significant statement. I would just like to ask you for a moment about cameras in the court. How do you feel about cameras in the Federal court? How do you feel about cameras in the Supreme Court? 190
David H. Souter
Nominee
(R)
Judge SOUTER. Actually, I have never seen a camera in a Federal court. As you know, I have been a Federal judge for a comparatively short period of time and, as a result of what happened to me last July, my judicial experience on the Federal bench has been cut very short. The only experience that I have had were with cameras in the New Hampshire Supreme Court, where they are allowed, as long as they are not obtrusive. The experience there was that, after the rule was passed allowing the cameras in, for a period of time there was a spate of great interest in taking photographs in the courtroom, and, you know, any case that rose in interest to sort of 5 on a scale of 10 would carry with it video cameras in the back of the courtroom and so on. That lasted for about 2 years, and I am sorry to say that apparently the news media or the New Hampshire public at that point grew so bored with what they were seeing photographed, that people stopped taking pictures and we have not seen them for very long. I do not know whether, if this hearing went on for 2 years, the photographers would all clear out or not, but that was the New Hampshire experience.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO not do that to us, Judge. [Laughter.]
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. HOW about 2 more days? So, cameras in the Federal court, in your mind you have some ambivalent feelings about it, or do you feel it might be
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I am of two minds, in one respect. The fact is, if the cameras are unobtrusive and they are not making, you know, sound that is distracting, that is one thing. There is still a risk there, and I will get to it. Cameras which are obtrusive in the course of oral argument, so that they really do tend to distract your attention, I think is something that has got to be avoided. When I am sitting there on a bench, you now, I am very much in the position that the members of this committee are, except that I am in an even tougher one. Several of you have said to me, well, after you leave here, if the Senate confirms you, we will never see you again. You have at least got a few days' worth and you can decide how long it is going to be that you do see me. When I am sitting as a judge, I am seeing or I am hearing the sides of the case for 20 minutes or half an hour or whatever the case may be. It is a short period of time and I do not want distraction from that case. So, that is why a clicking camera can be difficult in a situation like that. [Laughter.] That seems to have provoked a great deal of clicking. [Laughter.] I think I need say no more. [Laughter.]
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. The last question on that is the educational value of cameras in the court, particularly oral arguments at the Supreme Court level—aside from its distraction, there is truly some value. I must say that even before I came to the Senate, I have learned an awful lot through C-Span, and I think that one of the best things we do in this country is to make C-Span one of our prime-time stations. While it is not exactly comparable, bringing the court into the home has some value for children and for adults. Now, I don't know whether it is counterbalanced by your own feelings in terms of the distraction, but I think you would agree with 191 that, would you not, there is some value in bringing the courts into our home?
David H. Souter
Nominee
(R)
Judge SOUTER. There is no question that there is as value there.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. The last area: Going back to when you were attorney general in New Hampshire, you have been asked many questions about your time and conduct as the attorney general and you have responded, in part, by saying "that was then and this is now," which seems to imply that you feel that there is some sort of a change which has taken place in you between then and now, which would not be unusual. It happens to all people. So let me ask you what you would do today, Judge Souter, if you were attorney general and you were asked by the Governor to make the same arguments you made then about ethnic statistics, flag lowering, literacy, or even the license plate case, would you do it?
David H. Souter
Nominee
(R)
Judge SOUTER. The big difference, you see, is you are rightly keeping me in the role of the lawyer and the advocate. The big difference is that, on those issues, we have got a lot of law today that we did not have then. Just take literacy, for example. At the time Attorney General Rudman and I were engaged in the literacy test case, Oregon v. Mitchell had not come down. Oregon v. Mitchell was decided, as I think I said yesterday, perhaps 4 months, 6 months after we argued that case. So, there were arguments which were there to be made then and they are not there to be made now. As I said earlier this morning, the virtue of the system and one of the very responsibilities of the lawyer, as advocate, is to fight out the constitutional issues in a sufficiently illuminating way, to give the courts the help that they need from the adversary process to sharpen those issues and get them right. So the fact is, I would not be making the same arguments today, but we would not be having the same cases today, either.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK. I respect your answer and I guess I will ask once more, to see if there is some opening of a door, at least this wide, and not certainly good or bad, but just some. I thought you said and I thought I had seen a person today who was not the same person that he was 15 years ago, as none of us are. Hopefully, we all grow, develop, change, mature, get better as we go on in our life. Certainly in our profession we mature, and I still—I want to say that I believe that the man who is sitting here today would have a harder time—if not refuse—defending those cases as the attorney general 15 years ago. I want to believe that, so maybe that is how I will end my own personal questioning of you.
David H. Souter
Nominee
(R)
Judge SOUTER. I am content to have you end it there, sir. Thank you. [Laughter.]
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mr. Chairman?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Just one clarification. In response to Senator Kohl, who asked you about your writing, you said that you wrote 220, and I quote you exactly, "wrote 220-odd opinions." You may want to clarify that just a little. [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. Could I strike one word?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER. YOU know which one. [Laughter.] Thank you, Senator. 192
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, the press will immediately go out and assess whether you did poorly or well today. I think you did well, but they will also have to assess that the networks obviously did not do well today, based on the discussion here that has been raised, and so maybe they will have a better afternoon. Judge, we will recess for lunch until 3 o'clock. Let us start promptly at 3 o'clock, and we will have three, I believe, possibly four questioners, but no more than that, and we will end for the weekend after that. Is that all right?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. We will recess. [Whereupon, at 1:55 p.m., the committee was in recess, to reconvene at 3 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. Welcome back, Judge. As I said, I think the extent to which we are going to go this afternoon is the three persons you see here in front of you at this very moment. There are four, but three of us will ask our questions this afternoon, and then we will adjourn for the weekend and give you an opportunity to do something other than to sit there in that chair. Although as I said to someone who asked me earlier one of my staff people, they said, boy, he sure is good—I mean he can sit there. I said, look, that is what judges are supposed to do. You have a lot of practice at doing it. But I really seriously admire your constitution, and we are not going to trespass on it, test it too much this afternoon.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, as it will come as no surprise to you, I would like, as I said yesterday, to pick up where you and I left off yesterday. Yesterday, you told me that almost anything can be a liberty interest recognized, at least to some extent, by the Constitution. Now, you refer to "whole range of human interests and activities" within the ambit of the liberty clause. That comes from yesterday's transcript, on page 118. In the broadest context, for example, chewing gum is a liberty interest, or firing a gun can be a liberty interest, or smoking cigarettes can be a liberty interest. But the key question is, in these instances and all others, is, can the State interpose itself between the individual and the liberty interest that individual is seeking to exercise? The State can take away your liberty interest in smoking in public, for example, because it decides that smoke from cigarettes is harmful to the health of other people. The State can take away your liberty interest in firing a gun if, in doing so, you are firing that gun at somebody else. Now, the Supreme Court has historically dealt with this issue, the question of when a State can interpose itself between the individual and the liberty interest the individual wants to exercise, first by asking whether that liberty interest is a fundamental interest or an ordinary interest. Now, yesterday you said the right of marital privacy "can and should be regarded as fundamental", to use your words. And you said, "the concept of an enforceable marital right to privacy would give it fundamental importance." Now, that means, Judge, as I understand you, that a woman has a fundamental right to use contraceptives, to decide whether or not she wishes, in the first instance, to become pregnant. I think that nearly everyone agrees with that proposition, with notable exceptions. Now, my question is this, Judge. If the liberty interest in choosing whether or not to become—for a married woman, so that we don't get off into a debate about Eisenstadt—if the liberty interest in choosing whether or not to become pregnant in the first instance is a fundamental liberty interest, fundamental right of privacy, is that liberty interest terminated when a woman becomes pregnant?
David H. Souter
Nominee
(R)
Judge SOUTER. Mr. Chairman, I think there are two questions in your question. First, is the interest that the woman would assert following pregnancy a liberty interest? Second, having asserted that, what weight should be given to it? Should it be given the same constitutional weight as the liberty interest which she asserts prior to pregnancy? With respect to the first question, the answer is undoubtedly yes. I think that going back to an exchange you and I had yesterday, I think you alluded to that. There are the Supreme Court reports, including dissenting and concurring opinions, that are replete with references to the fact in just such contexts as this that liberty is not limited to locomotion. That is, that is exactly the sense that you have been explaining this afternoon. So, of course, it would be asserted as a liberty interest. The second question, how should that liberty interest be valued, is one of the central questions in the Roe v. Wade debate. And with respect to that, for reasons that I mentioned yesterday, I think that is the point at which I must respectfully draw the line. I wonder if I may ask you one thing, and if this is out of turn, you tell me.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Nothing is out of turn. As we said at the outset any question is appropriate.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, in fact, that is one difference between my role here before this committee and my role as a judge. I can't ask questions here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, you can, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I just did. In any case, thank you. I remember when this first came up when you and I were speaking yesterday afternoon, and I said you understand my position. I thought afterwards I am not sure that everyone does. Would it be out of turn for me to take a minute for me to explain why I feel that I have to take that position?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO. It wouldn't. As long as, Judge, you don't take all of the half hour to prevent me from getting to what I would like to go to next. If you take a few minutes, I would be delighted to hear it; otherwise, I would suggest that you wait until the end of my questioning to do it. You decide.
David H. Souter
Nominee
(R)
Judge SOUTER. I promise you this is not a New Hampshire ruse. I say that because there are a number of people watching what we 194 are doing today who have not heard an explanation from me, and I think they ought to have one. I have alluded to the reason a number of times. Ultimately it goes to the fact, as we did say yesterday, that the continuing validity of Roe v. Wade is an issue which will come before the Court, and if I shall be confirmed it will come before me. The reason it is inappropriate for someone in my position to express an opinion on an issue which would be comprehended by that request to overrule Roe v. Wade goes right to the heart of what the judicial process is. And if the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge the people who come before him can have a fair hearing. A fair hearing means something substantially more than simply judicial courtesy to sit back and let a person say whatever is in that person's mind. A fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take. Anything which substantially could inhibit the court's capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. Why this kind of discussion would take me down a road which I think it would be unethical for me to follow is something that perhaps I can suggest and I will close with this question. Is there anyone who has not, at some point, made up his mind on some subject and then later found reason to change or modify it? No one has failed to have that experience. No one has also failed to know that it is much easier to modify an opinion if one has not already stated it convincingly to someone else. With that in mind, can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people? You understand the compromise that that would place upon the judicial capacity and that is my reason for having to draw the line. I thank you for the time to say it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is extremely well stated, if that is what I was asking you to do. You used several phrases in your comments you just made. You said, "substantially limit." What I am asking you does not, in my view—and let me explain why—"substantially limit" your ability to sit before any group of litigants and have a totally open mind, or a mind that although already inclined to rule one way, is open enough to listen intently, honestly, and with great interest to why the position you have tentatively taken in your mind should not be retained by you. There are two parts, if I may respectfully suggest, Judge, to the equation in determining whether or not you would rule one way or another on any case relating to reproductive freedom. One part is the value placed upon the liberty interest that is retained and constitutionally protected by the Court, recognized by the Court. The second is what the Court would conclude to be sufficient evidence to meet the test required under the law, to provide 195 countervailing weight to interpose the State between the woman and that right. There are two sides to the equation, Judge. You can never solve a problem without both sides of the equation being present. If I only ask you for one side of the equation, you may think it takes you down a road, but no reasonable person, in my opinion, can conclude and walk out of this room with any clear notion of how you would rule only knowing the one side. Let me be more specific, because I, too, am asked—a lot of people probably don't understand why I am. There are those out there who don't understand, why you are unwilling to answer. There are probably as equally as many people who don't understand why is Biden persisting in asking, if it is not for the purpose of finding out what this Judge is going to rule when the next case relative to the issue of reproductive freedom comes up. Let me explain my side of that for a moment if I may. As I said, the first part of this question is to determine how Judge Souter thinks. What methodology Judge Souter would employ or be inclined to employ, even though, even that he can change his mind. No one here—let me say it for the fifth time, or sixth or seventh— no one here is seeking a commitment on anything. And nothing that you say here, today, on any subject, precludes you from doing what my friend from Iowa said the other day, when he said, I had a totally different view today about what is appropriate to ask and what isn't appropriate to ask. He changed his mind. He has a right to change his mind. So no one is asking you for a commitment. Now, Judge, it seems to me that if you are willing to discuss with us, with me, the first part of the equation, whether or not this fundamental right of privacy of a married woman regarding procreation, regarding whether or not she wishes to be a mother, ceases at the time she becomes pregnant, or continues for some period of time, you have not answered in any way how you would rule on Roe v. Wade because if there is a fundamental right that exists, the State must have an extraordinary reason to interpose itself between the mother's judgment and her state of pregnancy or nonpregnancy. What you consider to be an overwhelming reason is something I am not asking you. For you, an overwhelming reason could be there are just too many people or not enough people in the work force, that America's population is declining and the State has an interest in seeing to it that the birthrate is up, not down. For you that could be an overwhelming reason. For you the fact that it is arguable that it is a fetus, that is able to be sustained outside the womb might not be an overwhelming reason. We don't know. I don't know. No one knows. I am not asking you that. I'm not going to ask you that. But it seems to me that it is not at all inappropriate for me to ask you, how do you think as a constitutional lawyer and soon-to-be Supreme Court Justice about weighing the values that you spoke of yesterday.
David H. Souter
Nominee
(R)
Judge SOUTER. The answer to that question is two-fold, I guess. We think about that process of weighing values in essentially the same way and essentially by the same principles that we go about weighing values in the liberty case with which you and I began, 196 the circumstances prior to conception. We go about it in exactly the same way we go about assessing the value of any liberty interest. As I have explained, basically my approach to it is the approach of Mr. Justice Harlan. The point at which I think you and I respectfully have to part company is on this point. You are saying to me that I am not, if I were to answer your second question, I am not in any way saying how I would rule. With respect, I think I am a third to a half of the way down the road to saying how I would rule. Because as you say, there are a number of components in that ruling.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Can I interrupt you there, just so that we keep this as a little bit of a conversation? If I get in my automobile and I start in the westerly direction but there are three forks in the road between where I start and where Roe lives, and I get one-third the way down the road, and I stay on the road. I don't take the fork that leads me away from Roe, does that in any way tell you that I am going to end up at Roe's house?
David H. Souter
Nominee
(R)
Judge SOUTER. No, sir, it doesn't. But the road between here and Roe's house does not have 3 forks, it has 3 miles. It has
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. HOW many forks does it have, Judge
David H. Souter
Nominee
(R)
Judge SOUTER. Pardon me?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. To keep this silly metaphor
David H. Souter
Nominee
(R)
Judge SOUTER. I don't think it is a forked road. I think we have to cross certain territories, if you will, of subject matter. We have to cross the issue of how the interest is itself valued. We have to cross the territory in which we explore what the countervailing interest may be and how they are to be valued. And in a case of reexamining a prior precedent we have to cross the territory of valuing that precedent in accordance with the general rules that we have. You are saying to me and I respect the position from which you say it, sir, that I want you to cover the first third of the journey because that still leaves two-thirds of the way and you may or may not travel those two-thirds if you are asked to do it. And my response has to be when I travel the first third, I am giving a third of an indication of what would be done, and with respect, I think I cannot do it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU and I took different logic courses, Judge, and with all due respect on this one, it is probably the only thing I might get a better mark than you on. Because to suggest that to go one-third of the way in any way tells you where you are going to end, it diminishes the probabilities that I may not end, but it does not tell you. But let me get off of this for a minute, because there is probably no course that I could think of that I would have done better than you in law school.
David H. Souter
Nominee
(R)
Judge SOUTER. I will drop my analogy if you will.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me explain, or use another analogy. There was a good deal of discussion yesterday between you and Senator Kennedy and between you and, I believe it was Senator DeConcini—let me check, yes—and between you and me, less with me, and more with those other two gentlemen, about the equal protection clause as it applies against women. 197 Now, you discussed at length the various levels of scrutiny that are used in evaluating claims of gender discrimination. You talked about three standards of review that the Court uses when it looks at laws that classified people on the basis of whether or not they are male or female. You said that strict scrutiny is the toughest standard. You said there is a rational basis test. You explained that. Then you said that there is a third test. There is the in-between—I am not quoting you—there is the in-between level of scrutiny which the lawyers call intermediate level of scrutiny and/or the middle tier in which one of the Justices on the Court calls God knows what. Now, you came along at the end of that, I was kind of interested that you were willing to go so far the down the road to Mary's house. [Laughter.] The CHAIRMAN. YOU got down the road and you said, yesterday— I looked at you and I said to you, now, let me understand, Judge. I said, well, let me understand, Judge, "there is a standard between strict scrutiny and rational basis? Is that where you are?" And you said, "Well, I suppose there has got to be." Then you certainly said the same thing in response to Senator DeConcini, when you said, "I am certainly satisfied that it would be too blunt a set of instruments just to have one test at the bottom and one test, if you will at the top." Now, in the area of equal protection, you are willing to tell me what ball park you are in. You crossed a lot more fields than you are willing to cross with me on the issues of procreation. How can you intellectually justify telling me what test you will use relative to the equal protection clause, and not tell me what test or principles you will use relative to the issues relating to procreation?
David H. Souter
Nominee
(R)
Judge SOUTER. Because there is no serious possibility, I think, today that anyone would maintain before a court, in the history of equal protection development that we have had in this country, that the only two focuses of equal protection have got to be at the one end least scrutiny of all, at the other end greatest scrutiny of all, as in the scrutiny for fundamental rights. There may be disagreement within this committee, there may be disagreement within the court among lawyers as to how to articulate the way that we travel that distance between the least and the most scrutiny. But I think it is fair to say that there is no question today of anyone seriously arguing that there are not interests which are important enough to transcend the least scrutiny and which may not be important enough to get to the greatest. And my concern in the discussion, as you know, has been that the real tough question is whether the test for that place in between, if we are going to have discrete spots on the spectrum, should be the one that we have or a different test, if we could devise one.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But you think it is in between. You told us you think it should be in between. Judge, I think you are making a distinction without a difference. And with all due respect, the fact is that there are a number of gender discrimination cases you are going to have to deal with before this century is over. There are a number of issues you are going to have to confront. And you appropriately, not inappropriately, have told this body and the Nation that you have arrived at a standard that you would apply. You 198 said, "I haven't written it out yet." The fact that you reject the bottom one, Judge, and say everybody else rejects it does not speak to the question that there are two left. And you have chosen one of the two.
David H. Souter
Nominee
(R)
Judge SOUTER. Sir, I have not chosen the articulation of the middle-tier standard. I am saying that that is the one we have got now, and we ought to see if we can do a better job in articulating it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. A middle-tier standard.
David H. Souter
Nominee
(R)
Judge SOUTER. The position that I have taken—and I would have thought, and I do think that it would be unreasonable to take any other position—is that
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, why is it unreasonable to take the strict scrutiny position? Why is that unreasonable?
David H. Souter
Nominee
(R)
Judge SOUTER. I have not taken a position that it is unreasonable. What I am saying is that it would be unreasonable to take the position that the interest in avoiding discrimination on grounds of sex is of such obvious unimportance that you could seriously argue at this point that it should be left to the minimum scrutiny. As to whether or not a sexual classification should be judged on the basis of the very highest scrutiny or not is a subject upon which I have not taken a position. I think the two things that I have said is clearly we must recognize that it is more important than minimum scrutiny. And if we are trying to devise a test for a middle tier, I am concerned, as I have said before, about the flexible quality of the one that we have.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, this is not a—I'm trying to find out information and rationales. I am not trying to bait you. Let me ask you, then, from my perspective sitting here, it seemed to me that gender was not the only area you were able— you were willing, at least, and you acknowledge you narrowed the field. And you say the reason you are able to narrow it on gender, basically to translate what you said, the way I understand it, is because there is no longer any real debate about the lowest standard so it is all right to basically say there has got to be something other than the lower standard.
David H. Souter
Nominee
(R)
Judge SOUTER. I don't think there is a reasonable debate.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, right. OK. Now, in the morning, you had an exchange with Senator Specter. You were talking about the free exercise clause of the first amendment, the clause that protects a citizen's right to exercise their personal religion free from undue Government interference and applying the free exercise clause in particular cases requires the same kind of reasoning as is involved in the unenumerated rights area, like the right of privacy and the right of a woman to remain pregnant or not to remain pregnant, according to her choosing.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, it involves the same level of scrutiny if a classification
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right, that is all I am talking about. That is all I am talking about. Now, in all these cases, Judge, the judge has to decide "how the individual interest should be evaluated and the weight that should be given to it in determining whether there is in any or all circumstances a sufficiently countervailing governmental interest." Now, 199 those are your words from yesterday, Judge, in describing what you would not be willing to tell us concerning a woman's right, when you were speaking of the woman's right. Yet in the free exercise case, you told Senator Specter that you recognized the value of the strict scrutiny standard. You said that a person's right to exercise his or her freedom of religion is fundamental, and that to overcome it the State must have a compelling interest and a statute must be narrowly tailored to that interest. In other words, you told him about free exercise exactly what you are unwilling to tell me about procreation.
David H. Souter
Nominee
(R)
Judge SOUTER. I think what I told Senator Specter was, No. 1, that the test as you have just quoted me as saying was the Supreme Court's test for it. And I told Senator Specter that there was nothing in my experience which had led me to believe that I would wish to re-examine that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, now, what does that mean? Isn't that the same thing as saying that in your experience you are satisfied with the strict scrutiny test? Isn't that what you just told us?
David H. Souter
Nominee
(R)
Judge SOUTER. I am saying that there is no basis that I would raise in the discussion with Senator Specter or anyone else on this committee to give them an indication that I think there should be a change in the test that the Court has had. I also said to Senator Specter, when we were describing, for example, the concept of establishment, that I had not done any research or taken any position on the question of re-examining the concept of establishment.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I understand that.
David H. Souter
Nominee
(R)
Judge SOUTER. And I said to him then and I would now that if a case of that sort were brought and the argument were made, I would listen. But I do not approach those issues with any preconception that I
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In the establishment area, that is true, Judge, if I may interrupt you. But on the free exercise question—well, I won't beat it to death, but you said what you said. You said, "What I do want to understand is that I approach the issue, or would approach the issue if it comes before me, with exactly the view of the value of the strict scrutiny test which I described to you." Now, I don't know how, Judge, in any plainer English—we can debate this, but I don't know how that says anything other than what it says: "I would approach the issue with the view of the value of the strict scrutiny test." Now, if that is not telling us what principle you would apply, I don't understand. But, again, I don't want to belabor it. I don't understand why in the free exercise area you are—on page 49 of today's transcript—explicitly prepared to tell us what standard you would apply, although I acknowledge, no matter what you told us, you are prepared to listen to arguments. No one doubts that. No one doubts that you are prepared to listen to an argument if Senator Specter were before you. And he would be arguing strict scrutiny. But if he were before you and said, no, it shouldn't be strict scrutiny, it should be rational basis, you would listen. No one doubts that. But you were willing to tell us what standard you would apply, but you would sit down—as they say, O ye, O ye, bang, you sit down, and you sit down strict scrutiny is where you start. That is all I am asking you about the other area. 200 But let me leave it for a second and go to one—I will take one last run at this. You have mentioned Justice Harlan several times. If I can't get you to do in the procreation area what you are willing to do, in my view, in the gender and free exercise area, let me ask you to try this with me so I can have a better insight into how you think, how you approach a problem. I have thought about how can I possibly do this because I had no doubt where you were going to go. You are not about to tell me what principles you are going to employ. And so I tried to think last night about how could I get at your reasoning process. Forget the statement of what principles you would apply. We are beyond that. Let's just leave that aside. As I said, one more effort, so listen to me. Maybe you can give me some insight here, OK? In response to a question—and what I came up with last night, and I drove my staff crazy. I said, look, how do you ask a guy how does he think? Not what standards, that is real easy. One of the ways to figure out how you think is you say, well, here are the standards that I apply, the principles from which I start. Another way to say it, if you don't use that—which met with the rejoinder, well, that is getting me too close to case-specific, so I won t—how do you get to the guy and say, okay, just tell me, how do you think? And I went back to old Harlan, God bless him. He was a great Justice. This morning, Senator Grassley in a different context got you talking about that a little bit in a way that sort of clicked in my mind that maybe this is the way to go about it, and let me try it. This is harder than talking to Warren Rudman, you know? [Laughter.] As a matter of fact, it is similar. No wonder you guys are such close friends.
David H. Souter
Nominee
(R)
Judge SOUTER. I was going to say, at least you have gotten the chance to do that. You know, what I said yesterday, I just listen.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is only because there are certain Senate rules on the floor. When one Senator has the floor, the other cannot speak. In response to a question from Senator Grassley this morning, you said something that I would like to pick up on. You said that the one thing that judges need to "work on"—he was going into what is the proper role of a judge—is the "criteria they use" to determine which enumerated rights will be deemed protected by our Constitution. And I would like to ask you about the criteria that you would use, just like the criteria that Harlan used and enunciated. In response to another question from Senator Grassley, you suggested that your criteria would be similar to those employed by Justice Harlan, and you identified two criteria in particular. And I want to be specific; that is why I am reading from this. I don't want to misrepresent your position. You identified two criteria in particular that you used which you seem to find helpful. One was whether the deprivation of such a right, an asserted right, an asserted liberty, would be contrary to the concept of ordered liberty. So I am real clear for me because you are—and I am not being solicitous. This is stating the obvious. You are the scholar. I do this among other things. 201 What we are talking about here is an assertion of a liberty interest not enumerated in the Constitution by an individual, and a State coming along and saying, wrong, you can't do that, you don't have that constitutionally protected right. It is not constitutionally protected any longer. It may have been constitutionally protected to some degree, but the State trumps you. The State comes along and has a better right to take it away than you have to retain and exercise it. You said when that debate is taking place, one of the issues is whether or not the right would be contrary to the concept of ordered liberty; and, second, you said, "A search of the American tradition" to see if the rights fall within that tradition. Now, before I ask you about these criteria, Judge, that I want to get into, have I accurately stated the views you expressed to Senator Grassley: that ordered liberty and a search for the American tradition would be at least two of the criteria you would use for determining whether or not there is a constitutionally protected unenumerated right in the Constitution?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, with this one caveat, which I think is unnecessary: You and I, we are both abbreviating Justice Harlan's language when we were speaking of that second approach to reasoning. But with that, yes, of course.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, Judge, I am particularly interested in this notion of search of the American tradition that you spoke of. As you know, one heated debate in modern constitutional law—not about any specific case but about general principles—concerns just how judges should go about "searching for our traditions." Now, Justice Scalia—in a case called Michael H. v. Gerald D.— and the facts of the case are not relevant so, please, in the time I have left, let's not get off into the facts of the case.
David H. Souter
Nominee
(R)
Judge SOUTER. I promise.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK. Unless you think they are relevant or necessary in order for you to answer. He explained his methodology this way in Footnote 6, which is becoming a famous footnote: "I would refer to the most specific level at which a relevant tradition protecting or denying protection to the asserted right can be identified." Now, this is understood to be a narrowing of the idea of unenumerated rights, because under it, unless the particular and specific right being asserted by the individual has long been recognized in our tradition, the Court, adopting this reasoning, would not recognize it. Two other conservatives on the Court, I might add—Justices O'Connor and Kennedy—rejected this method as being too cramped. They said, "When identifying liberty interest protected by the due process clause, on occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be the most specific level available." Then they specifically cited Loving, and let me make sure we get into that. Loving, as you know better than I do, was a Virginia case years ago, striking down the anti-miscegenation laws which said black folks can't marry white and white can't marry black. Now, the way Justice Scalia would approach Loving, if his reasoning is consistent—and I think it is. He is a very bright fellow and totally consistent, to the best of my knowledge. He says don't 202 go back and look at whether or not marriage, the institution of marriage is granted and viewed in American tradition with a sense of sanctity and privacy. That is too general. Go back in our history and look at whether or not our American tradition recognized the rights of blacks and whites to marry. That is the specific tradition we must investigate. Did it exist or did it not exist? So, it depends from whence you start, it is like that old thing about computers, "garbage in, garbage out." Depending on where you start is going to determine in your little syllogism how it is built and what answer you give. Now, Justice Scalia says you should look at the most specific right being asserted. In this case, Justice Kennedy and Justice O Connor say no, you have got to go a little broader sometimes. Now, Judge, without getting into how you would have decided Michael H. or Loving or any other specific case, could you tell me which of the two methodologies you would employ?
