John Paul Stevens

Speaker, Title, Party Statements
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. The committee will come to order.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. One of the elements of the Committee's discussion will inevitably be Mr. Stevens' medical record, and I think it would be more appropriate if the committee viewed the medical records in executive session. For that reason, and in accordance with the rules, I move that the committee go into executive session for that purpose.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Limited to that purpose ?
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Yes.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. I amend the motion, Mr. Chairman, to be "and for other purposes" because there are some other purposes. I offer that as an amendment.
John Paul Stevens
Senator
(R)
Senator ABOUREZK. Mr. Chairman, I think the purposes ought to be stated in the motion.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, would it be limited to the issues that were raised in the letter of December 2, to you ? Would that satisfy Senator Abourezk? [The letter of December 2, 1975, to the chairman, referred to, follows.] Senator AROUREZK. Yes. Senator KENNEDY. They have been stated publicly in the press and I believe that if wo limit the motion to those matters it Avill make sense. Does the Senator so amend his motion ? Senator MATIIIAS. Yes.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. What is the letter?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. The letter which was sent by six members of the committee surest ing steps which would be helpful to inform the committee in regard to the nominee's personal health and finances, and the investigation by the FBI of the nominee's qualification, and it also suggested requests to the bar associations, including minority and specialized bar associations, for information relating to the nomination. I ask that the letter be made a part of the record.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. The motion would embrace the matters stated in the Deeeember 2 letter to the chairman ? Senator M.vrm\s. I so move, Mr. Chairman.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. It would not cover anything beyond those matters. Chairman EASTLAXD. All in favor say "Aye."' [Ayes were heard.]
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Opposed, "Xo."' [There was no response.] Chairman EASTLAND. It is so ordered. [Whereupon, the committeee went into executive session after which the open session was resumed.] Chairman EASTLAND. The committee will come to order. I will place in the record the biographical sketch of the nominee which has been prepared by the Department of Justice. [The biographical sketch referred to follows:] Chairman "EASTLAXD. I will also make a part of the record a compilation prepared by the Library of Congress of reported decisions of the seventh circuit in which the nominee participated. (The compilation referred to is printed below at page 85.) Chairman EASTLAXD. The Attorney General is recognized.
Attorney General Edward Levi
Mr. Levi.
()
Mr. LEVI. Mr. Chairman, it gives me enormous pleasure to be able to present to you and to the committee. Judge John Paul Stevens who has been nominated for a position on the Supreme Court of the United States. I have known Judge Stevens for many years. He is not exactly of my generation so I cannot speak of him as Senator Percy will be able to speak of him but I have known of him and of his work and of his stellar performance in everything he has attempted to do since the time he was an undergraduate student at the University of Chicago, and a law student at Northwestern University, and then in the Navy, and then in private practice where he was immediately recognized as one of the outstanding lawyers in the city of Chicago, then as an associate counsel for the Celler committee, the Subcommittee on Monopoly Power in the House of Representatives, and again in his practice, his work as a member of Bar Association official commissions, and finally, and most importantly, his appointment to the court of appeals as a circuit judge in 1970, and I am very familiar with his opinions since that time. Judge Stevens, if one looks at all of the sitting judges, the Federal judges in the United States, he is truly outstanding. His opinions, in mv view, are gems of perfection. He is a craftsman of the highest order. Tie has a built-in direction system about how a judge should approach a problem fairly, squarely, succinctly. His opinions are a joy to read. If one has to read as many opinions of court of appeals judges as I have read, let me say that other judges have a very high mark to come up to to compare with his craftsmanship, his innate sense of what a judge is supposed to do. the kind of judicial restraint and forthrightness which makes for a great judiciary. Mr. Chairman, I am sure that those who know Judge Stevens and his opinions will agree with me, and those who do not know him will come to know him and will understand that this is truly an outstanding nomination of which the country can be proud. Thank you.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Thank you, Mr. Attorney General.
Senator Charles H. Percy (IL)
Senator
(R)
Senator Percy. Chairman Eastland, Senator Hruska, members of the committee, speaking as a member of the generation of John Paul Stevens, and as a 38-year friend of his, I can say that for 38 years I have admired him and respected him and looked up to him as a truly great human being and a great individual. I am very proud indeed that his wife Betty and his daughter Susan Elizabeth will be in this chamber and be in this hearing room to hear a few of us talk about John Paul Stev committee for the Study of Monopoly Power in the House of Representatives. Later he returned to private practice in Chicago and was a founding partner in the firm of Rothschild, Stevens, Barry & Meyers, where he stayed until 1970 when he was appointed to the Seventh Circuit Court of Appeals. During the years he was engaged in private practice he was the author of numerous articles on antitrust law for legal and other journals and he lectured both at North western Law School and the University of Chicago Law School. As President Ford has said, the nomination of a Supreme Court Justice is one of the most important decisions the President has to make. Equally important is the Senate's responsibility to advise and consent on such nominations. The individual we confirm to this vacancy will participate in deliberations that will relate to some of the most complex and crucial issues in the history of the Court. Those decisions will affect the lives of generations of Americans. There is no question that the action we take will affect profoundly the course of this Xation's Highest Court. I am confident that your committee will carefully and critically examine Judge Steven's record and judicial philosophy to determine his fitness to serve. Each time I appear before this distinguished committee I am impressed with the fact that perhaps the single greatest responsibility we have in the Senate of the United States is to advise and consent in the selection of judicial appointments. Mr. Chairman, I sincerely appreciate the opportunity to appear before you today to express my deep affection and my great respect for John Paul Stevens. I have known him as a friend for 38 years. I have no doubt that he is magnificently prepared to render distinguished service on the Supreme Court of the United States.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAXD. Senator Stevenson.
Senator Adlai Stevenson III (IL)
Senator
(D)
Senator STEVENSON. Mr. Chairman, I am pleased to join the Attorney General and my colleague, Senator Percy, in introducing Justice John Paul Stevens to this committee. The universality of the judge is evidenced this morning by the support of more generations than there are generations. I represent yet another. [Laughter.] T do not recall a nomination to high office in recent years that was as widely acclaimed. The favorable response to the nomination of Judge Stevens is remarkable, and it is, in my judgment, fully deserved. From his undergraduate days as a member of Phi Beta Kappa to his law school days as a law review editor, to his professional career as law clerk to Justice Rutledge, as practitioneer, scholar, teacher, and jurist, Judge Stevens has earned the respect and the good will of all who know him, so much so that this, his nomination to the Supreme Court, seems not so much a stroke of good fortune as a logical next step in his career. That career reflects a discipline and intellectual capacity of a high order. In his exercise of judicial authority Judge Stevens is not doctrinaire or judicially adventurous. He is a judge. His record on the 6 bench, indicates that he sees it as his duty to apply the law and not to make it. This nomination, Mr. Chairman, would be widely acclaimed at any time. It is a most propitious nomination today. A large space exists in the Court. I believe that John Paul Stevens can fill it. And therefore, Mr. Chairman, I urge this distinguished committee to act favorably and with as much dispatch as the gravity of its duty permits on the nomination of John Paul Stevens to serve as an Associate Justice of the Supreme Court.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAXD. Thank you, Senator Percy and Senator Stevenson. Are there any questions ? The Chair hears none. Judge Stevens, will you stand please ? DO you solemnly swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God ?
John Paul Stevens
Nominee
(R)
Judge STEVEXS. I do.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAXD. Senator McClellan.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAX. Thank you very much, Mr. Chairman, for yielding to me. First, Judge Stevens, I wish to congratulate you upon receiving this high honor and great distinction. I am confident that you realize fully the responsibilities, that are the gravest responsibilities in government in my judgment, to be a member of the Highest Court in the Nation and to undertake to resolve the many highly complex and difficult issues that come before the Court. Mr. Chairman, with your permission, I will read a very brief statement, and then I will leave for Judge Stevens a few questions which he can answer for the record at his leisure. I will not be able to remain, Mr. Chairman, during the rest of the hearings today because I must preside at a conference with Members of the House of Representatives on the Defense appropriation bill. Because some of the questions I have may require somewhat lengthy answers, out of deference to my colleagues I will read a brief statement and submit the questions for the judge to answer for the record. Mr. Chairman, on other occasions I have expressed the view that in considering the confirmation of a nomination to the Supreme Court there are three basic questions pertaining to the nominee's qualifications that must be answered in the affirmative. First, does the nominee have personal integrity ? Second, does he have professional competence ? And third, does he have an abiding fidelity to the Constitution? Out of proper deference to the nominee himself, and to the judgment and choice of the President of the United States, the strongest possible presumption that the nominee possesses all three of these fundamental qualifications should be indulged, and in this instance, as to Judge Stevens, I entertain no expectations whatsoever that there will be any discoveries or developments during the course of these hear- ings and in the other proceedings on his confirmation that will in any way vitiate that assumption. After personal integrity and professional competence, what is most important, in my judgment, is the nominee's fidelity to the Constitution, to its text, to its intent, and to its development through judicial interpretations and precedent throughout the history of our Nation. The record of Judge Stevens on the U.S. Court of Appeals Seventh Circuit during the past 5 years will give us some insight into his powers of reason, his judicial wisdom, and his philosophy. I have not yet had the opportunity to examine that record thoroughly, but I expect to do so before this committee takes action upon his confirmation. In the meantime, I would like to explore briefly and in a general way, your understanding of the role of the Court and what should be the attitude of the men who serve on it as the ultimate guardians of the Nation's basic charter. Judge Stevens, I will submit to you the following questions. Some of them, I think, require discussion, and I will ask you, after answering the question, to discuss the subject matter fully because I think they are basic and fundamental to a proper judicial temperament and attitude with respect to our Constitution and how it should be interpreted and administered. I will appreciate your doing that, and I will also appreciate, when you prepare the answers, your sending a copy to me when you send the answers to the committee. Thank you very much, Mr. Chairman, and thank you Judge Stevens. Should the hearings continue beyond today, I hope I will be able to return and I may have some other brief questions. But I do not think that would take very long. Thank you very much, Mr. Chairman. [The questions submitted by Senator McClellan and the replies subsequently received from Judge Stevens follow :]
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Judge Stevens, there have been two field investigations of you by the FBI and from what other information I get, you are a very fine lawyer, a very fine judge, a man of high morals. The only thing that I think anyone could put their hands on about you would be your health. Now, you had an operation
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes, that is correct.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Explain to the committee what that was and what has been your recovery.
John Paul Stevens
Nominee
(R)
Judge STEVENS. In the fall of 1973, in the early winter when the cold weather came on, I began to experience some pain in my left shoulder and my chest and I underwent a series of tests that resulted in the diagnosis of it being angina pectoris. More specifically, there was a 9 blockage in one artery leading to or from the heart, I am not sure which. So I was advised to get the best surgical treatment, specifically Dr. Norman Shumway of Stanford University. I went out to Stanford in July, I believe it was, in 1974 and entered the hospital on Sunday. It was the week in which the President resigned. I do not remember the exact date. And I was operated on on Tuesday. They, of course, subject you to anesthesia, but they open your chest and remove a vein from your thigh and bypass the blocked artery. That was done on the morning of this Tuesday. I was in intensive care for about a day and a half, as best I remember. I was discharged from the hospital on Sunday of that week, 5 days after the operation. Dr. Shumway told me at the time that I had made the fastest recovery of any patient he had operated on up until that time. He also told me to stay in Palo Alto for about a week at the Holiday Inn so he could check me over later to be sure my recovery was progressing normally. Mrs. Stevens and I stayed there for the following week, and we were checked out at the end of the week, and he then told me that assuming all continued to go as it had up until that time, there would be no restrictions whatsoever on my physical activity. I could play tennis, I could ski, I could work in the garden, play golf, whatever physical activity seemed appropriate.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. YOU fly a plane, do you not ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I will have to explain that. I do fly a plane, but I am temporarily grounded because of the history, not because of my health situation, but there is a period of time after a health situation in which your flying is restricted. But I have been flying regularly, most recently with an instructor, but the doctor tells me that is hardly necessary from my physical point of view. But in any event, I returned to Chicago under the advice of Dr. Hare, who had diagnosed me the first time, and I made a normal recovery, and I do not remember the exact period of time, but maybe 8 or 10 weeks later, I was back at work, and I have been working fulltime ever since. I think this is an appropriate area of inquiry for the committee so in response to requests—I have not seen the letters—I gave an authorization to four different doctors who have examined me since the operation to correspond with the committee, and I believe such letters were forwarded although I have not read them. I had a flight physical about a month ago, and the doctor at that time told me that as far as he was concerned, I was in perfect health, and there is no reason I should not fly a plane. I have one other item that I have not supplied to the committee because I had not located it. About 6 weeks ago, a bulletin went out to all Federal employees in Chicago that they were invited to participate in a heart attack prevention program. And I signed up, as did many others in my age group—the marshalls and bailiffs—it was not just the judges. I went down on October 23, before any of this started, and I took the tests that everyone else took, including blood pressure and so on, and filled out a history in order to, in effect, participate in this program, to see if there were any reason to be concerned about my health. 10 I received a response in due course which I just found the other day, and I would just like to read, if I may, a sentence or two from it. After identifying the date—and it is on the Rush-Presbyterian St. Luke's Medical Center multiple risk factor intervention trial letterhead—it says: Dear Sir: As we indicated to you at that visit, only men with certain risk characteristics would be invited into the Program. The results of this examination and our method of measuring risk indicate that your risk levels do not reach the risk requirements of the Heart Attack Prevention Program. Consequently, we are unable to enroll you into the program. We have put an asterisk on any of the results which in our opinion suggest potential problems that you should discuss with your personal physician to find out their meaning. And there are no asterisks on the report. I was denied permission to participate. I might say that in the course of the investigation, no one saw my scar and they were not aware of my operation. So, it was a completely neutral appraisal. Two other things I would like to say on this subject, because I do think it is an appropriate subject for the committee to consider: My family has a history of longevity. My mother is now 94 years of age, and she is still alive. My father died about a week before his 88th birthday. Their parents had similar histories. But, most important, is that I would like to assure the committee that if I had any doubt whatsoever about my physical capacity to accept this responsibility—- I have very much in mind w T hat Senator McClellan said about the importance of the position—I can assure you if I had any doubt I would not be sitting here today.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAXD. I will put in the record at this time the letter from Dr. Lewis A. Hare, of Oak Lawn, 111. He is your regular doctor, is he not ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; lie is.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAXD. And the letters from Dr. Frank C. Bender, of Plainfield, 111.; Dr. Robert "W. Jamplis, executive director, Palo Alto Medical Clinic, and Dr. Xorman E. Shumway, of Stanford. Calif. Dr. Shumway performed the operation ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; he did.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAXD. They will go in the record at this time. [The letters referred to follow :]
Senator Philip Hart (MI)
Senator
(D)
Senator HART. I really do not envy you the nomination, but I do envy you your medical record.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. I have no questions. But I would like to make a brief comment. A number of us, under the leadership, really, of Senator Kennedy, directed a letter to the chairman asking for some specifics and I would hope, inasmuch as we now have a nominee where the further we pursue, if you will, the better will he look, that we will establish in this hearing a set of standards that will apply hereafter. The committee over the years has developed certain procedures and never really formalized them. It is our hope that, as a result of the procedure that we apply in the nomination of Judge Stevens, that is hereafter we have a nominee where there is a feeling that the further we pursue, the more trouble we will get, that we will nonetheless have these standards to follow. The inquiries we make of you, Judge, are made not in anticipation of getting bad answers, but in the constant belief we will get good answers. Whether the press believes it or not, I think no member of the committee, certainly not I, ever enjoyed dismantling any of those earlier nominations. It is nice to anticipate that we will not have that happen, that we will not have any trouble. Finally, it is not the Senators on this committee that have to worry as much as the staff members. The staff of the Antitrust Subcommittee, for example, tell me that they have read all your antitrust opinions, and they report all the good things that have been said about you, the clarity of expression, the balance with which you present the different points of view, and the restrained conclusions to which you come. They gave me no mean questions to ask you. I will not even ask you to respond to Senator Stevenson's comment in his introduction when he said your record on the bench indicates that you see it as your duty to apply the law and not to make it. Certainly that would be expected of you as an appellate judge. But if you want to comment upon what the role of the Supreme Court Judge is with respect to making law, you could do it. 13
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would only comment to this extent, Senator, because I think it is a fair question, that I recognize there is a difference between the kind of work that must be done there and the kind of work that must be done in the court of appeals. There are, I suppose, a larger proportion of the decisions where you do not have as clear guideposts as you do in the court of appeals. We work in a more restricted framework in the court of appeals. There is no question about that, and there are times when you must face up to questions to which there are no clear answers.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. The Attorney General said in his introduction that your opinions are a joy to read. I was going to ask him if all the liti • gants in those cases before you found that to be true. [Laughter.]
