Sandra Day O'Connor

Speaker, Title, Party Statements
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Judiciary Committee will come to order. It is a privilege to welcome each of you to the opening session of the Committee on the Judiciary to consider the nomination of Judge Sandra Day O'Connor of Arizona to serve as an Associate Justice of the Supreme Court of the United States. This is truly a historic occasion, as it is the first time in the history of our Nation that a President has nominated a woman to serve on this august body. Today we begin the consideration of this nomination. Under the Constitution, the Senate is charged with the responsibility of deciding whether to grant consent to the nomination. While the entire Senate will participate in the ultimate decision, the members of this committee have an initial and solemn duty to conduct an indepth inquiry into the qualifications of Judge O'Connor. In response to the trust placed in this committee both by our colleagues in the Senate and by the American people, we will conduct this proceeding in a full, fair, and orderly manner. In a spirit of nonpartisanship, we have made arrangements to receive both the testimony of the nominee and that of many persons representing the views of various constituencies. As we begin our deliberations, we are keenly aware that a Supreme Court appointmen Many believe that the courts of our Nation, over the past decades, have lost the confidence of the American people. This, we are told, results from far-reaching and sometimes burdensome decisions which have affected virtually every aspect of our lives. As one of three coequal branches of our Federal Government, the judiciary plays a crucial role in interpreting the Constitution and in applying the laws of Congress. The ability of the Supreme Court to carry out effectively these responsibilities depends upon the perception of the people that the Court is worthy of such esteem. It is absolutely essential that the President nominate and the Senate confirm only individuals who will contribute to the restoration of public confidence. We seek, first, a person of unquestioned integrity—honest, incorruptible, and fair. We seek a person of courage—one who has the fortitude to stand firm and render decisions based not on personal beliefs but, instead, in accordance with the Constitution and the will of the people as expressed in the laws of Congress. We seek a person learned in the law—for law in an advanced civilization is the most expansive product of the human mind and is, of necessity, extensive and complex. We seek a person of compassion—compassion which tempers with mercy the judgment of the criminal, yet recognizes the sorrow and suffering of the victim; compassion for the individual but also compassion for society in its quest for the overriding goal of equal justice under law. We seek a person of proper judicial temperament—one who will never allow the pressures of the moment to overcome the composure and self-discipline of a well-ordered mind; one who will never permit temper or temperament to impair judgment or demeanor. We seek a person who understands and appreciates the majesty of our system of government—a person who understands that Federal law is changed by Congress, not by the Court; who understands that the Constitution is changed by amendment, not by the Court; and who understands that powers not expressly given to the Federal Government by the Constitution are reserved to the States and to the people, not to the Court. Judge O'Connor is the first nominee to the Supreme Court in 42 years who has served in a legislative body. It is my belief that her experience as majority leader in the Arizona Senate will help her and, through her, the other members of the Court in recognizing and observing the separation of legislative, executive, and judicial powers mandated by the Constitution. Judge O'Connor is also the first nominee to the Supreme Court in the past 24 years who has served previously on a State court. That experience gives us hope that she will bring to the Court, if confirmed, a greater appreciation of the division of powers between the Federal Government and the governments of the respective States. Judge O'Connor, we welcome you to the committee and to the Senate. I know you share our anticipation as we begin the process which allows us the opportunity to renew the essence of the American experiment in government. Before calling upon the distinguished Attorney General for his presentation of President Reagan's nominee, each member of the committee will be recognized for brief opening remarks. The Chair now recognizes the ranking minority member, Senator Joseph R. Biden of Delaware, after which the other members of the committee will be recognized. Senator Biden?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. Welcome, Judge O'Connor, Senator Goldwater, Senator DeConcini, Congressman Rudd. It is a very formidable task, I know, to sit there and react to the varying views of the Senators on this committee. There is no other committee in the U.S. Senate that reflects as widely and as thoroughly the views of the entire Senate. I wish you luck in your forthcoming efforts to answer all the questions that will be put to you. There is no more important responsibility for the Senators who serve on this committee, in my opinion, Judge, than the one we will exercise today—that is, reviewing the qualifications of a nominee for the U.S. Supreme Court. The Supreme Court has a profound impact on the shape of our Government and the well-being of our people. Accordingly, I believe it is necessary at the outset of these hearings on your nomination to define the nature and scope of our responsibilities in the confirmation process, at least as I understand them. First, as a Member of the U.S. Senate, I am not choosing a nominee for the Court. That is the prerogative of the President of the United States, and we Members of the U.S. Senate are simply reviewing the decision that he has made. Second, our review, I believe, must operate within certain limits. We are attempting to answer some of the following questions: First, does the nominee have the intellectual capacity, competence, and temperament to be a Supreme Court Justice? Second, is the nominee of good moral character and free of conflict of interest that would compromise her ability to faithfully and objectively perform her role as a member of the U.S. Supreme Court? Third, will the nominee faithfully uphold the laws and Constitution of the United States of America? We are not attempting to determine whether or not the nominee agrees with all of us on each and every pressing social or legal issue of the day. Indeed, if that were the test no one would ever pass by this committee, much less the full Senate. However, your views on social and legal issues and how these views will offset your interpretation of the Constitution of the United States are important. Indeed, in your case, Judge, I believe it is essential that the committee in these hearings make a thorough effort through intensive questioning on various issues, to better determine your judicial philosophy—not necessarily your precise position on an issue but what your philosophy of the law is. I say this because if there is one aspect of this nomination that concerns me—and I must acknowledge it does not concern me very much at this point—it is your lack of extensive constitutional experience. Despite the intensive investigations into your background by the committee, both minority and majority, it is frankly difficult to determine from your record your depth of understanding and your precise views of American jurisprudence, and how you will apply that if you sit as a Supreme Court Justice. It is my sincere hope that you will be able to demonstrate to us in these hearings that you do possess this competence, and I believe that in every other respect you are on the record an impressive nominee who is highly qualified to take a place on the Supreme Court of the United States. You may find yourself in the position, Judge, where you have to make a determination of whether or not your response to a question would be in violation of the judicial canons of ethics. They seem, on their face, to preclude statements by nominees in any areas of the law that they might rule on in the future. However, for the purposes of legal scholarship and determinations of fitness for office, it is obviously necessary for nominees to state their views on matters of law and social policy. The danger a nominee faces in making statements is that at some point in the future, a case that raises a particular issue may be presented for a ruling and the judge would have to disqualify herself based upon having prejudiced the issue in the past by testifying to it before the Senate committee. However, I believe nominees should be required to answer all questions except for those questions that would necessitate an opinion as it applies to a specific set of facts that is likely to come before the judge for decision. In other words, a nominee can speak in general terms about the law but should not be forced to state opinions on controversies likely to come before her, for example, the constitutionality of a bill now pending before the U.S. Congress. Therefore, you have a difficult task before you, one on which there is a great deal of dictum, if you will, but not any firm opinions. I wish you well in your effort to tread the path between complying with your view of the judicial canons of ethics and being forthright with this committee. Last, I would like to say that there has been a good deal of discussion and there will be much more discussion about your being the first woman nominee to the Supreme Court. I think probably everyone in this body feels that it is high time and it is long overdue. They often refer to the Senate as an exclusive club but there is no more exclusive club in the world than the one that you are attempting to join. There have been only 102 Supreme Court Justices during the history of this country, and I suspect that you will be a very worthy addition to that, making it number 103. I welcome you again to the committee, look forward to hearing your answers, and wish you luck. Thank you very much, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Mathias of Maryland, the ranking majority member.