David H. Souter
Nominee
(R)
Judge SOUTER. I could not accept the view that, as a rule always to be applied, the most specific evidence is the only valid evidence, and I do not think that Justice Harlan would have done so, either. It is a quest for a greater degree of certainty that we understand, and it seems to me that the quest for the kind of evidence that we are after should be a quest not for evidence which, as a matter of definition or a matter of absolute necessity has either got to be of narrow compass or of general compass, rather, it has got to be a quest for reliable evidence, and there may be reliable evidence of great generality. The analogy that I thought of, as you were describing that, is far from a perfect analogy, but I think I will throw it out anyway. We do not say, when we are engaging in the normal evidentiary problems in the trial court, that we will accept only direct evidence and not circumstantial. We do not narrow down our kind of search for truth in ways like that, and I think
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But, Judge, does it not determine what evidence you are accepting to assert what proposition? If the evidence you are seeking is whether or not marriage is protected historically, that is one thing. If the evidence you are seeking out, the reliable evidence is to determine whether or not blacks and whites marrying has been a tradition in our tradition, that is a different thing, right?
David H. Souter
Nominee
(R)
Judge SOUTER. That is right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK. And that is what I am asking you, the fundamental issue, do you think we need to determine when the investigation begins, the narrowest application of the right asserted, or a broader application of the right asserted?
David H. Souter
Nominee
(R)
Judge SOUTER. The answer is we cannot, as a matter of definition at the beginning of our inquiry, narrow the acceptable evidence to the most narrow evidence possible
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK. I now yield
David H. Souter
Nominee
(R)
Judge SOUTER [continuing]. And I think Justice Harlan would have given the same answer to that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Maybe I can come back to it.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you. 203
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Thurmond.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, we have a very distinguished and able Chairman, but I am glad you did not answer the questions the way he wanted you to answer them. [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. I hope you will have a persuasive effect on the Chairman, Senator Thurmond.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, earlier this morning, one of my colleagues, I understand, referred to a letter suggesting that all of your decisions in the area of labor are in favor of management interests. Let me refresh your memory by citing to you the opinion which you wrote in Panto v. Moore Business Forms, which concerns a continuation of a laid-off employee's salary. There are other cases in which you have ruled in favor of the employee. Is it not true that Panto and these other opinions can fairly be construed as rulings in favor of employees?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, yes, the answer is yes to that and I see your staff has been busy at lunch and I have had some help at lunch myself. I would be glad to supply you or the committee with some citations to things that I did not think of at that time. Let me just say, if I may, just a word about the Panto case, since you have mentioned it and I think Senator Simon probably would have interest in it: Panto is a case brought by a so-called at-will employee or on behalf of an at-will employee who had been given what is known as an employee's handbook, which supposedly set out the terms and conditions of employment. One of the terms and conditions that were described in that handbook was a right to deferred compensation upon the termination of his employment. The question in the Panto case was whether the employer could unilaterally simply revoke that particular condition, and one of the arguments made was that an at-will employee could be fired at any time, by definition, and, therefore, the conditions of employment can be changed at any time. The holding of the court in New Hampshire, which was unanimous in adopting the opinion that I wrote, was that, in giving that kind of a handbook, you are engaging in exactly the same kind of enterprise that you do when you make a unilateral contract, you are holding out a set of terms and saying if you will do something for me, these are the terms upon which you will be recompensed or will be rewarded. I have to say that I really did not think the reasoning in the case, including the analogy to the unilateral contract, was very remarkable, but I do know that in similar cases courts in other jurisdictions, particularly in times past, have gone the other way. So, it is true, it was—I would not have put it, if I had been classifying my cases, as a pro-labor case, but if you are going to draw that kind of distinction, I think that is the decidable line that it belongs on.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. If my colleague would yield, I want to thank
David H. Souter
Nominee
(R)
Judge Souter.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I would be pleased to yield.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I would just ask, Mr. Chairman, that the record be open here, if there should be any other cases that Judge Souter would want to enter in the record at this point, too. 204
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, recently there have been considerable scholarly debate in the Congress and opinions issued by the Federal courts concerning constitutional protection of expressive conduct under the first amendment. How would you characterize the distinctions of protections under the free speech clause between expressive non-oral conduct and the actual spoken word?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, the problem that has to be confronted in those cases is that when there is a combination of expressive conduct and speech in the most literal sense, the kind of conduct which is used for expressive purposes may be subject to reasonable and legitimate regulation by the government, in a way that mere words would not be. Therefore, what the courts have done is to try to come up with a test for evaluating the government's interest in the conduct, as opposed to the speech or the merely expressive part of it, and the test that has been devised consists of asking whether, in some way infringing on what would otherwise be an absolute freedom to engage in that expressive conduct, the government has a substantial and legitimate interest which is unrelated to the regulation of free expression, and, if so, whether the particular law which tends to restrict the right of expression there does so in a way which is narrowly tailored to serve that governmental interest and to infringe on the right of expression no more than is absolutely essential. It is a kind of line-drawing, when conduct is complex, some of it clearly subject to first amendment standards and some of it subject to regulation on grounds having nothing to do with speech.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, under our Constitution, we have three very distinct branches of government. It is my firm belief that the role of the judiciary is to interpret the law and not make the law. However, there have been times when judges have gone beyond their responsibility of interpreting the law and, instead, have exercised their individual will, as judicial activists. Would you please briefly describe your views on the topic of judicial activism?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, there are, I suppose, a great many things we could say, but there are two aspects of it which I think are foremost in our minds. The first is the appropriateness of judicial remedy. Sometimes activists have been criticized for seeming to look for causes, rather than cases. I do not know that there is much we can say, in general, about it, except what I said on the questionnaire which was filed with the committee, that the extent of a judge's obligation to provide remedies in a case in which some violation or infringement of right has been found is primarily and, in the first instance, a function of the case before him. It is a function of the extent of the violation that he has found. The second sense of activism which I think is probably in the back of everyone's minds is a sense that I have touched upon in earlier remarks before the committee, and that is a sense of the judge as embodying pure personal preferences and value choices, however sincerely they may be felt, as opposed to embodying values which are found and based upon some kind of an objective 205 search for meaning, whether it be the meaning of Constitution and the meaning of statute. I think I have said more than once during the course of these hearings that my approach to the obligation of judging is to try to find an objective source of meaning that simply does not force the court into, in effect, giving free rein to its own predilections.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the Supreme Court recognized a good-faith exception to the exclusionary rule in the case of United States v. Leon. This exception applies only to searches made pursuant to a warrant. Would you discuss the effect of the exclusionary rule and the good-faith exception in preventing police misconduct?
David H. Souter
Nominee
(R)
Judge SOUTER. AS you know, Senator, the basis for the exclusionary rule, as it was explained in Mapp v. Ohio, the case that applied the exclusionary rule to the States, was to induce the police, to induce the executive branch of the government from engaging in activities which violated fourth amendment rights, and the theory was that if the police could not profit, if the prosecution could not profit by using evidence illegally seized, there would therefore be an inducement to avoid seizing evidence illegally, so that the object of the exclusionary rule as a means to enforce the values of the fourth amendment was a very pragmatic one. But the focus of that explanation was, of course, on police conduct. That point is reflected in the Leon case, as you have just described it, because what the Leon case is saying is that if the mistake which leads us to conclude that there has been a fourth amendment violation was a mistake not made by the police, but made by the judge or a magistrate who issued the warrant, that should not preclude the introduction of evidence on the theory described in Mapp v. Ohio. If the mistake is not the police's mistake, then you gain nothing in influencing police conduct by keeping the evidence out. The one overriding limitation which was placed, of course, on the Leon rule is that the mistake must not only have been a judicial mistake, but the kind of mistake which the police could nonetheless, as it were, in good-faith proceed without recognizing, and, therefore, I think the Leon rule is entirely consistent with the rationale for the exclusionary rule as described in Mapp.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the Supreme Court's decisions in the cases of Teague y. Lane and Penry v. Linnow have ended what has been an essentially ad hoc approach to the area of constitutional criminal law known as retroactivity. This area of the law deals with whether or not a Supreme Court decision is retroactively applicable to previous convictions. As you know, the Teague and Penry cases limited the principle of retroactivity by creating the rule that the legality of a prisoner's sentence will usually be measured by the law in effect at the time of his trial and direct appeal, unless the Supreme Court declares that a subsequent ruling shall apply retroactively. The effect of these decisions has the greatest impact in the area of Federal habeas corpus. Would you please comment generally about the legal basis for the Court's ruling in Teague and Penry?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, there is a curious parallel between the explanation that I am going to give you now and the discussion 206 that we had just a second ago on the good-faith exception, because as the Court has explained it and as you know, the Teague and the Penry cases refer to the availability of what is known as collateral relief by writ of habeas corpus in the Federal courts for State prisoners. What that means in practical terms is that a State criminal defendant may well have been through the State criminal justice system by way of direct appeal or even collateral review in the State system, have taken his request for relief as far as the Supreme Court of the United States and have been denied discretionary review and still have an opportunity to raise constitutional claims by petitioning for a writ of habeas corpus in the Federal courts. And because the relief is sought by a new proceeding, we call it collateral, rather than a source of direct relief. Now, as the Supreme Court of the United States has explained the theory behind underlying Federal habeas corpus relief in situations like this, it in effect has said we recognize that not all constitutional errors may get corrected in the course of direct review in the State system, and collateral relief by writ of Federal habeas corpus is provided as an inducement to the State systems to do a good and sound and reliable job of constitutional adjudication, because if they do not, they know that the prisoner has another avenue of relief in the Federal system. Now, what the two cases that you describe have held, starting with Teague, what they have held is that if a prisoner is going to get relief on habeas corpus collaterally in the Federal system, with two minor exceptions—well, not minor, but two exceptions, that relief has got to be based on the law that was in existence at the time the State courts reviewed the conviction, and the reason for this is they are saying we provide this relief in order to induce reliability and good faith and constitutional adjudication by the State courts. That is a value which is not going to be served, if we also grant relief on the basis of law which was not in existence or had not been declared at the time the State courts did their review. In other words, I suppose in a very simplistic way, we cannot blame them for failing to follow some law which was not there for them to follow at the time. Therefore, under those cases, Federal habeas relief is restricted and is available only for violations of the law as it stood at the time. As I said, there are two exceptions to that for changes in the law which recognize conduct or penalty totally beyond the power of the courts to impose and for violations which go to the fundamental reliability of a conviction. But subject to those two exceptions, habeas relief is, therefore, limited and it is limited in a way which is consistent with its object.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the issue of capital punishment is a controversial topic, with strongly held views on both sides. However, the Supreme Court has ruled that the death penalty is a constitutional form of punishment, provided steps are taken to insure that it is not imposed with unfettered discretion. Certainly, there are judges who are personally opposed to the death penalty. Since the Supreme Court has ruled that the death penalty is constitutional, what role, if any, should the personal 207 opinion of a judge play in decisions he or she may render in cases such as the death penalty?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, we all work with the ideal that the kind of personal opinion which may be at variance with the law is not going to play a role in the judicial decision. When we get to an area like the imposition of the death penalty, we also I think have to recognize the limits on what is humanly and morally possible. I do not know whether there are any States, I presume there are none, in which the death penalty decision is one which is rendered in the discretion of the judge, and I presume that that is totally out of the question today. But even though a judge may not have the role of deciding that the death penalty may be imposed, the judge certainly may have great moral qualms, if the judge is morally opposed to the death penalty, in taking part in a proceeding which could have the result of an imposition which he believes is morally wrong. I think what judges have to recognize in those circumstances is perhaps there are cases in which their moral views are so strong that they simply cannot preside, and I think we have to recognize the moral compunctions that a judge would feel in those circumstances and we have to recognize a right to recuse if a judge feels that way.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, prison overcrowding is a major problem facing Federal and State institutions today. Several State systems are currently under Federal prisoner cap orders which limit committing additional inmates to certain prisons. At a time when violent crime and drug offenses are such a problem, what other alternatives are available to insure that prison space is available for those sentenced to serve time?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, as you know, one of the proposals that has gained attention and currency in some places has been referred to as the privatization of prisons, in effect, the contracting out of what traditionally has been regarded as a direct State function and State responsibility for imprisonment. I am not sure, in response to the question that you describe, that that really is an alternative, because if any one thing is clear, it is that so many of our prison overcrowding problems are functions of the amount of money that can be spent or is spent in prison construction and prison administration. There is no question that if prisons are not to be expanded, if alternative facilities are not to be found, and the rates and periods of incarcerations tend to rise, as in many places they are as a result of the activity in drug prosecution, then there may very well have to be value choices made by the States to change the possible penalties in other crimes, so that there will be room in the prisons for those thought by the legislature to have the first priority in the need for prison space.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, Congress established the U.S. Sentencing Commission in 1984. Its function is to promulgate sentencing guidelines for Federal judges, to insure uniform and predictable prison sentences. The Supreme Court ruled, in the case of United States v. Menstrata that these sentencing guidelines are constitutional. From your experience as a judge, do you believe that uniformity in sen- 208 tencing is more fair to those individuals who commit similar crimes and, in the long run, will sentencing guidelines create greater confidence in the criminal justice system?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think the sentencing guidelines will create a greater confidence in the justice of the system. I would not take the position, I do not think anyone takes the position that sentences have got to be imposed absolutely, without judicial discretion. But I do think very strongly that the judicial discretion which is exercised in sentencing should be a very structured and disciplined discretion, otherwise the problem of disparity in sentencing is simply insoluble. Like countless other judges, I have sat on a court in which sentence is set to be rendered. One of the concerns that I and, I suppose, most other judges have is that, if Judge A gives a sentence twice as long as Judge B for the same offense, there has got to be a very strong and apparent reason for that disparity, without the belief that there is, in fact, injustice in the sentencing system. My concern about the effectiveness of this perception of injustice is not limited simply to the perception of the public. I think there should be an equal concern for the perception of the defendants who are sentenced. If there is going to be any hope for any rehabilitative effect in sentencing, particularly on young and early offenders, it seems to me it has got to rest upon a reasonable perception that the system in which the sentence has been imposed is itself a fair system. I applaud the efforts of the government to devise sentencing guidelines. As I think you may know, the chief judge of the court on which I now sit was one member of the commission that proposed the guidelines that we have.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Incidentally, Senator Kennedy and I worked very hard on that question. Judge Souter, the Sentencing Commission is considering whether the current Federal criminal sentences are adequate. In fact, the commission will promulgate new guidelines for white collar and corporate offenses. Congress has also seen fit to increase the terms of imprisonment for various white collar crimes, including those involving financial institutions. From your experience, have penalties for white collar and corporate defendants been sufficient, and do you anticipate tougher penalties for white collar criminals in the future, as a result of the public outcry over the recent savings and loan offenses and securities-related crimes?
David H. Souter
Nominee
(R)
Judge SOUTER. My experience, Senator, has been entirely in the State system. As you know, I am a member of the United States Court of Appeals for the First Circuit right now, but I have sat there hardly at all. I do have a very vivid recollection of the problem of white collar crime in the State. The problem there was not that penalties were insufficient in the sense of there being no penalties on the books which were adequate to the offense. But there was for a long time, certainly in the early years in which I was practicing law and engaged in the criminal justice system, an unspoken feeling that somehow the white collar criminal should at least get one free 209 chance or the feeling that the white collar criminal, even when caught, should never in fact be sentenced to incarceration. This seemed to me was both morally unjust and socially indefensible. I can recall being, I think, part of the process within the courts by which a very different kind of look on white collar sentencing has been gradually taken effect, and suffice it to say, I do not take the position and have never taken the position that the white collar criminal should be dealt with in some way which is essentially different from any other brand of criminal.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, is it your opinion that the Federal Government was designed to be a government of limited powers? If so, do you have a legal basis for your position which you would discuss with the committee?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, we know, without much fear of argument on the point, that the basic conception of the Constitution, as it was proposed in 1787, was that of a government of limited powers. That very assumption was the reason why a Bill of Rights was not proposed, because the reasoning went that a government whose powers were as limited as these were not a threat to civil liberties and that civil liberties could be perfectly well guarded by the bills of right in the State constitutions. The position of the Federal Government, of course, has in some respects changed since 1787, and the biggest change has come about as a result of the enactment of the 14th amendment, which has given the government a power with respect to the subjects covered by the 14th amendment, which the constitutionalists of 1787 certainly never anticipated. So we know that there has been deliberate action by the country in the adoption of the 14th amendment which has had an effect on the constitutional theory of 1787, and the difficult issues that are going to face the courts probably in the next decade or two is to work out with a precision, which the courts have never done, just the extent of added power, particularly to the Congress of the United States, which was intended to be conveyed by section 5 of the 14th amendment.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, there have been complaints by Federal and State judges regarding the poor quality of advocacy before the courts, including the Supreme Court. Throughout your years of service on the bench, have you found that legal representation in the courts was adequate, and what in your opinion should be done to insure that individuals get quality representation in the courts?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, we all fuss, and frequently fuss with reason, that the level of performance in the trial courts and the appellate courts is not what we wish it could be. There is not any ultimately generalization that is possible. I have heard splendid arguments in the Supreme Court of New Hampshire and I have heard some that were poor. I have seen lawyers who seem barely above the level of competence in the trial courts and I have seen others who seemed to be geniuses of trial law. I think you put your finger on one approach to the problem of trial competence, when at the end of your question you refer to the adequacy of the level of representation, and I think when you do 210 that, you make reference particularly to representation in the area of the criminal law. I alluded yesterday to the fact that, when I first started practicing law, every lawyer sort of took the cases that were assigned to him by people who needed representation without cost, and lawyers took on criminal representation under the same circumstances. One thing we found is that in criminal law, as in anything else, it helps to be an expert. And one of the things we have found—and I am sure this is true not only in New Hampshire, but throughout the Nation—is that the federally funded public defenders, usually federally funded or State funded public defenders, have provided a degree of expertness in criminal representation which it is virtually impossible to get, simply by drafting a lawyer in private practice who does not do criminal law, suddenly to take over the representation of a defendant. We have had exactly the same experience in looking at the criminal appellate work which is funded, whether by State or Federal dollars, as a result of which we have an expert criminal appellate bar which is the envy and the equal of the prosecution in the State. This kind of evening up of the level of representation has, in fact, brought about a quality of justice which was unknown when I got admitted to the bar.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Souter, the caseload of the Supreme Court has grown rapidly over the past several decades. Cases today are more complex, as our laws have become far more numerous and intricately fashioned. Would you please give the committee your thoughts on the current caseload of the Supreme Court, without going into great detail, and comment briefly on any innovative methods you may have utilized at the State or Federal level for handling this increased caseload?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think it would be presumptuous of me to try to give a disquisition on the United States Supreme Court's caseload, which I, of course, have had no personal experience with. The one thing all of us outside the Court are aware of, although we are probably inadequately aware of, is the enormous pressure of that caseload, in the number of petitions for review and in the pressure on the Court to accept the maximum number of cases which may exhaust its limited time. As you know, in the course of the last term of the Supreme Court, the number of cases taken has been reduced somewhat, and that seems to me an appropriate thing for the Supreme Court to do. At the State level, we too have had caseload problems. One effect of that in my own State was, as a practical matter, to force the State Supreme Court to go to a system of discretionary review, deciding whether or not to take a given case for which an appeal is decided, as against the old system when I was younger, in which everybody had an appeal of right. One of the other effects of the growing caseload, as we said the other day, yesterday, was to foster ways of disposing of cases outside of the traditional adversary judicial system, sometimes under its auspices, sometimes on a purely private basis. 211 I can tell you that the exploration of what everybody tends to group together under the title of alternate dispute resolution is, I think, an extremely hopeful sign. There is only one thing that I fear, and that is that, as State budgets continue to be squeezed and as money for the judicial system becomes harder and harder to find, in competition with the other claimants for limited State budgets, that there is going to continue to be such a squeeze, particularly in the civil area, where there are no mandatory constitutional standards or few mandatory standards for speedy trial, that in fact private civil litigants are going to get squeezed out of the judicial system, and as they get squeezed out of, simply because the system cannot handle their cases, they are, instead, going to resort, as they are already doing and are doing in my State, basically to private judging, in which parties will get together and they will hire somebody who may be called an arbitrator or may be called by some other title, in effect to decide their cases for them, entirely outside the judicial system, simply so that they can get the cases decided. If this trend continues, the great fear that I have is that we are going to be creating in the United States essentially two systems of justice, and the only people who are going to be using the civil justice system, if this is carried to extremes, are in fact the people who cannot go outside and spend money out of their pockets to hire a judge or someone in the private sector to adjudicate their cases. This seems to me an appalling prospect, not only appalling for the judicial system, but appalling for the Nation in the broader sense, that we are going to lose one of the institutions and one of the symbols that binds us together as a Nation, and that is a system of justice open to everyone, and that justice certainly has got to include civil as well as criminal justice.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. My time is up. Thank you, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. Judge, just a few moments ago, in response to questions of Senator Thurmond, you talked about the moral dilemma that some judges might face who are against the death penalty and yet must impose it, and I thought you demonstrated some legitimate concern for those particular judges. Then you talked about the whole question of the morality of sentencing, in terms of white collar criminals, and I thought you were very eloquent when you talked about the fact that some of those who were involved in white collar crime might expect that they should, at least for the first offense, not do time, and you expressed your own kind of moral concern that that was not correct. Picking up on that question, let me ask you this, whether, as a matter of your own individual and personal moral beliefs, do you believe that abortion is moral or immoral?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I am going to respectfully ask to decline to answer that question, for this reason, that whether I do or do not find it moral or immoral, will play absolutely no role in any decision which I make, if I am asked to make it, on the question of what weight should or legitimate may be given to the interest which is represented by the abortion decision. 212 I think to answer that question and to get into a matter of personal morality of mine, when it would not affect my judgment, would go far to dispel the promise of impartiality in approaching this issue, if it comes before me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, as you pointed out, it would not affect what you may or may not do in the Roe v. Wade case, and I think that is certainly understandable. Something could be moral, and yet not be protected by constitutional law; other things can be immoral and be protected by constitutional right, so this is irrelevant, basically, on the question of how you would rule on Roe v. Wade.
David H. Souter
Nominee
(R)
Judge SOUTER. It would be irrelevant to my decision, yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Why do you feel hesitancy or reluctance, then, to express what you were willing to express about the morality in the application of the death penalty for individuals who have moral beliefs, and what you are willing to express about your own moral belief when it came to the question of white-collar crime? Why can you not share with us your view about whether abortion is moral or immoral or perhaps moral in certain cases and may be immoral in other kinds of cases? Obviously, you have given a great deal of thought to this? When you were on the New Hampshire Supreme Court, you were concerned about physicians and the rights of physicians not to counsel a patient on the availability of abortions. We know how you feel on the question of morality of that question. You were quite willing to express it.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Why the reluctance now to indicate what your view is on this?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, there are two things here. The first goes to the Smith v. Coady concurring opinion that you referred to. That opinion did not rest upon any moral judgment of mine about the morality of the procedure. It represented a perception that those who may be engaged in counseling that could affect that procedure could find themselves, as the result of their moral positions, in an impossible bind if the Court did not allude to what their responsibility should be. That was an expression of my concern about their moral dilemma, not an expression of my moral position on the issue itself. The other distinction is that the other moral questions that you referred to are not implicated by any case that I see reasonably coming before the Court; whereas, the moral position on the abortion issue is, of course, clearly implicated by the request for Roe v. Wade reexamination because people on each side of the issue are impelled by very profoundly felt moral beliefs.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, we won't get into the question of whether we still have a strong division of the country for and against the death penalty or on the question of sentencing. But Sandra Day O'Connor responded to that question, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. With respect, sir, I do not believe I could do so without creating the impression that I could not give a fair hearing to people whose views might differ from mine on that. And I am not familiar with Justice O'Connor's answer on that subject. It may have depended upon prior opinions that she had given. What I do believe, Senator, is that for me in this forum to start in the most serious discussion, even with you, to an expression of 213 my views of the morality on that subject would be taken by a substantial number of people as the beginning of a commitment on my part to go in one direction or another. You and I undoubtedly could agree that it should not be so interpreted, and it would not so portend my decision one way or the other. I do not believe it is realistic to expect that a substantial number of people listening to our discussion would share our views.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Why is that? Why do you arrogate to yourself the feeling that the American people can't understand that or make a judgment? What do you know and I know that is superior to the common sense of the American people when you are being recommended to serve on a Court that is going to be the guardian of the basic rights and liberties of those people? I find that kind of comment and statement troubling, Judge
David H. Souter
Nominee
(R)
Judge SOUTER. No; I
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [continuing]. To say that I can tell you and you can tell me and we can understand, but the great number of people who are watching this whole hearing can't understand it. I mean, I think that attitude is troublesome.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I am taking you at your word, Senator, that you believe it would not affect my judgment, and I know that you are taking me at my word that it would not affect my judgment. But I believe also
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And you expect the American people to take that as well.
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that there are a great many people who would not accept the view that you and I are willing to hold. And I don't believe that those people should be subjected to the kind of moral discussion which in their view would clearly compromise my objectivity. I think a great many of those people would say I am willing to accept his judgment that his own moral view will not influence his decision in the case. But if he then engages in a public moral disquisition on what that judgment is, it must be because there actually is some indication about what he would do in that discussion. And I do not think we should ask people, as it were, with a double standard, number one, to accept that the position is irrelevant, and yet at the same time to engage in a discussion of the subject which you and I agree is irrelevant.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you wouldn't even share with us whether you think in the circumstance of rape or incest that there is a moral question or issue? You wouldn't tell us whether you feel that that was morally repugnant?
David H. Souter
Nominee
(R)
Judge SOUTER. I can certainly indicate, as I hope anyone would, that the complexity of the moral equation may change in those circumstances, but I would respectfully be asked to be excused from answering that question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I thought you gave us a very moving story yesterday when you indicated that a number of years ago you counseled this student and the anxiety that you went through over that 2-hour period in that closed room. And, clearly, no one asked you what our counsel was, and I think that that is certainly appropriate, nor were you willing to share that counsel with us, which I think was appropriate as well. 39-454—91 8 214 But I think that the refusal to answer a basic kind of question on the issue of morality when you have just within 15 minutes talked about the morality of the death penalty and about sentencing white-collar crime, must be troublesome to many women in this country, on this issue which is of such basic and fundamental importance, where there is extraordinary division. Certainly there is in this panel. Can you understand the anxiety that they might feel that you are not prepared to make even a comment?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I can understand anxiety on both sides of the issue. I also think it is important to distinguish the significance of the subjects that I was talking about a few moments ago. I was not talking about my personal views on the death penalty. I was talking about the personal concern that a judge who believes the death penalty is wrong would have if he is asked to take a part in its administration. With respect to the morality of sentencing on white-collar crime, that did not involve a question of whether it is moral to sentence or not. It involved the question of whether sentencing should take place on the basis of evenhanded standards evenhandedly imposed on all sorts and varieties of crime. And upon that matter, I think there is no division within the country.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you were the one that used "morally" as associated with white-collar crime. I wrote it down. I will let the record rest on it, but you were the one that used the words, the moral issue with white-collar crime.
David H. Souter
Nominee
(R)
Judge SOUTER. And I believe there is, indeed, a moral obligation for evenhandedness in criminal sentencing.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU are sensitive to the issue of morality on death penalty, sensitive to the issue of morality on sentencing of white-collar crime; but on the issue of abortion—I am not asking you at all about Roe v. Wade, but on the issue of abortion you are not prepared to make any comment or statement
David H. Souter
Nominee
(R)
Judge SOUTER. On the issue of abortion
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [continuing]. On what is your view, whether it is moral or immoral, or at least whether you have some feel for the outrageous circumstances of rape or incest that you are prepared to make any kind of comment or statement on.
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think you know from the discussion yesterday afternoon of my concern for the circumstances in which these questions arise. But a discussion of morality in the context of this hearing of the Roe v. Wade decision I believe would be interpreted, in effect, as inconsistent with the view I have expressed that my personal views would not play a part in the decision. And I will respectfully ask you to excuse me from answering that question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Just to get back very quickly on the matters that we talked about yesterday on the EEOC, the church and state issues that were talked about this morning, literacy tests that we talked about, you indicated that you were acting as the lawyer for the Governor. I reviewed with you the oath. I didn't put it in the record; I will. The oath of office that you take as attorney general talks about upholding the Federal Constitution as well as the State constitution and the statute. It sets out the responsibilities for the 215 State attorney general as well. But you have taken the position that these cases were brought as a result of representing the Governor. What I would like to ask you is whether you formed any personal view when you were preparing those cases. Did you form any personal view about their rightfulness or wrongfulness? I think as lawyers we know we take the cases, and we do the best we can as lawyers in those circumstances. But sometimes when the outcome is in, even if we are on one side and we don't prevail, we are kind of relieved that the other side won.