John Paul Stevens
Nominee
(R)
Judge STEVENS. He might be about half right on that.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Thank you, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Senator Hruska.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Mr. Chairman, this is the third time I have had the pleasure of sitting at a hearing to listen to the testimony of the nominee. The first time was in October of 1970, when there was a hearing on his nomination to the circuit court. A second time was in June of 1974, in Chicago, 111., where this nominee and some of his colleagues appeared to testify before the Commission on the Revision of the Federal Court Appellate System. Today makes the third time. The work that has been done by this nominee as a lawyer and as a judge has been very thoroughly canvassed. I wish that I had had the time to read more of his opinions and other legal writings than I have. But I have read enough of them to confirm in my own mind the judgment that seems to be quite general as to the excellence of his work. So, Mr. Chairman, I have formed a judgment and come to a conclusion that is in line with that of those who have known him so long and who have testified as to their high estimate of his qualifications, of his professional competence, his loyalty to the Constitution, and his integrity. It is my intention to support and to vote for his confirmation in the committee and in the Senate. I might observe, Mr. Chairman, that for both you and for me, with the confirmation of the next Justice to the Supreme Court, we will have sat in confirmation hearings on the entire membership of the Supreme Court. That also is true, I believe, of Senator McClellan. That also may be true of you, Senator Hart. Judge Stevens, I want to take this occasion to wish you well in your work. It is an exacting and demanding position, as I am sure you are as fully aware as anyone. I congratulate you once again on your nomination.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator Hruska.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTL,AND. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you, Mr. Chairman. I want to welcome the nominee and congratulate him on his nomination to the Supreme Court of the United States. I think it is an enormous personal tribute to you, Judge Stevens, and one which I am sure is appreciated by the American people in the respect that the nomination recognizes the extraordinary excellence in law and the pinnacle of professional achievement it carries with it, along with a lifetime of responsibilities and opportunities. 63-774—75 2 14 So I want to congratulate you on your nomination and to welcome you here.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Senator Hart made reference to some of the procedures in which a number of us joined in requesting so that the committee might have certain information. You have been all too willing to comply with the requests, and to your great credit have demonstrated since your nomination was announced, your forthrightness, candor, and willingness to share with this committee and with the American people any requests made by the committee. I am sure you understand the nature in which many of these requests have been made. Some of us wish institutionalized some of the procedures for consideration to the highest judicial office to this country and the most thorough kind of review which we are expected to conduct as members of this committee and under the Constitution of the United States. And, as Senator Hart has indicated, the further we review your own background and experience, I believe the stronger your nomination becomes. I feel that the American people will have a strong sense of sharing in the appointment that the President has made. It has been in that spirit that these requests have been made. Two weeks ago, a few of the members of this committee made a request of the committee to try examining the criteria which should bo used in terms of fulfilling our responsibilities under the Constitution and performing the role of advice and consent. It was the decision of the committee at that time not to do this in a formal manner; but Senator Mathias, Senator Abourezk. and myself held an informal meeting in which we invited some distinguished constitutional authorities and a former president of the Bar Association, Robert Meserve, to examine with us some of the criteria that might be considered. Ultimately I am sure it will all be criteria which is subjective in nature and perhaps follow the guidelines that the Bar Association has set out; but I found the meeting useful and informative. One of those who appeared on that panel was Professor PToward of Virginia Law School, and he summarized what he considered to be some criteria. If I could, I will state these three areas that he mentioned. First, the professional qualifications, which are the integrity, professional competence, iudicial temperament, legal, intellectual and professional credentials. Then second, he mentioned the nominee's being a public man. one whose experience and outlook enables him to mediate between tradition and change and preserve the best of social law and social heritage while accommodating law for a change in needs and change in perception. Third, he should in some ways provide a mirror of the American people, to whom people with submerged aspirations and suppressed rights can look with confidence and hope. I am wondering whether you care to comment on these observations? Judore STEVENS. I think, of course, all of those qualities are desirable. I think it is perhaps impossible to get everything that one wants in any one individual but T certainly would subscribe to an effort to find a person who meets all three of those criteria, as well as strictly professional criteria. I have had little to do with the selection process nvself, so T do not know that I can say more than that. But I certainly would not rule out any of those factors. 15 Senator KENNEDY. Well, do you see yourself, not necessarily restricting yourself to the words of Professor Howard, as one to whom those with submerged aspirations and suppressed rights would be able to look to with confidence and hope?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, it is kind of interesting—let me just answer it this way—among the mail I have received, complimentary mail, has been from inmates in prisons, w T ho have said they were writing to their Senators asking them to vote for my confirmation. I suppose they are about submerged as any element of our society. So I think perhaps I may supply that particular need to some degree, at least.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I too believe that is a strong indicator of their feeling about the sense of justice you have administered on the court. Are you aware there have been some of those involved in the various women's movement who have analyzed your opinions and have expressed some concern ? I know there are one or two groups who have actually requested to testify before the committee on this issue. Could you share with us your general view on whether you believe that women have obtained equality in America, whether they should, or what role the law and the court should have in the process?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I am satisfied that they have not achieved full equality and that they are marching definitely in that direction. I think the standard that I will apply in any litigation involving a sex discrimination question would be the same whether the claimant was of the male sex or the female sex. I am aware of the two cases that they specifically criticized: my dissent in the Bridgeport Bras* case and the Sprogis case. I re-examined them a few days ago, and T would not write them differently. I think my simple standard that I was applying was would the person have fared better in the particular situation that was involved had he or she been of the opposite sex, and T concluded one way and my colleagues concluded another. But T think a fair reading of those opinions will not find any bias whatsoever. I should sav that I am aware of a total of five cases which arguably involve sex discrimination issues in which I participated, and those two are the ones in which I came down on the side of denying the female, litigant relief, and there are two others in which I participated on a panel in which additional relief was ordered in favor of the female litigant; and there is a fifth in which there was a partial victory and a partial defeat for the female. So if one were to determine impartiality by results, it just so happens that I think I come out about 50-50. But I do not think that is the correct way to analyze a judge's performance because it depends entirely on the mix of cases that one gets. But I can assure you that I am free of prejudice against either sex and believe T can rule impartially when members of one sex are engaged in litigation involving their rights to employment or other opportunities.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Asa private citizen, what are your views on the equal rights amendment?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, T don't really know. Senator. I must confess that, other than the symbolic value of the amendment, I am not entirely clear how much it will accomplish beyond the equal protection clause of the 14th amendment itself.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW often has that been extended to cover women ? 16
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, there are about three cases I remember that the Supreme Court has had to face up to that question, and the law in that area is developing, both statutory law and constitutional law.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you feel that equal rights to women would definitely fall within the 14th amendment ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Certainly, in certain situations.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Isn't it a fact that throughout history, when those matters have been raised in the courts, they have been extremely reluctant to apply the 14th amendment ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I was not under that impression, Senator. In recent years, as you know, Congress has been just as slow as the judiciary about getting into this area, and once Congress acted, then the judiciary moved swiftly and effectively in enforcing the statutes Congress enacted. Prior to the basic statutory changes which included women as a protected class, or members of both sexes as members of the protected class, there was little litigation in this area. There is no question about it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. IS it your position that rights and interests of women are achieved through an equal rights amendment or expansion of the 14th amendment? Should equal rights for women be achieved?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, Senator, I must be very careful about what we say when we say they should be achieved. I think women should have exactly the same rights under the law as men. I think they should have the same economic opportunities. But I do not think they should win every case they file.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What would be your assessment of the kinds of discrimination against women, prior to the time of either the equal rights amendment or recent times? Do you find that your review of various statutes, whether they be State, local, or Federal, that discrimination has been the case in the past ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I'm afraid I do not understand the question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would you conclude that maybe retrospectively there has been a series of local statutes, even State laws, that violate the rights of blacks in this country over the last 25 to 50 years ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. If you are asking me if there has been a history of discrimination which we would all reject today, that nevertheless is part of our history, it is true in the racial area; it is true in the sex area; it is true in many areas. I do not wish that kind of history to survive, of course. But it is part of our past.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I'm just trying to find out how concerned you are about the question of sex discrimination. Would you say that you have been more disturbed by discrimination against blacks rather than women? Or, are you equally disturbed about both? Is this a matter that you feel that the American people are very much interested in and concerned about ? What can you tell us of your own views about the subject ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I am certainly concerned, and I agree that the American people are and should be concerned. I have not thought in terms of placing priorities; two wrongs, both of which we want to eliminate completely, if we possibly can. I suppose, if I am asked to do so, I would be more concerned about the racial discrimination because I think they are a more disadvantaged group in the history of our country than the half the population that is female. 17
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU recognize, though, the emerging consciousness and interest among women and their role in the society. In many respects, I believe this interest has been reflected in the support for the equal rights amendment. I am just wondering whether on that basis you feel that you would support it ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I really wonder if it is appropriate for me to support or oppose the equal rights amendment. I did have a case that involved the question of procedure, as to whether the amendment had been duly ratified in Illinois. But our consideration of that case had nothing to do with our views as to the merits of the amendment, because the issue would be the same regardless of what the subject matter of the amendment might be. I just have not, frankly, taken a position on the equal rights amendment, and I am not in the habit of expressing opinions about something that I have not really thought through. I think it has symbolic importance ; but as far as its legal importance, I am just not really sure of its significance.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. We will recess now until 2:30. [Whereupon, at 12:35 p.m., the committee recessed, to reconvene at 2:30 p.m. the same day.] Judge Stevens, I would like to congratulate you upon your nomination to the Supreme Court, and I would also like to congratulate President Ford upon selecting you to fill that high position. I have studied some of your decisions, and have been greatly impressed with the quality of your work. Your decisions show an ability on your part to single out the issues in the case, to bring together the facts and the applicable law, and to state succinctly the conclusion with brevity and exactness. Your style of legal writing indicates you are capable of ascertaining the narrow issue which must be decided, and confining your decision to that specific area. This is an ability which is refreshing, and I certainly commend you to a position on the Supreme Court. I was pleased to note that the American Bar Association's Committee on the Federal Judiciary reported that you meet high standards of professional competence, judicial temperament and integrity, and gave you their highest evaluation. Your record, as I have been able to ascertain it, indicates that you believe in deciding the case on the law and the facts. I believe you will do your best to uphold the Constitution of the United States and to show fairness to all and partiality to none. I believe that is all we can ask of a Supreme Court justice, and I shall be pleased to support your nomination.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator Thurmond. TESTIMONY OF JOHN PAUL STEVENS, NOMINEE—Resumed
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you, Mr. Chairman. Judge Stevens, I would like to return, at a later time, to the issue of women's rights. I do not know how long I will be able to continue, as other members of the committee have questions, but I w T ould like to cover, at least in a preliminary manner, some other areas of interest and then come back to that area later. Would it be agreeable with you to provide the committee with a financial statement that could be made available to both the committee and to the public ? Justice Blackman did this for the committee, and I wonder whether you would be willing to make that available for the committee and the public ?
John Paul Stevens
Nominee
(R)
Judge Si EVENS. Senator Kennedy, that information has already been made available. Owned by wife, Elizabeth. Wife owns no other property.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I know it lias been made available to the committee but will you make it public?
John Paul Stevens
Nominee
(R)
Judge STEVENS. The committee can do with it as it pleases. It is up to you. If you think it is appropriate to make it public, that is your decision to make. Xo one wishes to have personal details made public, but I have no objection. I will leave it to the good judgment of the committee as to whether to make it public or not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am distinguishing between the tax forms and tax material and a general kind of financial statement. I agree with you that the committee has the complete authority and the power to release that information. But I am wondering whether on your own you would be willing to make a general financial statement available to the public as Justice Powell and Justice Blackmail did without regard to the action or the determination of the committee?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would think that is a question for the committee to decide. I have nothing to withhold, but I have turned everything over to the committee and I have no objection to your doing whatever you see fit with it. including making it public, and that is true of everything I have supplied to the committee. It is in the good judgment of the committee. I think it is for you to decide because you are running the hearings and I am trying to cooperate in every way I can.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But there is a broader dimension, is there not? Jndsre Stevens, we are not trying to do this just to satisfy the members of this committee. "We are trying to perform a public function as well. "We obviously have the power and the authority to release that information.
John Paul Stevens
Nominee
(R)
Judge STEVENS. If you think that will facilitate the performance of your public function, go right ahead. 24
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, we are not doing this just as members of the committee but for the American people. We are trying to act as their representatives. Would you be willing, as Justice Blackman and Justice Powell have done on their own, to give a financial statement ? I gather from your remarks that you made to the committee, that unlike either Justice Blackman or Powell, you are not prepared to make a public financial statement.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I have read the transcripts of the hearings with respect to the justices whom you name, and it is my impression that I supplied a great deal more detail than any of them did. I was not aware of the disclosures that you describe because I did not find them in the record. But I certainly have no objection to doing whatever any other justice of the Supreme Court would do or any other nominee. I have nothing whatsoever I wish to withhold. I do not w T ant to bypass the committee procedure. I think it is your decision to make as to w 7 hat is in the best interest in the way of disclosure, and I will cooperate fully and give you any information you want on any subject.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am sure that in your review of the hearings on the nomination of Justice Blackman you observed on pages 22-24 the various lists of stocks and the transfers of stocks. Justice Powell in subsequent hearings did the same.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I gave you much more detail than is shown on those pages.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I know. But I would like to know whether you would be willing to provide such financial information as a matter of public record rather than waiting for the committee to act. No one doubts the power of the committee to act.
John Paul Stevens
Nominee
(R)
Judge STEVENS. YOU have my authority to release whatever you think would be in the public interest.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. If we could go on an issue of crime in this country. Probably outside the issues of the economy, unemployment, inflation, energy, I would think that to people in many of the urban areas crime is the No. 1 problem. In your own review of various cases, what do you think are really the primary causes that have led to the growth of crime in our society ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I really do not think one can judge from the records of the cases that come before us because we deal with the facts of the crimes themselves rather than the background and social conditions that produce the hardship and unhappiness that often lead one to a life of crime. I could not evaluate on the basis of my work the hierarchy of causes of this most unfortunate situation in our society, and it really would be presumptious of me to try to speak as an expert on really a sociological question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, this is something that I imagine most people can express some view about. Why do they think that there is a growth of crime? This has been an issue that has been talked about and debated. It is a matter in the national political campaigns and has been discussed widely over some period of time. I would think that as a citizen you could help us a bit in how you view this matter of the growth of crime and what you think are some of the principal causes for this growth. 25
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I think certainly one rather obvious cause is the extent of unemployment in the country. No doubt it is a significant contributing factor. Another factor, that is difficult to evaluate, is changes in statistical methods of reporting and keeping track of crime. Sometimes what appears to be a growth in crime is a difference in keeping records and reporting what happens. I really do not know why we have as much crime as we do. It is a very sad social situation.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think that the bottleneck in the courts has been a factor ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think the failure of the Congress to give adequate numbers of Federal judges is a contributing factor in the failure of the judges to deal with the criminal litigation as promptly as they could. I think the speed with which cases are disposed of in the Federal system compares very favorably with the speed with which they are disposed of in the various State systems. But there is always room for improvement. There is much room for improvement in the judicial system, of course, at the Federal level and at the State level. I personally think that one of the most unfortunate phases of our overall judicial system is the practice of electing State judges. I think that if that were changed, the whole system might change.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. AS you pointed out, the backlog in State court systems is really a national tragedy. I would use stronger words than you might want to use; but a review of this backlog, particularly in the urban areas, indicates that it is extremely difficult for an accused to receive a speedy trial, for the innocent to be freed, and for the guilty to be brouhgt to justice. Would you agree with that as a general proposition or would you want to make any comment based upon your own experience?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think generally there is much more delay in the judicial system in the administration of criminal justice than there should be. It is not only in bringing the indictments and bringing the cases to trial. There are continuances because the judges are busy and they do not have adequate facilities. There is no doubt about that. There is much that can be done, and I think what also is tragic is that because the urban areas, indicates that it is extremely difficult for an accused most jurisdictions give priority to criminal matters, which they should, civil matters fall farther and farther behind, so that this problem accelerates and feels upon itself. There is no doubt about that, and there need to be improvements in procedures. There need to be improvements in personnel. There need to be improvements in methods of selection. There are all sorts of things that can be done.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think a speedy trial and the surety of punishment for the guilty would make some difference in terms of discouraging crime?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I do not think we should look at the desirability of a speedy trial simply from the deterrent standpoint. I think it is part of the process. A criminal proceeding is a serious matter to the State, is a serious matter to the defendant. Both sides are entitled to a prompt disposition. I think we should approach it that way, not just simply in terms of deterrents, but in terms of rendering justice in an important matter.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW much of a problem is it? I do not think anyone would disagree with you from an academic point of view, but 26 is that the reality today in the urban centers of this country ? What is the court situation in these areas ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. There are backlogs.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. There are serious backlogs, are there not ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW long a time on the average does it take to try a criminal case in Chicago ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I do not have any figures on the average delay, I have looked at them from time to time, but it is more than it should be. I know that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In considering the problem of crime, obviously we will be seeking a number of remedies here in the Congress. But, I would like to know your feelings on capital punishment. Do you believe it serves as a deterrent ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, if I can digress for a moment, I do not think I should answer the question about capital punishment. As I understand it, that is a matter that will be before the Supreme Court, and I think it would be inappropriate to comment on that. But with respect to this whole concept of speedy trial. I do think it is important that when Congress addressed the question of the speedy trial statute or advancing trials, that it also think of the cost of doing so and think in terms of providing the adequate number of judges and facilities and the supporting matter that are needed to implement the statute. You cannot simply say that we must try the cases in a shorter period of time and expect that to be done without the wherewithall to do the job. The Chief Justice has spoken on this many times.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I could not agree with you more. In terms of the Federal response, I hope that we can, through the LEAA or through separate legislation, provide direct support to the courts. I am hopeful that we can fashion some legislation soon in that area. But I know that capital punishment is going to be considered in the Supreme Court. I am not asking at this time, nor would I at any time, for you to give us a judgment as to the constitutionality of it. But, I am asking you to comment on whether you think an effective case has been made showing that capital punishment serves as a deterrent to crime ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I do not know whether an effective case has been made. I would assume that if one contemplated that he would be punished by having his life terminated, that would have some deterrent effect. But I do not know anything about the case that has been made because I am not prepared to talk about that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think that it does serve as a deterrent ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I don't know. I suppose you have to ask to whom, with respect to what crimes, and so on.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think it serves as a deterrent for any crime?