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman. The chairman of the committee has called this a historic occasion. It surely is that. It is historic among other things because it culminates the effort to insure that women have full citizenship in this country. Just 334 years ago, in 1647, Margaret Brent was denied the right to vote in the General Assembly of Maryland. She had all of the legal qualifications except one—she was a woman, so she was denied the right to vote. Now today, 334 years later, a woman will attain the ultimate right to vote, the right to vote on the Supreme Court of the United States. Of course, I would say to Judge O'Connor that Mrs. Brent made one mistake in her attempt to get a vote. She thought she ought to have two votes, one as a representative of Governor Leonard Calvert's estate and one for herself: so I would learn from the lesson of history and only seek at this time a single vote on the Court. However, I think it is important that we savor this moment because it is a milestone in the history of the Court itself, and there have been only a few of these moments. We should pause and realize that we are at the end of an era and at the beginning of an era. Sixteen years ago, President Johnson nominated Thurgood Marshall to the Court, and that was clearly a similar moment. President Johnson said on that occasion, "I believe it is the right thing to do, the right time to do it, the right man and the right place." By changing one word, I think that those words of President Johnson would be just as appropriate today. I think President Reagan has demonstrated great vision and a fine sense of history in nominating Judge O'Connor for the seat that Justice Potter Stewart has held with such distinction for such a long time. Reference has been made here this morning to the fact that she comes from the State courts. But, in that, she follows in the footsteps of some of the most distinguished Justices who have ever served on the Court—Justice Cardozo, Justice Holmes, Justice Brennan—so she will serve in a good tradition. Shortly after Judge O'Connor was nominated, I had an opportunity to meet with her and to discuss at length a variety of legal issues. During that conversation, I got a clear sense that when she is confirmed—I do not say if she is confirmed but when she is confirmed—that she will come to the Court as an interpreter of the law rather than as one who writes original law. That is a view with which I wholeheartedly concur, and so I shall look forward to the exchange between Judge O'Connor and the committee in these hearings. I think it will be important to go beyond the symbolism which is so obvious to all of us today and to get to know her as a person and as a potential justice. I think consistent with our constitutional responsibility to grant or deny consent to the President's nomination we must review Judge O'Connor's qualifications to sit in the highest court in the land, and we will perform that duty, but I have no doubt as to the outcome of these hearings. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. 6 Senator Kennedy of Massachusetts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. I, too, want to welcome the nominee to this committee, and say to Judge O'Conner that since the time that you recieved the President's endorsement, I think that you have seen both the worst of this city and the best of it—the worst in being the target of some of the single-issue constituencies who are going to urge your defeat, and the best in the fact that you have had the strong and unyielding support of a President of the United States, and strong bipartisan support from Members of the U.S. Senate who have been unflinching in support of your candidacy. As a matter of fact, I have finally found an issue on which I can agree with Senator Goldwater. I am sure, as has been stated here, that the outcome for your confirmation is well understood. However, I am extremely pleased with President Reagan's decision to nominate Judge O'Connor to the Supreme Court. I am proud to join in the widespread acclaim for your nomination, and look forward to your confirmation and to your service on the Court. As has been pointed out, for many years there have been women with the highest qualifications for the Nation's highest Court. Every American can take pride in President Reagan's commitment to select such a woman for this critical office but the broad support for Judge O'Connor in this hearing must not become a pretext to ignore the need for greater representation of women, not only on the Supreme Court but at every other level of the Federal judiciary and Federal Government. Women hold less than 7 percent of all the Federal judgeships. In two centuries of Federal judicial history, only 50 women have been appointed to the lower Federal courts, and 44 of them are still serving there today. In fact, 33 of them were approved by this committee during the past Congress. All of us who care about this issue look forward to the day when appointments to the Federal bench and to the other high public offices will not stand out as an historic event simply because the appointees are women. By some, Judge O'Connor has been termed a judicial conservative. However, simplistic labels are inadequate to define a complex concept like judicial philosophy, let alone predict a vote in a future case. What we seek in the Federal courts are judges who will display legal excellence and personal integrity and sensitivity to individual rights. It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential Justice must pass the litmus test of any single-issue interest group. The disturbing tactics of division and distortion and discrimination practiced by the extremists of the "New Right" have no place in these hearings and no place in our Nation's democracy. I look forward to Judge O'Connor's testimony and her response to the questions. Based on what I know today, I intend to support her nomination. I take pride in the opportunity to participate in these historic hearings.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Laxalt of Nevada.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Thank you, Mr. Chairman. Mr. Chairman, it is with great pleasure that I join with you and my colleagues in welcoming Judge Sandra O'Connor on this occasion of her confirmation hearings. Although Judge O'Connor is no stranger to public life, she has received the full glare of the national attention given to a nominee for the U.S. Supreme Court, to say the least. In that spotlight, it is apparent that she enjoys overwhelming popular support from the varied and diverse people of our great Nation. This support must be heartening as you prepare for what we will all appreciate might be a necessarily grueling ordeal. Judge O'Connor brings to this office a wealth of experience in the executive, legislative, and judicial branches of State government. However, it is not on one issue or one political question that the support of the American people is to turn. Rather, I think the people have expressed their confidence in Judge O'Connor's legal background, her professional record, and her personal abilities and integrity. I think that is an important distinction to make. I think you are here, Judge O'Connor, because you have been a fine judge and you have been a fine lawyer ahead of that, not a political activist. On this committee we have Senators representing the entire spectrum of political thought in this country. However, we can all agree that the person chosen to fill the current vacancy on our Nation's Supreme Court must meet the highest standards of judicial temperament and integrity. The purpose of these hearings is to inquire into these areas so that we and the American people can be assured that this lifetime appointment is filled by a person with the requisite character and skill to meet the challenges the Court will face in the decades ahead. Therefore, Judge O'Connor and your very justifiably proud family, I welcome you to Washington and I look forward to the opportunity to join in the questioning. I wish you well, not only in the hours ahead but in the many distinguished years you will enjoy on our highest Court. I thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Byrd of West Virginia. I do not believe he is here. Senator Hatch of Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Judge O'Connor, we are very happy to have you and your good husband here today. I am very pleased to support President Reagan in your nomination to the U.S. Supreme Court. I am proud of a President who, whether you agree fully with his campaign promises or not, is at least trying to live up to them, and I think it is long overdue to have a woman on the Supreme Court of the United States of America. Having spent over an hour with you and in other conversations with you, I am convinced that you meet many of the highest qualifications and standards that are essential to serve on the Supreme Court of the United States of America. I look forward to the questions and look forward to getting to know you better throughout this process. Mr. Chairman, rather than take any more time, I would ask unanimous consent that the balance of my remarks be placed in the record at this point.