David H. Souter
Nominee
(R)
Judge SOUTER. As you rightly say, we can sometimes accept our losses with great equanimity because we recognized that, in fact, the right result has been achieved. Our responsibility in those circumstances is the responsibility to be the best advocates that we can. As I said this morning, one of the foundations upon which I think the vitality of our constitutional system rests is that there will, in fact, be vigorous litigation to give the courts the best chances that they can have to get it right. And if we play a part in good faith and with vigor in those circumstances, I think we can be proud of ourselves.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I come back to this, Judge, because I thought yesterday you talked in a very convincing way about each time that you make a ruling or make representation, you are conscious about what the impact is going to be on individuals.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That was stated a number of times yesterday by yourself. So when I think of what the impact would be of your position, if it had prevailed in opposing or questioning the authority of the Congress on abandoning the literacy tests, or on collecting information in order to be able to strike down discrimination, what the impact would be on blacks, what the impact would be on women, on minorities—I am just wondering whether during that period of time you ever formed an opinion as to what you hoped that that judge would rule?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I doubtless formed an opinion, but the opinion was related to the case that I was arguing. The question that you make assumes that I was arguing, for example, as advocate for the State in the EEOC case, that the EEOC could never lawfully collect statistics when there was an indication that discrimination had taken place. That, of course, was not the position of the State. The argument assumes that in the case of literacy tests I might have been arguing that literacy tests should be enforced, even when they were being enforced for discriminatory purposes. In fact, what I was arguing is that a literacy test which had already been declared constitutional when used for nondiscriminatory purposes should be within the power of the State.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me ask this: Do you believe the right result was achieved in those three cases: church/state, the literacy test, the EEOC statistics?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the right result for the Nation was, indeed, achieved. The question in the cases before us was: Can you get the right result for the Nation and still leave States which have done no wrong in the position that they were in? The Supreme Court of the United States said, as a practical matter, Congress is correct to say no.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, do you agree with it?
David H. Souter
Nominee
(R)
Judge SOUTER. I accept that decision, yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am not asking whether you accept it. You have to accept it. I mean, if you
David H. Souter
Nominee
(R)
Judge SOUTER. Well, when I say I accept it, I say I am willing to agree that, in fact, Congress has that power and properly used it in those cases.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But you don't tell us whether you personally think that that was the right outcome.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, if you—sir?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU are telling us that you accept it, which you have to. If it is 9-0 on the Supreme Court, you have to. I am just asking you personally. Do you think it was right?
David H. Souter
Nominee
(R)
Judge SOUTER. Are you asking me whether I think literacy tests should be used
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am asking you whether the final result
David H. Souter
Nominee
(R)
Judge SOUTER [continuing]. For any discriminatory purpose?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. NO, no. Listen. You are a good listener here.
David H. Souter
Nominee
(R)
Judge SOUTER. OK.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In each of the final outcomes of those three cases—the EEOC and the literacy test and the church and state cases—when they were decided did you think that the outcome was right?
David H. Souter
Nominee
(R)
Judge SOUTER. I think today the outcome is right.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Was the outcome right then? Did you believe that the outcome was right then?
David H. Souter
Nominee
(R)
Judge SOUTER. On the literacy test, I had a more complex reaction than that. The trouble in the literacy test case was
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Just answer, Judge, please. Those three, yes or no. Can I get a yes or no?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. He can explain it.
David H. Souter
Nominee
(R)
Judge SOUTER. The answer is yes with one qualification on the literacy test case, and that was it seemed to me at the time that a State which was acting consistently with the 14th amendment— and the State was—had done no wrong. I think it is correct to say my judgment today is that probably the problem of literacy tests could not have been dealt with as a national problem except in the way that Congress did. But, I would not concede that there was something inappropriate about defending a practice which the Supreme Court of the United States had declared to be constitutional.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Talking about your position that you took on the literacy, keeping in mind what you said yesterday about the impact of your rulings or your representation on real people, you also said that those who were illiterate, their votes diluted the votes of people who can read. I remember that as well.
David H. Souter
Nominee
(R)
Judge SOUTER. That is a mathematical statement, I think.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. It is a what?
David H. Souter
Nominee
(R)
Judge SOUTER. I say that is essentially a kind of statement of math.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What is a statement of math? That if you have people who can't read—as Father Hesburgh pointed out, 217 when they were considering the 1970 Voting Rights Act, when he said that American people can get information from television and from radio and can make informed judgments, and you were reaching a decision virtually at the same time—you said their votes dilute the votes of people who can read, and now you are telling us it is a matter of math?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think what I was referring to in the quotation that you are making is a problem that Father Hesburgh was not referring to. That is, we were concerned—and I think the context in which that was made—you correct me if I am wrong— was the context in which questions were being placed on constitutional amendments in which the questions themselves were of some great length and complexity, so that somebody who could not read simply could not know what was before that person.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I will let the record be corrected by either one of us. But as one who was around in 1970, the point was made by many of those who represented States where these literacy tests were lifted that we ought to have it nationally, uniform, across the country; let's not target just Southern States. If we want to have something as a matter of national policy, let's do it uniformly. The issue came up about what had been the impact the last 5 years when we had effectively eliminated the literacy tests. And the question was brought up during that time, well, if you have any illiterates, what has happened in those States? What has happened? Has it somehow distorted the whole voting process? And Father Hesburgh, who was the head of the commission at that time, said his commission made the finding that it had not, that people could gain information through other means. I mean, you can have people who work with their hands. You can have poor people who haven't had the benefits of education, formal education, and can be remarkably intelligent and informed. The real point is when you say that it is really just a question of math, whether it is diluting the vote, you know, I think that that is something I find troublesome. As I understand, then, on the other two matters—the church/ state and EEOC—did you believe at the time that they were the correct decisions?
David H. Souter
Nominee
(R)
Judge SOUTER. I would not have been engaging in the particular practice in the church/state issue, and I think it is appropriate to have a national collection standard on the EEOC.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU know, you demonstrated—and I admired—the quality of resisting and standing up, and I think in response to an earlier question today you said "crusading" on the issue of gambling casinos in New Hampshire.
David H. Souter
Nominee
(R)
Judge SOUTER. I am not sure I would use the word "crusade."
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. OK. Well, I think it was asked whether—what was it? Anyway, you took on a tough issue. You took on a tough issue, a controversial issue, and were ready to stick your neck out, which I have a good deal of admiration for. Second, you stood up to the Governor on behalf of your attorney when they went down to investigate certain of the preliminary safety requirements at Seabrook. I understand that there was a confrontation between you and the Governor, or a difference. But at least as I understand it, 218 you stood your ground, and I think that that is admirable. You obviously felt strongly about it, fulfilling your responsibilities. I am just wondering how you reacted in those cases, particularly in the church/state issue, after you got the preliminary ruling from Judge Skinner in Boston that found that the declaration was violative of church/state separation, and after they went back to redraft it. The new draft came out and talked about Jesus being a historical figure, I believe.
David H. Souter
Nominee
(R)
Judge SOUTER. That was the tenor of it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. "Honored him as an historical figure without regard to the religious issue." The thing I would ask you is, did it ever occur to you that that was kind of demeaning religion, Christianity? You know, I mean, I think those of us who have observed Good Friday—12 to 3 are the special hours for the churches.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator—I am sorry.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And now we are talking about Jesus as an historical figure. Did that tick into your mind at all? I mean, it just caught me sort of right away when we were looking through this, and I just wondered whether it troubled you at all.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think, Senator, if that had been my proclamation, I think that would be a very fair objection to it. My own religion is a religion which I wish to exercise in private and with as little public—little expression in the political arena as is possible. Whether or not my client, at the time, believed it was demeaning, I do not know. I am sure he did not intend it in a demeaning way.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, I don't know what the timeframe is.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Finish up.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have just one area that I would like to direct your attention, and this was in the Bouselet case. I think I indicated to you I was going to inquire of you about that.
David H. Souter
Nominee
(R)
Judge SOUTER. YOU did, yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In that case, we had two elderly brothers, 76 and 79 years old, who shared a single full-time job as janitor and they had been doing it for 22 years. Then they lost their jobs and were denied unemployment compensation on the ground that they were not ready, willing, and able to work full-time as required by State law. They felt the statute was not fair and tried to appeal the decision against them. A hearing was held by the State Employment Commission. As I understand it, they didn't have a lawyer at this stage, but they were assigned what is called a lay representative. They testified that they could not work full-time because one of them had a weak back and the other was suffering from partial blindness and angina. They said they could work 4 hours a day but not 8 hours a day. Their unemployment benefits were denied by the Commission. They had been paying in unemployment compensation over the years that they had been working.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, their employer had been doing so, sir.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Right. Well, in the State, there is no participation at all by the employee? 219
David H. Souter
Nominee
(R)
Judge SOUTER. I think it is just the employer who pays in.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, in any event, so they got a lawyer to represent them at this point and they took the issue to your court, the New Hampshire Supreme Court. They raised claims under the Federal disability statute and Federal age discrimination law. You wrote an opinion in that case and you rejected their claims. You know, perhaps the result was the correct one and perhaps it was completely clear under the law you were bound to apply. This case caught my eye because your personal reaction to the claims of the two elderly brothers seemed, quite frankly, so hostile and really so heartless. The way that you reached the result and the language you used in reaching it is very troubling. Let me read an excerpt from your opinion. I quote, "It is neither common knowledge, nor do the plaintiffs claim, that a weak back, poor eyesight, or angina necessarily prevents an individual who can work 4 hours a day, from working 8. The back was described as going out of joint when least expected and there was no indication that the eyesight got worse in the course of a day. Nor was there any testimony that the risk of angina symptoms varied with the duration as distinguished from the intensity of work." They are rather harsh words. It seems to me to be remarkable that these two brothers were working at all, quite frankly. [Laughter.] But you seem to be questioning their willingness or their refusal to work harder. And one of the legal reasons you gave for rejecting their claim was that they had not properly raised them in the State commission hearing. They did not have a lawyer there, of course. Isn't that rather a technical and excessively legalistic ruling? I mean, why couldn't you just have simply sent the case back to the State agency for a fair hearing of their claims?
David H. Souter
Nominee
(R)
Judge SOUTER. There are three things, I think, that I should say in response to that, Senator. The first is one upon which I do not have a sufficiently detailed recollection to say a great deal. But I believe my recollection is correct that when that case first came before us for review, we found what had happened in the lower administrative tribunals sufficiently unclear that we sent it back with an opportunity to modify what had been done or to clarify the record in some way. And if my recollection is correct, this case had come back to us, in effect, a second time. The second thing is, is there something inappropriate about the factual determination in the case? And I think that is a subject upon which there simply cannot be a sound judgment without recognizing one thing, and that is the fact determination in this case is a fact determination just as in the usual case of an appeal from a trial court. It is a fact determination for the trier of fact and not for the appellate court. The question is whether the trier of fact had a basis in the evidence for coming to the conclusion that it did reach. So this was not a case in which the unanimous Supreme Court was coming to unsympathetic findings. It was a case in which the Supreme Court was faced with the issue that it is always faced with on appeals of 220 this sort. Was there an evidentiary basis upon which the finder of fact below could have made the determination that was made? The third thing that I think should be said is whether there is, in that opinion, an insufficient degree of sympathy appropriate to an appellate court. Let me suggest to you that there are two things in that opinion which I think belie that suggestion. The first one, and this is the lesser of the two, in my judgment, is the fact that everyone on the court recognized what, on behalf of myself and the court, I tried to express, I think, at the end of the opinion—I won't say that it is the absolutely last paragraph, but I think it is in there somewhere—about, in fact, how admirable we believed these two men to be. Here they were, at their ages, with health which was uncertain, and yet they had worked as hard as they had and still wanted to go on working, if they could, on a part-time basis rather than simply giving up. And I remember—I don't remember the exact words that we used, but one of the things we did not want to do was to end our opinion without some reference to the fact that we had great respect for the clients—for the petitioners before us. The second thing that I would suggest in determining the kind of the willingness of the court to hear these people's claims goes to the fact that at the end of the opinion, as you pointed out yourself, the court did, in fact—alhough it did not feel itself obligated to do so, it did, in fact, take up the equal protection claim and the Federal claim; I think it was under the Rehabilitation Act. Someone said to me afterwards, if you are really going to be consistent in enforcing your rules about how things must be raised, both at the trial level and brought to you on appeal, why did you make any comment? Why did the court make any comment on those two points? There was really a two-fold answer to that. One was that at the last level of administrative review, there had been a reference to those points and we believed that there was some utility to be gained by referring to it. The second reason is one which, in fact, is not in that opinion. But it is one which I know the court felt, and that is we believed— as you suggested we might be able to do, we believed on the record before us and the law before us, we had come to the only decision that we could come to. We also believed that if we said nothing about the substance of the claims of these two brothers under the equal protection clause and the Rehab Act, they were going to leave our court after that case was over believing that they might very well have had a claim on which they were entitled to win, and yet they had lost it because of some legal technicality or some technicality of the Supreme Court. And we said, basically, these are two good people; they should not spend the rest of their lives believing that on some kind of a legal technicality of procedure they have lost rights that they otherwise would feel entitled to. So we went that extra step out of the way and we looked at their claims on the merits, and I think that is reflective, not just on my part but on the part of the entire court, of a sympathy with the 221 claimants before us that was personal to them and that took into account the respect that we felt for them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you wrote the opinion?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, I did.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And I didn't see in the file the procedure which you referred to.
David H. Souter
Nominee
(R)
Judge SOUTER. I don't think it is set out there, no. I am stating that from recollection and I think my recollection is correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Just the material that was provided does not reflect that.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Nor in the conversation with the attorney did he indicate that to my staff.
David H. Souter
Nominee
(R)
Judge SOUTER. My best recollection is there has been a remand.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I will have the record show whatever way and we will try just to have that. As I understand, included in your opinion is that the issues on disability and age discrimination had not been raised in a timely fashion.
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that is correct. Frankly, the opinion is so complex, I would have to have it before me, but I am sure you are right.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. They were not raised in a timely fashion, and I think any fair reading would indicate that it was not raised at the time of the appeal when they were represented by a lay person. And I think a legitimate question could have been, why not send it back and say, the timely fashion is now, perhaps—it was not raised by a lay person who wasn't even a lawyer—and let them bring it up in the lower court.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think where your question, in a way, Senator, has the advantage is that—and I want to be very careful about what I say on this because I do not recall the procedural history of it, as I said, in any detail prior to that opinion. But I think that if the petitioners had said to us, we don't want an appeal right now, what we want to do is to be able to raise claims below which we didn't in the first instance because we didn't have counsel, I think the court would certainly have considered seriously a request to go back. And the point, as I said earlier, that I simply cannot remember because it has nothing to do with the opinion as we wrote it, is the extent to which such a request was made before the court. The only thing I can remember is—if I remember this correctly, I think there was at least one remand for a clarification of the record, and whether there was an opportunity at that time to enlarge it, I don't remember.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I would ask, Mr. Chairman, whatever was the factual situation be made a part of the record. Just the final point is that the outcome of your decision effectively left these two elderly persons that had been working 22 years virtually out in the cold.
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, what left them out in the cold was a law passed by the legislature of the State which was not unconstitutional. One of the respects which the judiciary must have for the coordinate branches of the Government is that whether we do or 222 do not like or sympathize with the results that legislatures sometimes give us, if they are constitutional, they are legislative judgments and they are intended to stand.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But the issues about the violations of 504 of the Age Discrimination Act which were raised by their attorney— part of the conclusion in reading your brief is that they were not raised in a timely manner because they were not raised when they were represented by a lay attorney. And because they were not raised and were not adjudicated they were left out in the cold. Now, whether they could have been able to make that case in a lower court or not, just the final and bottom line is that was the end of it. Mr. Chairman, I have taken more than my time.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, I think the record ought to show that Judge Souter's decision was a unanimous decision, was it not?
David H. Souter
Nominee
(R)
Judge SOUTER. I believe it was.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. In that case.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, we are going to end. I want to tell you that when we come back on Monday, you don't have to worry about my asking you any more questions along the lines I pursued. There will be other issues, but the whole issue of privacy, I think you and I have explored as much as we are going to be able to explore it. I thank you for your graciousness today and I look forward
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What time Monday?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will reconvene Monday morning at 10 a.m.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing is adjourned. [Whereupon, at 5 p.m., the committee adjourned, to be reconvened on Monday, September 17, 1990, at 10 a.m.] The CHAIRMAN. The hearing will come to order. We are convened today to celebrate Judge Souter's birthday. Happy birthday, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. Mr. Chairman, that is up to you. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The judge and I had a very brief conversation before we came in, and he indicated that whether or not he had a happy birthday was up to me. And I told him no, that occurs in about 2 or 3 weeks. Judge, you are a veteran at this process by now. When we left off in the second round of questioning—and we will proceed, by the way, as we have the last 2 days. I believe, Judge, it is likely that your testimony will finish today, although we will go as long as Senators have questions. But my inclination is, based on what I have been told, that we will probably, Judge, be going after lunch. But it depends on how many of my colleagues feel that there are areas that they need to pursue. I hope you have been satisfied with the procedures thus far, and we will continue as we have the first 2 days. With that, let's begin immediately by yielding to my colleague, Senator Hatch from Utah, who was next in order for questioning, and then to Senator Metzenbaum, and we will work our way down the line.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Senator HATCH. Thank you, Mr. Chairman. Judge Souter, welcome back and happy birthday. We didn't bake a cake, but perhaps we will let you go home after today, and that will be even a better gift. Today also happens to be the 203d anniversary of the adjournment of the Constitutional Convention in Philadelphia. It is remarkable that the Framers designed a system of Government -223 224 which, with the amendment process established by article V, has endured so long and so well. The genius of the Constitution is that within the specific written limitations set forth in that document, it gives to the people, through their elected representatives, the right to govern themselves. Sometimes that right is poorly exercised, but so long as it is exercised within the Constitution's framework, only the people are entrusted with the power to correct their own mistakes or those of their elected representatives. Now, Judge, I think you demonstrated to us last week that you are and that you will be a good listener. I am convinced of that, and I think that is a wonderful attribute in an appellate judge, and certainly in a Supreme Court Justice. You also demonstrated in my view that when you join the High Court, you are going to be listened to. I think you will have immediate contributions to make to the deliberations of your soon-to-be fellow Justices. I am convinced of that as well. Now, of course, the staffs on both sides, the majority and the minority, have had the weekend to look over the transcript, and the representatives of dozens upon dozens of special interest groups have also gone over your earlier testimony with a fine-toothed comb. I suppose they have all been searching for inconsistencies. They have also looked for ways to suggest to some of us here how we can get you to commit on issues without sounding like that is what we are trying to do. You may well be asked to expand on what you said last week, and you may be picked at over this or that particular phrase. In my opinion, if you will continue to adhere to what you think is right in how you answer questions put to you, or whether you answer them at all, I think you are going to be all right. Ihave had an interest in the concerns and problems with persons with disabilities since before I entered the U.S. Senate. A number of us on this committee are on the Labor and Human Resources Committee. My counterpart, Senator Kennedy, is the chairman, and others on this committee actually are on the Labor and Human Resources Committee. So we are always concerned about these issues involving persons with disabilities. I was quite struck by your opinion in the New Hampshire Disability Rights Center case in 1988. As I understand it, the Disability Rights Center is a nonprofit corporation that provided legal services to poor individuals with disabilities. The group filed a petition to expand those services to individuals with disabilities who really are not poor. Now, what was the legal problem that they faced in that case? TESTIMONY OF HON. DAVID H. SOUTER, TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, the problem that they faced was a regulatory scheme in New Hampshire for the practice of law, which I think probably was characteristic of what would be found in a good many States. There were prohibitions against the practice of law in corporate form unless all members of the corporation which would be providing legal services were, in fact, attorneys admitted to 225 practice. And the only exception to that rule was for the benefit of corporations, legal corporations, that would be providing services to the poor alone.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. HOW did you address that particular issue?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, we had to address it first on the level of statutory construction to see if, in fact, the New Hampshire statutes were as restrictive as they had been assumed to be. And to make a somewhat long story short, we found that they meant what they said. As a result of that, the Court was faced with a genuine first amendment challenge based upon the right to associate exemplified in cases like NAACP v. Button, and basically the claim that was made was that the New Hampshire statute was unenforceable because individuals, not necessarily all lawyers, were entitled to associate together for the purposes of advocating and, if appropriate, litigating the constitutional rights of their members. The claim was that the New Hampshire statutes, in restricting the Disability Rights Center from representing those who were not poor in such challenges and in restricting their membership, or purporting to do so, to those who were only lawyers, were, in fact, infringing on the kind of associational right which the Button case had recognized. Having confronted the issue squarely, it was, in fact, our judgment, expressed in an opinion that I wrote, that there was such an infringement. In the course of doing so, we dealt with some of the State's claims of countervailing interests necessary for the regulation of the practice of law, and we confronted the State's claim that, in fact, there had not been a demonstration; that in the absence of recognizing this associational right and without allowing the Disability Rights Center to engage in the representation that it proposed to do, the State argued there had been no claim that these people would be denied legal services entirely. What we recognized in the course of our own examination of the case, and expressed in the opinion, is that this simply was not a sufficient countervailing State purpose which was adequate to in any way trump the first amendment claim that had been made. We therefore recognized it. We declared the New Hampshire statutes regulating and restricting the practice of law to that extent unconstitutional, and we decreed that the Disability Rights Center could do exactly what it proposed to do.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I want to compliment you on it, because I think that ruling by you showed great constitutional sensitivity.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think it is a very important case. And in this case, the result was, as you have explained, that persons with disabilities could get legal services from this nonprofit group, even though those persons with disabilities were not poor.
David H. Souter
Nominee
(R)
Judge SOUTER. They did; and I think it is probably also unquestionable that there is a further public benefit in a case like this. It is the same kind of public benefit that I alluded to when I was speaking on Friday with Senator Thurmond about the provision of legal services in the criminal area. That is, the result of allowing organizations like the Disability Rights Center to provide this kind of representation is to develop a body of expertise among a seg- 226 ment of the bar that we would be unlikely to see if this kind of informal specialization were not allowed. And I think just as in the area of the criminal law, I think in the long run there is no question that the quality of advocacy on this subject will be better in very practical ways as a result of what the Rights Center is doing.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Good. Well, that decision was very heartening to me. I want you to know that. In my opening statement last week, I observed that your record in criminal cases reveals—at least to me, and I think anybody else who reads your cases carefully—a judge who is tough on crime but also fair when it comes to balancing the competing interests of the public and criminal defendants. And I noted the importance of your balanced views in this area for citizens across the country because, starting with the period under Chief Justice Earl Warren, many feel that precarious balance has swung way over to the side of criminals and against law enforcement agencies. While the Court in recent years has continuously chipped away at some of these inventive decisions that were done under the Warren and Burger Courts—refusing, for example, to extend here and there the Miranda and Mapp decisions—many feel it has not yet swung the pendulum back to the middle. Now, I was encouraged by your dissent in State v. Koppel. It was a 1985 decision where you argued for upholding the constitutionality of sobriety checkpoints under the State constitution. Earlier this year, the Supreme Court basically came out exactly for your position in upholding the constitutionality of this important police procedure in Michigan State Police v. Sitz just in 1990. Under the Federal Constitution, the basic constitutional issue is the same under the New Hampshire Constitution, at issue in the Koppel case. Now, does the State's interest in detecting drunk drivers outweigh the intrusive effect of such procedures? And you decided that it did. Your dissenting opinion seemed to recognize the importance of the State's interest. I would appreciate it if you could describe your reasoning in the Koppel case.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, as you know, I think one of the points of common ground from which all of the parties and all of those with strong opinions on that case begin is that when there is a stop for a sobriety checkpoint, there is, to a very limited degree, a search and seizure and inquiry subject to fourth amendment standards. In New Hampshire, and I daresay probably all of the State constitutions, the stop and the inquiry is subject to regulation under their search and seizure provisions. What we do not have in this kind of case is the sort of inquiry which is exemplified by the situation in which there is a search for evidence of prior crime, which, as you know, as a general rule must take place under the auspices of a warrant issued by a detached and neutral magistrate. Because at the point automobiles are asked to pull over for a sobriety checkpoint, there simply is not the particularized knowledge about what may be found inside which would support a warrant under the traditional probable cause standards of the criminal law. 227 What, therefore, the court did—and what, indeed, I did in my dissent—was to engage basically in an analysis which balanced the State and the private interests involved to determine whether the stop and the inquiry could be regarded as a reasonable one within the standards applicable to search and seizures, both for State and national purposes. What we are particularly concerned with in these kinds of cases is that the discretion of the police be something other than an uncontrolled roving and inquiry covering no matter what period of time, no matter what elements of surprised and fright. The concern is to require a very tightly controlled discretion on the part of the police who may engage in these sobriety checkpoints which does not go one iota beyond what is necessary to satisfy the public interest in detecting driving under the influence before a tragedy occurs. What we found or what I analyzed in my dissenting opinion in that case is that the practices there under consideration were, indeed, consistent with the need for strict control of this kind of discretion. The searches, the stops, were not at random. They followed a particular set plan at the beginning. They were very short in duration. The intrusion of the stops was comparatively minor. And there was no discretion given to the police to go beyond what seemed absolutely necessary to detect the one significant fact which was of concern to them. The majority of the court in my case took what seemed to me a somewhat restrictive view of the demonstration of utility that was necessary. They were concerned that, despite the use of sobriety checkpoints, the great majority of arrests and prosecutions for driving under the influence still eventuated from routine controls and the kinds of police observation which, in the absence of checkpoints, would bring drunken driving to their attention. As you know from my opinion, I thought that they were taking an unduly restrictive view of what was necessary mathematically to justify these checkpoints. The third point upon which the majority and I disagreed was a subject which I think was well raised; that is, in allowing a sobriety checkpoint like this, is the court starting down the road which would then lead to the possibility of what I think someone described as shopper checkpoints, whereby the police could stop anybody on the street and look in shopping bags and so on to see whether the merchandise in them was accompanied by a sales slip. Was it, in other words, sort of the thin end of the wedge for watering down very important fourth amendment protections? My response to that was that we couldn't answer that question without attending very carefully to the kind of activity that was under consideration. And I contrasted the activity of driving an automobile which, simply because of the power of an automobile to harm, was a very highly regulated activity. The machinery was regulated; the people who operated the machinery were regulated; they had to pass tests of competence before they would even be allowed legally behind the car. And I contrasted that, as I said, with the kind of innocent activity of shopping, which, with the exception of things like pedestrian safety laws, is not a regulated activity. 228 I said that in judging what is reasonable, we have to take into consideration the potential danger which the activity poses and the State's expression of that danger by its decision to regulate or not to regulate it. And what might, indeed, be a perfectly reasonable inquiry in a highly dangerous and regulated activity, like driving, would not be reasonable at all in an innocent pursuit like walking down Main Street and doing errands. And I therefore concluded that there was not a danger, that a sobriety checkpoint approval under the fourth amendment was going to be taken as thin end of the wedge for an assault on civil liberties. I think that view has since been recognized.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It sure has. I am also encouraged, Judge Souter, by what I see as a reluctance on your part to reverse criminal convictions on the basis of strained constitutional arguments. In the case of State v. Bruneau, a man murdered his wife—killed her and then later confessed his crime to a friend by calling that friend long-distance. Although the friend contacted the police, they did not discourage the friend from taking later phone calls and reporting further incriminating evidence when the defendant volunteered. When the defendant later asserted that the Constitution in the Miranda case required the reversal of his murder conviction simply because the police had allowed him to continue his compulsive voluntary confessions through his friend, your court rejected that claim. And in an opinion which you authored, you decided that his claim was absolutely wrong. Could you just give us the benefit of your reasoning on that occasion?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir, I will. What the case on that particular point boiled down to was a question of whether the friend to whom the defendant has made his admissions was, in fact, acting as an agent of the State for the purpose of soliciting those admissions and, of course, passing them on to the police after he had received them. It, again, is common ground that if any criminal defendant makes a spontaneous admission or confession to a third party, as a general rule the third party, of course, is perfectly free to repeat that, and the State is perfectly free to use that as a matter of evidence. The difficulty comes when the State is using ostensible third parties to make an end run about regulations on confessions under the fifth amendment and under the sixth amendment. And the question, therefore, in that case was: Was the friend, in effect, acting as an agent for the State so that every activity of the friend in talking and, indeed, in listening to the defendant should be imputed to the State and judged as if the friend were, in fact, a police officer working on the case? At the time the case came to us, there was no law under the New Hampshire Constitution on that matter. And because the defendant raised both State and constitutional claims in support of his argument that the statement should be kept out, the first task that we had was, in effect, to read the New Hampshire Constitution to try to determine what was behind its provisions, providing the right to counsel as well as rights against compelled self-incrimination against the defendant; and to determine whether the princi- 229 pies that the New Hampshire Constitution embodied were, in fact, being violated by the use of the friend, as it were, as a conduit for information in this case. What we determined was that the test that we should employ to determine whether an end run was being made around these constitutional guarantees was to determine whether the friend should be regarded as an agent of the police or as, in effect, a free third party who passed things along. And the test or tests that we came up with came down to the question: Was the friend acting at the behest of or under some kind of a contractual arrangement with the police so that he thought that he was doing an expected job for them or was doing something for which they had indicated he would receive some benefit? What we were doing was trying to find a basis to determine whether there was an agency relationship. In asking those questions, we found that there was none in the case before us. We didn't use the exact terminology that the Federal courts have used in discussing similar issues under the national Constitution, but I think we came down with a substantially similar standard. What the Federal cases ask for in these instances is whether there was such a substantial relationship between the third party and the police that, in fact, there should be really seen as an identity between the two of them. And applying that test, we likewise found that there was no agency relationship in the case, and we held that the statements had properly been admitted.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, thank you, Judge. I have 10 or 15 minutes left, but I am going to end it at that. I don't want to take all my time, and I hope others won't as well. I just want to compliment you because you have been very forthright in your testimony. You have been very firm. I think you have covered a lot of issues that have been very interesting to everybody up here regardless of ideology or feelings. And I think you have conducted yourself in a very, very strong and important way during these hearings. I don't know anybody who really could see what you have done and watched you and listened to you that could disagree with the statement that you are incisive, you are intelligent, you apply the law, you really look at it carefully. You are very sincere and dedicated to trying to do the best job that you possibly can. You are precisely the type of person I think ought to have this opportunity to serve on the Supreme Court, and that is in spite of the fact that many of those up here aren't sure what you are going to do on these litmus test issues. I have been kind of interested that during the Reagan and Bush administrations, some of our colleagues have been so concerned that they might impose litmus tests on their nominees, which they never did. And yet I see almost the opposite when it comes to their right to impose litmus tests. But, to your credit, you have handled this very well, and you have, I think, gone down that fine line and that fine road between being candid on what you really can be and not imposing upon yourself the obligation to vote in a certain way or to rule in a certain way in the future because of statements you have made here on these very, very important issues that are very difficult, and will be difficult, and will be complex and will be different, factually different 230 and legally different in so many ways as you serve on the Supreme Court. So I have to hand it to you. I think you have done an excellent job, and I for one have a great deal of admiration for you.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Senator Metzenbaum?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Souter, I join Senator Hatch in saying I have a great deal of admiration for you also. But I also have some reservations and some concerns, and my colleague has mentioned some earlier hearings where litmus test questions were asked. I would like to refresh his recollection that those on both sides have seen fit to use litmus test questions when they deem the occasion appropriate. I am going back to the days of Senator Fortas' confirmation hearing, others as well, and so I guess it is just a question of whose ox is being gored on any particular day on whether or not we do or do not believe in litmus test questions. Let me proceed, however, to questions that still remain of concern to this Senator. You had a discussion with Senator Grassley that I would like to follow up on. In that discussion, you stated that all three branches of Government are sworn to uphold the Constitution; and when Congress fails to use its full authority to uphold the Constitution, the Court is forced to resolve difficult social problems. You referred to the vacuum that is created when the issues are not resolved elsewhere. Of course, in the realm of fundamental rights, the Supreme Court has the unique obligation to interpret the Constitution and define those rights. The first amendment rights of political protesters, the fourth, fifth, and sixth amendment rights of criminal defendants, the due process and equal protection rights of minorities and women, frankly only the Supreme Court can protect those rights, no matter how unpopular their decisions may be at times. Now, even though Congress has the responsibility to enact legislation to address difficult social problems, you believe that the Supreme Court has the unique obligation to interpret the Constitution and to declare rights to be fundamental and, therefore, entitled to scrutiny, as I understand your response to Senator Grassley. Am I correct in that?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator Metzenbaum, there is, of course, no question that the Court does have that jurisdiction and obligation. Its obligation is constantly to search, to identify those rights which are fundamental, and to implement them. In my exchange with Senator Grassley last week when I made the remark about the constitutional vacuum, I was thinking, in fact, of a particular example, and I don't remember now whether I went on to that example or not. But I was thinking specifically with reference to the 14th amendment. I thought the case of Brown v. Board of Education was an example of what can happen, because the unusual situation in the case of the 14th amendment is that under section 1 there are provisions which are to be applied by the judiciary, following justiciable standards, and under section 5, Congress has its own specific enforcement power there. And as you know, for some time before the Brown decision came down, 231 there were requests and hopes that there would be legislation to deal with the continuing problem of segregation in the schools. But no political solution was forthcoming. Therefore, that is what I had in mind when I spoke of there being a vacuum in which the responsibility to deal with a 14th amendment problem had to be faced, and the Court rightly faced it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW, the Supreme Court—I think we both would agree—also has the unique obligation to enforce those rights sometimes against the will of the majority. Over the last 2 years, the Nation has been embroiled in a debate over whether to prohibit flag burning as a form of political protest. Without exception, Americans found the acts of Gregory Johnson to be detestable and contrary to everything that we hold dear. But the Supreme Court concluded—quite rightly, to my mind—that burning the flag is part of the fundamental right to free speech protected by the first amendment. Do you believe that the Supreme Court has the obligation to enforce fundamental rights no matter how unpopular the cause, no matter how repulsive the acts may be to the majority?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, there is no question about it. If that were not the case, there would be no point in having a Bill of Rights. If that were not the case, there would be no point in having any substantive protection for civil liberties. We would leave the entire issue to whatever majoritarian impulse there might be at the time, and we would have a vastly different society from the one which the Framers of the Bill of Rights intended us to have.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Following up on that, I would like to return to our discussion of last week as to how you would go about deciding whether a right is fundamental. Last week, you and I discussed what is at stake for a woman in the debate over reproductive rights. You indicated that through personal experiences you could empathize with a woman who was faced with a very difficult—very difficult—decision as to whether to terminate a pregnancy. And I appreciate your candor in response to my question. I asked those questions not because I believe that we will once again allow women to die from botched illegal abortions, nor do I believe that the American people would stand by for 1 minute for putting women in jail for having abortions or for granting periodic testing of women to determine if they have had an abortion. Even President Bush has said he would not put women in jail. My point is just this: It is inconceivable that we would take these steps in order to prevent a woman from making a decision to terminate an unintended pregnancy. That is precisely why it is a fundamental right. It is a personal and basic freedom for a woman to make her own reproductive choices. It is basic to her health and to her dignity. In your view, are these considerations I have described an essential part of determining whether a particular right is fundamental?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, those considerations to me point exactly to the kind of inquiry which the Court must make. As I said, in dealing with the question of what unenumerated rights may be regarded as fundamental and what require a lesser standard of scrutiny, the courts from time to time have tried different tests. One of 232 those tests was the one that is identified with Palco v. Connecticut in which we asked whether the right in question is essential to or comprehended by the concept of ordered liberty. I think I indicated that my own view of the best approach to these problems is the one which is probably best identified with the late Justice Harlan. Justice Harlan said that we cannot approach these questions of weighing the value of asserted rights without an inquiry into the history and the traditions of the American people, in order to try to find on a historically demonstrable basis their commitment to a set of values which either do or do not support the claim that a particular right in question is fundamental. I think Justice Harlan, in taking that approach—I am convinced that Justice Harlan in taking that approach was, in effect, asking for a broader inquiry than we might be engaging in if we limited ourselves to the formulation in Palco v. Connecticut, the concept of ordered liberty, because, as was demonstrated in many other cases, there are many limitations upon what we regard as almost garden variety constitutional rights which still could be found in a society which we would not say was fundamentally unjust. Do we have a right to a jury of 6 or a jury of 12, for example? I think Justice Harlan, although he himself quoted the Palco formulation from time to time, I think he was clearly pointing to a broader inquiry into the history and traditions of the American people as being the basis upon which a fundamental valuation or a finding of no fundamental valuation should rest. And I think he was right.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you. You have discussed your view that there is a right of marital privacy recognized in Griswold, and you have agreed that marital privacy is an aspect of privacy that is fundamental. What is it that led you to conclude that marital privacy is fundamental?