John Paul Stevens
Nominee
(R)
Judge STEVENS. DO I think it does now ?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am asking you only for your general views on this issue.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive but in all candor I must say that there have been many times in my experience in the last 5 years where I found that my first reaction to a problem was 27 not the same as the reaction I had when I had the responsibility of decisions and I think that if I were to make comments that were not carefully thought through they might be given significance that they really did not merit. I am not trying to be evasive. I am trying to be honest.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. "Well, I can appreciate the question about the implications in terms of the constitutionality of a particular issue, but I think that giving us your own general views about this issue is appropriate for inquiry. Justice Blackmun talked at some length about this issue before the committee at the time of his nomination. He talked at some length about his own views on capital punishment.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator Kennedy, I have the greatest respect for Justice Blackmun and for all other members of the Court, but each of us really has to face for himself the question of whether he thinks it an appropriate subject for him to discuss when he is a potential member of that Court. I honestly do not think it is appropriate for me to give you a philosophical discussion of what I might do if I were a legislator. I do not intend to be a legislator, and my policy thoughts are really not what would be controlling when I face the adjudication of these matters later on. I think in good conscience I should do my best to avoid saying anything that might have an impact on the impartial treatment of this issue when it comes before the Court. I am afraid that if you lead me on this way I may be led to say something that might make it more difficult to have whatever I do later be accepted as a completely impartial analysis of the question. That is how I see it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let us take an issue that is peripheral to capital punishment. It does not relate directly to you and whether you approve or disapprove of capital punishment. It is the issue of the applicability in terms of whether capital punishment can be applied fairly and equitably. That is a very significant issue that has caused enormous concern among many people as it has to me. Any fair review of its application over any period of time would have to indicate that whether the statute is constitutional or unconstitutional it has been used and has generally been applied more heavily to the poor and to the black people of this country. I wonder about that particular issue in terms of your own concerns about the applicability of the capital punishment statute.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I think that is a fair question, and I would say that with respect to this punishment, as well as with respect to any sanction of the law, it is always of paramount importance to be concerned with evenhanded administrations of law, without regard to the character of the particular individual, who happens to be the litigant before the Court. I think that is a fair question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am very sorry, my attention was distracted.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I just tried to say that whether it is capital punishment or any other sanction the law might impose. I would agree with the thrust of what your question seems to suggest, that we must always be concerned with the impartial administration of the law and that it should not be differentially applied to one group as opposed to another.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think from your study of the law that in some cases certain laws have been applied more to one group than to others ? 28
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO such situation comes to mind in the work I have done in the seventh circuit, but I am sure that where human beings are involved that sort of thing, unfortunately, happens from time to time.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, generally what has been your feeling about the kind of protection that the poor get in our system of justice in our society ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think in our circuit, I think there is much done to make sure they have counsel available when they cannot afford it and proceedings available to help them with the appellate process and the indigent defendant is provided with counsel. They are provided with transcripts. There are many things that are done.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think that this is generally true in the country as a whole? Do you think that assigned legal defenders—and I know that there are some outstanding ones—can compete on an equal footing with those attorneys hired by defendants who have no financial problem ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. The one about which I am most able to speak is the Federal Defender Office in Chicago, run by Terence McCarthy, and I think it can compare with any fine law office in the United States. It is an excellent office. It is well run and the young lawyers do a fine job. It is an excellent office. I doubt if they are that good in every place in the country because it is an exceptionally good office, so there no doubt are shortcomings that have to be remedied from place to place, but I do not have the factual details to speak in any helpful way about it I am afraid.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But there is nothing else you want to add with regard to the equal protection argument of the capital punishment statute as it might relate to the poor and blacks, when the history of the applicability of capital punishment shows rather clearly that in far too many instances the poor and the blacks have been the ones who have experienced the brunt of the application of the statute ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I am familiar with the argument as it was presented in the case that was decided 4 or 5 years ago, and I agree it is an appropriate argument to advance, but I do not think I should comment on whether it should have controlling force or not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW much weight would you give it?
John Paul Stevens
Nominee
(R)
Judge STEVENS. That is exactly what I do not think I should say without more careful study.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. TO what extent do you believe that the decisions of the Warren Court in relation to criminal law have contributed to the rise in crime ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, the only thing one can say is that those decisions took place at a certain point in time and there is more crime than there was before, but I do not think that necessarily proves a causal connection. Sometimes there are byproducts of procedural improvements, sometimes men
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU think there have been in this case ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I really do not know. I think probably the causal connection is overemphasized. There is a period of adjustment when changes like that are made, and sometimes when things settle down, such temporary loss as may have taken place tends to be replaced by adjustment.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. IS there anything you want to add to what you think Congress can do to help in dealing with and combating crime ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Of course, really, I think the heart of the criminal judicial administration problem lies in the State judicial systems where most of the criminal justice is administered, so, unfortunately, I really do not think it is a problem that can be most effectively addressed by the Congress, apart from what the various State legislatures and State judicial systems might do. I do not favor continuing expansion of Federal criminal jurisdiction. I am afraid that we must always keep in mind the danger of overburdening the court so much that they will no longer be able to do an effective job; that is, the Federal courts, that they are now doing. There are areas where we are approaching crisis points in the administration of justice in the Federal system.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. There are a number of areas that are of very great concern to Americans, as you can well imagine. In the last few years, the people of this Nation have been bombarded almost daily with news accounts of Government violations of individuals rights, intrusions of individuals' privacy by the CIA and the FBI, the IRS and Watergate. And in light of this, do you think that the courts in general, and perhaps the Supreme Court in particular, have special responsibilities with regard to protecting individual liberties ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, you know, I think Congress acted very wisely in the way in which it focused the responsibility in the wiretap area which, of course, is a very important part of what you describe, by imposing the responsibility for authorizing the wiretap in the first instance under the Attorney General of the United States, and I think if the country has confidence in (the man who occupies that office, it can have equal confidence that the power will not be abused. I think we are extremely fortunate today to have the kind of individual in that responsibility that we do. I think that, perhaps, there is more protection to the country as a whole from the kind of violation about which you are concerned by reason of the kind of Attorney General we now have than the court could do or sometimes even Congress could do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I do not think you will hear anything but high praise for Attorney General Levi. But I would like to get back to the, area of concern on the minds of many Americans, and that is: When there is such a perversion of governmental authority, how are their rights going to be protected ? I am interested in your view about the role of the courts in this area. With all respect, the Attorney General can't be policing the FBI and the CIA, the IRS, and other agencies in this area. I'm just wondering whether you are sufficiently concerned about the protection of individual rights and liberties; and whether you feel the courts of this country, and certainly the Supreme Court, have to be particularly concerned about the protection of those rights. I gather from your earlier response that you feel that should be the case now that we have Edward Levi as Attorney General.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I was directing that particularly to the wiretap problem, which I would assume would be at the heart of what your concern was, and, of course, also responsibility for directions to the FBI, which I had understood to be the focus of your question, but if you assume in other areas, such as CIA or something like that 63-774—75 3 30
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Under the chairmanship of Senator Ervin we heard from the Department of Army about its intelligence branch's invasion into citizens' privacy and a wide range of similar activities conducted by other agencies. What I am trying to elicit from you is some kind of expression of concern for individual rights and liberties and what you believe should be the Supreme Court's role in protecting these rights and liberties.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Of course, the way in which the Court can function, and this is true of any court, to protect an individual right or liberty that has been transgressed is in the particular case that comes before it. It must adjudicate specific cases. It cannot undertake a roving commission to reform all the sins of the executive branch of the Government. We must decide cases as they are presented to us, and if cases arise which result from perversions of the function—I think that is the predicate to your question—of one of those agencies which in turn infringes upon the rights of an individual, I would assume that any court would react appropriately to any such set of facts, including the one on which I sit.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think the courts should be more alert today than they were when you were in law school? Is it the same threat ? You make that comment as though nothing has happened in the last 10 years.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would have thought when I was in law school that the court would have had the same duty to respond to abuse of powers that it has today. Maybe the abuse of power had not yet become part of a record to which a court could react because that was not disclosed, but if it exists and if it arises through litigation the court should deal (with it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU don't believe that the overcrowding in the courts presents an adequate reason to inhibit Congress from expanding entry into the Federal court system for people who are wronged by Government action ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I think right now the gates are wide open. The Federal courts are wide open to persons who are wronged by governmnetal actions. Section 1983 of the Civil Rights Act is a remedy for persons who suffer wrong by agencies of the State and there is a provision for when Federal officials commit similar wrongs. There has been a tremendous growth, as you know, in the volume of civil rights litigation in the last several years and I think in the main the court has dealt sympathetically with those claims.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I was thinking, for example, about areas where we might provide attorney's fees for persuit of particularly worthwhile cases as Congress has done in a number of statutes. Senator Mathias and I have introduced legislation in that area and there are proposals relating to standing and class action suits as well. I think there has been generally movement in the Congress, though not supported by all, but certainly supported by a majority, to insure full protection of individual interests impacted or affected by governmental decisions, by the agencies I've mentioned, but also by a wide variety of other agencies as well: the various regulatory agencies. I was just trying to gather from you whether the rights of persons who are being impacted by government are of a sufficient concern to you to want to insure adequate protection of these rights in the courts, and whether you are very much bothered by it. 31
John Paul Stevens
Nominee
(R)
Judge STEVENS. Am I bothered by the fact that we do not have more class action litigation ? I don't think I am right now, no.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, that is taking a question I hadn't asked you specifically and answering it. That is, perhaps, one of the most precise answers I've gotten this afternoon.
John Paul Stevens
Nominee
(R)
Judge STEVENS. That's the most precise question I've been asked.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW serious do you think the conflict is between a defendant's right to a fair trial and the press's right to report criminal cases ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Very serious, Senator. I think that is a very serious problem. We have under consideration in the seventh circuit now—and I must be very careful in what I say because of that fact—a case which involves a challenge based on the first amendment to the disciplinary rules that inhibit the rights of lawyers to comment on a pending matter, and, of course, there is a greater power in the Government to curtail the rights of lawyers who are participants in the judicial process than there is of the press, but that is part of the problem. You first have to decide what information the lawyers can give to the press and then what the press can give to the public. Generally speaking, you would have much more latitude in what the press may publish than what the lawyers may say, and I would be, I am always, very concerned with any inhibition on the opportunity of the press to report freely whatever they can discover. But this is a serious problem because of the risk that the reporting may impair a defendant's ability to obtain a fair and impartial trial. You get into the problem of sequestering juries more often than you might. There are all sorts of byproducts of this. It is a complex and very serious problem.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What do you suggest be done, if anything, about that? We may be considering some legislation affecting this in S. 1, and I would be interested in, not getting into constitutional questions, but what you might say on that ? Obviously, you have given some thought to the way we should proceed.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I am inclined to think that this is one area in which the courts are going to have to make critical decisions in the first instance in evaluating the local rules which regulate what lawyers may say in comment about pending legislation. I think it is unlikely that it would be appropriate for the Congress to pass legislation that would tend to restrict the right of the press to comment upon a trial. I think the solution may be in controlling the release of information, which should, in a professional way, be kept out of the public domain until it appears in the record of the trial itself.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What standard would you use on the Supreme Court about excusing yourself on various cases?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes, that is a very fair question. I talked at some length—well, they're all fair questions. I don't want to imply anything else. That's absolutely fair, and I don't mean to be disrespectful at all. I have followed a standard in the seventh circuit which is, perhaps, more strict than should be applied in the Supreme Court. I have followed the advice of Judge Hastings, whom I respect as I respect few men, and early in my career he suggested to me that if you have1 32 a question about whether you should excuse yourself, then that is a sufficient reason for doing so , and so whenever there has been even what might seem a fairly trivial reason I have tended to recuse myself if I was aware of the fact that made it appropriate. There have been two or three instances in which I did not realize that there was a disqualifying circumstance until I participated to a certain extent in the matter. I think and I should say that in the court of appeals especially, where the judges are sitting in one place, as they do in our circuit, we are all located in Chicago, the disqualification of one judge imposes a relatively minor cost upon the court as a whole because it is easy to substitute another member of the panel. You just take somebody else's assignemnt instead or another assignment is given to you. But in the Supreme Court perhaps one should not be quite so strict because you sit only as a nine-man court and there is a cost to the system whenever a judge does recuse himself. I think there is a greater duty to face up to the difficult questions and participate when one is sure that there is not a factor present that would, in fact, impair his judgment or create an appearance of partiality which might cause the public to lose confidence in the system. So what I am saying is that I have been quite strict in the court of appeals. I am rethinking the problem as it might apply to the Supreme Court, I have somewhat of an open mind about what I might do in situations comparable to those that I faced in the court of appeals.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Then there is nothing you can tell us about pending Supreme Court cases from which you might feel obligated to recuse yourself? I guess Justice Blackburn excused himself a half a dozen times the first year on different cases, and I am wondering whether you have anticipated similar situations that might involve yourself ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I am sure there are some that have been in our court that I should perhaps not sit on. I do not think of any offhand. I would not sit, at least it would not be my present intention to sit, at least for some further period of time, in those cases in which the lawyer was a former partner of mine or if the case involved a former client, if it was one of those obvious relationships. But I am not sufficiently familiar with the docket to identify those cases which I would now say that I would not sit on. But I am sensitive to the problem.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW would you label yourself? Would you label yourself as an activist or a strict constructionist ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would not label myself, Senator, and that is not a contrived position by any means. I thought, perhaps, something like that might be asked. It is almost a characteristic of my entire professional life. As a small firm back in the early 1950's we followed the practice differently from many firms of taking cases on either side of the controversy. We did negligence work for defendants and plantiffs. We were not known as either a plaintiff or defendant's firm. In the antitrust field I represented defendants and I represented plaintiffs. As you may know, other than our firm, and a relatively small number of others, firms tended to become identified either as plaintiffs' firms or defendants' firms. That was not true of ours. We felt that the law was a profession and we could handle professional work in a professional way without trying to get involved in the policy judgments that 33 underlie the statutes, so I just don't think it's appropriate to try to place a label that might turn out not to fit.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I would like to return briefly to the Equal Rights A.mendment. Earlier, we talked a little about your views on the ERA amendment and the patterns and practices of discrimination that have been visited upon blacks in this country. I believe at the time of our recess, my colleague, Senator Hart, pointed out that all one has to do is to look up here at the Members who are questioning you, or at the press desk, or at the audience to see the lack of representation of those groups in our society. The courts over a period of time in decisions which have affected blacks have not been satisfied with striking down the discriminatory statutes alone, but have required some affirmative actions, and those have brought some painful experiences to many communities. For instance, even my own city of Boston is undergoing difficult times at this very moment, but the court decisions are, I believe, quite clear. The courts have decided that it is not enough just to strike down the existing judicial statutes but that there is a responsibility to reach the issue at its very roots. I am wondering whether you feel sufficiently concerned about the type of discrimination that has been visited upon women in this society that you would feel that kind of action would be necessary to insure their full participation in the mainstream of society ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I think as a judge, of course, one must decide the cases as they come, and one does not really get the opportunity to address the problem in society at large. In a particular case, if he has a particular violation of a serious magnitude that gives rise to an extreme remedy, a district judge, at his discretion, may feel that the way to solve this particular problem is to take some extreme, remedial action which would not normally be appropriate, and then the question on appeal is whether he has abused his discretion, and normally one does not find an abuse of discretion. There are many, many cases in which such affirmative remedies are found to be appropriate and would be sustained on appeal. One of the cases to which I alluded this morning was a case in which the court of appeals felt the district judge had not gone far enough and sent it back for additional relief on behalf of the female employees. But you are correct, it is an appropriate thing to do in appropriate cases.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you recognize that the affirmative remedies have been really the record of the Supreme Court in attempting to provide some equal protections under the law to blacks in this country, do you not?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I am really not sure whether it was the Supreme Court that took the initiative or whether it was lower courts which did and then the cases eventually found their way up the ladder and were affirmed. There is a difference. These things really depend on the facts of the given situation. It is very difficult to generalize, particularly in the field of equitable remedies.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But it was the law of the land, was it not ? Would you say that in any kind of fair consideration of the law of the land at the present time—when it comes to examining discrimination against the blacks in this country—the courts have gone beyond striking down the narrow statutes themselves ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Frequently that is true. 34
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. When there has been the application of discretion for securing greater opportunities for blacks, have you been troubled by that action of the courts ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Not if the violation justifies that kind of relief and there are certainly cases in which it does.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would you use that same standard for women's rights as well ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I was just trying to give you some opportunity to express more of your view than just yes so we could determine some of your philosophy. You are no doubt aware this kind of exchange is helpful to us in better understanding your views on some of these issues and to balance the Congress' and the public's interest in getting your philosophy in the record on court decisions and issues.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I would like to emphasize what I regard as my primary obligation, to deal with litigants impartially, to deal with groups of litigants impartially, and not to suggest to you that I would place certain litigants in a favored class because I would not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That may not be inconsistent with the recognition that there may very well be unfavored litigants. Certainly in court decisions in the area of civil rights courts have recognized that because of a long-time pattern of discrimination against these citizens judges at the local level because of Supreme Court decisions— have recognized positive affirmative remedies to eliminate discrimination against blacks. I believe, quite frankly, that the decisions affecting blacks in this country in most instances in the Supreme Court have reflected that. You may not be a scholar in this area, but I believe any review of that would be recognized and respected. I think the decisions were based upon the sound reason that these citizens had been denied full participation in the American system for far too many years. There are many Americans who feel that women, too, have been discriminated against. I was trying to get a statement or comment from you—which I must say has not been forthcoming to this point—that would at least show some sensitivity to this particular kind of a problem. If the answer that you are going to apply the law equally to every citizen is the way you want to leave it, then that is the way the record will stand. However, I believe it is not going to satisfv great numbers of people in this country who feel as I do that there has been a broad sector of our society that has been denied certain rights because there are statutes, ordinances, and regulations which discriminate on the basis of sex. If you want to leave the record just saying that you are going to apply every law equitably that is the way it will stand.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I'd be proud to have the record stand that way. Senator HRTTSKA. Would the Senator yield for a question ?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Surely.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. I would like to speak out for the minority. There are two members of the committee here who have not had a chance to address questions to the witness. We have now listened to about 45 or 50 minutes from one Senator—who is doing a fine job for his side—but can we find some opportunity for others to be heard ?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I indicated earlier that I could come back to this issue. I will be glad to yield. I appreciate your indulgence. 35
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. Thank you. Judge Stevens, I am inclined to vote favorably on your nomination. I hope that does not prejudice you with other members of the committee. [Laughter.] We have all listened to your responses to the questions by our distinguished colleague from Massachusetts with regard to decisions you might make on equality of rights of minority groups. Certainly women who were mentioned are not in the minority in this country, but I would ask you, just as a general proposition, might not your decisions with regard to equality be based on the Constitution and the laws of the country, and the facts developed in a specific case, rather than on your own opinion as to what is right or wrong?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes, Senator, if you include in it, and I think you did in your question, the statutes enacted by the Congress, which, of course, would be a part of that.