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, it is so ordered. [Material follows:] From ihi1 ortue "t SEN. ORRIN HATCH Washington. ARTICLE II, SECTION 2 OF THE CONSTITUTION STATES THAT THE PRESIDENT "SHALL NOMINATE, AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, SHALL APPOINT . . . JUDGES OF THE SUPREME COURT." ACCORDINGLY, WE SHARE WITH THE PRESIDENT THE VITAL CONSTITUTIONAL FUNCTION OF SHAPING THE FUTURE OF AMERICAN JURISPRUDENCE. WE WOULD PROFIT BY RECALLING THE REASONS THE FRAMERS OF THE CONSTITUTION SPLIT THE NOMINATION PROCESS FOR SUPREME COURT JUDGES BETWEEN THE EXECUTIVE AND LEGISLATIVE BRANCHES. TLHE FRAMERS UNDERSTOOD THE IMPORTANCE OF THE SUPREME COURT TO THE NEW REPUBLIC. WHEN MOVING TO ELIMINATE INFERIOR FEDERAL COURTS FROM THE CONSTITUTIONAL PLAN, DELEGATE JOHN RuTLEDGE FROM SOUTH CAROLINA STATED THAT: /T/HE RIGHT OF APPEAL TO THE SUPREME NATIONAL TRIBUNAL /WILL/ BE SUFFICIENT TO SECURE THE NATIONAL RIGHTS AND UNIFORMITY OF JUDGMENTS. (J FARRAND 129) THROUGHOUT THE SUBSEQUENT DEBATE IN WHICH INFERIOR COURTS WERE EXCLUDED BY VOTE AND THEN RESTORED BY A COMPROMISE THAT ALLOWED CON~ GRESS TO ESTABLISH THEM, THE DELEGATES REPEATEDLY AFFIRMED THEIR CONFIDENCE IN THE SUPREME COURT'S ABILITY TO PROTECT CONSTITUTIONAL RIGHTS AND SUSTAIN LAWS AND POLICIES DECREED BY CONGRESS. THE FRAMERS, HOWEVER, KNEW THAT WORDS OF LAW COULD BE SLIPPERY. THEY HAD EXPERIENCED SUCH INDIGNITIES AT THE HANDS OF THE KING'S MAGISTRATES. RECOGNIZING THAT THE INTEGRITY OF THE CONSTITUTION'S WORDS WERE AT STAKE, THEREFORE, THEY WOULD NOT LEAVE THE FORMATION OF THE SUPREME COURT TO ONE MAN. IF ENFORCEMENT OF THE CONSTITUTION WERE TO BE COMMITTED TO THE HANDS OF THE JUSTICES, THE FRAMERS WANTED 10 TO BE SURE, IN THE WORDS OF ALEXANDER HAMILTON, THAT THEY DESIGNED THE PLAN BEST CALCULATED .. . TO PROMOTE A JUDICIOUS CHOICE OF MEN (INCIDENTALLY, 1 THINK ALEXANDER WOULD EXTEND HIS LANGUAGE TO INCLUDE WOMEN IN THIS INSTANCE,) FOR FILLING THE OFFICES OF THE UNION. IN SHORT, THIS PLAN WOULD PROVIDE A DOUBLE CHECK ON NOMINATIONS TO INSURE THAT THE CONSTITUTION AND SUCH WORDS AS "DUE PROCESS" OR "EQUAL PROTECTION" MEAN WHAT THE AUTHORS INTENDED NOT SIMPLY WHAT FIVE APPOINTEES MIGHT CUMULATIVELY CONCOCT. HAMILTON CONTINUED TO STATE WHY ONE MAN COULD NOT BE GIVEN THIS VITAL TASK: /ADVICE AND CONSENT/ WOULD BE AN EXCELLENT CHECK UPON A SPIRIT OF FAVORITISM IN THE PRESIDENT, AND WOULD TEND GREATLY TO PREVENT THE APPOINTMENT OF UNFIT CHARACTERS FROM STATE PREJUDICE, FROM FAMILY CONNECTION, FROM PERSONAL CONNECTION, OR FROM A VIEW TO POPULARITY. AND, IN ADDITION TO THIS, IT WOULD BE AN EFFICACIOUS SOURCE OF STABILITY IN THE ADMINISTRATION. (FEDERALIST #76) THUS THE FRAMERS UNDERSTOOD THE PIVOTAL ROLE OF THE NATION'S HIGHEST JUDICIAL FORUM AND SPECIFICALLY PROVIDED A TWO-STEP SELECTION PROCESS FOR ITS JUDGES. WE HAVE ALL HEARD THE ENTHUSIASTIC BOAST OF FORMER CHIEF JUSTICE CHARLES EVANS HUGHES THAT "WE ARE UNDER A CONSTITUTION, BUT THE CONSTITUTION IS WHAT THE JUDGES SAY IT IS." THIS IS THE UNINHIBITED SPIRIT THE FRAMERS MEANT TO CHECK BY INVOLVING THE SENATE IN THE SELECTION OF JUDGES. THE FRAMERS OF THE CONSTITUTION FORESAW THAT THE SUPREME LOURT WOULD HAVE EXTENSIVE AUTHORITY TO INSURE THAT THEIR DOCUMENT WOULD BE PROPERLY ENFORCED. PRECISELY FOR THIS REASON, THEY OBLIGATED THE BENATE TO PROTECT THE LONSTITUTION IN THE NOMINATION PROCESS. THIS PLACES UPON US A GRAVE RESPONSIBILITY. THIS RESPONSIBILITY WITH REGARD TO JUDGE SANDRA O'CONNOR IS ONE THAT I PERSONALLY AM DELIGHTED TO PARTICIPATE IN, NOT ONLY BECAUSE OF ITS IMPLICATIONS FOR THE INTERPRETATION OF THF. CONSTITUTION, BUT BECAUSE I FEEL THAT JUDGE O'CONNOR'S SENSE OF CONSTITUTIONAL JUSTICE WILL BE WORTHY OF THE TRUST PLACED IN THE SUPREME COURT BY THE FOUNDING FATHERS. AS WE EMBARK UPON THIS INVESTIGATION, HOWEVER, I WOULD LIKE TO REMIND MY COLLEAGUES AND MYSELF THAT THE STAKES ARE HIGH. WE ARE DECIDING TODAY THE FUTURE OF OUR MOST SACRED DOCUMENT. 11 The CHAIRMAN. Senator Metzenbaum of Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. Judge O'Connor, I look forward to this hearing with an open mind and with a deep sense of inward gratification. I am openminded with respect to the confirmation process but I would be less than frank if I did not admit a high degree of enthusiasm over the fact that President Reagan has seen fit to appoint the first woman to the U.S. Supreme Court. I come to this hearing with no preconceived notions. If I happen to disagree with you on any specific issues, it will in no way affect my judgment of your abilities to serve on the Court. It is a matter of concern to me, however, that there are certain groups who have spoken adversely about this appointment by reason of some of your votes or actions as a State legislator. I have some very strong feelings about judicial appointments. Basically, I think that the appointee must be a person of integrity; a person strong enough to stand up for his or her point of view; a person who has been shown to be a highly qualified legal scholar; and a person who will have the kind of character that reflects well on the judiciary in general. Your being a woman appointee would not, in and of itself, be sufficient reason for me to vote to confirm. However, your being a qualified and able woman of character and ability would provide me with a great amount of satisfaction in knowing that I had a part in the historic process of your confirmation to the Supreme Court.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Dole of Kansas.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Thank you, Mr. Chairman. I, like everyone else in this committee, welcome Judge O'Connor to the committee. I want to commend the chairman for the fine attendance we have this morning, an indication of strong leadership. We appreciate that. However, as I think has been said, we are all aware of the uniquely historic occasion that we are participating in, particularly those of us who are privileged to serve on this committee. Whatever else these hearings may tell us, I have a sense already of your own feeling for the institution to which you have been nominated by President Reagan. The Supreme Court stands at the very center of American life. Its decisions define public policy for decades to come. The words used to explain its reasoning shape the law and its practice for thousands of practitioners and millions of citizens. Not least of all, the Court in recent times has been called upon to render judgments in cases of almost bewildering complexity, fraught with delicate moral or social implications. Should you be confirmed and take your place alongside our other brethren, you will undoubtedly find yourself confronted with issues Solomon himself might agonize over. It is not my job, nor does it fall within the realm of senatorial prerogative as I understand it, to nail down precisely your views on 87-101 O—81 2 12 a host of controversial questions you may face on the bench. However, it is useful I think to call to mind the words and the example of Oliver Wendell Holmes. Mr. Justice Holmes was a legal interpreter, not an independent policymaker. When a young friend seized the opportunity to urge him to, as he put it, "Do justice," Holmes replied: "That is not my job. My job is to play the game according to the rules." The Judiciary Committee is faced with the job of examining your prior record and assessing your present qualifications to perform a role with profound impact on American society. Most of all, however, we are here to learn if you, like Mr. Justice Holmes, intend to play the game according to the rules. In this regard, I find it encouraging that you bring to these hearings a rich and varied background. Some Justices come to Washington known chiefly as legal educators. Others are Washington lawyers, leaders of the bar, or prominent figures from State and national politics. Justices may pursue many paths to the Court but few have won separate reputations, as you have, on the campus, in the legislature, in the practice of law, and on the State bench. Few have arrived in this city with a better insight into the legislative and judicial dichotomy. Having helped to write laws, I expect you have come to appreciate the limitations of statutes alone. Haying interpreted laws, I expect you have come to value the continuity of precedent and the wisdom of plain commonsense. Of course, as your presence here demonstrates, it is sometimes plain commonsense to break with precedent. I might add, better 190 years late than never. No single act by a President reverberates with greater historical force than his nominations to the Supreme Court. No senatorial function ranks higher in importance than deciding the qualifications of would-be Justices. In that spirit, and cognizant of the special interest that surrounds this nomination, I look foward to exploring in detail your judicial philosophy. I would add, Judge O'Connor—and I think I can summon the ghosts of Roger Taney and Louis Brandeis to my side in saying this—you are among friends.