David H. Souter
Nominee
(R)
Judge SOUTER. I came to that conclusion, Senator, because, in fact, it is a subject which has received a great deal of attention within the courts themselves. Much has been said over the years about the proper way to interpret cases like Meyer v. Nebraska and Pierce v. Society of Sisters. But leaving aside the interpretive categorical problems that constitutional lawyers may come up with, one thing that is undeniable is that going right back to the discussion of those cases in the early part of this century, the courts have recognized a kind of core of what might be called marital or family liberty. And it has become so familiar to us that we can at least start with that core in any inquiry about the scope of unenumerated rights or their fundamental character. I don't want to rest this discussion on a purely ad hominem basis, but, of course, I have to come right back to the Justice that I was referring to before. Justice Harlan engaged in an examination like this, as you know, both in his own opinion in Griswold and in the opinion that preceded that case, Poe v. Ullman. So, in a way, it seems to me that the notion of a marital privacy and a privacy which takes into account certain basic familial values has got to be our starting point. I think we have plowed that ground well, and I think we do have a secure starting point there.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think the starting point is that marital privacy is fundamental, and the use of contraceptives is part of 233 that fundamental aspect of marital privacy. I would ask you, Judge Souter, could you give me an example of an aspect of marital privacy that would not be fundamental under your formulation?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, of course, I think it is very clear—again, there is no real dispute about this, I think, among people on both sides of this issue—that even marital privacy is not free from regulation by the State. A spouse is not entitled to assault another spouse. We do not build a sort of shield against all State intrusion. There certainly is an example of a subject which I suppose somebody could argue ought to be within the shield of scrutiny from State concern, and yet I think we would all agree that that was a reasonable subject of regulation, without which we would have an extremely barbaric marital society.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I would agree. You also commented on Eisenstadt v. Baird in which the Court recognized the right of unmarried people to use contraceptives. Justice Brennan writing for the Court in that case stated, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusions in a matter so fundamentally affecting a person." Do you agree that unmarried people enjoy an equivalent fundamental right of privacy to use contraceptives as you have recognized for married people?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I agree that Eisenstadt v. Baird engaged in an appropriate analysis. I didn't go back and reread it this weekend. I probably should have. But my recollection from reading Eisenstadt is that the case rested primarily on an equal protection analysis; and that having found in the Griswold case as they did, the Court then felt it was appropriate to apply an equal protection criterion going beyond the express due process concepts that they had come up with in Griswold. And I think there is no question that the area of privacy is not immune to this kind of equal protection analysis any more than any other subject of the law is.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. May I conclude from that that your answer would be in the affirmative, that unmarried people do enjoy a fundamental right of privacy to use contraceptives in the similar manner that you have recognized their right to use them?
David H. Souter
Nominee
(R)
Judge SOUTER. I would just like to enter this caveat: that because I have not reread Eisenstadt v. Baird, there may be some things in there that I am just not adverting to. But on the basic proposition that I refer to, the equal protection analysis based on the point at which Griswold left off, I would see no basis to approach the problem differently.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Would the Senator yield on that for a second?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU very rightly and skillfully, Judge, always refer to the equal protection aspect of that case, which was not the basis upon which Griswold was decided. What would have happened had Eisenstadt come before the Court before Griswold, so that there was not an equal protection portion to it? Do you believe that there is a constitutional right to privacy in the liberty clause of the 14th amendment, not the equal protection clause of the 14th amendment for unmarried couples? 234
David H. Souter
Nominee
(R)
Judge SOUTER. I don't know the extent an answer to that question can be given in the abstract without the kind of Harlan inquiry that I'm talking about. It was not made and I have not made it. The thing that I can say is that if that question had come up before Griswold as you posit, exactly the same kind of analysis that Harlan would have used and did use in his concurring opinion should be used to address the same issue of nonmarital privacy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is worrisome, because I know of no tradition in American society where an inquiry into the history and traditions of the American people have guaranteed a right of privacy to unmarried couples relating to procreation or sexual activity. So it seems to me that you would have come down and concluded that married couples do not have a right to privacy, based on that set of inquiry. Am I wrong about that?
David H. Souter
Nominee
(R)
Judge SOUTER. I think, yes, I think it is wrong simply to draw that conclusion because as you, yourself, have pointed out in the analyses that go on, there is a two-part inquiry. The first inquiry is No. 1: Is there a liberty interest to be asserted and how may it be valued? The other inquiry that goes on is, when, in fact, is the weight to be given to the State interest which may be brought up as a countervailing interest when the liberty interest is, in some way, restricted? One of the questions, of course, that would have to be asked if we were approaching Eisenstadt first and not Griswold first, is not merely the weight to be given to the privacy interest to be asserted, but the weight to be given to the State interest in asserting the right to preclude people under those circumstances from obtaining contraceptive information and devices. I do not think that is a simple question to answer.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I thank my colleague and I will be happy to yield time from my time, when the time comes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Souter, to change the area of interest, historically the commerce clause of the Constitution has been the source of congressional power to enact nationwide economic and social welfare legislation. Labor laws, health and safety legislation, environmental laws, civil rights statutes are just a few of the many laws rooted in the commerce power. In 1918, a national child labor law was struck down as an invalid exercise of the constitutional power under the commerce clause. In the early years of the Depression much of President Roosevelt's New Deal legislation was invalidated by the Court on commerce clause grounds. The tide turned in 1937 in the Jones & Laughlin Steel case. In that case, the Court upheld the validity of the National Labor Relations Act against a commerce clause challenge. Since 1937, the Court has broadly construed congressional power under the commerce clause and has rarely, if ever, invalidated legislation under commerce clause grounds. On Thursday you stated in response to Senator Thurmond that, "The commerce power has grown to and has been recognized as having a plenary degree which would probably have astonished the Founders." Are you troubled by the scope of the commerce power exercised by Congress and do you have any doubts or qualms about the 235 breadth of congressional authority under the commerce clause as it has been interpreted by the courts since 1937?
David H. Souter
Nominee
(R)
Judge SOUTER. No. I do not have a concern to raise about it at this point, Senator. What I was referring to, I think, in my remarks to Senator Thurmond, was probably an historical fact. It illustrates something in our constitutional history which is not just confined to the commerce clause. That is the sense of State autonomy which doubtless motivated the Framers, I think, probably got a jolt as early as the tenure of John Marshall when it came to commerce clause analysis. I think many of the Framers probably had not thought through the generality of the grant of power which Marshall recognized so early in our history. I think this phenomenon is probably paralleled in another example that we have been talking about in the course of these hearings and that is the effect of the powers granted to the courts, and indeed, to the Congress under the 14th amendment. I remember in our discussion the other day about the appropriateness of Brown as a decision. We all agreed, I think, that historically none of the Framers of the equal protection clause would have had the slightest inkling that that clause was ever going to be applied to school desegregation. They doubtless would not have had the slightest inkling that that clause was going to be applied to sex discrimination. Yet, the fact is they wrote a clause of great generality which they did not confine to the specific objects which they had in mind or had contemplated when they passed it. Therefore, as I was saying last week, the legitimacy of the application of the equal protection clause to school desegregation, to gender discrimination, and so on seems to me beyond argument. I think probably historically the same phenomenon has gone on with the commerce clause. They wrote more generally than they probably intended by way of application at the time that they wrote it, but they wrote what they wrote.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. SO actually, you are saying that those who would look to strict constructionism and original intent would have to move forward 200-and-some odd years in order to understand the Supreme Court interpretations of the commerce clause in today's world?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, that is true. I would repeat something that I have said before, but I don't want to leave any mistake on this. My approach to interpretation is not a specific intent approach. The approach has got to take into consideration the text of the provisions in question and it is not to be confined, the meaning of that text is not to be confined by reference simply to the specific applications that may have been, as it were, in the mind either individually or institutionally of the people who proposed the amendment. We are looking, when we look for the original meaning, we are looking for meaning and for principle. We are not confining ourselves simply to immediately intended application.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW, in the 1976 brief on EEOC regulations, which has been a subject of questioning by Senator Kennedy, your office took the position that regulations designed to help battle discrimination in the private sector were an unconstitutional 236 exercise of congressional authority to regulate interstate commerce. Is it your view today? Or I guess I would ask you, in view of your previous answers, do you think that that same kind of position would be the one you would be taking were you the attorney general of the State of New Hampshire in today's world, in view of more recent Supreme Court decisions?
David H. Souter
Nominee
(R)
Judge SOUTER. Absolutely not.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In the mid-1960's, Congress passed national legislation designed to end segregation in public accommodations. The legislation was challenged on commerce clause grounds. In Katzenbach v. McClung the argument was made that Congress had no authority to combat segregation in local restaurants because the effect on interstate commerce was too remote. Do you think there is any validity to that argument?
David H. Souter
Nominee
(R)
Judge SOUTER. I don't think in view of the understanding of the commerce powers you, yourself, have said since the late 1930's, since the NLRB, I don't think there is. I recall the analysis in McClung and it came down to a straight factual analysis. That is, would the segregation, if it were permitted in these accommodations have an effect on the flow of goods in interstate commerce; would it have an effect on the movement of people in interstate commerce? The Court, as you know, had no difficulty in concluding that it would have such effects, and therefore, that it was within the power of the, within the scope of the commerce power for Congress to regulate.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me switch the area of inquiry for a bit. I think over the weekend a number of your responses have been of concern to me and I have been thinking about them. I think the exchange you had with Senator Heflin concerning the Seabrook demonstration is probably as troubling to me as are some of the other issues. That involves this $74,000 contribution from the owner of the plant, Public Service Company of New Hampshire, to help defray some of the law enforcement expenses. What bothers me is how far down the road can you go with that kind of a concept? When a labor union is on one side, and management is on the other, can a State start to think well which one is going to be willing to help us defray the expenses and don't you get to that conclusion when there is an environmental issue? Don't you have that kind of contrast? When you have an abortion issue, whether or not it is closing down or picketing or whatever the case may be, unlawful conduct in front of an abortion center? I am so disturbed about the fact that when the State or public body accepts money from a private litigant. Now, you actually testified that the $74,000 contribution was made in order to offset the extra law enforcement expenses for the weekend of the demonstration. You also suggested that because the contribution arrived in late June, over a month after both the demonstration and your appearance in court, it did not raise any problems of propriety. 237 I might say I would take strong exception to that but let's pass on because the facts are a little different. You also stated that if there was any particular appeal to the Public Service Company it was something that had nothing to do with me or my office. Now, talking about the purpose of the $74,000 contribution and the date that it arrived, you suggested that you knew nothing about it until June. But on Friday, May 13, 1977, the last 500 of the 1,400 demonstrators who were arrested were released from the National Guard Armory pending appeal after having been found guilty of criminal trespass. Two days later, on May 15, the Manchester Union Leader reported that, "Public Service Company of New Hampshire, the prime backer of the Seabrook plant has contributed more than $74,000 to the State to help pay the costs of prosecuting and detaining the protesters, and officials of the firm have said another contribution will be given." Now this account suggests that the contribution was given at a much earlier time than you indicated. It also states the contribution went toward the "costs of prosecuting the protesters" and you testified that on Tuesday—well, let me just get to that point. Is that Manchester Union account accurate and it does change the picture somewhat as to learning about it in June, but even learning about it in June does give me some concern. I wonder if you would respond to that, Judge?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. In fact, I would like, if I may, Senator, respond to a couple of the specific points you made. Let me start, of course with that one. When I went back to check on this when the subject first came up, the only record that I could find—to begin with, I didn't recall the contribution at all—but the only record that I could find was the record of the action by the Governor and Council which I think was on June 30, when they had accepted or had on their agenda to accept the contribution of around 70-or-74-whatever it was, thousand dollars from the Public Service Company. I had not been aware of the Manchester Union Leader report on May 15, and you have seen a copy of the paper and I am sure that's accurate. The report was something I was not aware about, until you just told me now. But I think going to the issues of substance that you raise, I think there are two particular points that I do want to emphasize. The first is that at no time did I engage in a solicitation of the Public Service Company or, indeed, of anyone else, except the New Hampshire Legislature for funds to defray the costs of the law enforcement work and the prosecution. The request for those funds that were made came, as I recall and I think as has been reported here, from the Governor. The only consultation that I had with him that I have any recollection of is my preparation to go to the legislature, as I said, to ask for funds. I can state categorically that the Public Service Company had no consultation with me about what would be an appropriate response by me as a prosecutor or by what would be appropriate policy for me as a prosecutor in appearing before the courts. There was no 238 consultation, there was no message going back and forth, and I would not have tolerated one. I made the decisions that I made based on what I thought were evenhanded law enforcement criteria, considering, among other things, other cases of civil disobedience which had been prosecuted, particularly in the State of New Hampshire in recent years. So, there was no opportunity and there was, in fact, no influence by the Public Service Company or by any other contributor of funds to the State of New Hampshire, in my position as attorney general. The second thing that I think it is important to say is something which you rightly raise, and that is when the State, regardless of who solicits the money, when the State receives funds in a case like this from what might be regarded as a party in interest, two dangers arise and they simply cannot be divorced from those situations. The first danger is that we are starting down the road, not as a particular attorney general's office which may not have been involved in it, but simply as a State, we are starting down the road of dependence upon people with particular interests in the specific subjects of law enforcement, which would tend to give them an opportunity for an influence which they should not have. The second concern is related to the first, and that is whether particular parties or groups in interest do exert that kind of influence. When funds are accepted in this manner, there is a risk of an appearance that they would have had this influence
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. The appearance of impropriety is what concerns me.
David H. Souter
Nominee
(R)
Judge SOUTER. And the appearance that justice can be deflected by this should be avoided. If I had been consulted as to whether or not these funds should be accepted or, indeed, solicited, if there was any specific solicitation, I trust that my answer would have been no, for exactly that reason.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO you not think you had a responsibility, when you learned about it, to say to Governor Thomson, I insist that the funds be returned, because it gives the appearance of impropriety, they were not a factor in the case, taking their money does not look right, and I insist, as the attorney general of the State, that that money be returned, otherwise it might appear to some that our integrity has been compromised?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes; I think that would have been an appropriate position to take and I wish I had taken it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me just go one more point about this question of whether you knew or did not know, and I appreciate your agreeing that that would have been the appropriate conduct. In a civil action brought by some of the Seabrook protesters, Assistant Attorney General James Cruz, who participated in the Seabrook prosecution effort, was deposed. We do not have Mr. Cruz's entire deposition, but one portion which we do have indicates that Mr. Cruz testified that, on Tuesday, April 26, 1977—now, that is several days, 4 days before the demonstration—there was a meeting in the Governor's office to discuss the upcoming protest at Seabrook. Do you recall if you attended that meeting? 239
David H. Souter
Nominee
(R)
Judge SOUTER. I am almost certain that I did not. I did not go through the preprotest meetings. The deputy attorney general did, Mr. Cruz did, so I am reasonably certain I was not at that meeting.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. According to the transcript, Mr. Cruz testified that, "During the meeting with the Governor, a couple of things came up. One was the possibility that the Public Service Company would be paying some of the bill for the law enforcement at the site." Now, on Friday, you testified that, "If there was any particular appeal to the Public Service Company, it was something that had nothing to do with me or my office." But Mr. Cruz, a member of your office, testified that, 4 days before the protest and the arrests occurred, he was in a meeting in which a contribution from the Public Service Company apparently was being considered by the Governor. Did he inform you that such a plan was being considered?
David H. Souter
Nominee
(R)
Judge SOUTER. I can only say that I have no recollection of it whatever.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Were you aware of his testimony about the April 26 meeting, the deposition?
David H. Souter
Nominee
(R)
Judge SOUTER. NO; I had not seen his deposition, again, until you referred to it now.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge, I will
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, may I—I am sorry.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. GO ahead.
David H. Souter
Nominee
(R)
Judge SOUTER. I am sorry. I was going to say, I think in one respect I just misspoke inadvertently. I said I did not see his deposition again. I am not sure that I have ever read his deposition.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think your recognition that there was not an appearance of impropriety and that probably if you had it to do over again, you would have told him to give the money back. I think I understood your answer to be to that effect.
David H. Souter
Nominee
(R)
Judge SOUTER. We learn as we go along.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Pardon?
David H. Souter
Nominee
(R)
Judge SOUTER. I say we learn as we go along. There is one other thing, if I may, that I would like to add, not because I think I said anything that gave a contrary impression, but I think it should be put on the record, and that is that, in this kind of maelstrom of events surrounding the Seabrook protest. At no time, did Governor Thomson ever tell me what he wanted to do, as a matter of law enforcement, with the protesters. Despite his feistiness and his assertiveness, he was in this instance, and I think in our general relationship, he was respectful of my role as attorney general, and at no point did he tell me I think you ought to recommend this or recommend that. That issue was left to me, and the Governor was very careful to do that.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I do not suggest that your judgment was compromised. I do suggest and maintain that the appearance of impropriety is self-evident, when one side in a matter of that kind is permitted to pay part of the legal costs in the State. It should never occur. I think now you agree. Mr. Chairman, I yield back.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much. 240 Now, Senator Simpson is next, but he, in his leadership position, is over on the floor of the Senate, so what we are going to do is go to Senator Grassley, and then when it is Senator Grassley's turn, we will go to Senator Simpson.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Senator GRASSLEY. Thank you, Mr. Chairman. Judge, I would like to return to the dialog that we had last Friday morning, and as I review the transcript from Friday morning, I am quite comfortable with most of your responses on the role of a Justice, as one who must be every bit as constrained by the law and the Constitution as we are. I appreciated your statements about having to guard against at all times the temptation to be a knight errant, when dealing with the majestic generalities of the law, and also where you spoke of having to resist the urge to substitute your own values or morality for those of the people's representative. Finally, you spoke not just in terms of liberty, but also ordered liberty. All of this is, I think, in the best traditions of judicial restraint practiced by Holmes and Harlan—two Justices that you say that you admire. However, you mentioned, not just once but three or four times, a concept that I have never detected in any of your opinions or in any of your testimony up until this point. In fact, as it hit me on Friday, it seems to me more the terminology likely to come from a judicial activist. Specifically, you spoke of courts "filling vacuums," of courts— and these are your words from page 14—"forced to take on problems which sometimes might better be addressed by the political branches of government." To be candid, I am a little troubled by this vacuum concept, because if we are going to have a Supreme Court that thinks it can fill vacuums every time there is a perceived problem, then I have to agree with my colleague here on my right, Senator Specter, that you are going to be a very busy person, because democratic self-government does not always move with the speed or the consensus or the wisdom of philosopher kings who might best fill those vacuums. I think Senator Specter is also right, that if you think that you have a warrant to fill vacuums, then you are coming dangerously close to acting like a politician, and then that means that coming before this forum, we have a right as well as a responsibility to see your whole "campaign platform" on a wide array of issues. Now, I do not want that and I do not think you want that, and I do not think this confirmation process could stand that. Therefore, would you please clarify the use of the term "vacuum" or, even better, rephrase it in favor of something different? [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. I think you are giving me a hint, Senator. [Laughter.] I certainly do not want to start my answer by saying that the last thing in the world I would want to be taken for is a politician. [Laughter.] But I think I had better go back, as I did a moment ago, to the specific context that I had in mind when I made that statement. Let me start it with a couple of general thoughts. The first is that the jurisdiction of the Supreme Court of the United States, of the lower Federal courts, of every State court in America is derived from the Constitutions that respectively create those courts. It is not derived from perceptions at the moment about what ought to be done. Courts do not self-define their jurisdictions and they do not have the authority to define them simply when they perceive what they think is a vacuum in the political process which leaves a problem unsolved. What I had in mind when I made that statement was the example of the 14th amendment example in Brown. There are a great many who argued at the time and certainly have argued since that we might have been better off if the Brown decision had been not that of the Supreme Court, but had been the
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let me interrupt, before you get too far down that road. Are you saying that the power given to Congress under the 14th amendment, clause 5, can be usurped by the Supreme Court?
David H. Souter
Nominee
(R)
Judge SOUTER. Certainly not. The Supreme Court's action in the Brown case was derived from the fact that it was charged with enforcing the Constitution, including the provisions of section 1 of the 14th amendment, not section 5. Section 5 is an empowerment of the Congress alone. But the situation that was presented to the American populace at that time was a situation in which Congress could have taken some action and which the courts, acting under section 1, had a responsibility to take some action. The fact was that for 58 years, separate but equal was the law of the United States, and no political branch of the Government responded to modify that, including the Congress under its section 5 power, and, therefore, it was incumbent upon the Supreme Court, when Brown v. Board of Education came down, to apply the equal protection clause as it thought right, and in my judgment, as I have said, I think there is no question, it applied it correctly. But there is an example of a case, and that is the one that I had in mind, in which there had been no action by the political branches and, therefore, sooner or later, there was no question that a justiciable issue would be brought before the Court and that the Court would say the time has come to act upon it. But let me leave no mistaken impression in your mind that the jurisdiction of the U.S. Supreme Court to act in that case had nothing whatsoever to do, one way or the other, with what any other branch of the Government did or did not do. The Court's jurisdiction derived from the Constitution and from its obligation to apply section 1 of the 14th amendment, and vacuums do not create jurisdiction.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. If you are saying that when a State fails to live up to what the 14th amendment says, in terms of equal protection and due process, that the Court can step in, then that is fine. But if you mean that the Court can otherwise fill vacuums, that is another thing.