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. And the facts as developed in the specific case ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Definitely.
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. Now, Judge, I enjoyed your visit to the office and I did ask you a number of questions. I have been informed as to the results of the FBI investigation and the report of the Standing Committee on the Federal Judiciary of the American Bar Association and the investigation of your financial situation and the condition of your health, so when I say I am favorably inclined it is from an informed point of view. Let me ask you, as I did while you were in the office and just for the benefit of the record, if we go back to our very elementary concept of government and the basic division of powers within our Government, would it be your understanding that the legislature makes the laws, that the Executive administers the laws, and that the courts interpret the laws? In a broad sense, would you be in general agreement, or would you attempt to make laws from the bench?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO, I would be in general agreement, Senator. I think we must recognize that there are statutes which have somewhat ambiguous portions in them that must be flushed out by judicial decision, and there are Executive actions that must be implemented through administrative regulations from time to time, but the basic framework, as you described it, is certainly one with which I would agree.
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. Now you are saying, are you not, Judge, that sometimes the Congress makes broad, general provisions in the law and it does not fill in the details and sometimes the Court has to interpret because of the failure of Congress to be as comprehensive as it might be or the State legislatures ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes, that is true, and it is not necessarily a failure because sometimes problems cannot be described in as great detail as would be necessary to anticipate every possible issue that would arise, but, yes, that is What I am trying to say.
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. Judge, I would compliment you on your restraint in answering some of the questions with regard to capital punishment and other matters that might come before you in the event of your confirmation and your sitting on the Supreme Court. Now I have a concern because all our Federal judges have lifetime tenure. I have sponsored legislation, that I am not very hopeful will 36 be enacted into law, which would provide for 10-year (tenure because you know once someone gets on the Federal bench there is no way in the world that we can get rid of them. Any impeachment is just theoretical. We are stuck as far as the Congress is concerned. So I ask you, and I think it is entirely proper to ask, when you become a member of the Supreme Court—and I have no real doubt that you will—is it your intention to exercise judicial restraint ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes, it is, Senator. I think it is the business of a judge to decide cases that come before him. From time to time, in the process of deciding cases, important decisions are made and the law takes a little different turn from time to time. But it has always been my philosophy to decide cases on the narrowest ground possible and not to reach out for constitutional questions. I think that is the tradition, that is in the finest tradition of the work of the Supreme Court and I think the Court is most effective when it does its own business the best.
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. I would ask one final question by way of summary of some of the questions that were asked by our colleague from Massachusetts with regard to blacks and women and minority groups. You do agree w T ith the phrase that is inscribed on the front of the Supreme Court building: "Equal Justice Under Law" ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes.
Senator William L. Scott (VA)
Senator
(R)
Senator SCOTT of Virginia. Thank you very much.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Senator Fong.
Senator Hiram Fong (HI)
Senator
(R)
Senator FONG. I have just returned from Hawaii with the President and so I have not had an opportunity to meet you personally. I have asked my staff to look over some of your decisions and to give me a report as to what they thought of them because I have not had time to go over many of them. I also have before me the American Bar Association's report stating that six Harvard Law School professors have gone over approximately 215 opinions of yours, each of them taking 35 or so. Having gone to Harvard Law School, I have quite a high regard for its professors and am willing to take their word that your decisions have been well written and of very high quality. From all reports, I am satisfied that you will make a fine Justice. I want to congratulate you on your appointment.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator Fong.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Senator Hart.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Senator Kennedy had to leave, but as a follow-up on the discussion you had with him on the basis for recusing: I am advised that in a case involving a public official in Chicago, Tom Keane, you did recuse yourself. What was the reason for that ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I am glad you asked because the press has been asking me for several days and in an effort to maintain my commitment not to have interviews in advance of the hearings, I have not answered the question before. The reason I excused myself in that case: there are really four parts to it. I might say, by way of background, you may have heard a comment I made about Judge Hastings' standards for disqualification and the modest cost to our court of having one judge step aside and not sit. 37 I might say our procedure in the court is to distribute lists of cases before they are assigned so that a judge may indicate that he will not participate before the assignments are made and before any difficulty to the system arises by reason of having to make changes too late in the system. Some years ago I was retained by George Keane, Tom Keane's brother, in a piece of litigation involving Hudson Motors and Courtesy Motors, and Jim Moran, the Courtesy Man, was the name of the dealer. It's a very large automobile dealer who was sued by a group of smaller dealers for violation of the Robinson-Patman Act. I handled the antitrust aspects of that litigation. It was a significant matter for a relatively young lawyer, and at that time I formed, I mean I had a professional association with the firm, and I met Tom Keane during the course of that work, who also did work for that same client, I believe. Sometime later I was retained by the same firm in connection with the termination of an automobile franchise of a Ford dealer and I performed that work on a professional basis. Not long before I went on the bench, when I worked on the Special Commission, I was Chief Counsel to the Special Commission to investigate the integrity of the judgment of the Illinois Supreme Court, and on a volunteer basis my chief assistant was a lawyer named Jerome Torshen, who performed a magnificent service in that particular investigation. He happened to be Tom Keane's lawyer, so there were these three circumstances, not any one of which was really sufficient to cause a disqualification, but I thought in view of the public interest in the trial that the better part of valor would be to avoid any possible suggestion that any background might taint my appearance of impartiality, and in that connection by pure coincidence, I was reading The New York Times this morning, and there is a quotation from one of my opinions, actually from my dissent in the Barrett case, in which I had said, and I did not recall this, that I felt it particularly important in the notorious public trial to avoid even the slightest suggestion of impropriety, and this was that kind of a case. So that is the reason I disqualified myself.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Thank you. The question I am about to ask does involve an. area in which you are eminently qualified. Do you believe that the Robinson-Patman Act continues to serve a useful purpose ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I have grave doubts, Senator. As you may notice from some of my writings, I think there is some tension between the Sherman Act philosophy of free competition and the somewhat regulatory philosophy of an antidiscrimination statute. I think it is close to something like motor carrier regulations, so I do not have some doubts about the longrun desirability of that kind of legislation.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. We will recess now until 10 o'clock tomorrow morning. [Whereupon, at 3 :50 p.m., the committee recessed, to reconvene at 10 a.m. the following day.] Chairman EASTLAND. The committee will come to order. Senator Byrd.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge Stevens, you have served as a Federal judge for 5 years on the Seventh Circuit Court of Appeals. You indicated that your work as a Supreme Court Justice would differ from the kind of work that was yours as a member of the circuit court of appeals. You indicated that there would be a more restrictive framework within which you would have to work. Would you approach cases any differently constitutionally than you did as a circuit judge ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO, Senator, I would not. I just think I have to recognize the fact that, by virtue of the flow of cases through t 40 Our practice, when that was done, was, in advance of the publication of the opinion, to circulate the proposed opinion to the entire Court so that the entire Court would have an opportunity to decide whether or not the desirability of reaching the result different from one in the past outweighed the factor of stare decisis and the consideration of certainty and predictability that we all recognize as having importance.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. HOW would you view the rule of stare decisis as a member of the Supreme Court of the United States ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think in much the same way. I think there would be times when the Court might be called upon to reexamine earlier decisions which might have been incorrectly decided. But I think it is still an important value and perhaps particularly so at the national level because there is so much more reliance on past decisions in the Federal system when it is a decision of the U.S. Supreme Court. So I would think your basic considerations are much the same, that there is important value in a system of law which is largely developed on a case-by-case basis to give appropriate respect to that which has been decided before, but yet there are occasions when the desirability of certainty and predictability is outweighed by other factors.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would you say that precedent is entitled to a great deal of respect on constitutional questions before the Supreme Court ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. HOW much would you feel bound by the precedents that the Supreme Court has established on constitutional questions?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, Senator, the word bound is a little difficult for me to apply accurately. I would say that I certainly would weigh very carefully any decision that had already been reached by a prior Court and I would be most reluctant to depart from prior precedent without a clear showing that departure was warranted. I would feel bound, but not absolutely 100-percent bound; I think I could not, in good conscience, say that. I think there are occasions, particularly in constitutional adjudication, where it is necessary to recognize that a prior decision may have been erroneous and should be reexamined.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. TO which would you give greater weight, prior recent precedent or prior earlier precedent, where the two might conflict ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I suppose if you assume a direct conflict between the two, the more authoritative precedent would be the more recent one because, presumably, it would have overruled the earlier one. But if you have two different situations where they are not directly in conflict, I really don't know. I don't think one can judge entirely on the basis of time. I think, if it was an opinion by a Justice such as Justice Holmes or Justice Brandeis, one would think very carefully before tending to disagree with him. If it were some Justice that had commanded less respect from the profession, one might be more willing to do so. I think it is not simply a question of age, Senator. Senator BYED. Would the division of votes have any weight? For example, if a recent precedent was by a 5-to-4 decision, and the earlier one was by a 9-to-0 decision, and the two were in conflict; would this have any weight ? Judge STEVENS. I think it would. But again, there is a caveat—and I want to be as straightforward as I can about it—it is my understanding 41 that decisions that appeared to be unanimous in prior years were not, in fact, always so. There are private papers of some of the Justices that indicate that it was more customary then than it has been in recent years for Justices to go along with the majority opinion rather than to voice dissent. So sometimes the unanimous opinion is somewhat deceptive and I think one has to be a little bit careful about overstating reliance on the factor of unanimity. But I would agree that to the extent that the decision was unanimous rather than closely divided you would tend to give more respect to it and feel more comfortable in figuring that it really did command a unanimous view. And also I think in the 5-to-4 decisions usually the countervailing argument is spelled out in some detail so you have, right on the face of the decision, reasons to consider the opposite conclusion as well.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. HOW do you feel about the idea that there should be unanimity on any constitutional question when some of the Justices may be prone to dissent or disagree?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, it has been my practice—and this is not a universal practice among appellate judges but it has been the topic of discussion in appellate seminars and the like—it has been my practice to dissent whenever I disagreed with the majority. That is one reason why you may find a larger number of dissents among my opinions than you do for some other judges. I know there is one school of thought that the appearance of unanimity tends to add stability and respect to the law. My own view is that it actually facilitates the fair adjudication process if everyone states his own conclusion as frankly as he can. I think it also serves the purpose to let the litigants know that they have persuaded one or two judges, and I think they are entitled to know that. They are entitled to know that their arguments were understood and they were persuasive to some even though not to all. And I found in my court, although I did dissent a great deal, that if it is done in a forthright way it does not stimulate dissension within the court. We had a very harmonious working court, notwithstanding the fact that we all felt free to dissent whenever we simply did not come to the same conclusions as the majority did. My practice is to dissent when I disagree.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. A dissenting view often becomes the majority opinion in time, does it not ? It often becomes the majority view at some future time ? Judare STEVENS. It does in those cases in which the later generation of judges is persuaded that the merits of dissent, as opposed to the merits of the majority, outweigh the desirability of stability and uniformity in the law, which is the value of the stare decisis theory. So there is always that balance. Senator BYRD. It seems to me the desire to have unanimity, if it is too overriding, can breed disrespect for the court's opinions.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think there is that danger. I would agree, Senator.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. What is your view of the idea that the Constitution had a fixed and definite meaning when it was adopted and that the same fixed and definite meaning prevails today but that it must be applied to changing circumstances and interpreted and construed in the lijrht of those circumstances ? 42
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well Senator, any attempt to write rules, whether they be a Constitution or in a statute or in any process of formulating rules by which we must govern ourselves, inevitably leaves areas of open questions that require study and analysis before the basic document can be applied to a specific factual situation. The more fundamental the charter is, the more it must, necessarily, contain open areas that require construction and interpretation. And to the extent that open areas remain in our Constitution, and inevitably a large number do—I must say, I don't mean to digress too much, but I have been constantly surprised in my work how many questions have not yet been decided, statutes, Constitution, all the rest—where there are open areas, the judge, I think, has the duty, really, to do two things. One, to do his best to understand what was intended in this kind of situation, and yet to realize that our society does change and to try to decide the case in a context that was not completely understood and envisioned by those who drafted the particular set of rules. So there is an open area within which the judge must work. I think he has to be guided by history, by tradition, by his best understanding of what was intended by the framers, and yet he also must understand that he is living in a different age in which some of the considerations that happen today must inevitably affect what he does. So you just do the best you can with all the factors that you put together in a particular case.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYKD. DO you feel that a Supreme Court Justice should allow his personal views of the law to override longstanding precedents because he feels they have been ineffective in dealing with social problems that might happen to be a matter of controversy at the time?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO, Senator, I do not. In the area of policy judgments, I think the legislative branch is the branch which should make the policy judgments. Now again I think we have to be realistic and recognize the fact that when you get into these open areas, that I have mentioned, no matter how hard one tries to subordinate his own philosophy sometimes it may not be completely possible. I can say, though, in all sincerity and without the slightest hestitation, that there have been many cases on which I have sat as a court of appeals judge in which I have voted for a result which I did not personally consider to be the wisest way to handle a particular problem but which was, in my judgment, clearly the result which was required by legislation or prior decision or the Constitution. Certainly you do not have a charter of freedom to substitute your own views for the law.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. YOU do not view the Supreme Court, then, as a continuing constitutional convention, or as a legislative body ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO ; I do not. But again I have to say there are decisions which inevitably have a lawmaking character to them. I think some of that is inevitable.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. But where those are areas in which the legislature should act, and has the clear responsibility to act, you do not feel it would be the responsibility of the Court to act in such a way as to legislate ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Definitely not. 43
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. If you were confronted as a Supreme Court Justice with a case that dealt with the same legal principles as a case that came before you as a judge on the Seventh Circuit Court of Appeals, how hesitant would you be to decide the case in a different manner than while serving as a circuit judge ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I must answer that in two parts, Senator, because I have some concern about the extent to which I should sit on cases which present precisely the same issue I might have ruled on as a court of appeals judge. Clearly I should not do so if I sat on a particular case, and one of the canons refers to avoiding cases where one has a fixed idea about the merits or something like that. So I am kind of uncertain about how that applies to cases raising issues similar to those on which I have sat. I am in the process of thinking that through, to be quite frank about that. But would I feel free as a Supreme Court Justice—I think it is most unlikely that I would as a Supreme Court Justice come to a different conclusion, because I would think that the reasons that persuaded me that the law required result A in the earlier case would be equally persuasive to me when I sat on the other tribunal.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Although there might be conflicting decisions by other circuits that you would consider as a Supreme Court Justice which might have come along subsequent to the case on which you sat as a circuit judge?