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator DeConcini is next but he will be heard from later. Senator Simpson of Wyoming.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman. Historic is overused here this morning but very appropriate. I have a special feeling about the situation since I happen to represent the State of high altitude and low multitude, where we had the first woman justice of the peace, we had the first woman Governor, and we also were the first State in the Union to give women the right to vote, an interesting thing at that time of our rather robust history. Therefore, it is a historic occasion, the confirmation of a Supreme Court Justice. I think it achieves our very fullest and most solemn task in the constitutional advise and consent function of the Senate. 13 I have a fascinating footnote. Less than half of the Members of the Senate were serving in this body when we confirmed the last Justice of the Supreme Court, as recently as December of 1975. Now that either says a lot about the tenure stability of judges, or I have a hunch it actually says a great deal more about the realities of the job security enjoyed by your inquisitors who are here arrayed today. [Laughter.] Therefore, it is an extraordinary position, life tenure. The purpose of it, of course, was to allow the judiciary to operate freely without political tampering that so weighted down previous judicial systems. The judiciary then was to transcend the politics so properly part and parcel of the other two branches. That marvelous check and balance that has proven so very workable and so very flexible in over 200 years also requires that members of the Federal judiciary submit themselves to the scrutiny and the searching inquiry of the executive and the legislative branches, and the latter is what we are up to today. Really, seldom does the constitutional process offer such a very direct participation and observation. This proceeding I think would be perceived with great favor by the Founding Fathers. I think it is just exactly what they had in mind. Just a final personal note, Mr. Chairman. I am very impressed by this lady. I greatly enjoyed my first visit with her. She is an observant, bright, lucid, articulate, thoughtful, sharp, curious person. She has a nice touch of wit and a warm sense of humor which one sorely needs when the brittle, cold winds of ridicule and harsh judgment whistle around this place, I can tell you, and the place east of us across the pasture there. Therefore, I think we need more legislators as judges, just as we have come to enjoy on this panel that remarkable judge from Alabama, Senator Heflin, who adds so much to our deliberations here. I do feel an extra special form of kinship with Judge O'Connor. My path that led me here is very similar to the one that she took, both serving as attorneys and assistant attorney general, and in the general practice of law and civic work, and legislators in the State legislature where you never become known as a statesman. You are just the guy or the gal that voted against the "red fox bill," and I know how tough that gets. The judge was also majority floor leader, and that is something I enjoyed so much, much better than being minority floor leader. Therefore, you have a diverse and lively background and you are an involved and committed woman in both your public and your personal life. I commend you, who have served as attorney and judge and legislator, involved citizen, wife, mother. Then to find one final tidbit of accord, your son Brian O'Connor and my son Colin MacKenzie Simpson are classmates and seniors together at Colorado College and enjoy each other's company very much, out in the West we both enjoy. That must be an Irish and Scots situation beyond belief. Enough: My time runs. However, I do feel that here is a person who brings a real touch of class to this office, this Government, this city, and this place. I think that we will all perceive that at the conclusion of the hearings. I shall be listening with great interest, and I welcome you, Judge. 14
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Leahy of Vermont.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. If I had to choose one moment to explain the most about the way the American system of government worked, it would probably be the moment when we choose a Justice of the Supreme Court. It is a moment when the interests of all three branches of Government join, also when the guardianship of the Constitution has to be safely conveyed. The Supreme Court has succeeded as the interpreter of the Constitution, arbiter of great conflicts, not only because of wisdom and a sense of history but because even in the most divided times in this country, the American people have kept the sense and feeling of respect that the Court has earned. Above all, this has been a Court of fairness and a Court of competence. It is these qualities that must characterize any nominee to that Court. I believe that Judge O'Connor comes to this committee with impressive credentials, and I praise President Reagan in making this appointment. I also praise his wisdom in picking somebody who has historical ties to the State of Vermont, and I am sure that that must have had something to do with the position you find yourself in today. Her tenure on the appellate division bench has not been long in years but I think, to go back to some of the history that Senator Dole referred to earlier, we should realize that only 60 of the 101 Justices sitting now or in the past have had any prior judicial experience. Only 41 of these had over 5 years of service when confirmed, and among those who had no prior experience were included John Marshall and Joseph Story, Roger Taney and Louis Brandeis, and if you do not count his service as police judge, Hugo Black. Our examination of Judge O'Connor's judicial philosophy, that is relevant and important, but we should not condition our confirmation on her agreement with any opinions of ours, so long as her philosophy is within the norms set down by the Constitution itself. We are a pluralist republic, no less on the bench than in a Vermont town meeting or a national election. I enjoyed my own visit with Judge O'Connor. I told her at that time I really did not care whether she was a Republican or a Democrat, a conservative or a liberal. That is not the issue. The issue is one of competence and whether she has a sense of fairness. I am convinced on both counts. No one can now safely forecast the issues that will dominate the coming years on the Court, but certain questions never will and never should go away—how to balance the powers among the branches of Government and how to maintain the Court's coequal status while serving as the ultimate forum on the actions of other branches and States, will always be perplexing. The right answers have never been obvious, and they will not be during the time you serve on that Court. So far in our history there has been a remarkable acceptance of judicial interpretations, a willingness to make the necessary changes to conform to judicial mandate. 15 Federalism is another issue that will never be settled for all time. However, Judge O'Connor's background as a jurist, a legislative leader, and a legal writer convinces me that she would bring to the Court a bounty of practical experience in dealing with these sensitive issues. However, in the end the Court's highest duty is liberty. In the United States there is no national dogma, no unvarying platform, no orthodoxy save the notion that all other rights proceed from the right of free expression. Not every Supreme Court decision will be popular, and decisions upholding nonconformist expression will be particularly unpopular. John Chipman Gray once wrote that "A court generally decides in accordance with custom because a community generally thinks its customs right.