David H. Souter
Nominee
(R)
Judge SOUTER. NO; the former is exactly what I mean.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Therefore, you do not read the 14th amendment as a kind of admonishment to Congress to solve all social problems, because if we do not, then the Supreme Court will step in and solve them for us? 242
David H. Souter
Nominee
(R)
Judge SOUTER. No. Section 5 of the 14th amendment empowers Congress to implement the provisions of the amendment itself and, as you know, Congress is moving these days to do exactly that.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. SO, the 14th amendment, then, is not some kind of loaded revolver just sitting around waiting to be fired by the Supreme Court any time you become impatient with the people's representatives?
David H. Souter
Nominee
(R)
Judge SOUTER. I assure you, I would not regard it in that light. [Laughter.]
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, I also asked you about the criticism of the Court's creating rights inconsistent with the text and tradition of the Constitution, and you responded, on pages 17 and 18, with a discussion of the differences between the creation of rights and the recognition of rights which are implicit in the text of the Constitution.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Judge GRASSLEY. This answer came right on the heels of your talking about filling vacuums, when the people's branches or the political branches of Government might be slow to act, so I would like some elaboration. Please give me an example of when you think the Supreme Court improperly created rights and one when you think they properly recognized rights.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I do not want to over-use the example, but I think I cannot give a better example on the proper recognition of rights than Brown itself. The Court in that case recognized that the equal protection provisions of the 14th amendment were not confined to those specific problems that were in the minds of the Framers as the objects of its application in 1868. The Court recognized that there was as general concept of equal protection and it was just as applicable to school segregation as to other enterprises. If you simply read the text of the Constitution and somebody said, well, where does it refer to schools, where does it refer to school desegregation, of course, you would not have found anything there, but I think clearly implicit in the text of the Constitution itself and in the concept of due process was the proper basis for the Court's exercise of its jurisdiction.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, is it not more true under Brown that the Court was striking down a State practice, rather than creating a right
David H. Souter
Nominee
(R)
Judge SOUTER. Well, in order to
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY [continuing]. A nonconstitutional practice by the State of Kansas?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, in so doing, the Court had to recognize and did recognize that the right under section 1 of the 14th amendment, the right to the equal protection of the laws, was a right which applied to those particular plaintiffs and applied to the subject of school desegregation. So, in order to strike down the State laws, what the Court had to do was to recognize the right of the plaintiffs, in effect, to strike them down or to have them struck down. So, I think it was doing both, but in order to do so, it had to recognize the plaintiffs right.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, let me see where I can help you—where you may think that the courts improperly created rights. You have great respect for Harlan and referred to him quite regularly during 243 these hearings. Harlan, and hopefully you, would think that the Warren court rulings in the areas of criminal procedure or in obscenity might be some cases where the courts created rights.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, take the criminal procedure area as an example. I think so much of the difficulty that the States had with some of the Warren court decisions came in part, came in large measure from the difficulty of administering them. One could, I suppose, perfectly well argue today—as many people argued in the 1960's—that there was not a warrant to impose the exclusionary rule, for example, on the States once it was understood that the fourth amendment standards applied to the States. But the difficulty that the States had under the exclusionary rule—and I can speak from experience here because I was in the trenches in those days. I was an assistant attorney general, and I was concerned with criminal administration. The difficulty that the States were having was the difficulty in learning how to do what the Court had held that the States ought to be doing. I can remember in those days lecturing at State police training academies on the requirements to demonstrate in applications for search warrants what was known as credibility and reliability of the sources of information, what people in the business refer to as the old twin Aguilar-Spinelli tests. It was very difficult for law enforcement officers and for judges in the field to engage in the kind of very close textual analysis almost of search warrant applications which seemed to be called for by Aguilar and Spinelli. A great many of those difficulties have been alleviated in the meantime as the Court has moved from the kind of the technicality of those two-pronged tests to a test which looks rather to the overall effect of the warrant and does not rely on that kind of technicality. The difficulty that we were having was the difficulty in understanding exactly what it was that the Court was requiring and how to go about satisfying it. One of the most telling experiences that I can remember having that illustrates this point was in the course of an argument in the Supreme Court of New Hampshire after the Spinelli case had come down. One of the justices on the New Hampshire Supreme Court said to me, "Do you believe that Spinelli has changed the law?" I said, "No, I don't." I said, "I think the standards are the same after Spinelli as they were before." And he said, "Well, that is my view, too, but," he said, "you know, not everybody agrees with us." And if you looked at the opinions of the U.S. Supreme Court in the Spinelli case, you would see, as I recall, that the Justices themselves could not agree on whether they were coming up with anything new in the Spinelli case or not. And that is why I say I think the great difficulties that we labored under some of the Warren decisions was in implementing them, in trying to understand what they meant, and that is why I think I said the other day that in the meantime we have learned to live with a great deal, and lived with them pretty well today.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Has there never been an occasion where the Court improperly created rights? And these were your words from last Friday. What did you mean by "improperly created rights?" 244
David H. Souter
Nominee
(R)
Judge SOUTER. Going to the latter part of your question, I think what I was referring to on last Thursday were the—I think we were talking—I don't know, but I think we were talking about the area of criminal procedure again. A lot of the decisions in that period were what I would describe as kind of pragmatic implementing decisions. I think probably everyone would agree that the Court could have gone on reviewing confessions simply on the basis of the voluntariness standard which was implicit in the concept of due process, which the Court had been doing for some time; and that it could have continued to do that without adopting the Miranda tests. What the Miranda tests were were intended to be a very pragmatic procedure that would cut down on the likelihood, cut down on the degree of possibility that confessions actually would turn out to be involuntary confessions. Was it right for the Court to say we have just reached the point where the judicial system cannot continue to go on litigating every case for voluntariness under due process? We have got somehow to have a more pragmatic approach to this that is going to cut down on the number of problems. People of good will could disagree about that, but the fact is, at the time the Miranda decision came down, it created a lot of problems for people who didn't know how to respond to it. Those problems are over and done with today. I think most law enforcement officers can respond to it, and anyone who wants to attack Miranda today has got, I think, the same kind of pragmatic burden which those had who argued for Miranda in the first place. What would be the effect of changing it? Was Miranda the creation of a new right, or was Miranda, in fact, an experiment by the Supreme Court in how to protect a right? People can argue back and forth on the terminology. I personally have looked at Miranda as a pragmatic decision intended to protect a right, and the only sense in which I think probably you can say there was an extension of a right was that sense which Justice Harlan referred to when he said that what Miranda had done was to extend the fifth amendment from the courtroom to the police station. But I think the reason the Court was taking the tack that it was taking was not merely for the purpose, or for the purpose of extending rights so much as in trying to find a pragmatic way to protect those rights. And it was a very difficult pragmatic way at the time the opinion came down, unlike the situation today.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Souter, you have said many times and again in your last statement about your admiration for the philosophy and the approach of Justice Harlan. If there is one Harlan message that I would like to leave with you as I conclude my dialog with you, it is this one from the reapportionment cases of 1964, and I quote: I believe that the vitality of our political system on which, in the last analysis, all else depends is weakened by reliance on the judiciary for political reform. In time, a complacent body politic will result. Continuing the quote: These decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional principle, and that this Court should take the lead in promoting reform when other branches of 245 Government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a haven for reform movements. The Constitution is an instrument of Government, fundamental to which is the premise that in the diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court does not serve its highest purpose when it exceeds its authority, even to satisfy the justified impatience with the slow workings of the political process. Now, this to me is classic John Marshall Harlan. Whether or not you would have signed on to his dissent in 1964 is immaterial because, of course, there is no turning back the clock in this area. My point is simply that Harlan has articulated a principle that, it seems to me, leaves no room for vacuum-filling. So I commend that particular bit of Harlan for you to reread and consider as you move to those lonely marble halls just a few blocks from here. Thank you, and I wish you good luck.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I yield back my time.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, was one-person, one-vote, rightly decided, Baker?
David H. Souter
Nominee
(R)
Judge SOUTER. I think it was. But I will tell you, Mr. Chairman, I think the Harlan dissent was a very powerful dissent. And the truth is I don't have a simple answer to the Harlan dissent. I don't have a simple answer to it today. As you know, Justice Harlan relied so heavily on the provisions of section 2 of the 14th amendment for saying that that was an indication that any problem of the maldistribution of votes or the apportionment of votes was intended to have a congressional solution period. And yet on the other side, you would be facing the fact that there was less protection for this most fundamental right than there would have been for one of the garden variety economic rights. And that argument of his was a tough argument.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But you think it was rightly decided.
David H. Souter
Nominee
(R)
Judge SOUTER. I think I would have to have gone along with it, yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. The Senator from Arizona, Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, thank you. Judge Souter, I want to go back to a couple of areas that we discussed last week. Excuse my voice. I have a bit of a cold today. We talked at some length about the equal protection clause as it relates to discrimination cases. In your opening statement, Judge, you stated that part of your role as Supreme Court judge will be to "preserve the Constitution for the generations that will follow." I think that statement is very accurate, and it is the reason why I have spent so much time on this particular issue. Judge Souter, I have two daughters. One is a lawyer, one is a doctor. I have a son who is a lawyer. I see no reason why my son should be treated any better under the law than my two daughters. I also see no reason why the Court should give the same scrutiny to law that distinguished trucks or automobiles as it does a law that treats men different than women. To do otherwise, in my judgment, I believe would not preserve the Constitution for generations to follow. 39-454—91 9 246 Along that line, Judge, let me just pursue this a little more. Last week, we discussed the middle tier scrutiny that the Court applies to gender discrimination statutes. You described it to Senator Kennedy as "too loose"—those were your words, I believe—and you criticized its flexible quality. Could you refer to any cases that you have analyzed that lead you to believe that the test may be too loose?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I think I can recall some. That test has a peculiar history. To the best of my knowledge, the first case in which the middle-tier scrutiny test, substantial relationship to important government objective, the first case in which that was mentioned was a case early in the century, and it was an economic regulation case. It may have been an antitrust case. It was an economic regulation case, in any event, and one of the parties was a corporation known as the Royster Guano Co. I don't remember the other party, but I will never forget Royster Guano. The issue in that case, as I said, was strictly one of economic regulation. It is the kind of issue which today would merit what we would call first-tier, rational basis analysis. And, in fact, that was exactly the kind of treatment that Royster Guano got. So this test which today is being used and has evolved into a middle-tier test began its life right down at the other end of the spectrum. Some of the cases that have applied it as a middle-tier test even since then have seemed to me, as I have read the opinions, to seem to slide back and forth as to whether they were applying middletier or first-tier. I think someone the other day mentioned the case of Reed v. Reed, which involved an issue of probate administration and the eligibility of a woman to serve under the same conditions or subject to the same conditions of eligibility as a man. There are portions of the Reed opinion in which they seem to be doing nothing but applying first-tier analysis.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I agree.
David H. Souter
Nominee
(R)
Judge SOUTER. And at the other end of the spectrum, I had a case in which I wrote a separate opinion on the New Hampshire Supreme Court this past year in which I know my colleagues did not agree with me, but it seemed to me that they were using the middle-tier test for the highest level of scrutiny. And so it is examples like that that have made me wish that we could come up with a less flexible formulation. That is a lot easier said than done. I hope you are not going to say to me, "OK, Judge, here is your chance, give us the word," because I don't have an alternative formulation written.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, maybe not, and maybe you could pursue it a little bit. If the intermediate test requires that a classification must serve—as we, I think, agree—"an important governmental objective" and be substantially related to that objective— you went into at great length last week. And yet the strict scrutiny test provides a classification of compelling government interest and the narrowest means must be used to achieve that objective or interest. Now, what in your opinion is "too loose," or can you discuss the difference between these two? I have trouble with them, but I understand the strict scrutiny test much better than I do the intermediate and where it follows with your reference to the looseness. I 247 tend to agree. It is interesting to me how you see the difference between this. Where is the looseness? And where would you tighten it up, if you can say, obviously without any reference to potential pending cases?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the reason why we tend not to be quite so concerned about the flexibility in the highest tier test, the compelling State interest test, is that traditionally we have been working with classifications which affected rights of such fundamental importance that it was very, very difficult for anybody to meet the test. Therefore, there has tended, I think, just as a historical matter, to be fewer cases calling for third tier, the highest level of scrutiny, which have seemed to be debatable cases at all. And you are entirely right to say, well, compelling interest, that calls for an evaluation. Narrowly tailored, that calls for it. And you are entirely right. If you look at some of the recent cases that have come down on examining race-conscious remedial order by courts. They are being subject to the highest level of scrutiny.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Exactly.
David H. Souter
Nominee
(R)
Judge SOUTER. And yet, for example, when you come down to narrow tailoring, there is undoubtedly room for maneuvering there in the kind of factor analysis that has gone into the narrowly tailoring analysis.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. It doesn't trouble you that you would make that statement, that there is room for maneuvering?
David H. Souter
Nominee
(R)
Judge SOUTER. It is a fact. There is no human formulation that is going to give you any kind of mathematical precision. And as I think I said when I first brought up the subject the other day, I am by no means convinced that I can do better at it. But the examples that we have been through, of which I gave you some
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes, you did.
David H. Souter
Nominee
(R)
Judge SOUTER [continuing]. Are what disturbed me.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, to go to another area, last week we talked a little bit about the effects opinion polls should have on judges' decisions, and you stated that they should have no effect. In some eighth amendment cases, dealing with the death penalty, the Court has looked to many diverse factors in determining "evolving standards of decency," including opinion polls. That is made reference to in the Gregg case. Do you think that the Court erred in making reference to public opinion polls, in deciding the Gregg case? There are several other cases that judges' majority opinions have made reference to opinion polls.
David H. Souter
Nominee
(R)
Judge SOUTER. I was referring to opinion polls about the rightness of their decisions or not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER. And I will stand by my answer there. I will say that I would be much more comfortable to look to what legislatures do, for example, in expressing the sense of the communities on matters of appropriate criminal penalties. So I would look at them very warily because I think we have better evidence.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, I agree with that and it seems like it's maybe unfair to even suggest that a Supreme Court Justice can really be so pure in his or her legal thinking that they are not 248 going to be influenced by newspaper articles or television opinion polls that they see over the news.
David H. Souter
Nominee
(R)
Judge SOUTER. You know what Charles Evans Hughes said: They read the papers.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. They read the papers, yes. After your comment I asked my staff to give me the Gregg case, which I had not read for some time. I remember opinion polls being cited someplace. It was there and in a number of other cases.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The question is, Senator, do they watch color television, that's the real question.
David H. Souter
Nominee
(R)
Judge SOUTER. I can tell you one nominee who doesn't unless he is visiting somebody.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That may be one of the biggest pluses you have had, for your credit.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I'm not about to get rid of that set right now, if that's the case.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, let me go into the judicial activism that was discussed last week. Senator Thurmond asked you last Friday to describe what you thought the term judicial activism meant? I did not have as much luck as my colleague did when I asked you that question. You told him that you would consider it judicial activism if a judge imposed his personal values rather than searching for the values embodied in a constitution. Is that, in essence, correct?
David H. Souter
Nominee
(R)
Judge SOUTER. That is fair to say.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you think it is judicial activism to rule that capital punishment is always cruel and unusual punishment?
David H. Souter
Nominee
(R)
Judge SOUTER. I think that would be an insupportable decision under the Constitution and I say that, sir, with a recognition that there are members of the Supreme Court who disagree with me. But that is an opinion which I could not join.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Because, as you know, Brennan and Marshall, at least in this lawyer's and Senator's opinion, certainly reach for judicial activism in their efforts to state that that's how they interpret the eighth amendment as it relates to capital punishment. You went into the Miranda and exclusionary rule at some length with Senator Thurmond also. In your response you stated that Miranda created a pragmatic rule, as you did just recently with Senator Grassley, you described the exclusionary rule in the same way. Let me read back your response just to refresh your memory, because I am concerned about these decisions as to their activism and what appear to me to be activism, although I can't disagree with the decision in at least the Miranda case. I think it's important to note—this is you, Judge—"I think it's important to note that when we look back on a decision which has been on the books as long as Miranda has now, we are faced with the similar, I think practical, obligation, if one wants to modify or expand or contradict, to ask very practical questions about how it actually works. That is a judicial obligation if the judiciary is going to be imposing pragmatic rules." Your response leads me to this question. Should the Court be imposing rules such as Miranda and exclusionary and are they not 249 really experimenting? And isn't that what you have indicated that the Supreme Court was doing?
David H. Souter
Nominee
(R)
Judge SOUTER. With the hindsight of history there is an experimental cast to some of them. As you know, over the years, for example, on the exclusionary rule there have been calls within the Supreme Court to turn the Mapp decision around on the grounds that it has simply not worked out, and that that is a fact which the Court ought to face. I don't know of any theoretically satisfactory way of saying when a pragmatic experiment sort of crosses that line it is something that has to be condemned as activism. The courts have got an obligation to, in effect, enforce standards. In the Miranda area what the courts were concerned with was the amount of litigation which was going into the question whether given confessions or admissions had been obtained voluntarily or not, was simply placing such a severe burden on the courts themselves, that there had to be a better way to protect the ultimate interest which the 14th amendment was trying to protect without, in fact, tying the courts up in the kind of litigation which just seemed endless, fact-specific, and detailed. The idea was if the police can get the Miranda warnings right, they're going to obviate a large percentage of the voluntariness cases. So that in the long run, law enforcement and judicial administration are going to be more efficient. Well, that was not a very easy argument to sell to law enforcement when Miranda came down, as you well know. But the fact is the intent of the Miranda decision was an intent to provide better administration for the imposition of a standard which we all, on each side of the issue, recognize had to be enforced.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I think today I agree with that. I agree that that is how they came to that conclusion. When that case came down I was a prosecuting attorney and I certainly didn't agree to it. I was outraged. In essence, isn't that really experimenting by the Supreme Court? Wasn't the Court really trying to find a solution to its own problems of being inundated on these types of questions?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, it was its own problems and it was law enforcement's problems, too. Yes, it was experimentation. I remember
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. When
David H. Souter
Nominee
(R)
Judge SOUTER. I am sorry.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NO, go ahead.
David H. Souter
Nominee
(R)
Judge SOUTER. NO, that is all right.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. In your own standard, Judge, and maybe you can explain this, where do you draw the line? Does it have to be a crisis matter of the Court, or is it just totally discretionary when a majority of the Court thinks that experiments, "activism, or whatever the majority decides the opinion is going to be, is that where the line is, or where do you draw it?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, as I said a minute ago, I wish that I had a neat formulation for it. At the very least, in searching for the line we have got to keep in mind what I said in my discussion with Senator Thurmond. It is one thing to try to come up with a pragmatic 250 approach to the enforcement of a constitutional value or standard which is, itself, accepted. It is another thing to derive standards based simply on personal judicial views of what would be desirable in the world. I will grant you that when we get into the area of pragmatic experimentation, that can be a darn tough line to draw and I don't know of any theoretically easy way to tell you how we would do it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Does it violate your interpretivist approach to the Constitution, which you have expressed and explained quite well, I think?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I don't think it should be seen as any peculiarly interpretivist issue. Regardless of what your view may be of the various schools of interpretivism, the fact is that the courts have got an obligation to come down with practical decrees that implement whatever rights and standards we do find in the Constitution. When we are talking about decisions like Miranda, we are talking about the best way for a Court to exercise its—I guess you might call its prudential power, to get to the right result, to enforce the appropriate standard with the least amount of damage to the body politic—because there is a price to be paid when confessions are thrown out—and with the least damage to the judicial system, which is constantly overwhelmed with litigation. I guess I tend to look upon that as an issue more about the appropriate scope of the Court's power to fashion remedies than an issue of interpretivism about constitutional meaning as such. There is, of course—and this was true of the 1960's and 1970's and it is always in the background of our thinking today that when that kind of pragmatic experimentation does go on, it has an effect on the Federal balance in the country, too. I think it is safe to say that that is a value which the Court has also got to bear in mind and that is not merely prudential.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, Judge, would you agree that the Miranda decision is not likely to come back before the Court? It seems to me pretty clear where we are on that. I want to ask you whether or not you think that decision was correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Let me, if I may—let me approach it this way. I do not rule out the possibility of that coming back before the Court, but I think what I can probably say to it is that—and I have said similar things from the bench in New Hampshire—that if that issue does come back or one similar to it, I think there is an obligation on those who want to raise it to address the pragmatic issues. How is it working today? How do we assess, if you say the price is high, how do we assess that price? What do we really know about what is going on? I think we are engaged in significant measure if such an issue comes up in a very pragmatic weighing, and it must be addressed that way.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Then I take it from that if you conclude, as a judge, that a decision is, indeed, pragmatic, experimental or judicial activism, whatever term or adjective we might use, that because of that nature it probably ought to be reviewed or revisited. Is that putting words in your mouth? 251
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think that is a way of expressing, Senator, a conclusion that you have to approach on what I call the threshold question of the matter of precedent, and that is, was the decision wrong or not?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, what about the Court ordering an elected official to raise property taxes as they did in Missouri v. Jenkins1 ? Could this ever be within the remedial powers of the judge or is it just clearly judicial activism?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, as you know, Senator, that is an issue that no matter how things turn out the Court is going to be revisiting. The scope of the decision of last term is subject, as you know, to great debate, and I think I have got to be very careful about what I would say on that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me phrase it in a different way, if I can. If the Court rules or continues to rule that it is within its jurisdiction and its interpretation, that elected officials must take some action as to their proprietary interest regarding financing anything. I am trying my best to stay away from that particular case. My point is, in your opinion, does that disturb you that the Court would move into an area of legislative, clearly legislative prerogative and certainly one of long-standing precedence that the Court, itself, has recognized and failing in the past to rule certain things should happen because it is up to the "appropriators" or the legislative body to fund them if they want to have them. Can you give me a feeling of how you would address that theoretical area?
David H. Souter
Nominee
(R)
Judge SOUTER. I think I would start by addressing it, by asking whether, in fact, that question really has to be raised? I do not say that lightly. One of the peculiarities of last term's case was the fact that the case came to the Court in almost a friendly posture. A decree was being worked out in that case on a cooperative basis and, in fact, the school administrators were apparently very well satisfied to include a great many extremely expensive items in the decree which the Court was being asked to enforce, as you know, as a remedy to a school segregation issue. The case seemed to come to the Court in the posture that we can't afford all of the other things that we have got to spend money on and fund all of the very expansive details of this consent decree consistently with the tax rate that we can impose, subject to certain State restrictions on the raising of school taxes. The case was presented to the Court in that posture. It seems to me one of the issues that ought to be faced before the question of the Court's remedial power is finally decided is whether that is the posture in which such a case should come before the Court? For example, shouldn't the issue be phrased in these terms, that once a decree is ordered by the Court, the question is not whether necessarily taxes have got to be raised and, if so, under what authority they may be raised to do it, but whether, in fact, the political branches of the Government responsible have made a decision that they are going to put the implementation of this court decree first. They are going to give that its highest priority in funding. Because if that is the appropriate way to go about it, if there is, as it were, a primacy of obligation to obey a court order, then the 252 real question that is going to face the local taxing authorities is not whether they have to raise taxes to fund the court order on top of everything else, but whether they are going to continue to fund everything else in addition to the court order? It seemed to me that one of the difficulties of trying to focus the issue in last term's case is that the political priorities at the local level simply don't seem to have been addressed. If they are addressed, there is a real question in my mind as to whether or when the Federal courts are going to get to the point of having to rule on the question that so many people take that case of last term as really standing for, and that is the right to impose or order the imposition of a property tax.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, of course, that is the point. How can the Court justify stepping into that area? They can certainly hold constitutional rights as being denied, but to go so far as to say you must shift your appropriations—and I think that's what you are suggesting might happen if the Court isn't careful in reviewing the cases before they consider them—shift your appropriation, local school board, or State legislature, or the Congress of the United States from building a B-2 bomber, which is not perhaps as constitutionally protected, assuming you can argue that the defense is adequate and putting it into prisons, because you are not treating and granting prisoners a constitutional right that they have to safety and other equal protections that they have. It just is very disturbing to me to see the Court moving in this direction, and I have great respect for you, Judge, and the way that you have answered these questions. It doesn't give me a lot of encouragement, other than you are going to think about it. And you have thought about it. It seems to me that what you are saying is, yes, we have got to consider it. The best I can tell you, Senator, is in my objective observation now is that we ought to consider it at the early stage before we accept a case for argument, and maybe we can decide there that we shouldn't take it. But, yes, it is something that we have got to get into. Is that understanding
David H. Souter
Nominee
(R)
Judge SOUTER. Ultimately we will. I say we, we on the judiciary will, where I will be on the judiciary, I will not say.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, thank you. I just want to say to you, Judge Souter, that I am very impressed with your presentation over the last 4 days and also the openness that you have come forward with, different than other nominees that we have had, I must say. Though I think you have adequately and properly protected your need to withhold answers in some areas, because of decisions before the Court I believe you will be confirmed to sit on, you took advice from a number of us, I guess a number of us, that I hoped you were forthcoming. Indeed, you have been in this Senator's judgment, and you have expressed time and time again your great intellectual capacity of the law that is, indeed, very impressive to this Senator, one I am envious of, quite frankly, of your knowledge of the cases that you have read over a long period of time or you crammed in over the last month, however you did it, it is quite remarkable. [Laughter.] 253 Whatever tutoring Senator Rudman gave you, I guess he deserves some credit, too, but quite frankly, Judge, I think you have conducted yourself
David H. Souter
Nominee
(R)
Judge SOUTER. I think you are going to have a fight on the committee here, Senator. [Laughter.]
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I think you have conducted yourself exceptionally well. It is not that I agree with everything you have said, but you have certainly, in my opinion, not dodged some very tough questions, and that is appreciated by this Senator very much.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you very much, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Would the Senator from Arizona yield?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I just want to make this observation: In the Missouri case you referred to, the Court held that a judge does not have the power to impose taxes, but he could order officials to do that. That is a very disturbing decision. We have introduced a bill to reverse that decision. That is a legislative function. Whether taxes are put on or how much taxes or how much or for what purpose is not a judicial function, and we hope to reverse that decision, and so I just thought I would mention that to you.
David H. Souter
Nominee
(R)
Judge SOUTER. I appreciate that, sir. [Laughter.]
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I could not quite say it that tactfully, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is amazing, Judge, how the degree to which people think you respond depends upon whether you answer questions, how you view capital punishment and not other things that are before the Court. Also, Senator DeConcini had great credibility in his comments until he suggested that possibly you were tutored on the law by Senator Rudman. That is when we all began to have our doubts. [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. I think I can claim privilege on that, Mr. Chairman. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. What I would like to suggest is let us recess for 3 minutes, come back with Senator Specter's questioning, and during that 3-minute recess, maybe you and I can confer as to how long you would like to go before lunch. We will recess now for 3 minutes, to give you a chance to stretch your legs.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir. [Short recess.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. Let me briefly describe the very brief discussion we had. What we will do is continue with two more rounds of questioning from the Senator from Pennsylvania and the Senator from Vermont, who will each question for a half hour. That will bring us roughly around 1 o'clock. We will then break until roughly 2 o'clock. Actually, it is probably going to be quarter after 1 and quarter after 2, and then what we will do is we will come back, starting with Senator Humphrey, our first questioner this afternoon of our witness, and we will proceed on until we finish the second round, at which time we will probably take a brief recess and then Senators who still have questions, and I know that there are a handful who still 254 have additional questions, will continue to pursue those questions and we will make the judgment as we go, from that point on. Now let me yield to my colleague from Pennsylvania, Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge Souter, I began with our point of departure last Friday on your view of judicial interpretation. The starting point, from my understanding of your judicial philosophy, comes in your extensive opinion in the Estate of Dionne, where it is encapsulated, as follows, as I interpret it: "The Court's interpretive task is, therefore, to determine the meaning of the article 14 language as it was understood when the Framers proposed it and the people ratified it as part of the original constitutional text that took effect in June of 1784," so that you refer to understanding as the Framers proposed it and the people ratified it at a specific time in 1784. Now, there has been a modification in what you have said, when you move from meaning at that time to a broader interpretation of meaning as that meaning might be understood at a later time. You have given a very expansive interpretation of judicial authority, when you talk about filling a vacuum, and as you go through the points of analysis, a great deal of what you have had to say would apply to a legislative judgment as well as to a judicial judgment. You talk about what liberty interest is involved for an individual, then you talk about what are the countervailing considerations, it sounds very much like what a Senator might do, then you add to that a test which we do not have, and that is the precedent stare decisis, but you articulate that in terms which are very flexible, how long it has been in effect, what the principles are, what reliance there has been, so that at every turn you come to something which is extremely flexible. The cases involving civil rights and taxing power and contempt power in the Yonkers case are far-reaching applications, as I see it, as to what the Court has done, which really moves into the position of being a super legislature. Let us start with the point where Senator DeConcini ended, and that is with the decision in which the Supreme Court of the United States said that the court had the power to direct the local authorities to impose a tax, and your response there was, "Political priorities at the local level are simply not being addressed." Now, the difficulty that I see, the threshold with your response is that you say political priorities are not being addressed at the local level, and that the court can order the local officials to address those political priorities. It is hard to find an issue which is more contentious in the political arena than the tax issue. In the 10 years that I have been here, that is about all we have talked about, as we have wrestled with the issue of the deficit. The summiteers on the budget conference, meeting at Andrews Air Force Base, are devoting their time, virtually exclusively, to the tax question. The political process in 1984, I think was decided largely, if not exclusively, on the tax question. That issue was paramount again in 1988, and it is the most essential political function that there is in our society, to figure out when to raise taxes and how to raise 255 taxes is subordinate and the Court did leave that to the local government here. But I would start with this question on this subject, Judge Souter, and I would again refer to your language in Dionne, to look to the Constitution, to the meaning of the language as understood by the Framers and the people who ratified it, and ask where is the constitutional authority on the very basic level for the Court to introduce into what is the most essential legislative function on taxation.