John Paul Stevens
Nominee
(R)
Judge STEVENS. If they raised arguments that I had not considered then I certainly would reappraise the issue in the light of the arguments I had failed to appreciate. But the mere fact it was another court of appeals making arguments I had already considered, I doubt if that would be particularly persuasive to me.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would your prior decisions as a circuit judge have a strong influence on cases that you might hear before the Supreme Court ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, Senator, not simply because they were prior decisions but it is usually true that after I have taken the time one takes in the court of appeals to come to a conclusion, I am pretty well convinced that is the result the law requires. I think it would be highly probable that the same process of reasoning would bring me to the same result again. But there have been occasions on which, upon further study in depth of a case, I have changed my view from what I originally thought the correct result was and I would not hesitate to do so if I was persuaded T was wrong the first time.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. What is your view of the role that the Supreme Court should play in adjusting the rights of society and the individual in the administration of justice ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I think I may have said this before, and I don't mean to be repetitive, but I really think that the business of the Supreme Court—as it is the business of other courts—is to decide cases, to decide specific controversies that the Court has jurisdiction to decide pursuan t to article III of the Constitution. In the process of adjudication certain law is made and changes develop but the changes really, I think, are initiated by the litigants putting forth new claims some- 44 times found to have merit and sometimes rejected. I do not think it is the function of the Court to search for issues or to regard itself as sort of commission to reform the law or something like that. There is plenty to do in simply deciding the cases that the litigants bring before the Court and that process the law does develop.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you feel that a Supreme Court Justice should interpret the Constitution in accordance with his own personal views on economic and political and sociological questions ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, Senator, again I think I would make much the same answer that I did before: that one must study the document, the language used, and the intent of the framers, and the w r ay in which one thinks the framers would have sized up the problem now presented. One should always subordinate his own personal views, whether they be economic, social, political, or whatever they may be, because when you are talking about your own views you are only one of millions of individuals in the country. When you are interpreting the law, perhaps you have a special skill and special training that does give you the right to pass on these questions. I have to confess that in this open area, sometimes inevitably, a man is the product of his own background and he may be somewhat influenced. But I will do my very best to subordinate those considerations because I think that is the duty of any judge.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would you have any hesitancy in getting into political questions ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. The term "political question" is used in many different ways, Senator, and I want to be sure I answer them fairly. If the term political question is used in the judicial sense of a question which is appropriately to be resolved by another branch of the Government, such as the legislative or executive, then I would not merely hesitate, I simply would say the Court has no jurisdiction because there is a jurisdictional doctrine that the Court has no business deciding political questions in that sense. There are, however, cases that come before the Court which involve political ramifications, such as a contest for election between two candidates for the office of U.S. Senator, or something like that, which the layman would characterize as political issues. In those cases, the fact that it is political, as far as I am concerned, makes it no different from any other case. We have to face up to the question and decide the legal question, then we must do so. We decide it on the basis of law, not, of course, on political affiliation of the litigant or anything of that character which would be irrelevant.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Where statutes are sometimes vague and unclear, do you think that the Supreme Court would have a duty to expand the stautes so as to apply to a circumstance that is clearly beyond the original intent of Congress if the Court felt that the statute did not go far enough?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. In your opinion, do the difficulty and the grpat time thnt nm, involved in amending the Constitution jnstifv thp Supreme Court in changing established interpretations of the Constitution?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, Senator, I do not think that is a factor which affects the decisions on particular issues. As I indicated, there are times when the course of decision necessarily changes somewhat, but I do not think one could say that because of the difficulty in amending the 45 Constitution, that it would be a proper function of the Court to assume that it had the authority to amend the document itself. I would think clearly it does not.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. The Constitution says that each House shall determine the elections, returns and qualifications of its own members. Do you view the Supreme Court as having any role ? Would you say that there was any appeal from a decision by the Senate, let us say, in determining the returns in the election of one of its own Members ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. This happens to be an area in which I have written an opinion, and I think the law is quite clear that that would be a political question with respect to which the Court would have no jurisdiction.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. In the event of an impeachment of a President of the United States and the conviction upon trial by the Senate of the United States of that President, do you feel that there is any appeal from the decision of the Senate ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I will answer that question but I should preface my answer by saying that I have not studied the issue with care. I, of course, was conscious of the issue during the last period of time. I would say my first reaction to the issue was that there would be no appeal but I really would not want that to be interpreted as a considered judgment of the issue because I have not studied it. I think it is not inappropriate for me to respond to it because I consider it so unlikely that the issue will arise during my term on the Court that I do not hesitate to respond to you as best I can.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, I am pleased at your response on both of the last two questions. As you know, we have had occasion to look into both of these matters in recent times, and I have expended a considerable amount of time on both questions. I feel as you do as expressed by your responses to my questions. The Constitution, in article III, after enumerating many categories of cases over which the Supreme Court has jurisdiction, goes on to say: "In all of the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact with such exceptions and under such regulations as the Congress shall make." Have you ever pondered that particular subject with reference to the possibility of Congress, perhaps, taking some action to create exceptions and to make such regulations as are contemplated ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I recall pondering that section during law school, and I recall pondering that section when I was considering a case involving the right of the defendant to demand a jury trial in a housing discrimination case. But I have not thought about all of the rnmifications of the section, and I am not quite sure how much in-depth thinking I would have to do to answer your last question.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you feel that there may come a time and circumstance in which the Congress would be wise to use that power?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, certainly Congress has such power, and, of course, whether it is wise for Congress to exercise that power is really for Congress to decide, not for me to decide. But if the power exists, I must assume there may be the occasion w T hen it would be wise for it to be exercised. I think that is about the best I can do.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge Stevens, you may have gone into this area yesterday in response to questions that were asked—I was unable to be present throughout the afternoon—and if you have, please say so. 63-774—75 4 46 What are your feelings on the Federal Government's use of various surveillance methods, including wiretapping; first, as to their use in protecting national security interests; second, as to their use in the preventing of Federal crime; and third, as to their use for general surveillance where there is neither a demonstrable danger to national security nor a danger of an imminent crime being committed ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. There was some discussion yesterday, Senator, about this, but I have no hesitation in restating as briefly as I can the substance of what I understand to be
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. If you have already laid the answer on the record, you do not need to repeat it now. If the question is different to a degree
John Paul Stevens
Nominee
(R)
Judge STEVENS. They do differ to a degree, Senator, and I would not want you to think I had answered that completely. I think in the third area that you describe, general surveillance and the use of wiretapping, I do not think there is now statutory authority for that type of thing. I think that, of course, there is an extremely important interest in privacy that must always be evaluated before any such law enforcement technique is applied. In the second—and I am going backwards through your three areas—in the second area, crime detection and enforcement generally, I indicated yesterday my very firm belief that Congress was wise in having the checks on the use of that technique, that it has, specifically, the requirement of an approval by the Attorney General and then approval by the judges. In that connection, I made a point which I would really like to emphasize. I think that throughout the system, it is just as important to be sure that we get people we can trust in high office as it is to write laws because laws have to be administered. The confidence in the people administering the laws is something we must always value and keep in mind. We have that kind of confidence today and I think it is a very important factor in society. In the national security area, I really am not prepared to comment, Senator. I understand that somewhat different considerations are involved. I understand the Court has had one case in that area but I am not sure I can go beyond what I have said.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. What are your general thoughts in the area dealing with prior restraint on the media of the United States. You may have been asked this question yesterday.
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO ; I was not, Senator. There was one question in which the tension between the fair trial interests of the trial procedure as opposed to the free press interests were involved. I place a very high value on the first amendment and I place a great respect for the informing function that the newspapers perform and the press generally performs and I think you would find that I would be quite sensitive to claims predicated on the first amendment. I think perhaps a general statement of my views is enough but if you want more I would be glad to enlarge on it.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would you say that the first amendment is the highest and best protection that the media can have ? In other words, that no law that Congress could enact would ever improve on that first amendment phraseology ? 47
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think that is correct. I think that this is a fundamental aspect of the Bill of Rights. It is one of the fundamental things that makes democracy work the way it does. I think it is of great importance. I think the fact that I have been reluctant as a Judge to communicate generally with the press should not be taken as any lack of interest or sympathy for the very important work they perform. It is just that in my particular office it is inappropriate for me to make statements about policy.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Serious violations of law by the media have been dealt with by punishment after publication of material. What are your thoughts in this regard ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I may not have quite understood your question, Senator. I am sorry.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I said that there have been violations of law by the media that have been dealt with by punishment after the publication of certain material. What are your general thoughts?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, if the law is a constitutional law and does not go beyond the limitations imposed by the first amendment, I would think the violation of the law by the press could be dealt with just as the violation of law by any other segment of society should be dealt with. I would not say they have any immunity from compliance with statutory law to the extent that statutory law is constitutional.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Yesterday, you indicated that the Congress should act to increase the number of judges in order to meet the problem of overcrowT ded dockets and so on. Can you think of any other improvements that would aid in improving the situation?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes, I can, Senator. I did not expect to address this subject in this forum, but I would like to identify what I regard as a problem which approaches crisis proportions. It is the salary situation for Federal judges. I am personally aware of many qualified people who have been asked to assume the bench, and who would have performed magnificently on the bench, who have been unwilling to do so, when they feel they have an obligation to their families, because of the dramatic disparity between what they can earn in their private practice and the relatively modest salaries that are paid to Federal judges. I really think that the quality of justice in the country is at stake when Congress does not face up to its responsibilities to pay these men what they are entitled to receive.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge Stevens, do you know what the retirement pay is for a Federal judge?
John Paul Stevens
Nominee
(R)
Judge STEVENS. If he qualifies he draws his full salary.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you know how much he pays into a retirement fund?
John Paul Stevens
Nominee
(R)
Judge STEVENS. No. I know what my paycheck is each month.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I understand that he pays nothing into a retirement fund.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I also know he is paid less than State judges in most States in the Union now.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I also know that I could form a line from one end to the other of this building of very capable individuals in both political parties who would just be delighted to be appointed to a Federal district judgeship. 48
John Paul Stevens
Nominee
(R)
Judge STEVENS. And that line, Senator, would include men who have accumulated great wealth. It would include young men who are not now making the salary a Federal judge makes. It would not include very many qualified individuals who have families to raise and who can make double that money in private practice.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I could fill the line with qualified people.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I could give you a line of men who have rejected the appointment in large metropolitan areas. I could cite to you the names of judges who were performing magnificent service who have resigned. I think it is tragic.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I think there is some merit to what you say. If we would couple an increased salary with the requirement that they pay into a retirement fund and that the retirement they would receive would be commensurate with the retirement that Members of Congress receive then there might be a balancing of the equities here.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, most of us
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. And may I say that I have to hold Congress to blame for these inequities that prevail.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think that most of the men that you want on the bench would prefer not to be thinking primarily of retirement but rather of how they are going to perform when they are on the bench and when they are in the most productive years of their lives.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. That is very true. But there comes a time when we all have to retire, if we live long enough. We have to plan for it. There is also a view—and I think there is some validity to it—that many judges do not spend enough time on the bench.
John Paul Stevens
Nominee
(R)
Judge STEVENS. That is not true in the seventh circuit, Senator. We have a very hardworking court. Let me just give you one statistic. I read the transcript of Justice Blackmun's hearing. I have the greatest respect, as I said yesterday, for Justice Blackmun. In the 10y2 years that he served on the eighth circuit, and that was a busy court during those years, he did less work in terms of output of opinions and sitting on cases than each of our judges in the seventh circuit has done in the 5 years that I sat on that court. And he was paid in terms of the real value of dollars a salary that was about twice as much—well, that is an inaccurate statement, but our salary has been declining each year in terms of the real value of dollars as our workload has been going up. In each of the last 3 years we have disposed of more cases than the number of new cases filed and the number that are filed is more than double what it was a few years ago. They are a hard-working group of judges. There are some judges, perhaps, who do not work hard, but that has not been my experience with the Federal judges with whom I have had contact. And I have had contact with those in other circuits as well.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. We have provided another judge for the seventh circuit.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I wish they would provide another judge for the northern district of Indiana. The judges there are so loaded with criminal work that the civil litigants just cannot get to trial.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. What is your view as to the workload of the Supreme Court? I realize that you are not yet a sitting member, but you certainly have a long-distance view of that work and the time that is taken 49 by the Justices as most of us are able to view it. Do you feel that they are overworked?
John Paul Stevens
Nominee
(R)
Judge STEVENS. It was my view as a law clerk back in 1947—and I should correct the record in one detail, I was a law clerk for only 1 year and not 2—it was my view then that the Justices worked very hard, all of the Justices on the Court. I think it is still true. I do not think it is a part-time job. I think it is a full-time job. I think that no matter what the caseload is, the men who sit there recognize the responsibility to give the best they have. I am not really sure the workload there is any harder than it is on our court. I think that the attention that has been given to the serious workload problem in the U.S. Supreme Court has tended to divert attention from other problems of equal importance to the entire judiciary, specifically the terrible strain at the court of appeals level and in many districts at the district court level. I mentioned the northern district of Indiana. In the western district of Wisconsin, Judge Itoyle, one of the very fine judges, is just swamped with work. He can hardly keep up. This is true in many places in the country.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Undoubtedly, also, the situation is that the work would not be behind and the dockets would not be so overcrowded if all judges spent more time at their work. Would you agree with that?
John Paul Stevens
Nominee
(R)
Judge STEVENS. That mav be true, but as I say, the judges that I have seen working do not fit that description. I do not really think there are very many in the Federal system. There may be some. No doubt there must be. In any system, there are bound to be some shortcomings from what we would desire. I think if you took people at random out of the line who are waiting for this job that you are talking about that might be true.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge Stevens, I have been a Senator for 17 years and I know something about that line I am talking about.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I must say that for the last 5 years the job that they are doing is quite different from what it was during the first 10 or 12 years of that 17-year period.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I agree with that and the same can be said about the problems and issues that we are dealing with in Congress.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I agree completely, Senator. I would not depart a bit from that. I think we are all swamped with work and that is one of the tragedies of the situation today of having inadequate time to do the work the way we want to do it.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. YOU have written several articles on antitrust mattors. You have written two published nontechnical works. One is a book review and the other is a chapter on Justice Rutledere in the book entitled "Mr. Justice." In your book review of Richard F. Wolf son and Philip Kurland's second edition of Robertson and Kirkham's "Jurisdiction of the Supreme Court of the United States" you discuss a change in the attitude of the Supreme Court on appeals from State courts—cases that were dismissed for want of a substantial Federal question with the dissent of one or more Justices. You point out that despite four votes beinsr necessary to grant certiorari, often the court had granted the writ if two or more Justices felt the case should be heard. At the present time do you feel that it would be advantageous for the Court to grant certiorari in such cases when less than four Justices feel the case should be heard ? 50
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I must confess I do not recall the book review from which you are quoting but I will not fail to answer the question for that reason. I simply have no recollection of it.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I think it was in the New York University Law Review, volume 27, in 1952.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I am sure I must have written it if it is there but I simply have no recollection of it whatsoever. But in any event to answer your question, I really have a feeling this is a subject on which it might be somewhat unseemly for me to speak. I would say this much, that I think generally an institution such as the Court should have a rule that normally governs its procedures but those things can sometimes be taken care of by the respect which one Justice has for another. In other words, if there were three votes to grant certiorari and one of them felt especially strongly that the case should be heard, often, as a matter of courtesy, I think another Justice might say, Well, I will cast my vote with the three in order to grant certiorari. I think there has to be a certain flexibility and informality in the administration of that kind of rule. I don't know if I could go much beyond that.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. In 1956 you contributed a chapter on Justice Rutledge to the book "Mr. Justice."
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes I recall that.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Edited by Dunham and Kurland. On page 340 of that book, you state: Neither the purpose to curb inflation during war, nor to settle a coal strike that was threatening a national economic crisis, would justify the use of a court as an instrument of policy. Was this a statement of Mr. Justice Rutledge's view, or was it a view that you held personally ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. It would be my own view. I think it would also be Mr. Justice Rutledges' view. I have a recollection that I refer in that article to his statement that no man or group is above the law, or words to that effect, which I think I was surprised to find him use twice in the same opinion. He was known for writing long opinions. That was sort of a small example of his, perhaps, writing more than he needed to, but it was an important point worth making twice.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you now personally feel that a serious national crisis would justify the use of any court and especially the Supreme Court as an instrument of policy ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. No; I do not.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. In "Mr. Justice" you also stated: Read in the context of the entire United Mine Workers dissent, the implication is strong that the Supreme Court itself was in the Justice's mind when he twice said—and this is the quote by Justice Rutledge—"no man or group is above the law." Do you presently share the view that no man or group, including the Supreme Court of the United States, is above the law ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Very definitely.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Were you Justice Rutledge's law clerk in the Yamashita case in 1946 ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO ; I was not.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. YOU end your chapter on Rutledge with a quote from the Justice's ringing dissent in the Yamashita case: More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should bo justice administered according to law. In this 51 stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the Second Inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens; alien enemies or enemy belligerents. It can become too late. This long-held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered. If we need not or cannot be magnanimous, we can keep our own law on the plane from which the defeated foes' never rose. Twenty-nine years have passed since those words were written. I am curious as to how you would respond philosophically to the opinion in this case. Is this a concept of law you would take with you to the Supreme Court if you are confirmed ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, when I wrote that chapter on Mr. Justice Kutledge, I felt I could not improve upon his language at the time it was written and I could not do so now.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. It would be difficult to improve upon that language. You were concerned with a lack of procedural safeguards in getting a conviction in the Yamashita case. Do you feel now that strong public opinion can cause a due process problem in cases before the courts, especially before the Supreme Court ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think that the danger that press comment on the criminal trial would cause a due process problem primarily exists at the trial court, that is where there is the greatest danger that an unsequestered jury may be influenced by a matter outside the record. I would not think that the same danger exists in the appellate courts because judges should be able to separate out what is properly before them in the court record and what they read in the press.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you see any way to lessen the problem of lack of proper time for preparation on the part of the Supreme Court Justices when thev are faced with a case on which the Court feels it must reach a quick decision due to various pressures?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO, I think when you are given the predicate that they feel there must be a decision within a given period of time, by hypothesis it must be done within that period of time, but I certainly think that the decision that it should be decided at a particular time, should be very carefully made. Part of Mr. Justice Eutledge's dissent in the Yamashita case was really an objection to the accelerated schedule which he did not think, and I think quite properly, justified any deviation from what otherwise would be proper procedure.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Have you been an officer, director, proprietor, or partner in any business firm or enterprise other than your old law firms ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Not since I have been on the bench, Senator. I had been a director of some companies before I assumed the judgeship. In private practice, yes, but not since I have been a judge. I provided a list of those to, I believe, the Department of Justice when I first went on the bench and I have resigned from all of them.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. And I take it you have not received any benefits from any business firm or enterprise since becoming a Federal judge? 52
John Paul Stevens
Nominee
(R)
Judge STEVENS. With this qualification, Senator. There were some payments made to me pursuant to my separation agreement with my firm on account of services performed before I went on the bench. I have received no compensation, no extra judicial income on account of any activities since being a judge. Senator EYED. And was that information also provided to the Justice Department? Judge STEVENS. It was in connection with this nomination, not in connection with the prior nomination because the negotiation of our separation took place after my nomination. But all those details were provided and they had been disclosed to everyone with an interest in the matter.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would you state again the response to my question as to whether or not you have received any benefits from any business firm or enterprise ? You indicated that you had, but that they had not been for services performed after you became a Federal judge?