* * * The custom and the ethical creed are usually identical. But which of the two is the real source of the law is shown in the cases where they differ." There may come times when the modern electronic revolution— television, political polls, and computer-armed direct mail experts on the right or the left—may demand instant consensus. However, one institution that must survive such times is the Supreme Court, where instant consensus must never result in instant justice. In conclusion, as Justice Brandeis once said, "If we would guide by the light of reason, we must let our minds be bold." I think you have a mind that is and will be bold, Judge O'Connor. I welcome you here today, and I look forward to these hearings. Thank you. [Material follows:] IF I HAD TO CHOOSE ONE MOMENT THAT EXPLAINED THE MOST ABOUT THE WAY THE AMERICAN SYSTEM OF GOVERNMENT WORKED, IT WOULD PROBABLY BE THE MOMENT WHEN WE CHOOSE A JUSTICE OF THE SUPREME COURT. IT IS A MOMENT WHEN THE INTERESTS OF ALL THREE BRANCHES OF GOVERNMENT JOIN AND A MOMENT WHEN THE GUARDIANSHIP OF THE CONSTITUTION MUST BE SAFELY CONVEYED. THE SUPREME COURT HAS SUCCEEDED AS THE INTERPRETER OF THE CONSTITUTION AND THE ARBITER OF GREAT CONFLICTS NOT ONLY BECAUSE OF WISDOM AND SENSE OF HISTORY, BUT BECAUSE EVEN IN THE MOST DIVIDED OF TIMES THE C.OURT HAS EARNED AND KEPT THE RESPECT OF ALL AMERICANS, ABOVE ALL, THIS HAS BEEN A COURT OF FAIRNESS AND COMPETENCE. IT IS THESE QUALITIES THAT MUST CHARACTERIZE ANY NOMINEE TO THE COURT. JUDGE O'CONNOR COMES TO THIS COMMITTEE WITH IMPRESSIVE CREDENTIALS, HAVING BEEN ACTIVE IN THE PRACTICE OF LAW, IN THE LEADERSHIP OF THE ARIZONA SENATE, AS A TRIAL JUDGE, AND THEREAFTER A STATE APPELLATE JUDGE. WHILE HER TENURE ON THE APPELLATE DIVISION BENCH HAS NOT BEEN LONG IN YEARS, IT IS EASY TO FORGET THAT THE SUPREME COURT DEMANDS A DIVERSITY OF TALENT AND EXPERIENCE, MORE THAN LENGTH OF SERVICE IN THE JUDICIAL BRANCH. ONLY 60 OF THE 101 JUSTICES SITTING NOW OR IN THE PAST HAVE HAD ANY PRIOR JUDICIAL EXPERIENCE, AND ONLY ^1 OF THESE HAD OVER FIVE YEARS OF SERVICE WHEN CONFIRMED. AND AMONG THOSE WITH NO PRIOR EXPERIENCE WHATSOEVER WERE JOHN MARSHALL, JOSEPH STORY, ROGER B. TANEY, LOUIS n, BRANDEIS, AND MUGO L. BLACK (IF YOU EXCLUDE HIS SERVICE AS A POLICE JUDGE). THESE NEXT DAYS WILL GIVE US A CHANCE TO HEAR JUDGE O'CONNOR'S VIEWS ON A WIDE KANGE OF LEGAL TOPICS. BUT WHILE OUR EXAMINATION OF HER JUDICIAL PHILOSOPHY IS RELEVANT AND IMPORTANT, WE SHOULD NOT CONDITION HER CONFIRMATION ON HER AGREEMENT WITH ANY OPINIONS OF OURS, SO LONG AS HER PHILOSOPHY IS WITHIN THE NORMS SET DOWN BY THE CONSTITUTION ITSELF. OURS IS A PLURALIST REPUBLIC, NO LESS ON THE BENCH THAN IN A VERMONT TOWN MEETING OR A NATIONAL ELECTION. 17 IT MAY BE SAID THAT EVERY NEW JUSTICE COMES TO THE SUPREME COURT AT A PARTICULAR CONSTITUTIONAL MOMENT. IF THE WISDOM OF THE CONSTITUTION IS ETERNAL, THE TASK OF DISCOVERING THAT WISDOM IS NEVER-ENDING. NO ONE CAN NOW SAFELY DESCRIBE THE PRESENT CONSTITUTIONAL MOMENT OR FORECAST THE ISSUES THAT WILL DOMINATE THE COMING YEARS ON THE COURT. BUT CERTAIN QUESTIONS NEVER WILL AND NEVER SHOULD GO AWAY, ONE IS HOW TO BALANCE THE POWERS AMONG THE BRANCHES OF GOVERNMENT. THE SUPREME COURT ULTIMATELY DECIDES IF THE WILL OF CONGRESS HAS BEEN FOLLOWED WHEN LAWS ARE APPLIED OR, IN SOME INSTANCES, IF CONGRESS HAS FAITHFULLY FOLLOWED THE CONSTITUTION. ALL WILL AGREE THAT THE POWER TO DECLARE THE ACTS OR RESOLVES OF OTHER BRANCHES OF GOVERNMENT INVALID HAS NEVER RAISED THE COURT OVER THE OTHER BRANCHES OR OVER THE STATES. MAINTAINING THE COURT'S CO-EQUAL STATUS WHILE SERVING AS THE ULTIMATE FORUM ON THE ACTIONS OF OTHER BRANCHES AND THE STATES WILL ALWAYS BE PERPLEXING. THE RIGHT ANSWERS HAVE NEVER BEEN OBVIOUS. FOR EXAMPLE, WHO WOULD HAVE QUIBBLED WITH THE WORDS OF THE COURT WHEN IT SAID IN 1946, IT IS HOSTILE TO A DEMOCRATIC SYSTEM TO INVOLVE THE JUDICIARY IN THE POLITICS OF THE PEOPLE. YET I QUOTE FROM A CASE THAT DECLINED SUPREME COURT REVIEW OF STATE APPORTIONMENT DECISIONS, A CASE OVERRULED IN 1962 BY BAKER V. CARR. AND WHO WOULD ARGUE TODAY THAT FOR NEARLY 20 YEARS SINCE RAKER THE CAUSE OF EQUAL REPRESENTATION HAS DRAMATICALLY IMPROVED BECAUSE THE COURT"DECIDED, RELUCTANTLY, THAT THERE ARE MOMENTS TO BECOME INVOLVED IN CONTROVERSIES GENERALLY LEFT TO THE STATES? SO FAR IN OUR HISTORY THERE HAS BEEN A REMARKABLE ACCEPTANCE OF JUDICIAL INTERPRETATIONS AND A WILLINGNESS TO MAKE THE NECESSARY CHANGES TO CONFORM TO JUDICIAL MANDATE. THE WILLINGNESS COMES FROM A RESPECT FOR THE COURT AS AN INSTITUTION THAT PLACES JUSTICE OVER PERSONALITY AND PRESSURES OF THE MOMENT. THAT WILLINGNESS WILL BE RENEWED AND THE COURT'S READINGS OF THE CONSTITUTION WILL BE ACCEPTED AS THE LAST WORD SO LONG AS THEY CONTINUE TO MERIT WHAT LINCOLN ONCE REFERRED TO AS "CLAIMS TO THE PUBLIC CONFIDENCE." THAT CONFIDENCE MUST ENDURE, IF THE UNIQUENESS OF THE COURT IS TO ENDURE. FEDERALISM IS ANOTHER ISSUE THAT WILL NEVER BE SETTLED FOR ALL TIME. CHIEF JUSTICE CHASE SAID MORE THAN A HUNDRED YEARS AGO 18 THAT "THE CONSTITUTION, IN ALL OF ITS PROVISIONS LOOKS TO AN INDESTRUCTIBLE UNION, COMPOSED OF INDESTRUCTIBLE STATES." TLME, CHANGE, AND THE MOBILITY OF OUR SOCIETY HAVE PUT TERRIBLE PRESSURES ON OUR UNION, AND THE GROWTH OF GOVERNMENT WEIGHS HEAVILY ON THE FABRIC OF FEDERALISM. JUDGE O'CONNOR'S BACKGROUND AS A JURIST, LEGISLATIVE LEADER, AND LEGAL WRITER CONVINCES ME THAT SHE WOULD BRING TO THE COURT A BOUNTY OF PRACTICAL EXPERIENCE IN DEALING WITH THESE SENSITIVE ISSUES. BUT IN THE END, THE COURT'S HIGHEST DUTY IS LIBERTY. IN THE UNITED STATES THERE IS NO NATIONAL DOGMA, NO UNVARYING PLATFORM, NO ORTHODOXY, SAVE THE NOTION THAT ALL OTHER RIGHTS PROCEED FROM THE RIGHT OF FREE EXPRESSION. NOT EVERY SUPREME COURT DECISION WILL BE POPULAR, AND DECISIONS UPHOLDING NONCONFORMIST EXPRESSION WILL BE PARTICULARLY UNPOPULAR. JOHN CHIPMAN GRAY ONCE WROTE: A COURT GENERALLY DECIDES IN ACCORDANCE WITH CUSTOM BECAUSE A COMMUNITY GENERALLY THINKS ITS CUSTOMS RIGHT...THE CUSTOM AND THE ETHICAL CREED ARE USUALLY IDENTICAL. BUT WHICH OF THE TWO IS THE REAL SOURCE OF THE LAW IS SHOWN IN THE CASES WHERE THEY DIFFER. THERE MAY COME TIMES WHEN THE MODERN ELECTRONIC REVOLUTION — TELEVISION, POLITICAL POLLS, AND COMPUTER-ARMED DIRECT MAIL EXPERTS -- MAY DEMAND INSTANT CONSENSUS. ONE INSTITUTION THAT MUST SURVIVE SUCH TIMES IS THE SUPREME COURT, WHERE INSTANT CONSENSUS MUST NEVER RESULT IN INSTANT JUSTICE. TODAY IS A TIME FOR THE COURT TO EXAMINE MORE DEEPLY THAN EVER THE LIMITATIONS ON ITS POWER AND ITS ROLE IN THE SCHEME OF OUR GOVERNMENT. BUT THE PRESSURES ON THE COURT TO YIELD UP THE GAINS OF THE PAST GENERATIONS IN LIBERTY AND EQUALITY MAY BE SUBSTANTIAL,AND IT IS THEREFORE ALSO A TIME TO BE WATCHFUL AND STRONG. As JUSTICE BRANDEIS ONCE SAID, "IF WE WOULD GUIDE BY THE LIGHT OF REASON, WE MUST LET OUR MINDS BE BOLD." WE WELCOME JUDGE O'CONNOR AND LOOK FORWARD TO BEING WITH HER DURING THESE IMPORTANT HEARINGS. 19
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator East of North Carolina.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Thank you, Mr. Chairman. Mrs. O'Connor, I welcome you this morning and congratulate you on your nomination. Senator Simpson is absolutely right in implying that every Member of the Senate has somewhat of an envy of those who may be going on to the Supreme Court for that lifetime appointment. We live in that very imperfect and unsettled world of having to run for reelection, and grappling with high interest rates and related matters, so we do envy you down deep in our heart of hearts, no question about that. It is an honor, as a freshman Senator, to be a part of this very important process of confirming a Justice to the U.S. Supreme Court. This is a historic occasion, not only because you are the first woman nominee but because this, of course, represents the first great opportunity of this administration to change the general course and direction of the U.S. Supreme Court, one of the three great, vital institutions of the American system of government. Therefore, I look forward to being a part of this. I hope that our questions can be questions of substance and depth so that we can fulfill our constitutional obligation as a part of the confirmation process. Mr. Chairman, in the interest of time I would like the balance of my remarks to be entered into the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Again, my congratulations to you for your nomination, and I welcome you here to the Senate Judiciary Committee this morning. [Material to be supplied follows:] Mr. Chairman, I thank you for this opportunity to make a few opening remarks on this very important nomination. Perhaps the most important question before the Committee today is not whether Judge O'Connor is to be confirmed as a Supreme Court Justice, but what the role of the United States Senate ought to be in the process of selecting a Justice of the Supreme Court. The Constitution imposes on the Senate the duty to exercise an advice and consent function. In my view, this duty includes a responsibility to scrutinize carefully all of the nominee's qualifications to sit on the High Court. Among the most important of these qualifications is that the nominee have a profound respect for the Constitution. Such respect for the Constitution can only be evidenced by a determination to interpret that document according to its true meaning, and to abjure the law-making function that the Supreme Court has taken unto itself in recent years. If I am correct in thinking that the Senate must scrutinize the degree to which a nominee respects the Constitution as a document to be interpreted according to its true meaning, then the question arises how 21 -2- Senat'ors are to inform themselves in this area. Unlike education and experience, a nominee's constitutional philosophy cannot be reduced to lines on a resume. Nor is a nominee's own self-description as a "strict constructionist" or a "judicial conservative" likely to be helpful, since such labels mean different things to different people. Unless a nominee has a long record of prior judicial decisions on constitutional law, or other writings on the Constitution and what it means, the only way for a Senator to find out whether the nominee will interpret the Constitution according to the intentions of its framers is to ask specific questions about constitutional law. There is, of course, a significant limitation on a Senator's right to receive candid answers from a nominee on questions of constitutional law: It would be wrong „• to expect promises of certain votes in particular future cases. But this is no bar to full discussion of past cases and competing doctrines. Such discussion does not amount to a promise because the Senators and the nominees ought to understand that no judge can decide how to rule on a case without having read the briefs, heard the oral arguments, and conferred with the other members of the court. With the understanding that no promises will be requested or received, I fervently hope that Judge O'Connor will be willing to share with us her views on constitutional law, including her reactions to the Supreme Court's past cases. 