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I think the approach to that question is a two-fold one. The first is, I know certainly from my familiarity with my own 1784 constitution in New Hampshire, and I can speak with equal certainty of the national Constitution, that the taxing power in the sense of the Framers understood that is a power subject to the separation of powers was legislative, it was not judicial. The difficulty in the question that faces us and that was facing the Supreme Court and, I presume from what I have been told this morning, will definitely face the Supreme Court again, is in drawing a line, if indeed a line is to be drawn there, between the appropriate scope of the judicial power in enforcing its own decrees and the point at which those decrees cannot be enforced without a tax increase. When I spoke earlier of what seemed to me the failure or uncertainty of the means by which political priorities had been addressed at the local level, what I was trying to get at was that we never take on a constitutional issue if there is a means of adjudicating on a nonconstitutional basis. And it seems to me that the question of how far the court's remedial authority goes, when it runs smack up against a lack of money in the local treasury, should be posed in this way. I do not think it should be posed by saying will this judicial remedy exhaust the treasury; it should be posed by saying can this judicial remedy be enforced within the money available to government, bearing in mind that government may have to put the judicial remedy first and decide that there are other priorities for which it would like to spend which it can no longer spend for, without raising taxes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. What is the authority of the court to establish the priority?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I do not think the court has the authority to establish the priority as such, but I think that the constitutional issue does not really arise, unless the priorities or it does not arise in a way which requires adjudication, unless those priorities have been addressed at the political level, the local level. In other words
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Souter, I do not think that advances us very far, when you take up the relative responsibility of the court versus the legislature on something as fundamental as taxes. Let us go to another example, on the Spillone case, where you have a contempt citation which was reversed against councilmen of the city of Yonkers. The Court said that it was reversed only because they first should have proceeded with sanctions against the city alone, but then added "only if that approach fails to produce compliance within a reasonable time, should they then move to the issue of a contempt citation against the council." 256 Now, where does a legislative responsibility begin and end, if the court can order the council what to do? My question to you, is there any difference between a city council in Yonkers and the U.S. Senate? Does the court have as much authority to order the Senate on what it should do in discharging its legislative role, as the court has to order the city council of Yonkers, NY?
David H. Souter
Nominee
(R)
Judge SOUTER. I would suppose that the answer to that is clearly no, because the Senate of the United States is not going to be the party to the kind of litigation which the Yonkers litigation produced. In other words, the Senate of the United States, I presume, is not going to be a defendant in a civil rights action.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, let me give you a case. The Court holds that it is unconstitutional to have prisoners in quarters which are unacceptable. That has been a judicial interpretation, and the Congress of the United States, including the U.S. Senate, is the only agent which can impose taxes to build the prisons. The case comes to the Supreme Court of the United States, there is a constitutional right not to have cruel and unusual punishment under the eighth amendment. The Supreme Court of the United States says that there are too many prisoners in the Federal prisons, and then orders, as the Court ordered the Kansas City authorities, says to the Senate raise taxes to grant the constitutional rights of petitioners under the eighth amendment. There is a case.
David H. Souter
Nominee
(R)
Judge SOUTER. Of course, the
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The Court can do that, and now what is the Senate going to do? Is that any different than the city council of Yonkers, NY?
David H. Souter
Nominee
(R)
Judge SOUTER. Of course, the difference is that the city council of Yonkers, NY, is bound by the supremacy clause of the Constitution, so that there is an entirely different structural relationship between the two. The second difference, it seems to me, is that the suit, even if in fact there were a Federal action, the suit would not be against the Senate of the United States, it would be against a subordinate branch, a subordinate contingent of the executive branch. The third difference would be that the Court in those circumstances, if the executive branch could not get the funding to do the construction and so on, would have an alternative, not merely the alternative of ordering relief as in the Yonkers housing case, but it would have the alternative of nonappropriation or nonfinancial relief under the habeas power over conditions of prisoners, so I do not think the Senate of the United States could ever possibly be in that position.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Souter, the Senate could be named as a party-defendant. You say that it could not be, but it would take too ingenious a plaintiff's lawyer to name the Senate as a party. You say the Court could order habeas corpus relief, that is true. That translates, habeas corpus relief means that there would be an order for the Federal prisons to release perhaps thousands of prisoners, but the Court might not choose to do that. The Court might choose to exercise its own remedial jurisdiction to say build the prisons, we do not want the responsibility for releasing so many thousands of prisoners. 257 Then you say that Yonkers is bound by the supremacy clause. That is a question I want to get into at a later point, in terms of jurisdiction of Marbury v. Madison and the authority of the Congress to take away jurisdiction, but it seems to me that the Congress is bound by the supremacy clause, unless we are to say that the Congress can legislate and say that the Court does not have the jurisdiction to order the Congress what to do. But in our system, Marbury v. Madison has already been respected, so conceptually, it seems to me that we could come to a situation logically where, if the city of Yonkers can be ordered what to do, the council people can, so can the Senate. Let me turn to another subject which is illustrative along the same line, and that is the issue of a super legislature and the interpretation of the Civil Rights Act, this last year in Ward's Cove, overruling the decision of the Supreme Court of the United States in Griggs in 1971. That is a particularly troubling issue today because the Senate and the House have each passed bills which would reverse Ward's Cove, and the President has made plain his intention to veto that legislation. It is an extraordinarily contentious issue and one that I think would really be very injurious to the country, would really tear the country apart in a lot of ways if the Congress passes a civil rights bill that the President feels constrained to veto and it does not stand. This issue has arisen because of the Supreme Court's decision in Ward's Cove, which has shifted the definition of business necessity and changed the burden of proof. Without getting into all the particulars of the case, I find it particularly troublesome because four of the five members of the Court appeared before the Judiciary Committee in the past decade and talked very strongly about judicial restraint, nonactivism, and then came to the Court and saw a decision of the Supreme Court in Griggs, which had stood from 1971 until 1989. And, of course, the considerations on a reversal are very different—which we all recognize—between a constitutional decision, interpreting the Constitution as opposed to a statutory decision because it is easy for Congress to alter an erroneous interpretation of a statute; whereas, a constitutional amendment is much more difficult. So the Courts have articulated the principle— and I think you may have alluded to it earlier—that there is a different standard on overruling a constitutional interpretation, which the Court ought to have greater latitude in overruling a prior decision interpreting the statute. I think it is a fair legal conclusion that given 18 years that the Griggs opinion had stood, a presumption of congressional acceptance of that interpretation of burden of proof and business necessity. In articulating this question, I want to do so in a way which will not intrude on a case which is likely to come before the Court, so I will ask it first in general terms. Do you think it is appropriate for the Supreme Court to affect a longstanding Supreme Court decision which has stood interpreting a congressional enactment?
David H. Souter
Nominee
(R)
Judge SOUTER. I accept as a general rule, just as you said, Senator, that statutory interpretations are entitled to the highest claim to be followed for the very reason that as statutory interpretations, if there is anything wrong with them, legislatures—in this case, the Congress—can take action to change them. 258 One of the kinds of facts that I don't know about the controversy over Griggs and Ward's Cove goes to an issue of precedent that I got into to some degree last week. We sometimes raise it under the term of "acquiescence." I was speaking of it, to a large extent, under the rubric of reliance. That is the extent to which in the period between Griggs and Ward's Cove the Congress had specifically in one fashion or another addressed this problem and had expressly chosen to leave the law as it understood it to be following the Griggs case. What we can say is that to the extent that the record shows that the Congress has not merely sat passively, as it were, in the aftermath of Griggs but has specifically addressed the question and has made choices to leave the law as it is, a record of that fact would, of course, present an even stronger argument for leaving the interpretation as it stood. And I don't know whether there are facts that could be adduced in this case or not.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Souter, that might present a stronger argument, but you need a stronger argument to leave standing congressional acquiescence, even if the Congress has sat passively.
David H. Souter
Nominee
(R)
Judge SOUTER. YOU have a very strong argument for leaving the precedent as it is. I think the point that—and this has come up from time to time in cases when I was on the New Hampshire Supreme Court. I do not accept the position that never under any circumstances can a statutory interpretation be reexamined. I think never is a pretty strong word. But there is a very, very strong claim of precedent to be followed in those circumstances.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, why is "never" a strong word? If the Congress has let it sit and the Congress has the authority to change it, it seems to me "never" is the right word.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, except that I am not sure, as reviewing courts, we always have the luxury to consider that interpretation simply in a vacuum by itself. What I am trying to leave the door open for are situations in which, in fact, in the time, let's say, after the first decision the Congress itself has taken legislative action, which if not directly contradictory, is at least arguably inconsistent with the principle. If we get to a point on the issue of statutory interpretation where the earlier statutory interpretation has become a kind of isolated fluke, and we know that the Congress has, in fact, contributed to this process by its own subsequent legislation, then I think we ought to leave the door open for the fact that some coherence in the law would justify a reexamination of it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, that is an interesting hypothetical that doesn't apply here, and I know you didn't suggest that it did.
David H. Souter
Nominee
(R)
Judge SOUTER. I don't know one way or the other. That is right.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I will testify for just a moment. It doesn't apply here.
David H. Souter
Nominee
(R)
Judge SOUTER. OK.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But even if it did and the legislative body has legislated around it, they can legislate on that, too. But let me pick up on this business of vacuum. When you say if the Congress has sat passively, that is less persuasive than if the Congress has considered it and rejected it. But I would differ with 259 you very sharply on that, Judge Souter, because when the Congress sits passively, the Congress is deciding not to act. When you talk about a vacuum, which you talked about on Friday—and you have narrowed the vacuum substantially today, and I hope to have time to come back to that—it is not a matter of a congressional decision which should be taken lightly. Perhaps our strongest ability is to do nothing. But frequently
David H. Souter
Nominee
(R)
Judge SOUTER. I won't touch that one, Senator. [Laughter.]
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you. But frequently we do nothing with deliberation. But I think it is highly dangerous for the Court to say that you start to move into a vacuum because the Congress has done nothing. We do nothing because we don't want anything done. And there is a real concern if you take your interpretation—I hope to come to interpretivism. There are a lot of subjects to be covered. When you talk about due process being more extensive than incorporation of the Bill of Rights, and then you talk about the liberty interest being expansive, and then you say today that even defining liberty as it was defined by Cardozo in Palco in terms of the ordered concept of liberty, the interpretivists think that the definition of central to the concept of ordered liberty is an anathema, as I read interpretivism. And you were saying that even if you have the concept of ordered liberty, that is only a beginning point, because Palco and the concept of ordered liberty goes beyond. The concern that I raise here, Judge Souter, goes to a lot of very important constitutional and governmental issues. And when you have the Court functioning as a superlegislature, as I think the Court did in Ward's Cove, and when you have the Court functioning as a superlegislature in the Garcia line, which just takes too long to get into now, but you have Chief Justice Rehnquist and Justice O'Connor explicitly saying in Garcia we are just waiting for another judge to come on our side, because the decision in Garcia v. San Antonio Transit Authority won't stand, then you come to the matter that when a judge is up for confirmation, we may not respect the judge's right not to answer the ultimate questions if he is really joining a superlegislature and should have to give answers, just like Senators do when we run for office. I started with the proposition, as you know, that you ought not to answer ultimate questions; you ought not to say how you are going to decide the next case that comes before you, because the tradition of the Court is briefs, argument, deliberation, case in controversy, specific facts, and then you decide the case. But if the Court is going to move into political priorities in taxes, and if the Court is going to move into contempt citations against councilmen and Senators, and if the Court is going to take an 18-year-old precedent in a civil rights case and reverse it, then in that context, as a superlegislature, Judge Souter, I would ask you the question: Why shouldn't the nominee be compelled to answer the ultimate question as to how he is going to decide the next case?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the answer to that, Senator, is that to the extent to which the Court is perceived, reasonably perceived as acting as a superlegislature, to exactly the same extent the rules against getting into ultimate questions are going to weaken. You know, as you well know, the judgment about what is an appropriate question to ask, the judgment about what is an appropri- 260 ate answer to that question, has ultimately got to be your judgment. The American people have their views. I have mine. But the responsibility for making that judgment rests on this committee. And I understand what you are saying.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, we have come a long way. There are those who are saying now that we ought to compel or ought to do our best—we can't compel, obviously, anything. That is your call— but that we ought to push that issue and compel that answer because—they don't really articulate it in terms of the superlegislature, and they don't take it down these lines. They really want a judge predisposed in their favor. And I don't think anybody is entitled to that, no litigant is and no group which articulates any interest. Judge Souter, that brings us to another really important issue, and that is the relative authority of the President versus the Senate to select Supreme Court Justices. I was surprised to find years ago that in an original draft of the Constitution, the Senate was given the authority to pick Supreme Court Justices. That surprised me. Then you have a question as to is the Senate subordinate or equal to the President, and I made the comment in my opening statement that I think the Senate owes great deference to the President's selection. But that always hasn't been the case. In the famous case involving John Rutledge, he voted against the Jay treaty, so on purely critical grounds, the Senate rejected him by a vote of 14 to 10. Now, there has been articulated a fascinating proposition that the American electorate is intuitively imposing limits of power in the United States by electing a Republican President and by electing a Democratic Congress, so that they want that kind of limitation. There have also been those who have said that the President may be seeking through the Supreme Court to put into effect an agenda which the President can't achieve without having the Court. I do not believe that President Bush has sought that. I think that in his appointment of you the evidence is conclusive—I was about to say virtually conclusive. Never say never. It is conclusive, I think, that he is not seeking to find some way to carry on an agenda. To make an appointment within 72 hours shows a lot of courage. He had some good fact witnesses to attest to your good character because the FBI investigations are not infallible. But that brings us to the question, if the Court is to be a superlegislature and to carry out an agenda which is different from the congressional agenda—and we face that in the civil rights area, and we can't get it passed, the Presidential veto—then the issue arises as to whether the Senate may come to the point of trying to exercise its authority. Congress may try to exercise its authority through the Senate to have an equal voice in the selection of Supreme Court nominees, to decide it very much as it was decided in John Rutledge. If we don't like where you stand on the issues, then we are going to come to a different conclusion and try to assert the balance that the electorate has tried to impose with a President from one party and a Congress from the other. My time is up. I just got a note. But your time isn't up. I would be interested in your thoughts on that. 261
David H. Souter
Nominee
(R)
Judge SOUTER. My response to that, Senator, is that that does not raise, it seems to me—you raise a very serious issue, but you do not raise a justiciable issue. You are raising an issue of the self-definition of the Senate in relation to the President, and it is a matter which should not and cannot come before the Courts.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. NO, I know I am not raising a justiciable issue,
David H. Souter
Nominee
(R)
Judge Souter. I am raising questions about how far we can go in asking you questions and a discussion as to the process and where we are going to end up. Those are really very, very important questions. A lot of people have already decided that your nomination process is over. Not everybody, but a lot of people have. Judge SOUTER. I don't necessarily have that feeling as I sit here in the well of this room, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I think that is a further testimonial to the high quality of your responses.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I noted you smiling when the Senator from Pennsylvania said sometimes the Congress deliberately does nothing. I suspect you understand that better than others because sometimes people deliberately say nothing in answer to the questions. [Laughter.]
David H. Souter
Nominee
(R)
Judge SOUTER. Sometimes they have to work at it, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And you have worked at it very, very well, I must say, with great aplomb. And I thought you defined very well the responsibility of the Senate and your responsibility relative to answering questions. That is why some of us still have not made up our minds about how we are going to vote, myself included.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, will you just give me half a minute?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Surely.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. The distinguished Senator referred to John Rutledge not being confirmed. Well, over the years the Senate has made some mistakes, and that is one mistake they made. He was from South Carolina. [Laughter.] Incidentally, his brother Edward signed the Declaration of Independence. They were both very prominent people. In their homes, standing today in Charleston, if any of you ever go to Charleston, SC, get on Broad Street, and the home of Edward Rutledge is on one side, and right across is the home of John Rutledge. One signed the Declaration, one signed the Constitution. I just thought I would call that to your attention. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I will now yield to the Senator from Vermont on the condition that we don't hear anything about Vermont. I am only kidding, Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I was waiting for the part where Senator Thurmond was going to give us a list of good hotels to stay in. [Laughter.]
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. If you promise to go down there and learn about South Carolina we will give you a free hotel accommodation. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Are you going to go there with me, Strom?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I won't promise you that. We will be glad to have you though. The yankees come down and make the best southerners you ever saw. 262
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I will leave that one. Where I come from, we think of Massachusetts as a Southern State. Judge, I know that the chairman has already wished you a happy birthday and I would join in that.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I don t know what I will be doing on my 51st birthday but I suspect that it won't be as memorable for me as yours will be for you. You will probably have a much easier time remembering yours.
David H. Souter
Nominee
(R)
Judge SOUTER. I won't forget this one.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, let's go back, if we could, to the Seabrook issue. As attorney general—and, as I recall, you were attorney general at the time I'm talking about—the Governor used public funds to promote a private utility by putting pro-Seabrook petitions—in fact, they were printed and distributed at State cost—in State liquor stores. Was that an appropriate use of State money?
David H. Souter
Nominee
(R)
Judge SOUTER. NO. I think it was not.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Were you asked to advise him on that at the time?
David H. Souter
Nominee
(R)
Judge SOUTER. NO, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. According to press accounts, those who were opposed to the Seabrook plant were not given a chance to place their petitions in State liquor stores, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. I think that—I'm sure that is, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would that be appropriate? They were denied a chance to do that while public funds were being used to promote this same private business?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think by the use of the public funds or the use of the stores, in effect, as a forum, in effect, implicates a first amendment right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO that if the State was using State funds to promote that, those who wanted to use private funds to oppose it ought to have been allowed to do so, is that what you are saying?
David H. Souter
Nominee
(R)
Judge SOUTER. The State, in effect, had designated that as a forum, at least, for the collection of views, for expression; to that extent, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Justice Scalia wrote a concurring opinion, in the Vvitton trademark case. He noted, and let me quote him, "And no one suggests that some doctrine of necessity authorizes the Executive to raise money for its operations without congressional appropriation." Now, going back again to the Seabrook case, where money was raised for the prosecution. If a State is bringing charges is it not the responsibility of the Executive—whether the prosecution or the Governor—to go to the legislature and say, "here is what it's going to cost; give us the funds" rather than "passing the hat," as you described it on Friday?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the appropriate place to go is to the legislature and as I think you kndw, that is where I went.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yet, the principal owner of Seabrook—the Public Service Company—raised a considerable amount toward the cost of that prosecution, is that correct? 263
David H. Souter
Nominee
(R)
Judge SOUTER. They did in the instance of the 70-some-odd-thousand-dollar payment. Something was said earlier this morning about the possibility of a second one. I'm not aware that they made a second one, but I think $70,000 is a lot of money.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, most of the protesters were part of the socalled Clam Shell Alliance, is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes. What I don't know offhand and certainly have forgotten is the proportion of protesters who were members of the Clam Shell Alliance and those who belonged to other affiliated organizations. But the Clam Shell Alliance was certainly the central organization, as I recall.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And during the time when they were carrying out protests against Seabrook, was the State of New Hampshire carrying out an undercover operation, infiltrating the Clam Shell Alliance?
David H. Souter
Nominee
(R)
Judge SOUTER. I was not aware that they were. That was the subject, I was reminded last week, that was the subject of a question to me in a deposition. To the best of my knowledge, no one in the attorney general's office was aware of any activity of that sort. I am not aware now what there was but nobody in the AG's office, I think, was aware of any activity of that sort until a year or more later.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, the executive director of the New Hampshire State Police said in a deposition in 1984: "The State had been carrying on undercover surveillance of the Clam Shell Alliance since 1976." Was there no reporting to you as the chief law enforcement officer of the State about that?
David H. Souter
Nominee
(R)
Judge SOUTER. NO; there was not. My understanding
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Did you, would you normally check on what the State police were doing in a major area in their intelligence gathering?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, it didn't occur to me to ask, I guess, any more than it would occur to me to ask in serious criminal cases whether they were using informants. My understanding is that what the State police officer was referring to was the use of members within the organization who would report to the State police. There was no wiretapping going on; there was no surveillance by police officers, as such. There was, apparently I gather from the response in the other deposition that you alluded to, that there was someone or some persons who were reporting to the State police on what the plans were. So that there was nothing that required the State police to get my permission, as for example, there would have been if there had been a wiretap involved or electronic eavesdropping.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. According to the deposition, there was undercover surveillance going on, I am told. But you were not aware of such surveillance?
David H. Souter
Nominee
(R)
Judge SOUTER. No. In fact, as I said a moment ago, the only thing that even to this day I thought they were referring to, in the period in question in the Seabrook demonstrations, was the passing on of information from somebody within the organization. But, in any event, I do not know of it. 264
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Senator Metzenbaum raised a question this morning about a deposition of James Cruz, the assistant attorney general working on the Seabrook case with Mr. Rath. He said that at a meeting with the Governor on April 26—this was 3 days before the protest began—one possibility that was discussed was that the Public Service Company would be paying some of the bill for the law enforcement effort at the site. So the idea of getting money from the PSC was discussed by your office prior to the actual demonstration, was it not?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I don't know whether—I am taking that deposition just on its face; that's all I know and I guess just to be careful about what's in the deposition—I don't know whether anybody from my office discussed it, but if it was mentioned at that meeting, then he heard about it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. My concern and the reason I have raised these issues—and you and I have discussed them privately also—is that, as a former prosecutor, I get very concerned if prosecutors do anything that appears that they are in a position of not being impartial when they bring charges, or when they decide they will drop charges, or carry the charges on, or decide what they might seek for sentences. You were very active in the prosecution. You went to the court after the first person was given a suspended sentence and raised objections to that, saying that you wanted prison terms and were opposed to suspended sentences, and you have given your reasons for that. My concern is, if a private company was paying for part of the prosecution, part of carrying it on, does that private company become your client rather than the people of New Hampshire?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, that private company did not become my client. The difficulty that has to be faced is there is a question raised. Hence, as I was saying in the discussion with Senator Metzenbaum, the appearance of justice is an independent value in its own right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU discussed the Dionne case here and you said that the clause in the New Hampshire Constitution about, in effect, private individuals paying into the court fund was designed to prevent bribery. But here, there is an ad hoc fund; it was established by the Governor, not by the legislature; it doesn't have the kind of public scrutiny that goes into the development of a statute; it is not limited to contribution from the State on whose behalf you brought the prosecution. If the fund in Dionne was to prevent bribery, does this fund not look as though it goes in just the opposite direction?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I hope it doesn't give the appearance of bribery. The appearance that I am concerned with is the appearance of influence. The fund, as I understand it, both what the Public Service Co. contributed and what other people around the country contributed in small contributions went into the general fund of the State so that there was no, I think, there was no question of anybody being bribed with the money. But the question that is properly raised with respect to the Public Service contribution is does it give the impression that they 265 were thereby in a position to exercise undue influence over what should be independent law enforcement decisions?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Did you ever express that concern to the Governor?
David H. Souter
Nominee
(R)
Judge SOUTER. I do not recall ever discussing the subject with the Governor. As I said, the only recollection that I had which I mentioned last week was the—well, it wasn't, in fact, even a recollection—the only record that I found last week was on June 30 there was a reference in the minutes of the Governor and counsel that the acceptance of the funds had been proposed. I didn't otherwise recall the incident.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, on another subject, you talked with Senator Simon and expressed empathy, which I think we all agree with, for a Jewish friend who grew up in Manchester, NH, and who was, to quote you, "cut apart from the rest of the class each morning when the Lord's Prayer was recited." But when you were attorney general you publicly defended a law passed by the New Hampshire Legislature which permitted school districts to authorize the recitation of that same prayer in school. I understand and I accept the sensitivity that you expressed to Senator Simon, but in light of that, how could you publicly support that law?
David H. Souter
Nominee
(R)
Judge SOUTER. What I said was that if the law were called into question, in a lawsuit, that I would defend the law. Quite frankly, I think if we had reached the point, which we never did, I think probably I would have had to state to the court, that following Lemon, that the law couldn't be enforced.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me follow on that because the papers had you saying that you would do everything you could to uphold the law at the time.
David H. Souter
Nominee
(R)
Judge SOUTER. That's correct.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO is your attitude about it different today than it was then?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think it's not a matter of attitude, it's a matter of reflection and research. I think if, in fact, the law had been called in question and it had become incumbent upon me to file a brief with the court on the State's position, quite frankly, I don't think we could have found a defensible basis for it. I think we would have confessed constitutional error. I was ready to do everything I could to defend that or any State statute. But I think if we had gotten to that point, I think we would have to have admitted that there was a constitutional deficiency.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And if the quote in the paper is accurate, "in that case our concern is to do everything we can to uphold the law," that quote would be inconsistent with what you are saying here?
David H. Souter
Nominee
(R)
Judge SOUTER. I have no reason to say that the quote isn't accurate and I assume it is accurate, but the standard for any action by an attorney general and my standard was that I would uphold, I would act as an advocate to uphold State action if I could do so in good faith and without taking a frivolous position before the courts. I think when we had finally gotten through analysis and reflection I don't think we could have found a basis to uphold it and I 266 think I would have been forced in that situation to say, no, we have got a constitutional defect here.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In the Abington case where the judge said the law was patently and obviously unconstitutional, you do not have any problem with that?
David H. Souter
Nominee
(R)
Judge SOUTER. No.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU said, Judge, that you would listen respectfully to the school of thought that says the establishment clause was originally intended to have a very narrow scope, only to prevent the literal establishment of a State religion or to prevent Government from favoring one Christian sect over another. The same school of thought says that we should not require Government neutrality on religious matters, that Government action should be permitted as long as it does not tend to create a State religion or coerce people. Now, let us assume for a moment that this original intent school of thought is historically correct—that, as many argue very strongly, the Framers did have a very narrow view of the establishment clause—would this lead you to modify the principle of neutrality that has been accepted by the Supreme Court for decades?
David H. Souter
Nominee
(R)
Judge SOUTER. It would lead me to raise the question but it would not give me the answer. There are basically two other considerations. The first in this, as in any such case, is the claim of precedent. The second consideration which may fall, to a degree, under the claim of precedent, which is, at least, I think worth stating, stating separately, is whether, in fact, assuming that was the view of the Framers, the best way to affect it today is the way that the Court has, in fact, already taken. So that I do not regard the issue in this or in any other case as simply being a simple issue of what exactly was the original understanding because we are not being asked to adjudicate on a clean slate.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But we are talking about a constitutional doctrine that has been accepted for what, 40 years now?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you see the necessity of changing that constitutional doctrine?
David H. Souter
Nominee
(R)
Judge SOUTER. AS I think I said, in any case, say now, I do not approach the Court with any inclination or agenda to do so. I will listen to that argument if it is made before me and I will listen respectfully as I would to any argument that is made before me.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I understand that, Judge. Maybe we are just going past each other on this issue, but I'm not talking about something that seems to be in a rapid state of flux. We are not talking about the tax issues that have been very appropriately raised by other Senators based on cases that have occurred just in the last few months or a year.
David H. Souter
Nominee
(R)
Judge SOUTER. NO, I appreciate that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We are talking about something 40 years old. Are you saying that you do not have a view, irrespective of what that view is, are you saying that you do not have a view in your own mind whether that 40-year-old doctrine is correct or not?
David H. Souter
Nominee
(R)
Judge SOUTER. I think it would be better for me to say that I do not have the view, if I were to go on the Court, that that doctrine 267 should be changed. I am not approaching it with an inclination to upset the law in that respect.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me ask this question, without saying what it is, do you have a view, in your mind, today, as to the correctness of that doctrine or not?