John Paul Stevens
Nominee
(R)
Judge STEVENS. That is correct. Apart from the payments made by my former law partners to me on account of services performed before I went on the bench, I have received no extrajudicial income except in the form of either dividends, for a brief period of time when I still held some stock—I have no stock now—and interest payments on some bonds that I hold and interest on a savings account. I have no business income of any kind.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. And you have no ties with any business firm or enterprise ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. None ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. None.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Thank you, Judge Stevens. I congratulate you on your nomination and I commend you on your responses to my questions.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Senator Burdick.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. Judge Stevens, I want to add my voice to those of the other members of the committee who have congratulated you on your nomination. Before I get into my questions, I would like to advise you that this committee has recommended an additional circuit court judge for the seventh circuit. We have also recommended an additional judge for western Wisconsin and for northern Indiana. The circuit court judge bill has been passed by the Senate and is in the House. I think you will be pleased to hear that.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I am indeed pleased, and I will, of course, also be pleased when the existing vacancy is promptly filled.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BTJRDICK. Well, that's not in our department.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I understand that.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. Like Senator Hart, I have had assistance from my staff in reviewing a hundred or more of the opinions which you have written or participated in while in the Seventh Circuit Court of Appeals. Generally speaking, these efforts have not prompted me to ask any questions about your views in any particular opinion you have written. However, I would like to ask you about your general impressions about a subject which affects the overall problems of judicial administration. 53 As you know, we have 400 district court judges and 97 circuit court judges. The committee has recommended legislation which would create 45 new district judges and 15 more circuit judges. Some studies have been made by the Federal Judicial Center which forecast a need for 1,129 district judges and 250 circuit judges by the year 1990. if the rate of increase in new case filings continues at the same pace. Do you have any conclusion about what problems there would be in the Federal judicial system if our only solution to increased caseloads is to increase the number of judges in proportion to the increased caseload ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. If this becomes necessary—and hopefully the explosion in the volume of cases will not continue at the same pace, it may or may not, we really can't be sure yet—but if an increase in the number of judges of the magnitude that is projected becomes necessary, and, of course, it may, 1 would think it would necessarily follow that we would have to start dividing the circuits and have a larger number of circuits and divide the larger circuits, such as the ninth and the fifth now, at least in half and gradually reduce the geographical area that they have jurisdiction over. I think a court as large as the fifth or the ninth probably does not function as effectively as one of about eight or nine judges. I have the feeling—and maybe that is just because I worked in such a court and it seems to have been an efficient judicial unit—I think you need several judges to take care of the conflict problem I discussed yesterday when someone can lean over on the side of recusing himself. But when you get too many judges you have a problem if you have en bane hearings, administrative problems, and I think it is also unfortunate in other circuits that the judges do not live in the place of holding court. I think we have an advantage by being in Chicago. I think there is an advantage derived from efficiency that way. I think that perhaps the first thing that would have to be done with a larger number of judges is to increase the number of circuits.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. There has been much testimony before the Subcommittee on Improvements in Judicial Machinery that to have an efficient court you need to keep it to about 15 judges. This would seem to be a general conclusion of the judges who appeared before us, that a court should not have more than 15.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would think even that is a little large, but perhaps I should defer to the judges on the fifth circuit on that. I do not think you should get larger than that certainly.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. In the case of T.P.O. v. McMillan, 460 Fed. 2d. 348, the seventh circuit held that a magistrate, the office we created o years ago, did not have the power to decide a motion to dismiss or a motion for summary judgment. While you did not participate in that decision and while I am not questioning the decision, I would be interested in your views about the advisability of clothing a judicial officer with certain powers to make proposed findings which would be referred to a judge of the court for ultimate decision. What are your general views on this question and what do you think about the jurisdiction of the magistrate ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Of course, I am familiar with Judge Sprecher's opinion in that case. It did involve his interpretation and the panel's interpretation of the statute primarily. I think the power of the magistrate can be enlarged somewhat. I doubt if it can be enlarged to the extent of ruling on matters such as motions to dismiss. It seems to me 54 when you are talking about the legal sufficiency of the claim, that should be a matter for the judge, but I think there are areas in the supervision of discovery and in a preliminary investigation of facts, and the presentation of tentative findings of fact, in which the magistrate could appropriately be given additional authority which would be helpful to the judge and help solve the overload problem.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. Testimony indicates that the magistrates have been very helpful to the district judges.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think that is right.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. YOU are aware of the problem, and you are also aware, I presume, of the attempt of this committee, at least, to give a little more authority to the magistrates ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes. I think I would generally support that.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. Judge, I understand why you declined Senator Kennedy's invitation to attach any label as to your judicial philosophy. At the same time, you can appreciate that members of this committee, and in fact all Senators, like to know something of the nominee's judicial philosophy before voting on confirmation. You furnished me a copy of the speech made at North western Law School about a year ago on Law Day, and I will now read a portion of that speech: , Every decisionmaker, whether he be an umpire at the World Series, a legislator, a corporate manager, a member of a school board, or a federal judge, is fallible. But if he has earned the right to make decisions through an acceptable selection process, it is safe to predict that most of his decisions will be acceptable. Sometimes he will violate a rule that commands universal obedience, and such error must be corrected. But we should not attach undue importance to the occasional mistake. For the potential error—indeed the inevitable prevalence of a domest amount of error—is an essential attribute of any decisional process administered by human beings. The prevalence of widespread potential for error among other decisionmakers is one of the factors that repeatedly prompts invitations to federal judges to substitute their views for the erroneous conclusions of others. Sometimes I think federal judges have succeeded in creating an illusion that they are wiser than they really are because their self-imposed limitations on their jurisdiction must .have left many losing litigants convinced that if only the federal judge had reached the merits, surely he would have ruled correctly and, of course, the winning litigant knows how wise the judge is. Be that as it may, the temptation to accept an invitation of this kind is always alluring, but whenever the federal judiciary does accept, three things inevitably happen. First, our workload increases and our ability to process it effectively diminishes. The risk that we won't have time to finish the exam becomes more and more real. Second, the potential for diverse decisions by other decisionmakers in dminished and another step in the direction of nationwide uniformity is taken; for after all, we are federal judges. And third, we substitute our mistakes for the mistakes theretofore made by others. Sometimes that price is well worth paying; fTTs, however, a cost of which we should always be conscious. My question is this. Does the statement I read fairly reflect part of your judicial or legal philosophy, or do you want to expand or add to that statement ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; it does. Senator. I should, perhaps, explain that in the first paragraph, if I remember the speech, I recited the fact that T had obtained a commitment from Dean Rahl at Northwestern that what T said would never be published because I was speaking in a very informal way and taking little time to prepare, but I have reread the speech because I was told vou might ask me about it, and I stand by what I said in the talk. T think it does fairlv reflect mv view. 55 I think that there are costs to having judges reach out for issues that need not be decided to dispose of litigation before them, and the cost is greatest when it is the Federal court that does that because of the implication of the Federal decision having a nationwide impact. So, that speech does, in sort of a rough, informal way, indicate the reasons why I think judges should impose on themselves the discipline of deciding no more than is really required to adjudicate controversies.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BTIRDICK. Finally, Judge Stevens, Chief Justice Taft, at one time when he was testifying before this committee for proposed legislation to give the judicial councils of the circuits certain supervisory powers over district judges, made the following statement about the indifferent judge, and I quote: "He thinks that the people are made for the court, not the courts for the people." Judge Stevens, does that phrase of Chief Justice Taft suggest anything to you, that the indifferent judge thinks that people are made for the court instead of the courts for the people ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. T would have thought it was the other way around. Maybe I did not hear it correctly, that the people are made for the courts ? I would say the courts, the business of the courts is to serve the people, and, of course, our society as a whole.
Senator Quentin Burdick (ND)
Senator
(D)
Senator BURDICK. That is what I was asking. Thank you very much.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Senator Mathias?
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman. Judge, prior to the time that President Ford nominated you for the Supreme Court, a number of members of the press were very curious as to the kind of standards that the Senate raised for judicial nominations. They called me and said, what do you think the test ought to be ? I finally came up with a very simple one. that the candidate should be honest and that he should understand the spirit of the Constitution, the essence of the Constitution. I believe that is the test, and from all I know about you I think you meet that test and I am confident that our hearings will ratify my own judgment and you can be confirmed.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. There is a rollcall vote in the Senate. When Senator Mathias finishes his question, we will recess for the vote and then be right back.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHTAS. That does not mean that every member of this committee and of the Senate has to agree with every decision that you have handed down, or that we would necessarily decide the same cases in the same way. What I think it does recognize is your integrity, your intellectual capacity, and your understanding of the spirit and substance of the organic document which has guided this republic for so many years. When we return from the rollcall vote, I do have a few questions in some specific areas of the law as they approach the Constitution that I would like to examine with you. I hope you will excuse us for a few minutes. I V brief recess was taken.]
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Let us have order.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Judge, I would like to raise with you what might be called the question of the firstness of the First Amendment and what sort of priority yon would give to the First Amendment when it roll ides with other rights. We hear a lot these davs about the right of 56 privacy and the right to a fair trial, and I wonder how you balance these colliding or conflicting concepts of law ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I place the highest possible value on the interests protected by the First Amendment. I also place an extremely high value on the interests protected by the due process clause insofar as it guarantees fair procedure to every defendant. It is awfully hard to say in the abstract, Senator, which priority would govern in a particular case because the facts do vary from case to case. I certainly would not suggest at all that there was any constitutional provision of greater importance than the First Amendment, but I don't think that I could say that whenever there is a conflict between the First Amendment and the Fourteenth that you can count on me to rule for the First because the facts might not quite fit that formula.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I am not asking you to try to prejudge cases in which the fact situations have not been presented, but I think your answer is what I was groping for, which is that in a situation where everything else was equal, you would put the First Amendment first.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would think that is right, and I think I have recognized the values protected by the First Amendment in some First Amendment cases where my colleagues have not. I think those cases can be found and could be identified. I do not think you will have any trouble with my high regard for the values protected by that portion of the Constitution.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In a somewhat related vein, I would be interested in how you feel about State actions under the Fourteenth Amendment and where you draw the line ? Whether it is a narrow line or a broad line, and perhaps the kind of classifications that might be adopted in order to develop some line of State action ? It has been held over the years that if there is some rational basis for a classification, that might rebut a presumption that discrimination w T as involved in State action. More recentty classifications have been suspect. For instance, a classification which involves a racial question is now a suspect classification even though some rationale might be advanced to support it. The case of sex classification is, I think, not yet fully determined in the law. I wondered how 3^011 would feel when these questions impact on the Fourteenth Amendment ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I think there are three parts to your question, if I may be as precise as I can.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. YOU are very astute. There were precisely three as I had it written down.
John Paul Stevens
Nominee
(R)
Judge STEVENS. First, there is the question of whether there is sufficient State action to warrant Federal intervention at all, the kind of Federal intervention where you would reach the merits of a particular controversy. It is in that area that I, perhaps, have written some opinions which are somewhat more restrictive than other Federal judges hare written. I have required, and there are a number of these cases, it perhaps would not be best to talk about them specifically but I think that, to the extent that you can generalize, I have felt that consistent with my philosophy of trying to keep the work of the Federal courts within manageable bounds, so that it continues to perform with a degree of excellence that I think has characterized their work in the past, there is a strong interest in placing reasonable or recognizing the existing limitations on the scope of Federal jurisdiction. 57 So I have written a few opinions in which I have come to the conclusion that in the particular facts the State participation in the matter of which the plaintiff complained was not sufficiently direct to warrant Federal intervention, and some of those opinions are the subject of criticism by those who have suggested that I shoud not be confirmed. But once you get over the hurdle and into the area of where the Federal court does have jurisdiction, you must address the merits. Then you have pointed out w T here there ie a classification problem in the racial discrimination cases, and I understand you to be asking me if I would find a rational basis, a sufficient basis, for a classification on racial grounds. Clearly I would not. I think the law is well settled, and properly so, that a much heavier burden, perhaps almost an insurmountable burden, exists in order to justify any classification on any such factor. And now you turn to the question of sex discrimination. I think you were asking me whether the heavy burden test or the lesser burden test should apply in sex discrimination cases.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Whether you have a similar approach to the racial?
John Paul Stevens
Nominee
(R)
Judge STEVENS. I Kn not sure, Senator. I am not sure whether the same test would apply or not. I don't think the court—the court has dodged and fenced a little bit on that question. They have made it clear, as I think I indicated yesterday m response to one question, that the classification is one that is subject to the equal protection clause, but that the standard of review may or may not be the same as it is in racial discrimination areas. And I suppose on reflection I have thought a little bit about Senator Kennedy's question. That may be something that the Equal Rights Amendment might accomplish. It might define the standard of review7 , but I am not sure when one reads the amendment that it does. So I am not sure you would have a different standard after the amendment is adopted. I should say another factor that goes into the equation of whether the amendment is something that should be adopted is the extent to which the goals of the amendment can be ahcieved by statutory enactment. To the extent that they can be achieved by statute, is it really wise to go through the cumbersome process of amendment, which is (not really necessary? That is part of my uncertainty about the problem.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I think it is an honest doubt which is not exclusive to you. I think that there are many people who have that question, but at least you face it as a doubt.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; I do.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In the Cousins case you wrote very eloquently of the necessity for prohibiting all invidious discrimination, and I don't think anyone can quarrel with that, bm^vhat about the remedies that vou would apply if you have a case of discrimination which is clearly based on color, let's say, an injustice created by racial discrimination. Is there any kind of a colorblind remedy that is appropriate for the courts to apply ? I suppose really what I come down to is what is the role of the court in helping to erradicate a racial discrimination ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I think I may have made some comment on this problem already, but the role of the court is different from the role of the Congress in addressing that area of concern because presumably, on the hypothesis we are talking about, there has been a 58 finding of violation and there has been proof that discrimination existed and was supported by State action that made the matter appropriate for Federal review. That having been established by the record, what should the judge do about it? Well, there the trial judge may appropriately go beyond merely a colorblind remedy and require in certain circumstances affirmative action to redress the past injustice, but the extent of such affirmative action would always be a function of, and be related to, the kind of factual situation disclosed by the particular case. So I could not fairly say that in every case affirmative action would be an appropriate remedy, nor could I fairly say that it would never be appropriate. It really has to be done on a case by case basis because there is a wide range of variation in cases of this kind.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I would like to ask a question which I am not entirely sure is a fair question because it really deals more with our function than with the function of the judicial branch, but I think maybe it is within the realm of fair examination here, and that is the question of amendments to the Constitution. This committee has had to entertain a number of suggestions for amending the Constitution in recent years. Some of them were directed at longstanding goals such as the Equal Rights Amendment. Others have been directed at more current controversies. Archibald Cox wrote recently that one fundamental objection to the proposal in the case on which he was writing, which was the proposal for an amendment to ban busing, is a very great danger inherent in adopting specific constitutional amendments on specific questions of immediate public and political interest. One of the prime values of our constitutional system is the fa'ct that the Constitution speaks in fundamental principles and has an enduring generality, and this characteristic, coupled with the power of the Supreme Court to project great fundamental issues upon particular occasions, gives our political ideals a permanence not subject to alteration by violent, short-run surges of public feeling or the desire of officeholders for political advantage. Now in the light of that statement by Archibald Cox, I wondered what your general philosophy is about amending the Constitution and what you feel is the danger of really tampering with the organic law ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I think it is a power which should be exercised rarely. I think the difficulty in the amending process indicates that the authors of our Constitution did not expect it to be used frequently, on casual or relatively unimportant matters, and I would think generally that to the extent that goals can be achieved by other means without the costs that are associated with the laborious amending process that is desirable, and I would wonder if something as specific, say, as the 18th amendment, was wise when it could have, perhaps, been handled by legislation, at least as it is now construed I wonder if it was appropriate for amendment. But I certainly would not say that there should be no tampering with the Constitution. It has to be changed from time to time, otherwise there would be no need for an amending power, so I would say that I would regard it as an important power to be sparingly used.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In propounding the question, I am not oblivious to the fact that the Constitution is amended not only in this body, but that the Court itself has played a role in some alterations of view in the way that the Constitution would be enforced. 59
John Paul Stevens
Nominee
(R)
Judge STEVENS. That is true, Senator, but I am not sure it is fair to characterize changes in the developing body of law as amendments to the Constitution. They, perhaps, have somewhat of that effect.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. It is a change of view or a change of perspective which comes about other than amending the terms of the Constitution itself.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I am wondering to what extent and under what circumstances you feel that national security becomes an overriding question which affects the power of the Government to engage in certain activities, search and seizure, surveillance, which would otherwise not be permissible under the Bill of Rights ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, Senator, I would think that one who relies on national security as a justification for action that otherwise would be impermissible bears a very heavy burden, but I think that we must face the fact that even in the area to which we attach the highest priority, namely, the first amendment area, there are occasions when restrictions are justified by reasons of national security, and I have in mind specifically the question of the prohibition of publications about troop movements and ships and the like, which even in Near v. Minnesota was recognized as exceptions to the absolute right of the press to publish what it would. So, not trying to be evasive, you do have to consider the particular case; but I would certainly agree that the burden is on the Government when it seeks to justify for such a reason to show that this is a valid reason and to be prepared to make such a demonstration.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Let me give you a very simple example. I believe it is no longer in very active litigation, or maybe it is, and if it could have some bearing on some active litigation in a peripheral way, perhaps I should not ask you that question. I would have no problem with the examples that you give of troop movements and that kind of thing. But the problems of surveillance, personal surveillance, breaking and entering to obtain information without a warrant, and this kind of activity which we have been viewing in the Senate with great concern, for which the only justification was a rather vague statement about national security, is I think a far more difficult question than the ones which are really the Government in the exercise of its war powers.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, there is no question that there are privacy interests we must always keep in mind in any of these problems, whether they be national security or even less extreme matters such as simple detection of crime.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. But you rest on your statement that you feel that the Government bears a very heavy burden. I believe I quote you correctly.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I would think so, and I would think, again, perhaps when a particular case comes up I might find that I have spoken somewhat loosely, without sufficient reflection, but my general reaction would be that A, it bears a heavy burden, and B, it bears some burden of factual presentation to enable a factfinder to know that this is not merely a formula of words that is being used to justify something other than a real national security interest.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Judge, we again have a rollcall vote, and we must go to the Senate floor. We will return in a few minutes. 60 I will put to you the affidavit of Anthony Robert Martin-Trigona, which makes certain allegations about previous conduct on your part, and I will ask for your comment on that when I return. [The affidavit referred to follows:]
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. The committee will stand in recess. [A brief recess was taken.] Senator MATHIAS. Judge, when we took a recess for the last rollcall rote, I stated that I would question you about the affidavit of Anthony Robert Martin-Trigona. Before I go to that affidavit, I have a press release that apparently was issued today by Mr. Martin-Trigona which raises some question about the thoroughness of our examination and of my questions because one of the allegations of today's press release is that: Moreover, the question of how Mr. Stevens practiced law for 20 years and managed to amass only a miniscule net worth remains to be answered. On any basis of fairness and impartiality, that question might also be asked of me, and I may be thought to have an undue sense of affinity with you. I will take whatever risks are involved. [Laughter.] [The press release referred to follows:] Mr. Stevens, let me ask you first: Are you familiar with Mr. Martin-Trigona's affidavit ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. Senator, during the recess I scanned it. I had previously been told about the substance of these charges. I think I am sufficiently familiar to answer anything that you wish to inquire about and I can say the same about the press release. I am prepared to answer any question you care to pose about either of those.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In substance, the affidavit says that in connection with the Special Commission in Relation to Document No. 39797, you were guilty of what might be called in today's vocabulary a coverup. "Would you like to tell us about that ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. It is sort of ironic because I am inclined to think that the performance of the work of that Special Commission is the 64 real reason why the course of events developed to bring me here today. That happened shortly before my original appointment, and I think it was because of a good deal of public attention that my name came to the attention of the people who were trying to find people, who might fill a vacancy. But as I understand the substance of Mr. Martin-Trigona's charges, he says that Mr. Torshen, who was my assistant counsel, told him in a conversation that the commission—and specifically I suppose myself as general counsel—had information that two justices of the Illinois Supreme Court were guilty of misconduct which would have justified their removal, and that we had such information and we withheld it from the public and took no action with respect to it. This is simply not true. We investigated charges of impropriety with respect to a particular case. People v. Isaacs, and as a result of very hard work in a very short period of time, with a very dedicated staff, uncovered factual information which justified a report by this special commission of five eminent lawyers of the city of Chicago, not all of the city of Chicago, but the bar of Illinois, it was not simply Chicago lawyers.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Could you supply in the near future the names of the members ?