22 -3- Only with the benefit of such information will the Senate be able to exercise its constitutional advice and consent function in an informed and intelligent fashion.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Baucus of Montana.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Thank you, Mr. Chairman. I would like to take this opportunity to address the nominee directly. Judge O'Connor, this is a special occasion for each of us. It is our first Supreme Court nomination hearing, and I thought it would be fitting to use this short time to tell you how I personally feel about this nomination. For you, as a judge, as a lawyer, as a citizen, as a woman, as a human being, it is a great personal tribute and a high honor to be nominated by the President of the United States to be an Associate Justice of the United States Supreme Court. For me, this is a moment of special responsibility under the advise and consent powers given the Senate by article 2 of the Constitution, to determine whether your nomination should be confirmed. I view it as an important obligation to assure the American people that you are a nominee of the highest integrity and competence; that your view of the Constitution, your view of our form of government, and your view of the role of the Supreme Court are consistent with the best interests of our Nation. For our country, it is our brief and only opportunity to examine an individual who will have profound impact on us, our children, and our grandchildren. Once confirmed, life tenure will give you the requisite independence to decide cases fairly and wisely, yet that tenure will also forever foreclose any opportunity to review your performance. As a former State legislator who faced several moments of truth with Arizona voters, I am sure you appreciate the value of that kind of public accountability. In a sense, these hearings will be your last opportunity for public accountability. I hope you approach them in that light. Finally, for our Nation this is one of those rare opportunities to examine the role of the Supreme Court and try to determine its proper relationship to the Congress, to the President, and to individual citizens. I therefore believe that it is incumbent upon us, each of us, to be thoughtful, candid, and forthright, and to take the time to fully and completely exercise our obligations. I will ask you about general principles you believe a judge should follow in deciding cases. I will ask you how you, as a member of the Court, would go about increasing our citizens' respect for the Su- 23 preme Court and the Federal judiciary. I will ask you whether Congress should respond to decisions of the Supreme Court by limiting Supreme Court review of constitutional questions. Finally, I will ask you how you, Justice Sandra O'Connor, hope to be remembered in history. I look forward to our discussion of these issues. Thank you very much.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Grassley of Iowa.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge O'Connor, I once again extend my congratulations to you on your nomination for Associate Justice of the Supreme Court. Your nomination is important in and of itself and because it will hopefully set the stage for fulfillment of President Reagan's promise to reverse a current trend in the Federal courts. We hope that this nomination will be the first of several appointments to the Supreme Court by this President and that it will signal a dramatic return by Federal court appointees at all levels who are committed to the preservation of our greatest constitutional principles. Through the strict observation of both the separation of powers by restraining from legislating from the bench, as well as vigorous enforcement of the division of powers by acting when necessary to prevent the Congress from usurping powers reserved to the States, will start the Court back down the road in the right direction. We also pray that these Reagan appointees will differ from many recent appointees by showing at least as much compassion for society's innocent victims as its criminal wrongdoers. These are the qualities of individuals the President promised to appoint when he was campaigning, and indeed that was the explicit pledge of the platform upon which he ran. It is already apparent that you, Judge O'Connor, exhibit some of those qualities, just by the mere fact that you are sitting before us today. I have the utmost respect for President Reagan's judgment, and I received the impression through our meeting a few weeks ago that you are a warm, perceptive, and articulate person. I also can see from your judicial opinions, published comments, and record in the State legislature, that you are a master of the law as well. I debated with myself about approaching the subject of the fact that you are a woman but I think it is necessary to recognize that that fact alone may indicate more about your character and competence than anything which appears on your resume. That is because the profession of law was closed to women for a long time both legally and figuratively. Your presence here today indicates to me that you had the stamina to succeed in what was and still is a male-dominated arena. I just want to let you know that I admire you for your success. However, we must not forget that your selection by the President is made only with the advice and the consent of this Senate. This constitutional role is not one to be taken lightly. Our questioning of you and other nominees must be thorough and direct, and we must insist upon at least as much clarity and candor in your answers to our questioning as has been given by other recent nominees to the Supreme Court. At the conclusion of these hearings, we must be 24 able to report not only to the full Senate but also to the President, and indirectly to the citizenry who elected him, that your nomination represents a campaign promise kept. Hopefully our report will be that you are the perfect model for future Reagan Court appointees—that you, Judge O'Connor, as an individual are first committed, without apology and uncompromisingly, to protecting the role of the States within the constitutional concept of division of powers within our Federal system of government; that you, Judge O'Connor, are secondly an individual committed personally and professionally to limiting your role in the judicial branch to adjudication rather than legislation; and that you as an individual are lastly committed to opposing the permissiveness which has fostered disrespect for society's laws and disrespect for the sanctity of life. Your responses to these questions posed by myself and my colleagues will contribute to the outcome of this report; be it favorable or otherwise, and I hope that they will clear up some of the conflicting contentions that have been raised since the announcement of your nomination. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Heflin of Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Mr. Chairman, I ask unanimous consent that a prepared statement appear in the record as if read in full but I will attempt to limit myself to the requested time of 3 minutes and will abbreviate my statement. Mr. Chairman and Judge O'Connor, the task that brings us here today is a most important one. It is the process by which a branch of Government renews itself, of regeneration, of pumping new blood into the life of a great and vital institution. In my opinion—and I say this, Mr. Chairman, only after careful reflection—there are only two institutions absolutely indispensable to the independence, health, and maintenance of our republic: a free, fair, vigorous press, and a strong and independent judiciary. While Presidents may come and go, their faithful execution of the law is subject to an ultimate check. While a great many men and women may deliberate and legislate in these very Halls, the laws they pass do not interpret themselves. The Federal judiciary—the highest court in particular—not only has the last word as to what our laws say but also as to whether they may permissibly say it. The Court to which this capable jurist has been nominated is the ultimate arbiter of our most sacred freedoms, the guardian of our most cherished liberties. In fulfilling our constitutional duty to advise and consent, the men and women of this body will cast no more important vote in this session of Congress, for we are voting not so much to confirm Sandra Day O'Connor but to reaffirm our belief in the very concept of justice and its preeminence among values in a free and thriving