David H. Souter
Nominee
(R)
Judge SOUTER. Not a personal view. I have read the opinion in which that view was expressed. I have not done research on it myself, and I do not necessarily adopt it or reject it. I realize that it is there, and it has been put forward by some members of the Court.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Suppose the original meaning of the clause was only to prevent a State religion or Government preference among Christian sects, would you then think it was appropriate for Government to favor Christianity over Judaism or any other religion?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think any such conclusion as that would make the claim of precedent an extremely crucial one. I mean, I think you are saying is, well, let's assume that we found that the establishment clause had a very narrow intended meaning. Do we ignore, essentially, the development of the law for the last 40
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [continuing]. That's right.
David H. Souter
Nominee
(R)
Judge SOUTER [continuing]. Or the last 200 years? The answer is, no, we don't deal with constitutional problems that way.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you are taking account of people's changes in attitudes over those 200 years.
David H. Souter
Nominee
(R)
Judge SOUTER. And as particularly embodied in the precedent which exists.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would you similarly take such changes into account in interpreting other aspects of the establishment clause or other constitutional provisions? I am thinking of due process, equal protection, liberty, things like that.
David H. Souter
Nominee
(R)
Judge SOUTER. Certainly.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge Souter, on Friday you said that whether you considered abortion either moral or immoral would play absolutely no role in any decision you make on the issue. You said further that with respect to the death penalty there are cases in which—and let me just read it to make sure I have it right—"in which judges' moral views are so strong that they simply cannot preside, and we have to recognize the moral compunctions that a judge would feel in those circumstances, and we have to recognize a right to recuse if a judge feels that way." You also said in an answer, I believe it was to Senator DeConcini, that you do not support the concept that the death penalty by itself is cruel and unusual punishment.
David H. Souter
Nominee
(R)
Judge SOUTER. Given its recognition in the Constitution, I don't think we can start with that, no.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And obviously it leaves you open on an individual case, but as a blank statement of law you don't agree with that.
David H. Souter
Nominee
(R)
Judge SOUTER. That is correct.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU have expressed concern about doctors being compelled to advise patients on the abortion issue and judges being forced to decide whether minors should have access to abortion. You have told us that you can empathize with the woman who faces that difficult question and decision. 268 Now, are your own views on abortion, whatever they might be, so strong that you could not preside over a case dealing with either abortion or parental consent?
David H. Souter
Nominee
(R)
Judge SOUTER. No. I think I could deal with those issues.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In the
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, may I just make one word?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Sure.
David H. Souter
Nominee
(R)
Judge SOUTER. I don't mean in answering your question in the short way that I did to give any indication of the strength or weakness one way or the other of my feelings. What I mean to say is my feelings are such that I could still deal with those issues.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In the same way that a judge may have a personal feeling on capital punishment but could still preside over a capital case?
David H. Souter
Nominee
(R)
Judge SOUTER. That is right. And I think what I was referring to in the several cases that you have alluded to are situations in which judges recognize that their feelings are such that they simply cannot deal dispassionately with those issues or that they cannot do so without breaking their own moral codes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Just to go back a bit to earlier questions about Seabrook and the establishment clause. We have talked about different things that came up when you were attorney general and statutes that were passed by the legislature and signed into law by the Governor and found unconstitutional. Did you ever have a time when you went to the Governor or the legislature and said, look, you cannot do this, it is just downright unconstitutional?
David H. Souter
Nominee
(R)
Judge SOUTER. I don't ever recall being asked for legislative advice on that. I may very well have done it in the course of testimony, but I don't remember it. I do remember one specific instance in which the Governor discussed proposed action with me and asked for an opinion as to whether it was constitutional or not. I gave him an opinion, and I cannot break into the attorney/client privilege, but I can tell you that he took my advice on the subject. There were other instances—and these weren't during my tenure as attorney general, so they may be outside the scope of your question. You tell me if they are. But I can recall times during Mr. Rudman's tenure as attorney general when we were asked to give advice on that sort. The one that immediately comes to mind was the limits on permissible State action under the doctrine of Brandenburg v. Ohio. Advice on that score was requested by Governor Peterson, who was Governor I think in 1969, as he anticipated a visit of what was called the "Chicago Three"—those were three of the Chicago Seven—to speak at the University of New Hampshire, which was not universally popular. I worked on the memorandum which discussed the constitutional limits of State action in that case, and that advice was taken.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, you have said that the marital right to privacy is a fundamental right. And if I understand correctly the answer you gave to Senator Metzenbaum earlier today, you feel that Griswold is settled law. Is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I have been careful not to endorse the specific holding of Griswold or its opinions, but I think I have been very clear in saying that I believe that there is a marital right to 269 privacy. And we have discussed some of the incidents at its core, including the reproductive right to determine whether or not to conceive a child as certainly being right at the center of it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you believe the idea of marital privacy is settled law?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, it is clear to me. I think the only point at which I will quibble about the settled law is, as I think I said in one case last week, I suppose that everyone assumes that if there were a successful attack on Roe v. Wade, that would then call into question prior privacy cases. So I suppose one simply cannot say that it is settled in the sense that it is inconceivable that it could be challenged.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU do not have the same sense, to whatever degree you consider privacy in Griswold settled—to whatever extent that is—you do not have in your own mind the same sense of settlement on Roe v. Wade. Is that correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, with respect, sir, I think that is a question that I should not answer because I think to get into that kind of a comparison is to start down the road on an analysis of one of the strands of thought upon which the Roe v. Wade decision either would or would not stand. So, with respect, I will ask not to be asked to answer that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you don't feel the same compunction against answering the same question regarding Griswold?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I have drawn a fine line on Griswold. I have said that I believe there is, in fact, a marital right to privacy which is at the core of any privacy doctrine. I have not endorsed the Griswold decision as such. It is a fine line to draw, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That is my point.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, it is.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Last week, you told us a very powerful story, a very moving story, about the counseling you gave to a young woman who faced the question of an unwanted pregnancy. Obviously, it is a very personal issue. You counseled that woman. Many, many, many more face the same decision each year. You did not tell us what your advice was, and I understand, from the two or three times you have been asked that question in various forms, you do not intend to tell us what that was. Might I ask you this: Would your advice to that woman be any different today now that abortion has been legal for nearly 20 years?
David H. Souter
Nominee
(R)
Judge SOUTER. With respect, I do not think I can answer that question.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me then close with this, at least on this round. You have spoken movingly here and in our private conversations, and I have been very affected by what you have said. I was very impressed by your response when you said—and I hope every judge thinks about this—when you said that any decision a judge makes is going to affect somebody, probably for the rest of his or her life—no matter what your decision is. That is something every judge should keep in mind. Those of us who are prosecutors know that prosecutors should think about it; everybody should. 270 Applying that principle, what, in your view, would be the effect—not the legal, but the practical consequences of overturning Roe v. Wade—the practical consequences?
David H. Souter
Nominee
(R)
Judge SOUTER. There would be the obvious practical immediate political consequence that the issue would become a matter for legislative judgment in every State. I think it is safe to say that those legislative judgments would not be uniform. There would be, I daresay, a considerable variety in the scope of protection afforded or not afforded. The issue of federalism would be a complicated issue.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. When I was a prosecutor, at that time it was prior to Roe v. Wade, or in Vermont, the case of Beecham v. Leahy, et ah, cases that changed the laws. Abortion was against the law prior to Roe. I prosecuted an abortion case. It was the only abortion case I picked to prosecute. A call came to me in the middle of the night from the emergency room of our hospital. A young woman who was hemorrhaging nearly died. She did not. She did, however, end up sterile from a botched abortion. Our investigation found that the man arranging the abortions would bring young women from the Burlington area in Vermont, across the border to Montreal. The abortions were then performed by a woman who had learned the procedure while working for the SS at Auschwitz. The man I prosecuted would then blackmail these women after the abortion, either for money or for sex. In this case, it came to our attention because the woman nearly died and was brought into the emergency room; that opened up the whole issue. We found out about it, I conducted an investigation, prosecuted the man, and he went to prison. I am not asking—and you have stated that you are not going to state how you would rule on Roe v. Wade. I mention this incident only from a legislator's point of view based on my experience as a former prosecutor about what the practical effect of outlawing abortion might be.
David H. Souter
Nominee
(R)
Judge SOUTER. I appreciate that. Thank you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will recess until 2:15. [Whereupon, at 1:18 p.m., the committee recessed, to reconvene at 2:15 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. Judge, I and my colleagues apologize for starting—I guess we are 12 minutes later—not guess, I know, looking at the clock. Next time there is a Supreme Court Justice, I would respectfully request that that Justice decide not to announce his retirement until he is certain everything is calm in the world and that we are going to be in recess the whole time so nothing else can interfere with these very important processes. But I apologize, Judge.
David H. Souter
Nominee
(R)
Judge SOUTER. NO need to, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, we are to go next to our colleague from Alabama, Senator Heflin, but I have been entreated by our colleague from Utah, who says that he would just like a few minutes to correct the record. My friend from Alabama indicated he did not mind. If the Senator from Utah really means a few minutes, there is no problem at all—excuse me, the Senator from New Hampshire is seeking recognition.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. An inquiry. It was my understanding that I was to be the first questioner following lunch.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am sorry. Maybe you are. I beg your pardon. You are absolutely correct. The way it was supposed to work is that whenever Senator Simpson came back, we would have him. If he were the next Republican in order to be recognized, it would be him. Quite frankly, I didn't think he was coming back. That is why I indicated you would be next. I will let you two fellows fight that out while I recognize our colleague from Utah for just a few minutes. I will be bound by whatever the two of you conclude is the better way to do it. I was wrong. It was not you, anyway, next, Senator. It is one of our Republican colleagues. So I am sorry. Having said that, a few minutes to correct the record.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I thank the chairman. I have to go manage a bill on the floor, but I did want to correct the record a little bit. I would just like to make this point, Judge Souter. Not even Justice Brennan adopted the view that mere congressional silence equals acquiescence in erroneous Supreme Court decisions or construction of a statute. Some Justices have spoken in more deferential terms toward prior errors in statutory construction because it is easier for Congress, they think, to revise a statute and repair the Court's mistake than it would be to amend the Constitution. But Justices Brandeis and Powell and Justices Potter Stewart and William Brennan, among others, acknowledge that erroneous interpretations of Federal statutes are also subject to correction by the Court. I would think that just goes without saying. Judge, would you comment on this remark by Justice Brennan in the Boys Market case which overturned an 8-year-old interpretation of a labor statute in Sinclair Refining Company v. Atkinson? He said this, Brennan said, "The Court has cautioned that it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." I might add that in Boys Market Justice Brennan also quoted Justice Frankfurter's opinion in the 1940 case of Havering v. Halec: Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision—precisely what you have been saying—"however recent and questionable, when such adherence involves a collision with a prior doctrine more embracing in its scope, intrinsically sound, or unverified by experience." Now, that is all I want to say, but do you disagree with those comments?
David H. Souter
Nominee
(R)
Judge SOUTER. NO, I wish I could have said it that well. I think one of the points that I was trying to make this morning is that in deciding the degree of weight to be given to a longstanding statutory interpretation, we cannot make that decision without looking not only to the time which has elapsed since that first decision, but to what else both the legislature and the courts have been doing. And the vitality of an earlier interpretation depends in part upon its coherence with what has passed since that time. We simply cannot divorce that possibility from our thinking. 272
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you. I just wanted to correct the record, and I want to thank the chairman and my two Republican colleagues who have deferred to me in this matter. I will go to the floor and get out of everybody's hair.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Apparently the Senator from New Hampshire will be next. Senator Humphrey.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Thank you, Mr. Chairman. Good afternoon, Judge. One of the things that fascinates me about the law, Judge, is the consistency and the striving for consistency. That is admirable. However, when we uncover inconsistency, it can be very frustrating. I want to explore a couple of areas that I regard as inconsistencies and see what thoughts they provoke. Judge Souter, is an unborn child capable of inheriting or owning an estate?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, in the civil law, for example, the rule on future interest recognizes the possibility of inheritance by an unborn child who is born alive and able to take.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. But even during gestation, an unborn child may have an interest in an estate, may be left an estate, a legacy— is that not correct—even during gestation, and that interest can be protected under the law?
David H. Souter
Nominee
(R)
Judge SOUTER. With respect, that is an issue which is capable of varying from jurisdiction to jurisdiction, and I will be candid to say to you that I don't recall a specific decision on it in the law of New Hampshire, which is the jurisdiction I would be familiar with.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. But I think it is known—as you say, it is more than likely to be a substantial difference from State to State, but it is a fact that an unborn child may be left a legacy and that may be protected under the law. How do you reconcile the fact that an unborn child has the capacity which may be protected by law to inherit and own an estate or a legacy on the one hand, while under Roe v. Wade on the other hand the very same unborn child has no enforceable right to life?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I really cannot take up the task of reconciling that. As I said a moment ago, I am not sufficiently familiar with the specific body of civil law that you refer to, and the only thing I can say, as you know, is that Roe v. Wade is discussing a constitutional issue. One of the elements in the equation to which it speaks is the right of the mother. And the kind of inconsistency that you pose is, in fact, in the terms in which you pose it, an apparent reflection of weighting different interests of differential potential parties. But, beyond that, there really isn't anything I can say about reconciling it.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, again, these are in some measure rhetorical questions. I am hoping to advance the public dialog on this issue by means of these questions. You talk about weighing the interests. What interests of the unborn child does Roe acknowledge?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I think with respect that it is necessary for me to take the same position in response to your question that I have in response to the questions from some of your col- 273 leagues; that a dissection of Roe v. Wade is simply a step, and a significant step, in the direction of an evaluation of that case which, in view of its likelihood in some form or another on the docket of the Supreme Court, if I were to be confirmed, is just a subject that I cannot discuss without giving misleading suggestions.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. We need to develop an abbreviated answer so that each time this situation arises you can just say whatever it is you choose to say in a few words, so we don't have to go through the long explanation. I understand where you are coming from, and I didn't expect an explicit answer on that. But, in fact, Roe v. Wade assigns no weight at all and no rights at all to the fetus. Let me just read the core of Roe. The Court held that, "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." First 3 months, no State interference. For the stage subsequent to and approximately the end of the first trimester, the State, in promoting the interests and the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Second trimester, no rights or interests assigned to the fetus. Third trimester: "For the stage subsequent to viability"—after, viability now. We are talking—if that is an important dividing point for some people. I don't think it is terribly important myself, but for some it is. "For the stage subsequent to viability, the State, in promoting its interests in the potentiality of human life"—whatever that is, a cute phrase—"may, if chooses"—"may, if it chooses, regulate and even proscribe abortion, except where necessary in appropriate medical judgment for the preservation of the life or health of the mother." So in Roe the Court found that the fetus has no rights and no interests. It says the States may if they choose. May. But it leaves that matter entirely up to the States and finds nothing, apparently, under the 14th amendment or any other provision of the Constitution that needs to be brought to bear in the interest of the fetus. So that when we talk about weighing the interests of the mother and the fetus, there is no weighing in Roe. None. All of the rights and weight are assigned to the mother and nothing, zero, to the child. And here is why. The majority in Roe recognized the importance of the personhood issue to the disposition of the Roe case. Quoting from the majority opinion, "If this position of personhood is established, the case for a right to abortion collapses, for the fetus' right to life is then guaranteed specifically by the amendment." Referring to the 14th, of course. So the issue of personhood is all critical and all important in this controversy. The Court found—wrongly, in my opinion—that the fetus is not a person, even though the fetus may inherit and own property, a legacy, that it is not a person, has no right to have its life protected by the Constitution. Let's look at another inconsistency. Judge Souter, is a corporation a person?
David H. Souter
Nominee
(R)
Judge SOUTER. Again, in the abstract, we really can't answer that question. We have to know exactly what the context is. We 274 know, for example, that in civil law corporations may be parties to litigation. We know that corporations can be defendants under the criminal law, and that probably is in your mind if you asked the question.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes. Well, for over a hundred years, corporations have been considered formally persons in various Supreme Court decisions, the first of which was Santa Clara County v. Southern Pacific Railroad Company in 1886, which found that the corporation is a person for purposes of the equal protection clause. Then 3 years later, in Minnesota and St. Louis Railway Company v. Beckwith, the Supreme Court found that corporations are persons with respect to the due process clause. So we have the incredible and the ironic and the tragic situation where corporations, which clearly are not human beings from the biological point of view, are found to be persons under the 14th amendment. But the offspring of human beings, which by any standard of science and biology are clearly human beings, are found by the Supreme Court in Roe not to be persons. Corporations are persons and may be protected under the 14th amendment, but human beings, even a day before birth, are not persons under the 14th amendment. Now, if there was ever an inconsistency and a revolting inconsistency and a cruel inconsistency, and one that begs for correction, sir, that is it. You needn't respond to that. Let's talk about the 14th amendment. Its origins are important, obviously, in the interpretation of the Constitution. Let me ask you this question, Judge Souter. I don't know that it has been clearly established yet. Do you consider yourself an interpretivist, or just what school do you claim?
David H. Souter
Nominee
(R)
Judge SOUTER. I regard myself as within the broad umbrella of interpretivism, and I have tried in response to a couple of questions to explain that the search that I am engaged on is a search for principle as opposed to specific intent when I approach a constitutional provision initially.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Would you repeat that last part again, please?
David H. Souter
Nominee
(R)
Judge SOUTER. I said when I am approaching a constitutional provision, leaving aside entirely the question of precedent that may have accreted around it, what I am searching for is the meaning, which in most cases is a principle, intended to be established as opposed simply to the specific application that that particular provision was meant to have and that was in the minds of those who proposed and framed and adopted that provision in the first place.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. The principle that underlies the provision.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. That is your first resort. The principal sponsor, the chief sponsor in the House of Representatives of the resolution to amend the Constitution which, upon ratification, became the 14th amendment, Congressman John Bingham, said with respect to the scope of the 14th amendment language that it was to include "any human being." Any human being. He didn't say anything about persons. He said "any human being." 275 And Senator Jacob Howard, the main Senate sponsor of the amendment, said the language should be applied to "even the humblest, poorest, and most despised of the human race." These are things that no doubt you are going to be reviewing one day. Friday, you and I had an exchange on the 14th amendment and whether it extends to every human being. And I asked what is the difference between a living human being and a person, and you said, "Without being more specific about the legal context, I don't know that there would be any point in drawing that kind of distinction." Let me try to put it in a narrower context, then. With regard to the 14th amendment's protection of life, what is the difference between a living human being and a person?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the only thing that can be said, Senator, is we know that one distinction is drawn in the language of the first section. Whereas privileges or immunities refers to citizens only, the other guarantees refer to persons. And the issue that must come up and I think the issue that is implicated by your concern is whether that concept of person extends, as you have put it, to an unborn child.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. IS an unborn child a human being?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, again, I think that is the kind of definitional issue that can only be discussed in the specifics of the kind of litigation which I cannot get into this afternoon.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. It is hard to believe that the offspring of a human being can be anything other than a human being. I have never in my life seen such a strained effort to rule out of the human race by legalistic means a whole class of human beings. It is shocking. It is shocking. And it is shocking how far this dishonesty has been extended to the point where it has raised all kinds of inconsistencies in our law. It is undermining the respect for our law. All of the rights and all of the weight have so far been assigned to the mother, and nothing whatever in the law protects the unborn child, even on the day prior to natural birth. It is pretty shocking. Senator Grassley has raised with you what he and I and others regard as dangers raised by cases such as Missouri v. Jenkins, where the Court seemed to have declared that they have the power to order State and local governments to impose new taxes or to increase taxes. Do you see in that any violation of the separation of powers?
David H. Souter
Nominee
(R)
Judge SOUTER. The case involves, really, two separate concepts. It involves the concept of federalism, and as Justice Kennedy's opinion pointed out very explicitly, it involved the question of whether, given the separation of powers as we recognize it, the judicial power can be construed to include the order in question, the inevitable result of which was that State officials raise taxes, so there is no question there is such an issue in the case.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. YOU do not see a distinction, do you, between the courts somehow directly raising taxes, on the one hand, and on the other, causing them to be raised, ordering them to be raised? 276
David H. Souter
Nominee
(R)
Judge SOUTER. I think, again, that was a distinction which I know Justice Kennedy felt was a specious distinction.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY.. Yes.
David H. Souter
Nominee
(R)
Judge SOUTER. NO doubt, of the case or its aftermath as the result of any congressional legislation is before the Court, that will be a distinct issue.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I have not been present for the entirety of these hearings, but I do not recall so far hearing from you, Judge Souter, any substantial concern raised about judicial usurpation of the legislative powers. Have I missed anything in these several days?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, we have had several discussions on the problems which focused on 14th amendment enforcement. I think that has probably been the subject of our discussion on the matter up to this point.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. On Friday, you had high praise for Justice Brennan. Do you have any problem with Justice Brennan's views on capital punishment? Do you see them as being consistent with the Constitution and precedent?
David H. Souter
Nominee
(R)
Judge SOUTER. I think as far as I can go on that subject is what I have indicated so far, that, of course, I recognize that, as a simple matter of the text, the Constitution of the United States recognizes capital punishment. Beyond that, given the fact that there will be capital punishment cases before the Court and I believe are on its docket now, I do not think I can go very far on a discussion, without getting into something that is going to be before the Court.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. But you do acknowledge that the Constitution comprehends, anticipated capital punishment?
David H. Souter
Nominee
(R)
Judge SOUTER. It does so by express preference.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. That is one point on which you and Justice Brennan very significantly disagree, it would seem. Well, I would like to address this murky subject of privacy rights. Where do they begin and where do they end, and how do you know?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I think where they begin is in the several textural references in the Constitution to the assumption that there are some rights not expressly enumerated. As I said to you, my thinking on the subject goes back to the State constitutions which form a preface to the National Constitution of 1787, including our own, with its recognition of unenumerated liberty interests. It includes the express reservation in the ninth amendment. As I said, I have found as a matter of our constitutional history that, given the other interpretations that have been placed or interpretations that have been placed on other sections of the provisions of section 1 of the 14th amendment, that the appropriate place to focus a question about the existence of a particular unenumerated right is with reference to the liberty clause of the 14th amendment or of the fifth amendment. What we have to find, what we are looking for, when we raise a question as to whether a given right is protected as fundamental liberty, is the kind of question on which I said I preferred the approach of the late Mr. Justice Harlan above all others, and that is we are making a search on his approach into the principles that may be elucidated by the history and tradition of the United 277 States, and ultimately the kind of search that we are making is a search for the limits of governmental power, because it seems to me if there is one point that is clearly established by both State and National constitutional history, it is that the powers of the Government were not intended to be unlimited, that the grant of legislative power was intended to have limits, and those limits are reflected in the liberty concept.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Regarding Griswold, and I am not arguing with the outcome, I just want to cite some of the language from the majority opinion: "The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance." What do you think of that language?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, as I said, I think the first time the subject came up, I would not adopt as a kind of personal view any of the particular opinions in the Griswold case. My preference was for Justice Harlan's approach, rather than the approach that Justice Douglas embodied in the opinion that most members of the Court joined in.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I would just like to say that if you cannot ever find a better explanation than penumbras formed by emanations, maybe you ought to conclude that you ought to leave it to the legislative body to deal with it. I mean that is real rot gut. Penumbras formed by emanations, that is constitutional law? By gosh, that is an expression of some kind of philosopher king, it seems to me. What objective external standards are there to guide Supreme Court Justices in the declaration of new privacy rights, Judge Souter?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, let me say two things: In the search for a content to the concept of privacy, we are not really looking for something new, as opposed to something which the constitutions assumed. We are looking for the principle that was intended to be recognized. The material on which we are going to base our conclusions is basically the corpus of material that we regard as reliable evidence about the understanding of the limits of State or, in appropriate cases, national power. Those limits in those materials include everything from things like Federalist Papers, debates, philosophical treatises of the times in question, which reflected a concept of limited power, and we certainly do not ignore the precedents of the Court that over the years have tried to treat with the subject.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. IS this an area that you would approach with caution? How would you characterize your approach to this area of constitutional interpretation?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I guess I would use the term "care." The sound is of profound importance, it is not something that we are going to approach by winging it. We have to recognize that what we are searching for is a meaning which is independent of our personal predilections, and we have to guard against reading our predilections in what we find. I do not know of any other way to say, except that we would use great care in that enterprise, as we would in any interpretive enterprise on anything as of profound 39-454—91 10 278 and ultimate political importance to us as the meaning of the Constitution.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. DO you suppose there are any more profound privacy rights lurking out there in the penumbra formed by emanations?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I am not going to—as I said, I do not necessarily adopt the penumbral emanation terminology in my approach to things, but there is no question that, over the course of the next decade or decades, the scope of privacy will be explored in Court decisions, but we do not know until we have done the exploration. We cannot sit here with kind of an easy theoretical premise which is going to give us answers.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I do hope you will approach this with great caution and conservatism and leave to the legislative branch, the elected branches the primary responsibility for amending the Constitution.
David H. Souter
Nominee
(R)
Judge SOUTER. I appreciate that, sir.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. I have a few minutes left, so I want to explore one further area. You mentioned a moment ago the necessity of consulting contemporary treatises, speeches and so on. In the broader context of
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me, Senator.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Point of clarification. You say "contemporaneous" or "contemporary?"
David H. Souter
Nominee
(R)
Judge SOUTER. Contemporary.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Which did I say?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, you said it correctly. I just want to make sure
David H. Souter
Nominee
(R)
Judge SOUTER. I think that is what I said. That is what I recall saying.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes. I was just asking. I was not challenging, I was just not certain. Thank you.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, going back to the—the Constitution, of course, is contemporaneous with the Declaration of Independence, and the Federal Constitution is contemporaneous with the early State constitutions, all of which explicitly posited the belief in inherent rights. If we are endowed by our creator with certain inherent rights, among which is the right to life, is it possible that we are endowed at birth or endowed by ability or endowed in the second trimester or the first or in some other nice convenient spot, or is it more logical, in your opinion, that we are endowed by our creator when we are created with such rights?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I am afraid that I see that as really a question that cannot be answered, without throwing a suggestion on the Roe issue, and I will ask to pass on that.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. OK. One last question, I think I have time for one last question. Is the Declaration of Independence reduced only to Fourth of July rhetoric, or does it have some operative status with respect to interpreting the Constitution?
David H. Souter
Nominee
(R)
Judge SOUTER. The Declaration is certainly one of the sources that we look for meaning on disputed issues. Some of the language, as you know, that is contained in the National Declaration oflnde- 279 pendence is mirrored in our own State constitution, in its reference to rights which are not only inherent, but some of which are indeed inalienable.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. And when do they inhere?
David H. Souter
Nominee
(R)
Judge SOUTER. There again, Senator, I think you have passed that point with me.
Senator Gordon J. Humphrey (NH)
Senator
(R)
Senator HUMPHREY. Well, they are not inalienable, in the eyes of the Supreme Court, with respect to unborn human beings, that is clear. Thank you, Mr. Chairman.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Before I yield, another point of clarification, if I may. If I remember from law school about decedent estates—and there is very little I remember from law school, with good reason, I might add. [Laughter.] There can be vested rights in a child that is not even a glimmer in the eyes of his mother or father. In other words, there can be a vested right in a decedent who has not even reached the status, by anyone's definition, of being a fetus. Is that not correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I was referring to the rule that an unborn child may take a contingent remainder, if the child is born alive. That is what I was referring to.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But by "unborn child," just so we
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I am sorry, I missed part of that last answer. I wonder if the Judge would repeat it.
David H. Souter
Nominee
(R)
Judge SOUTER. That an unborn child, a child who was unborn at the time a prior interest terminates may nonetheless take a remainder interest, if the child is born alive.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The point I am making is that the child unborn does not necessarily refer to a child who is, arguably from the position of the Senator from New Hampshire, that is in the mother's womb. There may not even have been a—how can I say it—a child may not even have been anything other than a thought in the mind of a parent at the time the right vests, if born alive, is that not correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, on the rule that I was referring to, the child must be born alive in order to ultimately take the remainder, and the question is the remainder will simply remain in abeyance until the law find whether a child comes along.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The child comes along somewhere, some day.