John Paul Stevens
Nominee
(R)
Judge STEVEN. We have, Senator. We have supplied the report of the special commission which identifies the five commissioners. They were the then president of the Illinois Bar Association, the then president of the Chicago Bar Association, and three other members selected by them. But the substance of the report was that the evidence uncovered by the commission disclosed a significant appearance of impropriety by two members of the Supreme Court of Illinois and it recommended that those justices resign voluntarily. There was a dissent by one member who felt that the committee as a whole had exceeded its task by making that recommendation, that the assignment of the commission was merely to make a report on a particular matter. But I had urged the commission, as its counsel, to make the recommendation. They did so and the justices ultimately resigned. We had no evidence of wrongdoing by any other member of the Illinois
Senator Charles Mathias (MD)
Senator
(R)
Supreme Court. I know, I have not spoken to him myself but I am told, that Mr. Torshen, to whom these remarks are attributed by Mr. Martin-Trigona, has denied under oath that he said anything even remotely approaching what Mr. Martin-Trigona quotes him as saying. I am sure that Mr. Torshen would not have said we had evidence because we simply did not have such evidence and had we done so I am sure w T e would not have withheld it. [A letter by Jerome T. Torshen follows:]
John Paul Stevens
Nominee
(R)
Judge STEVENS. There is no basis whatsoever for a charge that the Commission or any of its staff, or I am sure myself either, failed in the discharge of the duties assigned to us. I think that the Commission, and I say this as a member of a team, did a magnificent job which I regard as one of the principal important professional achievements of my life. Secondly, Mr. Martin-Trigona has released a press release which in substance says I have not made a full disclosure of my financial situation. I am reminded that in addition to the letter of denial by Mr. Torshen, there is also a letter of denial by Mr. Pitts and by Mr. Greenberg, two letters of denial, one by each, the Cochairman of the Commission, who also substantiated what Mr. Torshen says. [Affidavits by Mr. Pitts, Mr. Greenberg, and Mr. Torshen appear at pages 194,197, and 198.]
John Paul Stevens
Nominee
(R)
Judge STEVENS. The press release, as I understand it, says I have not made an adequate disclosure of my financial circumstances, specifically, I have not disclosed the assets of my family and that I may have secret interests in some properties held in trust by others. I have no assets other than those which I have disclosed to the committee. Our disclosure includes everything which I own. everything which my wife owns, and everything which I own as the trustee for the benefit of my two young daughters, with one inadvertent exception. Each of them has a savings account of approximately $500 which we inadvertently overlooked. The charge in the affidavit also suffs-ests that I have some business connections with Mr. Keane who was identified in questions yesterday. 66 who is a litigant in a matter with respect to which I disqualified myself. I was called last night by Senator Hruska who asked me if I could tell him what I knew about, I think it was the MC or NC company, something like that. I told him I did not recognize the name, which was true. I had no knowledge of it whatsoever. Upon inquiry I found that the NC entity, whatever more precisely it is, was represented by my former partner, Edward Rothschild, who also was a nominee for certain members of his family in that business venture. Mr. Rothschild advises me that Mr. Keane had no interest whatsoever in that particular venture. I know I had no interest in it whatsoever, neither did any member of my family, nor to the best of my knowledge, anyone with whom I had any association whatsoever, other than Mr. Rothschild, and as I say, he was associated with the matter in a professional capacity, and also as he advises me, was a nominee for a minority interest which I understand were those of his children. But in any event, I think this is a matter that dates back to 1964, sometime like that. I certainly had no occasion at that time to have a nominee serve for me in any capacity. It is a particularly sensitive area because the investigation that T ran emphasized certain judicial conduct where nominees did hold interest for judges and I am conscious of the fact that that is a method of concealment that has been used by others in the past. It has never been used by me and it never will be used by me.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHTAS. But in any event, you are not, as the press release suggests, the nominee of Mr. Rothschild in any blind trust ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. I am not, nor is he my nominee, and I should also say that, as you have observed, Senator, and I appreciate your comment, it is somewhat embarrassing to have to acknowledge that one's net worth is as small as it is. But I would like to point out that that is my net worth today. It is not my net worth when I went on the bench, and I did not have significant long-term advance notice of the possibility 1 might go on the bench. I think had I known 3 or 4 years in advance that I would be going on the bench and had time to make the adjustment, perhaps the figure would be different. And as I say, if questions occur to any members of the committee either now or in the future about this matter, I have no reluctance whatsoever to discuss it with you. I might say also for the record I do not intend to respond to inquiries from the press about this or any similar subject, although I will respond to the Senators at any time, even subsequent to the close of the hearings, if you feel there is any reason to question the thoroughness of our disclosure.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHTAS. I appreciate your very candid response. It is my understanding that the Chairman is going to provide some appropriate opportunity for Mr. Martin-Trigona to be heard, but T thought it was appropriate while you were before the committee to have an opportunity to express your own point of view on this subject. Mr. Chairman, I have no further questions at this time.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KEXXEDY. "We will recess until 2 o'clock. [Whereupon, at 12:30 p.m., the committee recessed to reconvene at 2 p.m. the same day.] 67 AFTERNOON SESSION
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. The committee will come to order. Judge Stevens, I join with my colleagues in welcoming you to the committee and congratulate you on your nomination to the court. Like my other colleagues that I have heard speak before me, I have had aiv opportunity with the help of staff to peruse your opinions on the court and your record and there is no question but that you have an extraordinarily distinguished career and it is clear that you have great ability. I would like to ask you a few questions because I take very seriously the duty which is thrust upon the Senate by the Constitution in article 2, which states that appointments to the Supreme Court must be made with the advice and consent of the Senate. And I, as Chairman of the Judiciary Committee's Subcommittee on Constitutional Rights, feel that a few areas ought to be probed, with the recognition, of course, that you do not want to commit yourself on specific issues which may come up before the court. But I am more interested in your general philosophy and how you approach these problems and I feel that it will be usef ui to me in understanding your attitudes. Judge, what do you understand the present state of the law to be on avoidance techniques, that is, when there is a possible nonconstitutional ground of ripeness or mootness, etc. %
Senator Ted Kennedy (MA)
Senator
(D)
Mr. STEVENS. AS a general proposition, I think the doctrine has been pretty universally adhered to by the Supreme Court that it is our duty to avoid decision on a constitutional ground if there is a sufficient basis for deciding the case without reaching the constituitonal ground. I think you may have in mind the fact that in recent years the court appears to have expanded somewhat the doctrine of mootness and restricted somewhat the doctrine of standing and has perhaps reached fewer constitutional issues than come thought they could appropriately have done on the basis of past history. So there seems to be a little area of narrowing the field of adjudication by these procedural techniques. I would not want to comment on any specific decision but I do recognize that there is some change that appears to be going on and it is in the way o f perhaps reaching even fewer constitutional issues than the Court has in times in the past.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. IS that trend one that you are in sympathy with generally ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. T really do not know how to answer that. I don't like to think of it in terms of a trend. I must confess there were some of those decisions, and I would not want to name them, but there were some in which I would have thought the Court would not have found mootness. Well, I think I might mention one specifically. I was surprised at the law school reverse discrimination case. I would have thought the court would have reached that issue on the basis of the facts. I think it is kind of hard to generalize on a trend but I think these are rather difficult technical questions sometimes and there is room for argument on both sides. 68
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Well, in deciding whether standing exists or whether a class action properly lies, should the Supreme Court or a Justice take into account his belief, assuming he holds it, that the courts are too congested, that their dockets are too crowded ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. That is one of those factors, Senator, that perhaps unconsciously is always applying some built-in pressure against a judge. We are all concerned, and it is true and I think we have to be frank about it, we are all concerned about the overload problem. It affects us every day of our working lives and it inevitably may exert an unconscious pressure against us. I think if one can disassociate oneself from that problem, one should, because really the issue should be addressed on the merits apart from those factors that affect our working conditions. So I do not think it is a proper factor, but I do not think we can deny the fact that it may have some input into the decisional process.
Senator John V. Tunney (CA)
Senator
(D)
Senator TTTNNEY. With regard to certiorari policy, how much discretion does the court have in deciding whether or not to take a case presented to it ? Do you think it makes any difference whether the case comes to the court as an appeal or a petition of certiorari ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. I think it makes some difference but not very much. That would be my impression because the Court seems to exercise a somewhat different form of discretion in processing appeals as of right. Instead of denying certiorari, it may summarily affirm or dismiss for want of substantial Federal question with maybe a one-line opinion or a citation of a case or something like that. In a strict interpretation of the law, such action will have precedential effect, whereas the denial of certiorari does not. So there is a legal difference between the two. My tentative conclusion, just based on watching the way the court works, is that there probably is not a very significant difference between the two. I think it would really be more orderly in the long run if the jurisdiction were entirely discretionary. I think the appeals as of right really do not serve any important interest.
Senator John V. Tunney (CA)
Senator
(D)
Senator TTTNNEY. What factors do you think a justice should take into account in deciding whether or not to cast his vote in favor of certiorari ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. The principal factor would be the importance of the issue presented by the case to the country at large. I would think that is the major factor, and of course there one has to evaluate importance by whatever standards he can.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. What do you consider to be the present state of the political question doctrine and do you see a trend ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. We talked about that very briefly this morning and I pointed out what I am sure you are well aware of, Senator, that the term political question is used in two different senses: one, the jurisdictional sense and the other, the more or less popular sense. I think that really ever since Baiter v. Carr the political question objection to Federal jurisdiction has been narrowed. I mean the court has taken more cases that would previously have been considered political questions. But it is still very definitely a viable doctrine and there are still areas within our framework of Government where it is quite clear from the Constitution that final decision of the matter was intended to be placed in another branch of Government, other than the judiciary. 69 A simple example is the declaration of war. Clearly the Court does not declare war and there are matters that are clearly committed to other political departments, and then the judiciary should not, it has no jurisdiction to participate. Now the second phase of it is that there are controversies that have political overtones and ramifications but nevertheless represent justicable issues and in those areas the court has the responsibility to act just as it does with respect to other litigation.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Regarding lobbying in the Court, do you think it is appropriate for members of the Court to lobby their brethren as to how they should vote and the position they should take in cases that are pending before the Court ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. Well, I hope the first amendment applies to the Supreme Court as well as to other branches of Government. I would certainly not feel there was any, that a Justice should have any inhibition about stating frankly to a colleague how he analyzes an issue. It happens to be the practice in our court, as a matter of custom, and I think personal preference of all the judges, that we do not discuss cases in advance of argument. We find that we like to come with free, independent appraisals of the issue and we first have an opportunity to discuss it really with counsel in oral argument and then after in our conference. We think that is a healthy approach. I really do not know what the tradition is on discussing the merits within the Supreme Court, but I do not see anything inappropriate about discussions by less than the entire membership of the Court on a particular matter.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Regarding dissenting and concurring opinions, how does a Justice decide when to dissent or concur and what contribution, if any, do you feel that dissents and concurring opinions have made in the development of doctrine in the Court ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. Senator, I spoke very briefly to that subject this morning.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. YOU do not need to repeat it if you have already addressed it. Have you already covered that this morning ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. Well, let me be sure, because I do not want you to read the record and feel that it is incomplete. It is not that extensive. My own personal philosophy, which is not shared by all judges, is that if I do not agree with the result of the majority, I dissent, even if it may be a very brief dissent, or if I find something in the reasoning that is unacceptable, I try to write a brief concurrence. I think the litigants are entitled to know how the judges appraised the arguments and to be sure that all of them understood the arguments that w T ere presented. And I think preserving in the record of the opinion of the case itself the fact that there was a diverse point of view, of points expressed in the Court, may make a record that will help at a future date when the same issue may be again presented for reexamination. So I think dissenting opinions do perform an appropriate and important function in the entire process.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Judge, I was not able to be here at the time that Senator Mathias was questioning you about your financial connections, but I did have a member of my staff present, and as I understand it you were asked this morning by Senator Mathias about any financial con- Elections that you might have with Tom Keane and a former partner, Edward. Rothschild, in which one of you acted as a nominee for the other and you denied that there was any such a relationship between you and them. Is that correct ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. Let me state it precisely. I have had no business transactions with Tom Keane whatsoever. As I explained a day or two ago, I was retained by his firm in two matters. But these were not as a principal or investor, these were a matter of litigation. I was not a participant in any way, shape, or form in the entity, the name of which I do not recall at the moment, that was formed back in 1964, as I understand it. And I am advised by Mr. Rothschild that neither was Mr. Keane. Mr. Rothschild handled the legal work for this particular investment group and, as I understand it, on the basis of what he told me this morning, he was also a participant to the extent of a very small percentage as a nominee for his children. He was not a nominee for me, nor I for him.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUXXEY. Were there any other types of financial involvement at any time between you and Tom Keane ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. I do not like the word other, Senator, there was none.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNET. Was there any connection between your family business and Keane ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. I have no family business.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUXXEY. Or members of your family and Tom Keane ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. NO.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUXXEY. What about your former partner, Rothschild, and Tom Keane. is there any connection there ?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. I think not. As I say, the entity about which questions were raised was one for which he performed legal services and I think an assumption was made that Tom Keane was an investor in the entity. I have no knowledge one way or another, but Mr. Rothschild assures me that Tom Keane had no interest in the venture whatsoever.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUXXEY. And Mr. Rothschild has told you personally that there was no connection?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. Today, he told me that, that is correct.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I understand that yesterday you explained why you recused yourself in Tom Keane's case. I believe that it appears in the transcript at page 75 (printed hearing page —). Yet, I am informed that you sat in several redistricting cases involving plans drawn by Tom Keane during his tenure with the city council. Is that report which was made to me accurate or inaccurate?
John Paul Stevens
Nominee
(R)
Mr. STEVENS. I sat in the case entitled Cousins v. Wigoda which did involve a redistricting plan of the city of Chicago, with respect to which Tom Keane is one of the leading members of the council, he was a witness, and was an important participant in the enactment of the ordinance that gave rise to the litigation. I do not recall whether he was a party to the case or not. And frankly, the thought of disqualifying myself on that case never—had never occurred to me on the basis of the quite remote connection I had liad with Mr. Keane. 71 I looked at it much more closely in the case in which he was a defendant in a criminal proceeding and as I think I also mentioned in my answer yesterday, it was more in the category of the notorious criminal trial in which there really is a compelling interest of avoiding even the slightest suggestion of any appearance of impropriety, and I simply did not think of the problem when the Cousins case was before the court.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Mr. Chairman, Senator Mansfield has sent word that he wants me to be on the floor to offer my amendment at 2:30. It will take me only about 10 minutes and I will be back. Would it be all right if I now reserve the balance of my time and come back in about 15 minutes ?