republic. As our first President told his Attorney General, Edmund Randolph, some two centuries ago, "The administration of justice is the firmest pillar of government." If justice is both the ultimate goal and indispensable for the survival of a free republic, we best insure 25 it by the people we select as its custodians. That is what we are about today—selecting a custodian for our most precious commodity, a trustee for our most valuable resource. I am one of the few Senators who have had the privilege of knowing the nominee personally before her nomination. Having participated with her under the leadership of the Chief Justice of the United States in the recent Anglo-American legal exchange on criminal justice, I learned firsthand of her exceptional intelligence, her hard-working preparation of the issues at hand, and her unswerving adherence to integrity. Further, knowing of her deep devotion to the American judicial system, I can safely venture that President Reagan's appointment to the Supreme Court will reflect great credit on his administration, the Court itself, and indeed the Nation at large. Judge O'Connor, if I could leave you with but one guiding thought, it would be to carry indelibly etched in your conscience and follow as religiously as is humanly possible, the admonition of one of our greatest jurists, Learned Hand, who wrote, "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, the Senator's entire statement will be placed in the record. [Material follows:] 26
Senator Howell Heflin (AL)
Senator
(D)
The task which brings us here today is a most important one. It is the process by which a branch of government renews itself--of regeneration, of pumping new blood into the life of a great and vital institution. In my opinion, and I say this, Mr. Chairman, only after careful reflection, there are only two institutions absolutely indispensable to the independence, health and maintenance of our republic--a free and vigorous press, and a strong and independent judiciary. While Presidents may come and go, their faithful execution of the laws is subject to an ultimate check. While great men and women may deliberate and legislate in these very halls, the laws they pass do not interpret themselves. The federal judiciary-- the high Court in particular--not only has the last word as to what our laws say, but also as to whether they may permissibly say it. The court to which this capable jurist has been nominated is the ultimate arbiter of our most sacred freedoms, guardian of our most cherished liberties. In fulfilling our constitutional duty to advise and consent, the men and women of this body will cast no more important vote in this session of Congress. For we are voting not so much to confirm Sandra Day O'Connor, but to reaffirm our belief in the very concept of justice, and its preeminence among values in a free and thriving republic. As our first President told his Attorney General, Edmund Randolph, some two centuries ago, "The administration of justice is the firmest pillar of government." If justice is both the ultimate goal, and indispensable for the survival, of a free republic, we best insure it by the people we select as its custodians. And that is what we are about today-- selecting a custodian for our most previous commodity, a trustee for our most valuable resource. And yet nowhere is there to be found a set of standards for selecting these custodians of justice. Since Chief Justice John Jay took the oath of office in 1789, 101 justices have sat on the Supreme Court. While this record should provide some guidance for us, it is of limited assistance, for they have differed as much in their judicial philosophies as in their passion for the law. Greatness on the Court is neither measurable nor clearly definable. It may derive from a coherent philosophy expressed with unequalled brilliance, as was the case with Justice Holmes, or from a vast currency of experience by the creative mind of a Justice Brandeis. It may stem from an unrelenting effort to restrain judicial activism by a Justice Rehnquist, an unquenchable thirst for liberty, as with Justice Douglas, or the passionate love of free expression of my fellow Alabamian, Hugo Black. When asked to catalogue the criteria for judicial selection, we normally-- and somewhat automatIcally--1ist legal ability, character, and judicial temperment. To these qualities, I would respectfully add three perhaps more fundamental: (1) an understanding of the proper role of the judiciary in our constitutional and federal scheme; (2) a deep belief in, and unfaltering support of, an independent judiciary; and (3) an abiding love of justice. If I might elaborate ever so briefly: (1) Regarding the proper role of the judiciary: It is the constant struggle of all federal judges, and the ultimate issue (they must confront, to preserve the balance between the powers of the' federal government and those of the states --while at the same time protecting the constitutional guarantees of all Americans. It is the supreme test of judicial acumen to preserve that balance, to which an understanding of the proper role of the federal judiciary is indispensable . 27 (2) The framers of the Constitution were painfully aware of encroachments on judicial independence. Indeed, denial to the colonies of the benefits of an independent judiciary was one of the grievances against King George III enumerated in the Declaration of Independence. If the judgment of our highest custodians of justice is at all compromised, if it is based on timidity or hesitation arising from public or political pressure, our legacy of judicial independence will be undermined. Justice compromised is justice aborted. (3) There must be a passionate love of justice, the great cement of a civilized society, the guardian of all life and liberty. If injustice can divide us--pitting black against white, old against young, have-nots against haves --justice can bring us together as a people, and as a Nation. Mr. Chairman, against these highest and noblest of standards, I have examined this nominee, and find that she meets them, every one. Judge O'Connor's record of accomplishment, both in public and private life, is exemplary--a seasoned private practitioner; a vigorous prosecutor; skillful legislator; respected jurist; legal scholar; bar, civic and political leader; faithful wife; and devoted mother. The breadth of her service is surpassed only by the excellence with which it was rendered. More importantly, it enables Judge O'Connor to bring unique qualities to the Court: an abiding respect for the law; a deep understanding of our economic and political institutions; a clear view of the proper role of the judiciary; and a rare appreciation of the values of Americans as a people. I dare say these qualities, and her record to date, are a harbinger of judicial greatness. So I join my colleagues in welcoming Judge O'Connor. Having participated with her, under the leadership of the Chief Justice, in the recent Anglo-American legal exchange on criminal justice, I learned first hand of her exceptional intelligence, her hard working preparation of the issues at hand and her unswerving adherence to integrity. Further, knowing of her deep devotion to the American judicial system, I can safely venture that President Reagan's appointment to the Supreme Court will reflect great credit on his Administration, the Court itself, and, indeed, the Nation at large. Judge O'Connor, as of this moment, I expect you to be confirmed. But in a way I do not envy you--your job, should you be confirmed, and that of your colleagues on the Court, will be the most difficult in the free world. As you know--or will undoubtedly soon learn, cases reaching the Supreme Court are not the "who ran the red light" variety. The most fundamental questions of liberty, and life itself, will reach you; the most intractable and emotional problems of a complex and diverse society. I began by saying we are involved in the process of institutional renewal. As Justice Cardoza put it, "The process of justice is never finished, (it) reproduces itself, generation after generation, in ever-changing forms. Today, as in the past, it calls for the bravest and the best." Mr. Chairman, I believe his words ring just as true today, and in Sandra Day O'Connor I believe we have "the bravest and the best." Judge O'Connor, I wish you well. If I could leave you with but one guiding thought, it would be to carry indelibly etched in your conscience, and follow as religiously as is humanly possible, the admonition of one of our greatest jurists, Learned Hand, who wrote, If we are to keep our democracy there must be one commandment: Thou shalt not ration justice. Thank you. 87-101 O—81 3 28