David H. Souter
Nominee
(R)
Judge SOUTER. That is right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is right, but it does not relate to whether or not, in the law, whether or not there is a fetus, it relates to whether or not there is ultimately a child, correct?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. I just want to make sure I understood that. The Senator from Alabama, Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Judge, I am going to try to ask you some questions about issues that have not been raised. I think we duplicated enough of some of the issues and there have been a lot of efforts, directly and indirectly, flanking, collaterally and every other way, to get you to a point and you are pretty good on just not answering 280 it, and so I am not going to try to test wits with you, to see whether or not you might say one word or two words on the issue of Roe. There are still some issues that I would like to inquire about. One involves an opinion that you wrote in State v. Hewitt, which was a case where a defendant was convicted of forgery, and during the trial the judge came to the conclusion that one of the jurors might know the defendant, so he excused the juror, and the defendant's attorney, when asked, said this was all right. The issue arose as to whether or not the defendant had a trial by jury in the sense that it was not a 12-man jury, from the viewpoint of the U.S. Constitution and the New Hampshire Constitution. In that case, you wrote the opinion and you held, basically, that he did not waive his right to a 12-man jury. Would you give us the background relative to that in your decision and your reasoning therein?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, Senator. One of the issues that was raised by that case was whether—or the issue I guess that was raised by that case—was whether the defendant was bound by his own counsel's expression of approval, when the judge decided to excuse the juror. What happened in that case is what does happen from time to time, and that is between that moment and the moment at which the case was argued before us, the defendant had obtained new and different counsel and that counsel was then claiming that the defendant was not bound by his first lawyer's decision to accept the judge's determination that the juror should be excused. The issue that we had to confront in that case is whether to recognize that there are certain constitutional rights of a defendant, which are indeed so personal and fundamental that they may not be waived by someone on the defendant's behalf, that they would be exceptions to the general rule the defendant is bound by decisions of counsel, and we held in that case that the right of a trial by a full jury was indeed just such a right, and because the defendant had not on the record indicated a waiver of his right to 12, we reversed the conviction.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In your opinion, you recite the split in the Federal circuits pertaining to this issue and other issues.
David H. Souter
Nominee
(R)
Judge SOUTER. I believe that is right, yes.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU made a determination to decide the case on the New Hampshire Constitution?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NOW, would you tell us basically your reasoning for doing that?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, we decided on the basis of the New Hampshire Constitution, because the New Hampshire Constitution was extremely clear on the right to a 12-person jury. That was an issue which had been litigated in the past, I think around 20 to 25 years ago, prior to the time that we were writing. So that we were in a situation in which there was extant constitutional law in the State that was clear and explicit on one of the fundamental issues in the case. We took the position that where the State constitutional law was clear on a very significant issue, that it was appropriate to rest the decision on a State constitutional basis. 281
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Would you give us your general feelings on the right of trial by jury? It is under attack today in a lot of different ways. What are your feelings on jury trials?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, my feelings are very strong on their value. I think I said earlier, when I was referring to some of the experiences that I had had as a trial judge, one of the best of those experiences was simply the continual exposure to jurors. I watched what they did in hundreds of cases. I talked with them after the cases were over. I left virtually every trial with an enormous respect for the jurors and the jury system. If there are two kinds of cases that I would emphasize that I found the jurors just indispensable in and dependable in, it was in criminal cases and in civil damage actions where the determination of an appropriate damage remedy was a reflection and should be a reflection of community standards. Let me just say a word about my feeling about the soundness of the jury system in criminal cases. I have heard lawyers, from time to time, wonder cynically whether, in fact, in front of a jury a defendant really does enjoy the presumption of innocence when that defendant does not take the stand and testify? One of the happy conclusions that I can report after presiding over hundreds of jury trials in criminal cases is that the answer to that question is, yes, juries do take that right seriously and they are, in my judgment, scrupulous and capable in following instructions. I had a number of instances, over the years, in which I would speak with jurors after a criminal case was over, in which jurors have said to me—cases in which there had an acquittal, in a criminal trial, and the defendant had not taken the stand—and I have had jurors say to me—I never ask jurors questions, by the way, about their views on the case—but they would often volunteer them, and they would say to me, Judge, we thought the defendant was guilty but not beyond a reasonable doubt. We weren't that sure. Those were cases in which the defendant had not taken the stand. I came away with an unbounded respect for the jury system in those circumstances. I think if I were giving advice to any party, in any case and certainly to a criminal defendant in a criminal case, my advice would be, at least in the State I'm familiar with, you may depend upon the jury's good faith in applying the instruction on the presumption of innocence even if you do not testify. But the one thing you must not do is take the stand and lie because jurors have an extraordinary capacity to perceive untruth. That is advice that I would never hesitate to give. When you have had the kind of experiences that I'm alluding to there, you come away a great champion of the jury system.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I'm delighted to hear your feelings on that. Richard v. McCaskell was another instance relative to a waiver of a constitutional right in which you held that such waiver didn't exist. This was where a defendant, I believe, was charged with writing bad checks or something in this regard, and he entered a plea of nolo contendere. Later, he was put on suspended sentence. Later he was arrested for similar offenses, and the issue arose as to 282 whether or not the defendant knowingly and voluntarily waived certain rights when he entered the plea of nolo contendere. Would you give us your background of that and your reasoning relative to that? It is somewhat similar, perhaps, to the case that I previously asked you about.
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I'm going to have to make a confession. I remember the case of Richard v. McCaskell and I remember the circumstances from which it arose, but I did not reread that case in the last couple of weeks and I'm shaky on it. Could I look at the opinion when we take a break and perhaps address your question afterward?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Sure. It goes basically to a fundamental right that a person has to knowingly and voluntarily waive, and it's part of constitutional law, I think, particularly in the field of criminal law that many of us are interested in. You also, in another case which was sort of a unique case, State v. Vanderhaden, in which a majority of the New Hampshire Supreme Court held that the presence of unauthorized police officers in a grand jury room warranted the quashing of subsequent indictments. You wrote a dissent in that case, arguing primarily that the criminal defendant should have the burden of snowing prejudicial effect. Why did you reach this opinion? If you can, tell us about that.
David H. Souter
Nominee
(R)
Judge SOUTER. My recollection is that in that case the police officer was in the grand jury room contrary to the instructions of the Court. No issue was raised, as I recall in the case, that the police officer had acted in any affirmatively inappropriate way. The question was, whether the integrity of the grand jury system was best served by quashing an indictment with respect to which there was no indication of prejudice to the defendant, or whether the grand jury system was best preserved by, in effect, requiring the Court to enforce its own orders, and to keep tabs on what was going on in the grand jury room. My view was that in the absence of any indication of prejudice by misconduct by the police officer that the social balance was best served not by quashing an otherwise valid indictment, but by depending no the trial court's authority over its own proceedings, including the conduct of grand jury proceedings, to police the grand jury room in that way.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I notice that the Supreme Court of New Hampshire gives advisory opinions to the legislature on proposed enactments as to the constitutionality of certain provisions, or the act itself.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. My State does the same thing. I've realized that there are a lot of faults with advisory opinions. They are looked upon somewhat where they're not supposed to be stare decisis. But advisory opinions are looked upon as being just the opinion of the individual justices combined collectively. It is not in a factual setting, and I have some criticisms of advisory opinions from a decision-functioning process as to whether they should establish law to be considered under the concept of stare decisis. Do you have any feelings about that? 283
David H. Souter
Nominee
(R)
Judge SOUTER. I do. That is or was a function of the Supreme Court that I was most reluctant to undertake. There was no question that I had a constitutional duty to do it, and I did so. But the faults of the system are exactly as you describe them. We are asked to give opinions on subjects where we have no benefit of any factual record. I don't know how it works in your own State, Senator, but in mine it is rare, and perhaps—I'm not sure it has ever happened in my experience—that we have oral arguments in those cases. They are submitted on the basis of memorandums, and frequently it's the case that we are faced with the constitutional duty to give an advisory opinion in which one side of an issue is not even represented by memorandums, and let alone, resting on a factual record which is necessary to sharpen any issue. So we find ourselves giving opinions and we do it sort of with our hearts beating fast because the fact is we need the help of oral advocacy. Courts do not do well or would not do well to sit by themselves and decide cases without the help of lawyers, and indeed of pro se parties, and we don't have that kind of help in any systematic way in those advisory opinions. If you were going to poll, I think, the New Hampshire judiciary on the article of the Constitution they were most likely to amend, that one would win.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, in one of these advisory opinions there was a decision pertaining to a proposal which prohibited gays and lesbians from running daycare centers, but held that the provisions to exclude gays and lesbians from adopting children or becoming foster parents were consistent with State and Federal constitutions. Would you give us your reasoning relative to that decision?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, the distinction turned, well, the issue arose on the question, whether there was, in fact, a legitimate State interest which would justify the legislative decision made in that case. The reason the court drew the distinction that it did, saying that the prohibition against the operation of daycare centers would not pass constitutional muster, but that the prohibition on adoption would, turned on their being an evidentiary basis for the legislature to hold that there was a role model function served by adoptive parents, but conversely that we did not see that there was a strong argument or an indication of evidence that the same thing could be said with respect to those who operated daycare centers. In fact, as the bill was written—a daycare—an individual would be prohibited from operating a daycare center even if there were no contact between the individual and the children, and we found that that was just outrageously too broad. There is no question that I think that case probably illustrates one of the difficulties inherent in any advisory opinion of the sort that we've been talking about, and that is we did not have, as a record behind us, a developed evidentiary record on the role model theory. The most that we could say is, yes, there were thinkers and child psychologists who believed that that was, in fact, a proper analysis. We realized that it was a disputed point, but we believed it was within the legislative power to make a judgment on that. But there is no question that in that case, as in many others, we might have had a very different record if we had had an actual 284 piece of litigation coming to us, instead of an advisory opinion request.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. The United States Supreme Court, in 1984, rendered the decision in Pulliam v. Allen, which was a case involving a magistrate in Virginia where a person was charged with an offense that did not have any punishment by imprisonment. I think it was a fine alone. There was a denial of bail, and the defendant went into Federal Court and obtained an injunction and later obtained a judgment against the judge for substantial court costs, including an attorney's fee. The issue, of course, arises as to judicial immunity and the doctrine of judicial immunity. The Supreme Court, by a sharply divided case of 5 to 4, held that the doctrine of judicial immunity neither prevented the injunctive relief in the Federal civil rights action challenging the decisions of the State judge, nor barred attorney's fees awards against the judge. I have legislation in the Senate attempting to remedy that, but without expressing yourself in any matter that might come before the Court, do you feel the independence of the judiciary—particularly the State judiciary—is a necessary protection?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I do, without question. As you know, Senator, the threats to the State judiciary, to the independence of the judiciary are less probably in an injunctive situation than they would be in a situation in which monetary fines could be recovered and monetary damages could be recovered. There is great concern throughout the country about the susceptibility of actions to monetary awards based on actions by the courts which are administrative in nature as opposed to the exercise of core judicial functions. The judges, in the aftermath of those decisions, have had to exercise great care in trying to draw the lines between what they deem as the exercise of a core judicial function, as opposed to administrative functions. But there is no question that there is a threat which is felt. Whether ultimately that threat is justifiable or not I suppose is an issue that could, indeed, come before the Court again in my time, but I understand the argument on the side that you refer to.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU have written a number of opinions on the issue of insanity and the commitment to mental institutions. In one case, in particular, you broke with prior precedent and established a new burden of proof in cases of involuntary civil commitment. This is the case of In Re: Sanborn.
David H. Souter
Nominee
(R)
Judge SOUTER. Yes.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In that particular case you lowered the burden of proof in these types of cases from one of reasonable doubt to one of clear and convincing. What led you to the belief that a lower standard was necessary?
David H. Souter
Nominee
(R)
Judge SOUTER. What led us to that belief, Senator, was the fact that the people of New Hampshire had already amended the New Hampshire Constitution to provide that in cases in which there had been a commitment based on what we generally call insanity arising out of a criminal case, the burden of proof would be clear and convincing. Now, that constitutional provision was adopted in the train of a series of New Hampshire decisions going back before the time that 285 I was on the supreme court, in which the court had held that, both with respect to commitments based on mental illness and dangerous propensity arising out of purely civil proceedings and the same kinds of commitments arising out of criminal proceedings, the standard of proof required for the State to prove the probability of dangerousness, if the subject were allowed to go at large, would be the standard of beyond a reasonable doubt. In those prior cases, the court had taken pains basically to say that although the proceedings from which these commitments arise are different kinds of proceedings—one is criminal, one is civil— the justification for State action is essentially the same in each case. It is a concern with safety, both for the public and for the individual committed. What those prior cases had done, in effect, was to put the civil and the commitment cases on the same footing so far as the factual and, in fact, constitutional justification for commitment. When, therefore, the New Hampshire electorate amended the constitution to provide that in cases arising out of criminal proceedings, the standard would be reduced to clear and convincing—when, in effect, they overruled the New Hampshire Supreme Court with respect to the criminal commitment cases—it was necessary to follow the same rule with respect to the civil commitment cases because in each case the justification was the same. It was a kind of selfpolicing of equal protection, in a way. And so, therefore, we believed that we were compelled to adopt the—in effect, to take the constitutional change in the criminal area as a mandate to change the standard in the civil area as well. It, in fact, was probably inadvertence that the drafters of the constitutional amendment had not expressly referred to both. But, in any case, we had a very simple question of evenhandedness.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. There have been efforts, particularly in the field of legislatures, to file resolutions calling for Congress to call a Constitutional Convention, particularly pertaining to a balanced budget. There is a lot of debate going on relative to whether a Constitutional Convention, if called, would be limited to the resolutions in which three-fourths of the States would have petitioned Congress to call such a Constitutional Convention; that is, the specific grounds and reason for calling the Constitutional Convention. On the other hand, there are those who feel that a Constitutional Convention, if called, would not be limited and could be wide open, addressing whatever it might choose to address, and whatever was done through the ratification process could become our Constitution. Do you have any general thoughts pertaining to whether or not such a Constitutional Convention, if called, would be limited, or is it wide open?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, Senator, I have never done any research on the question of whether it could be limited. I have tended to assume that it would not be if it was called. And I would not in my present position give advice to the Congress or to the Nation about what they should do. But it is instructive to remember on the assumption that I have made that when the Convention of 1787 was called, its charge was to revise the Articles of Confederation. And we all know what happened. That was a magnificent departure 286 from the intent of the Convention. Whether we could expect such happy results another time is a question I think everybody had better face.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well said.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I believe my time is about up. Is my time up?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU still have 2 minutes, Senator.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, I noticed, too, in your opinions on the Supreme Court, trying to review quite a large number of them, that you wrote a lot of concurring opinions and dissenting opinions the first 3 years, but in the last 4 years you have hardly written any other than the opinions that you have written yourself. How do you account for the absence of your writing concurring opinions? Have the issues changed, or is it that you are spending more time doing something else?
David H. Souter
Nominee
(R)
Judge SOUTER. No, it is not that I got tired or took up another activity. I would like to think that I probably got a little bit more persuasive with my colleagues in conference. [Laughter.]
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. That is a good answer. That is all I have. I wish your colleagues—well, your colleagues probably listen to you a lot more. It is hard to get them to listen here in this forum. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The judge longs for those days when he was on the Alabama Supreme Court. But we all do listen to him here, anyway, notwithstanding that. The Senator from Wyoming, Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman. I was very interested in the dialog between the two judges, and I have the greatest respect for both of them. That is a very interesting part of what you will be doing. I would think that that obviously is something that you thoroughly enjoy doing. You like that interchange of judge to judge and discussion of distinction upon distinction and case upon case and that kind of—I guess to some it would be excitement. [Laughter.] But not me. I am fascinated by that because that never appealed to me in my practice of 18 years. When there would be a vacancy and they would say there is a judgeship available, boy, it almost made me cower in the corner. Many people are aware of why that would be, I think. There are certain of us that enjoyed the give and take, and it is always most intriguing to me to hear the discussion of very able lawyers, who I think would have been great jurists— and one who is a great jurist, and that is the judge from Alabama. But enough. Let me just say I do apologize for being absent on Friday. I was necessarily so. I spent the day with two former Governors, one my predecessor, U.S. Senator Cliff Hanson. And while I was gone, I was able to watch some of the activity later in the day, and then I have seen some tapes of the activity. And I can just tell you that out in the land—and I was with a very diverse group of people from all over the United States, jurists, lawyers, Medal of Honor winners, football players—there is a good feeling about you. There is a good feeling out among those people from all over the United States who have a good sense of who you are. That has come through to them. And I think that that is because you are there, in this very patient way, answering every single question that can 287 possibly be presented and necessarily blunting some that you just cannot feel that you can respond to which I understand. But I also understand the intensity of my friend from New Hampshire because I know him well. We came here the same year, and he leaves now and we shall miss him. I will miss him personally as a friend. We have had some great times together on the Judiciary Committee. This issue of abortion, it has been really the essence of this hearing. I shared with you my views. I think Senator Leahy shared with you some very poignant personal things. Senator Humphrey can share those. It is so curious to me as to how our fine country came to the point where such an intimate and personal and searingly wrenching decision made by a female about her own condition and body and substance is the stuff of full page ads and lobbying of an intensity that you can almost hear whirring, by sometimes very thoughtful people, but sometimes—maybe more often, in my personal opinion—by extremists on both sides. Where are the people in the middle ground? Who represents them? Who are they, people who anguish in and pray about the terrible choice to be made? And to me it must be the most terrible choice of a lifetime other than another one that the Supreme Court will be dealing with, and very soon, and that is the right to die. That is next on the agenda. The right to life, the right of choice, the right to die, and, as euphemistically and crudely put, "to pull the plug"—a terrible choice. It is curious to me how it came to this where people come to pray about this terrible choice they make, but that they need, at least in my view, to have all of the legal options open and available to them after the critical choice is made. I am not going to ask you anything more about that, but it just seems to me that you will handle that. As a person who is personally pro-choice, I don't think that either side should press upon a nominee their personal views. I don't like that. And I don't think that is what the Court is there for, either side. I guess I was quite impressed by an article in this week's papers—Parade, I believe—by former Chief Justice Warren Burger, who I have a great respect for and have come to know as a friend, about the questions to be asked in these types of proceedings. What are the types of questions to be asked? He had his own pungent view of that, like Warren Burger does about things. He was a remarkable jurist because he laid it right out on the line. But I certainly subscribe to what he said about questions to be asked in these types of proceedings. Are we looking for a superlegislature? And what are we doing when we impress deeply held, intimate, personal views on a nominee and insist and insist and insist and insist that he come up with an answer? I think that is an error. That is my personal view. I hope you go on the Supreme Court. I think you will. And when you get on there, let me ask you, what will you do when—and I think Senator Grassley spoke to this—I looked at some of the transcripts—when he talked about creating rights and remedying every social wrong. How would you approach a case which comes before you in which a party is clearly deserving of some kind of relief as a 288 human being, but the Congress has just as clearly refused to enact any legislation that would provide that desired or requested relief? What would you do?
David H. Souter
Nominee
(R)
Judge SOUTER. Senator, I would recognize that I was not sitting there with the power to revise the decision of Congress; and that the only power that I was sitting there with was the judicial power; and I would look to the Constitution of the United States.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And in doing that really be able to remove your own deep personal feelings about the issue confronting you?
David H. Souter
Nominee
(R)
Judge Souter. We always ask, we constantly ask ourselves, Senator, whether we can do that. We have no guarantee of success, but we know that the best chance of success comes from being conscious of the fact that we will be tempted to do otherwise. And by keeping that in our consciousness, we develop a judicial self-discipline, not a perfection, but of doing the best we can to approach a level of objectivity and to repress a level of purely personal choice.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. DO you feel you have attained that in your professional career?
David H. Souter
Nominee
(R)
Judge SOUTER. I believe I have done the best I could, and I think I have done reasonably well. One is never perfect.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That is a very difficult thing for me to imagine anyone really being able to do. I guess it is because of the combat of politics that goes with that. I think that sometimes it is very difficult for a person to divorce their deep personal feelings and prejudices—and I don't mean that in the racist sense of the word. I mean that in the prejudice sense of the word before it was tilted in that direction. I think that is a difficult thing to do, and it would require, as you say, a judicial self-discipline. Is that the way you described that?
David H. Souter
Nominee
(R)
Judge SOUTER. Yes, sir.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And that comes from your training? That is something you have learned to do? It is?
David H. Souter
Nominee
(R)
Judge SOUTER. We try and we work at it.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I think, if anything, you have displayed selfdiscipline in these proceedings, and I could only imagine that that would be something you could attain in decisions as well as here in this nomination proceeding. I noted, I think it was Justice Brennan, as he wrote, there was a singular series of decisions off and on that were written with regard to immigration, illegal immigration issues, when I happened to be working on the issue in the legislature. In essence, what he would say would be that—Justice Brennan would say that—he would admonish the legislature to do its work. He would say: I will not respond to this portion of the requested relief. This is for the legislature to do. Admonishing Congress, if you will, to do its job. Now, how do you visualize you would press Congress to do its job when you get to a point and say this decision is not for this Court, this is for the legislature to do? How do you press a legislative body to do its work?
David H. Souter
Nominee
(R)
Judge SOUTER. I don't know how you press a legislative body. I think you do it with the same respectful assumption that you would like to be given by the legislative body itself. That is the assumption that when an obligation to act is clear, people who have taken the oaths that we all take will follow them and will act. And 289 I think probably I would not regard it as my business to lecture so much as my business to record that in a given instance I think the appropriate time to act is there. And I would, beyond that, rest on the sense of obligation of the legislative branch itself.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I was interested in your remarks as I reviewed them, and the essence of them is, I think—and let me paraphrase, that you said Friday that it was certainly—you didn't use the word "regrettable," but it is unfortunate that if the American people should believe that it is only the Court that really is the vanguard of protection on a constitutional issue, but that it is also equally important that the legislature be doing that, protecting constitutional rights. And I certainly think that is true. But in legislating, whenever one of our colleagues on either side of the aisle rises to say that is unconstitutional, that is usually looked upon as the final futile debate. Why, you can't do that; that is unconstitutional. I have legislated for 25 years, here and in Cheyenne, WY, and it seemed to me that, oddly enough, in spirited debate, the final refuge is: But that is unconstitutional. And then they just trample right over the top of that poor soul and pass the bill anyway. And that is not good, but at least the issue is addressed, and then we talk about it. Let me ask you, do you think a judicial decision can be quite instructional to a legislative body or to the Congress on an issue, giving guidance even? Do you think that is possible?
David H. Souter
Nominee
(R)
Judge SOUTER. It is certainly the judicial aspiration. I admit that I have read some opinions of my own sometimes, and I have wondered just how much guidance they gave. But that is our aspiration, and it is an aspiration to a very respectful guidance. We are not there to tell legislators how to legislate, but we are there as judges, whatever the court may be, to try to tell legislators and the rest of the State and the rest of the Nation, as best we can and as comprehensively as we can, what we believe the law to be.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I know that is true. Would you hesitate to lay out some suggested remedies respectfully submitted to the Congress when you come to one of those situations that is unresolvable because of your interpretive theory of judging?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, I have had cases of my own in the past in which I have called the legislature's attention to what seemed to me an unresolved statutory problem which the case before us touched upon but which didn't require a solution. The effect of opinions like that is to direct the legislature's attention. But I think what the court has to be very careful about—again, whatever the court may be—is in observing the line between doing that, crossing over the line and start laying out substantive options, because then I think we are beginning to tread into the legislative arena. You can't lay out options very well without somebody thinking that you are winking on one of them. And that is where we have to draw the line.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I hear that. I think more and more now though, with the number of things we address and the absolute obsessiveness of picking through Supreme Court decisions, every word, every nuance and meaning, that it is—I say to me it is— helpful to have the Supreme Court suggest respectfully, always, of 290 course, that the Congress do this or that with this statute. That is a helpful thing. Would you do that?
David H. Souter
Nominee
(R)
Judge SOUTER. I would try to respond, I would try to make that kind of a suggestion, so long as it did not cross that line, in effect saying to Congress what it is that Congress ought to do. I think the courts can address the fact that there is a problem without trying to tell the legislature how it ought to solve that problem.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I think that that is something that is necessary for any court, and with the three branches of Government, we often recommend—we say, well, we think the Supreme Court should do this. We don't hesitate to say that here and would expect the same from the Court. You were asked about the relationship between the Court and Congress in specific instances, specific issues. If I might ask a more philosophical question, one of the Federalist Papers—and I hope that this has not been asked before because, as I say, I was absent during the entire proceeding on Friday, necessarily so. One of the Federalist Papers described Congress as "the most dangerous branch," and therefore, the Constitution was crafted with the potential of congressional overreaching fully in mind. What is your view of Congress in the constitutional scheme? How does the Court balance the needs for representative government, proper compliance by all, including Congress, with the Constitution?
David H. Souter
Nominee
(R)
Judge SOUTER. I think the only way it can balance it is simply by keeping in mind that there are constitutional values ultimately to be served and constitutional limits ultimately to be respected. And I will not this afternoon personally adopt the Federalist language on that point, but I will say that for anyone who shared that concern, Marbury v. Madison is a happy answer because, by and large, at least there is a judicial reviewability on the question of constitutionality, and it is our obligation to make sure that that, in fact, is the extent of the scope of review.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. There have been some highly technical discussions here on legal issues with regard to, again, trying diligently from all sides to get you into the issue of Roe v. Wade. And I think you have done a very adroit and responsible job of dealing with that. But we get into issues there, again, of technicality that go back through remainder-men and contingent remainders and fee tails. I remember those things, fee simple, fee absolute, fee conditional, defeasible fees, determinable fees, and you might imagine that I had a very difficult time in that course. The transcript would reflect that.
David H. Souter
Nominee
(R)
Judge SOUTER. I hope you are not going to ask me to define all of those.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. NO. The last time we did this exercise, some minion of the Fourth Estate said: Aha, we want to find out what your grade average was in law school. We want the transcript.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, don't tell them, Judge.
Senator Alan Simpson (WY)
Senator
(R)
Senator Simpson. No, no, Joe, I'm in as bad a shape as you are on that. [Laughter.] And so they asked for the transcripts, and I said, well, I am offended by that. I said I was among the top 20 in my class, to which 291 this one fellow scurried away and he didn't know that there were only 18 in the class. [Laughter.] I had to scratch for everything I could dig out of that law school experience, because there were 18 in the class and 5 of them graduated cum laude, which meant that there were only 13 places for me to mess around in. There were five gone before I got to the table. It was a troubling, you know, and difficult time. And I knew I wanted to be a lawyer, and I knew I would get that degree wherever it was that I could get it. I did, and then I did sober up a bit and get serious. Anyway, let me ask you this: I think of this because of my own personal life. The Al Simpson of 18 is nothing like the Al Simpson of 59, with some very fine, distinctive, solid, stable points in between. What is the difference in philosophy between the David Souter of his entry into the 51st year of life today and the David Souter of 20 years ago just 4 years out of law school? And what do you think about that?
David H. Souter
Nominee
(R)
Judge SOUTER. Well, the answer is relative, but I think probably I would sum it up by saying that I have learned something about the wisdom of Benjamin Franklin's advice. When he was addressing the Constitutional Convention and asking them to accept the draft, he said, if I remember him well, he said, "Join with me for a moment in doubting a bit your own infallibility." Well, I have learned to do that.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. He said, again?
David H. Souter
Nominee
(R)
Judge SOUTER. "Join with me in doubting for a minute your own infallibility."
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I like that. Well, I didn't intend to refer to the chairman in any way other than with greatest respect, but, I tell you, whatever he did in law school—and he referred to it first—could never have matched the anguish of mine. I will leave it at that. God, I hope so. Hearing you answer questions about cases you were involved in, decisions you were involved in, things you did, got me thinking of the things I did in the first 4 years of law practice were absolutely stupid and absurd. And I am just fortunate I didn't take some clients down the tube with me. I remember making it right with one. I just put the money up. I said, you know, I didn't know that was a nonnegotiable note. I thought it was a negotiable instrument you showed me. And he said, "Well, whatever you told me, Simpson, it cost me five hundred bucks." And I remember making that one right. I wrote a Law Review article called "Indirect Legal Consequences of a Felony," or some other trivia of unknown dimension. And I couldn't even imagine sitting out there trying to define it or what I was thinking about when I did it. I knew I was just doing it to get a grade and hope they wouldn't find out how little I knew of the subject. So, but that is there for all to witness, that article, and several others that are really quite startling. I hope everyone will read them. They are not published, but they are marvelous. But I hope we will remember this in the midst of all this, and the chairman has been very fair, and now we are winding down. 292 But if we can keep in mind that there really is one, only one great exercise of the mind here, and it is very simple for lawyers, and that is to see people go on the bench and see people who practice law who will assure a just and fair determination of rights based on the facts and the law of each case that comes before us, and not do the head-of-the-pin dance, or "what would you do?" or the hypothetical. Rule 1 of the Code of Civil Procedure: Simple, just, determination, whatever it is, swift and fair. And that is the issue. And I think that you are highly capable of that, skillfully so.
David H. Souter
Nominee
(R)
Judge SOUTER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. For the record, I would like to publicly dissociate myself from the Senator from Wyoming's law school record. The only thing I learned in law school that turned out to be true, Judge, is that the A students go on to be judges and professors, and the B students work for the C students. That is the only axiom I have ever found that turned out to be true. [Laughter.] And I don't know why everyone is so worried here about the Court overreaching. Bickel went on to point out that the Federalist Papers basically made the assertion—and I think this is Bickel's— it is paraphrasing him if not quoting him. [Laughter.] Bickel said something to the effect that the Court was the least dangerous branch of the Government. I am not sure why everyone is so concerned about overreaching of the Court if it is the least dangerous