John Paul Stevens
Nominee
(R)
Chairman EASTLAND. Certainly.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Thank you very much, judge. I will have a few more questions on substantive issues.
John Paul Stevens
Nominee
(R)
Chairman EASTLAND. HOW much more time do you neeed?
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I would think about 20 to 25 minutes. I have some questions on substantive issues which I would like to ask. The judge is very succinct in what he says and I think, therefore, it would not take any more than about 25 minutes.
John Paul Stevens
Nominee
(R)
Chairman EASTLAND. That is not a filibuster, is it? [Laughter.]
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Well, I hope that my questions are succinct too.
John Paul Stevens
Nominee
(R)
Senator SCOTT of Pennsylvania. Judge, I think the whole aspect of the hearings and your background and your experience indicates your qualifications for this post. I have only one question: In the event that any constitutional amendment were enacted, would your opinions, your prior opinions regarding the substance of that amendment have any impact on your judicial handling of the interpretation of that amendment, should it come before you?
Senator John V. Tunney (CA)
Senator
(D)
Mr. STEVENS. I should think not, Senator. It is difficult to conceive of a situation in which a prior opinion construing something other than the amendment before us would be relevant on the construction of an amendment which was not even part of a law in the earlier case. I suppose sometimes the thinking you do about an issue carries over when you have to analyze a similar issue, but certainly you must approach it with a fresh mind and I am sure I would do so.
John Paul Stevens
Nominee
(R)
Senator SCOTT of Pennsylvania. Well, I think your presentation of your views has been impressive and I will not use up any more of the committee's time. Thank you.
Senator John V. Tunney (CA)
Senator
(D)
Judge STEVENS. Thank you. Senator.
John Paul Stevens
Nominee
(R)
Chairman EASTLAND. We will recess, now to the call of the Chair. \X short recess was taken.]
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. The committee will come to order. Judge, before I left the room to go to the floor of the Senate, I indicated I intended to ask you some substantive questions and I would just like to touch on a few areas. Capital punishment. I know that Senator Kennedy questioned you about this earlier, but what do you understand Furman v. Georgia to have held ? What questions do you think the decision left unresolved for the Court ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, I read Furman v. Georgia, which I recall is a case in which each of the nine Justices wrote a separate opinion, in the summer after the decision was announced, and the opinions are, I think, more than a hundred pages in length if my memory serves me right. I have not read the case since the summer after it was announced. I know that a consensus of the five Justices that comprised the majority was that the capital punishment in the particular cases before the Court should not be carried out. JSTow I think it would be most unwise for me to try to extrapolate from these separate opinions on the basis of a 5-year-old recollection, on what I think the precise holding of the case is. I think it would be given attention and importance which would be highly unwarranted.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I understand. Assuming that the question is one of cruel and unusual punishment, how does one go about deciding whether punishment is cruel or unusual ? Have you thought in those terms % That is, what is the relevance of history or of the f ramers' thinking or of contemporary moral sentiment or public opinion or political philosophy that is current at the time ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, as I recall the interpretation of the eighth amendment, there are basically two kinds of arguments that are made in support of a claim that punishment is cruel and unusual. One is that the particular punishment is so disproportionate to the particular offense, such as a death sentence for possession of marihuana, that it might seem to be disproportionate and one might apply such an argument. On the other hand, another kind of argument is that in absolute terms, certain kinds of punishment, such as, I think whipping is an example that is given, are considered so barbaric by present-day standards that they would be considered cruel and unusual within the meaning of the amendment. And I think there is certainly some truth to the notion that one has to consider both the social conditions at the time the amendment was adopted or the intent of the framers and the background in which a particular punishment is being given out today. That is about as much as I can say.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. What about the first amendment? I know you addressed this in one of the questions, and we hear many catch-word phrases regarding our first amendment coverage: clear and present danger, preferred status under the first amendment, absolutes, and so forth. Just how does the Court go about deciding a first amendment case today ? Does it balance, in your view, or should it balance ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes. I think even in the first amendment area, there is some balancing that must be done because cases are not, do not arise in neat pigeonholes. There is a question as to whether what is regulated is merely the time and p]ace of speaking as opposed to the content of speaking. And there is quite a different approach depending upon what kind of issue is raised. You have to look both at the interest of the speaker and the public interest in having the communication become a part of the public domain. There are various factors and I think you will find in my opinions some recognition of both sides of the public interest in communication. I think you might find that in some of the cases involving the rights of prisoners for example.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. DO you care to indicate what you think are some of the most important factors in balancing a decision in a first amendment case ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; I would say that a most important factor, I would not want to limit myself to this as a formula for deciding all first amendment cases, but a significantly important factor—and I guess that is pretty redundant—is the question of whether there really is communication involved and whether it is communication as opposed to conduct or overt conduct. We find on a scale which sometimes involves gray areas, between communication and conduct, where it falls. If it is within the area of communication, then perhaps you get to the question of whether there is any element of appropriate regulations in the area of time, place or manner of speaking, because, of course, the Court many times has said that this is a permissible area of control. Certainly I imagine you might resent it if someone strode into this room and started making a speech about baseball or something of that nature. So there are restrictions that must apply. But the paramount consideration is, I think, that the judge's evaluation of the right to speak and the right to communicate should be divorced entirely from his own appraisal of the substance of what is said. It is not for him to either sympathize or be unsympathetic to the message which is transmitted. But rather he should be concerned with the channels of communication so that, be it one which he detests or supports, it is able to find itself in the free marketplace of ideas.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. If a trial judge, let us say in a State court, has entered an order restricting what the press may publish about a pending case, what factors enter into the Supreme Court's review of such an order? What interests clo you think are at stake, and how does one go about resolving them—without asking you to resolve them today ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, again, of course, I have to avoid any comment about the particular case that has been in the press lately. But very simply, the two rights at stake are, on the one hand, the interests of society in knowing what is happening in a public trial and, on the other hand, the interest in procedural fairness to both litigants, the State which is bringing the proceeding and the defendant which must receive a fair trial. So there is a very difficult clash of interests in these cases but those are the easily identified conflicting interests in this area.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. DO you see any trends in the Supreme Court's first amendment decisions ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes. I might say something for the record here because I have received some support on a basis that is not entirely warranted. It has been said that I have never been reversed. I was reversed in a case called Gertz v. Welch which involved the extent of protection to the press afforded by the so-called New York Times rule, and on the basis of the decisions up to that point, we concluded that a claim of libel was foreclosed by the first amendment protection. The Supreme Court reversed this, and I think changed the law rather substantially in a direction of narrowing the first amendment protection from libel and slander liability that prevailed heretofore. I do not know if one case makes a trend, but it was a recent case that goes in the direction I have described.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. What about the obscenity cases, for example, Miller v. California, in which, apparently, judging from the standards in that case, they generally made prosecution easier. Is that your impression of Miller v. California?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; I would say that that decision seems to have led to additional prosecutions and therefore those with prosecutorial responsibility have apparently concluded that the decision does make it easier. I think, again, I have not had an obscenity case since those were decided. So, again, what I say is based simply on reading the options when they came out. But unquestionably, they represent somechange in the law and some lessening of first amendment protection in the obscenity areu. Of course, there are pros and cons involving the desirability of extending that protection in that particular area.
Senator John V. Tunney (CA)
Senator
(D)
Sentator TUNNEY. What about the doctrine of substantial overbreadth which makes attacks on the face of a statute more difficult?
John Paul Stevens
Nominee
(R)
Judge STEVENS. That doctrine is sometimes misunderstood as having application to all kinds of broad statutes. I think, properly interpreted, the doctrine applies only to statutes which are overly board in their interference with the right to communicate, in other words, in the First Amendment area. I think that sometimes the doctrine is misapplied in the areas other than the First Amendment area. And of course, the underlying rationale of the doctrine is that the great interest in fostering free speech and not having statutory deterrents to speech justifies departure from the traditional rule that decisions will only be made adjudicating the rights and interests of the particular litigant before the court. And in the over-breadth area, because of the high value placed on the First Amendment, the Court has, on occasion, held invalid statutes which are over-broad in the sense that they chill the exercise of free speech. I think the Court has been rather consistent in this area although there is some confusion in the opinions between that doctrine and the doctrine of vagueness, as applied in the Fourteenth Amendment area. I think it is really a separate problem.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I understand that yesterday, I was not here, in answer to a question from Senator Kennedy, you said that the tension between fair trial and free press might be handled by, quote, control of release of information" close quote. Is that correct?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Let me try to state it again. The Senator was asking me, if I recall correctly, about the desirability of legislation limiting the right of the press to comment on trials, and I suggested that, to take the problem by separate parts, perhaps we should first address the problem of the appropriate extent of control which might be imposed by court rule, or by professional disciplinary rules, on the kind of comment that either the prosecutor or the defendant's attorney migh make about the subject matter of the trial and try to let the facts find their way into the record in an admissable way and an orderly way. And then the press would have its first opportunity to comment after the record was made. 75 I think that the particular undesirable thing that happens is that, on the basis of partial information and hearsay and secondhand suggestions, the press, in effect, makes statements, not intending to do so, which seriously hamper the ability of the defendant to receive a fair trial because the public gets an impression of what the facts are before all the evidence is heard. And that is what we are trying to avoid. I said that I thought that if it is approached that way, it perhaps is a matter which the courts and we drafters of court rules and disciplinary rules should address in the first instance. And then maybe there w T ould be something left that Congress needs to address. But I sort of think this is one that we have to tackle first. '
Senator John V. Tunney (CA)
Senator
(D)
Senator TTJNNEY. Were you thinking of sealing criminal records or shutting off preliminary hearings to the public when you were talking about the control of release of information ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. NO. The sort of thing I was thinking about would be a representative of the enforcement agency making a press release to the effect that we have obtained a confession and we are sure the man is guilty, or a premature announcement of a confession before the voluntariness of the confession has been determined in the adversary proceeding, comments on the evidence when it is not sure the evidence is admissible or reliable, and things of that character. I did not have in mind the possibility of impoundment of public records. There are some times in the juvenile area where that may be appropriate. There may be areas where the damage by public comment on a young man is unfortunate, and that weighs the interest of a public debate. I would not want to go beyond that, but I would not want to foreclose entirely the possibility of some area where we might want to put some limit on what we put in the public domain.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. At the present time, I am sponsoring legislation to require the up-dating of criminal arrest information and, among other things, to deal arrest records of individuals who have not committed an offense for 7 years after their last supervision. Under my bill, law enforcement agencies could continue to have access to the information, but others could not, on the theory that the statistics demonstrate that a person who has gone for 7 years without committing a crime is highly unlikely to commit a second crime. And there generally is a sense, on the part of some, that a person is entitled to a second chance. I wonder if you have had a chance to think about this problem. The press had contact with my office and they are deeply concerned that somehow they are being denied an opportunity to get what they think is important information as it relates to individuals. Do you have any impressions with respect to the general problem ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Senator, of course I should not try to address the merits of a bill I have not studied, but I think I could say this, that I have had occasion to write at least one opinion in what was a rather severe attempt by the prosecutor to make use of information in an arrest, or maybe he was trying to use a misdemeanor, for impeachment purposes which we thought was clearly improper, and I have also written an opinion on the subject to the extent to which a prior conviction is properly used for impeachment purposes when the defendent elects to testify in his own behalf, and we have expressed concern about the use of convictions. 76 Now this is, of course, even more severe than arrests which are, I believe more than 10 years old is the time suggested in the Federal rules, basically on the theory that, I suppose, underlies your legislation, that once a man has paid his debt to society, if he has a blameless record thereafter, he is entitled like everyone else to the presumption of innocence. So I think you could find something that is somewhat sympathetic to the thrust of what you are suggesting.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. It is a difficult problem.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes. And I have to say that, of course, in those opinions, there is no countervailing first amendment problem that I recognize you are sympathetic to too.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Well, if a person has a national security job, there is the argument that can be forcefully made that his entire life history ought to be known, and that if a person holds himself out for public office his entire record should be scrutinized by the voters.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I am familiar with that problem. [Laughter.]
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Yes, I am too. I will be more familiar with it next year. [Laughter.] Senator TUNNEY. Judge Stevens, with regard to the fourth amendment, search and seizure warrants, and so forth, what trends do you see in the Supreme Court's fourth amendment decisions of recent years ? Let us start off with consent.
John Paul Stevens
Nominee
(R)
Judge STEVENS. I take it you are asking whether there should be something akin to the Miranda warnings as a precondition to a consent to a search, or something of that kind ?
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I am not asking for your value judgment as to what ought to be and what ought not to be as much as I am asking what you think the trend is in the Court at the moment.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, sometimes it is hard to evaluate with precision because sometimes things are taken as a trend which are merely the arresting of a prior trend. In other words, a refusal to extend the law even further than it has been extended in the past is sometimes interpreted as a reversal and that really is not necessarily the case. For example, the admissibility in a grand jury proceeding of illegally seized evidence, it had simply not been passed upon before the Calandra case, I think was the name of it, and when the Court addressed that, it expressed concern with the importance of a broad investigory power for the grand jury and said that that interest was sufficient to overbalance the fourth amendment interests. I do not know whether I would say that represents a trend or really a refusal to extend the law further. Similarly, in the right to counsel area, the Court—this is not really responsive so I should not go into that.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Leaving that aside for the moment, have you had any decisions on the consent issue? Have you personally written opinions on consent?
John Paul Stevens
Nominee
(R)
Judge STEVENS. The closest one that I can recall was a case involving the execution of a search warrant which pursuant to a statute authorized entry into a domicile if entry had been refused. The officers knocked on the door, and a few seconds later, busted it down, and entered a home and conducted a search. We found that the waiting of an interval of 2 or 3 seconds did not constitute consent. I think that is perhaps about as close as I have written on the precise point.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. HOW about the exclusionary rule which makes unconstitutional the product of illegal search and seizures? Some say this has come under increasing attack in the Court. Do you have any views with respect to this rule ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, yes, I think it has come under attack and I think the attacks are increasing. I think it is true that the public sometimes has difficulty understanding why evidence which tends to establish guilt in a fairly convincing way must be excluded from a trial, it is somewhat inconsistent with the truth determining function of the trial, but of course the countervailing value at stake is the great interest in the privacy of the citizen and the concern that, unless the exclusionary rule is enforced, there may not be an adequate deterrent to police conduct which none of us would approve. So again there is tension here. I am not sure I should go beyond that. I have never had to address the question of whether there should be an exclusionary rule and this perhaps is an example of a difference between the job of a court of appeals judge and a Supreme Court Justice. It is part of the framework of the law which I accept, as the data with which I work, that we have such a rule in the law now. It is part of what I work with every day. Now if an appropriate case requires that it be rethought, I suppose I would have the duty to think of it in terms that I have not yet been called upon to do.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. If Congress were to enact a statute giving damages to those who had been the subject of unlawful searches and seizures, do you think this might be a factor in the course of deciding whether or not to retain or abolish the exclusionary rule %
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, I think, Senator, there is already such a statute, at least with respect to such searches by State agents, in section 1983 of the Civil Rights Act, the Ku Klux Klan Act, authorizing the damage remedy. I think part of the concern is not really the absence of some remedy, but concern as to whether or not the remedy is effective, because of the natural tendency of the jury to understand the sincere motivation of an officer's conduct in trying to get evidence to establish guilt and the disinclination to award damages to one who may be, appear to be, guilty of a crime. So there is a question of whether even though the remedy exists it is effective in accomplishing the purpose for which it is intended. I am more or less parroting the arguments that have been made and I have heard, but I want to avoid trying to state anything in the nature of a final conclusion.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. What trends do you see in the Supreme Court right-to-counsel cases of recent years ? You started to go into it.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Well, of course, the major case is Angler, I think is the name, which extended the right to counsel in misdemeanor cases, which was a profoundly important case in making sure that in any case which might involve incarceration of the defendant that he or she would be represented by counsel. There has not been the same extension, as I recall, to the provision of counsel in the discretionary appellate review. I frankly am not sure as I sit here whether the Court has held that there should not be counsel or it is just under consideration. 78
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I think that in Moss v. Moffett which distinguished Douglas v. California, the court has refused to extend that.
John Paul Stevens
Nominee
(R)
Judge STEVENS. SO those two cases can be cited with the trend going in both directions at once. The right to counsel has been extended to misdemeanor cases but not extended to discretionary review.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. DO you have anything that you would care to express on the general subject of right to counsel that might help the committee in any future action ?
John Paul Stevens
Nominee
(R)
Judge STEVENS. Yes; I don't hesitate in saying that I think one of the most important aspects of procedural fairness is availability of counsel to the litigant on either side. I could not overemphasize the importance of the lawyer's role in the adversary process and it is unquestionably a matter of major importance in all litigation.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Judge, I want to thank you very much for the answers that you have given to my questions. I appreciate the fact that your answers were not only direct but also I felt extremely erudite. They demonstrate to me tnat you are a man of great fairness and great understanding as well as great intellectual capacity. I am very pleased that we have had the opportunity to talk about some of these problems and to have laid out a bit of a record as to what your thinking is on some of these key issues that are going to be coming before the court. Again I want to congratulate you on your nomination.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Senator Tunney.
Senator James Eastland (MS)
Chairman
(D)
Chairman EASTLAND. Judge, you are excused.
John Paul Stevens
Nominee
(R)
Judge STEVENS. Thank you, Mr. Chairman.