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Denton of Alabama.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Thank you, Mr. Chairman. Welcome, Judge O'Connor. As I remarked at our meeting in July, I am personally delighted that President Reagan has nominated a lady to be Associate Justice of the Supreme Court. For an attorney, this is the highest tribute which the Government can bestow, and by his choice the President has reposed the highest trust in you as an American, an attorney, and as a jurist. I congratulate you on that nomination. I respect you. I like you. Although many of my colleagues have previously and publicly indicated their approval of your nomination, and your appointment seems highly likely, I am obliged by conscience—the only one I have—to raise certain issues. First, it has been brought to my attention that President Reagan may have been misled by a July 7, 1981 report prepared by a senior Justice Department official, a report which purported to represent your record and your attitude on matters, some of which were subjects specifically established in the 1980 Republican platform, and one of which has been reported to have been verbally established by our President as a criterion for filling the first Supreme Court vacancy. It appears from some analyses that there is a substantial difference between your record and the Justice Department official's report of your record, and that there may be reason for the concern in the minds of many regarding these differences on such issues as abortion and women in combat, among others. I hope we can clear up that matter. While I realize that people of good conscience can be in favor of abortion under certain circumstances, I firmly believe that this Government is founded upon respect for the dignity of humankind. While respecting the differing views of others, I would consider the establishment by our Government of a disposition amounting to a permanent decision not to protect the life of an unborn human being to be a point of no return in a recently accelerated, alarming trend away from the principles upon which our Government was founded and by which this Nation achieved greatness. In my understanding, that greatness derives from the consentual definition of humankind as possessing infinite dignity and worth by virtue of being a form of life created in the image and likeness of God, with the inalienable rights of man, the prerogatives for those rights, being endowed by that same Creator. By that concept, the revolutionary conclusion was reached that governmental direction did not repose in the overriding divine right of a single king but in the consent of the governed, each one of which was considered equal to all others in this respect of dignity. Granting that abortion is a single issue but counting it fundamental to our democratic form of Government, I regard legalized abortion as a denial of the most fundamental and efficacious national principle of this Nation. My judgment on voting on your confirmation or on the confirmation of any other nominee—male or female—to the Supreme Court will be affected by that belief of mine. 29 Your answers at this hearing, not your previous record, will determine my estimate of your position on this and other issues because I trust you and because I know you, like many others I have known, can have changed your mind and still be changing your mind on this issue. I believe the Congress has been changing its collective mind, as evidenced by the recent passage by the Senate of the Hyde amendment. Each of us Senators on this committee must fulfill, according to his own conscience, his role as set forth in article 2, section 2 of our Constitution, and my vote will be a reflection not of my respect for you or President Reagan, but will reflect my best estimate of how your appointment would tend to affect the general welfare of this country. It is my earnest hope that your responses will be neither broad nor bland, because I will base my single vote on those responses. Since I am not a lawyer, I would request, Mr. Chairman, that a statement by a constitutional lawyer, Mr. William Bentley Ball— which differs with some of the opening statements made today—be placed in the record. I ask unanimous consent that that be done.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, the balance of the statement by the distinguished Senator from Alabama will be placed in the record.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Thank you, Mr. Chairman. [Material follows:] PREPARED STATEMENT BY SENATOR JEREMIAH DENTON Welcome Mrs. O'Connor: As I told you at our meeting in July, I am personally delighted that President Reagan has nominated a woman to be Associate Justice of the United States Supreme Court. For an attorney this is the highest tribute which the government can bestow, and by his choice the President has reposed the highest trust in you, as an American, an attorney and as a jurist. As you are very much aware, your nomination was greeted with what might be called mixed reviews, and quite frankly from information which has come to my attention it appears that President Reagan may have been misled by a July 7, 1981, report prepared by a senior Justice Department official. The report to which I refer has been thoroughly dissected by those in opposition to your nomination and while perhaps not dispositive of the issue, these analyses raise legitimate concerns in the minds of many with respect to your attitudes on such issues as abortion, the proposed Equal Rights Amendment, and your record while in the Arizona Senate. Moreover, if the memorandum is to be accepted at full value, then certain questions with respect to your credibility are apparent. While I realize that people of good conscience can be in favor of abortion under certain circumstances, I firmly believe that this government is founded upon respect for the dignity of human kind, and that in my view those Americans who favor what has come to be known as "Pro-choice" abortion undermine this basic concept. In my previous conversation with you I told you that I had not made a decision as to how I would vote on your nomination. I have still not made a decision. My judgment will be based on information which I have developed prior to these hearings together with my evaluation of your responses to questions put to you at the hearings. After all, the purpose of these hearings is not merely to confirm you, but to find out who you really are and what convictions you possess on great issues. The fact that you are a woman must not, in and of itself, dictate the result. We as Senators must fulfill our role of advising and consenting to the nomination of judges of the Supreme Court as set forth in Art. II, Section 2 of the Constitution. We cannot merely acquiese in the selection of President Reagan no matter how highly we regard him and the quality of his leadership. In closing let me say that it is my earnest hope that your responses will be neither broad nor bland, as a lack of knowledge or lack of specificity in answers could easily be perceived as a lack of qualification or of candor. 30 THE O'CONNOR SUPREME COURT NOMINATION, A CONSTITUTIONAL LAWYER COMMENTS (By William Bentley Ball)1 As one whose practice is in the field of constitutional law, one thing stands out supremely when a vacancy on the Supreme Court occurs: the replacement should be deliberate, not impulsive. The public interest is not served by a fait accompli, however politically brilliant. The most careful probing and the most measured deliberation are what are called for. Confirm in haste, and we may repent at leisure. Unhappily, the atmosphere surrounding the nomination of Sandra Day O'Connor to the Supreme Court is one almost of panic. Considering that the liberties of the American people can ride on a single vote in the Supreme Court, any politically or ideologically motivated impatience should be thrust aside and time taken to do the job right. Plainly, there is no need for instanteous confirmation hearings, and the most painstaking effort should be made to fully know the qualifications—including philosophy—of the candidate. My first plea would be, therefore: Don't rush this nomination through. My second relates indeed to the matter of "philosophy". Some zealous supporters of the O'Connor nomination (who themselves have notoriety as ideologues) have made the astonishing statement that, on the Supreme Court of the United States, ideology doesn't count. They say, in other words, that it should be of no significance that a candidate would have an actual and proved record of having voted or acted on behalf of racism or anti-Semitism or any other philosophic point of view profoundly opposed by millions of Americans. These concerns are not dispelled by a recital that the candidate is "personally" opposed to such a point of view. Why the qualifying adverb? Does that not imply that, while the candidate may harbor private disgust over certain practices, he or she does not intend to forego support of those practices? Philosophy is everything in dealing with the spacious provisions of the First Amendment, the Due Process Clauses, equal protection and much else in the Constitution. It is perfect nonsense to praise a candidate as a "strict constructionist" when, in these vital areas of the Constitution, there is really very little language to strictly construe. As to other areas of the constitution (e.g., Article 1, Sect. 4— The Congress shall assemble at least once in every year . . .), to speak of "strict construction" is also absurd, since everything is already "constructed". It is likewise meaningless to advance a given candidate as a "conservative" (or as a "liberal"). In the matter of Mrs. O'Connor, the label "conservative" has unfortunately been so employed as to obfuscate a very real issue. The scenario goes like this: Comment: "Mrs. O'Connor is said to be pro-abortion." Response: "Really? But she is a staunch conservative." Just as meaningful would be: Comment: "John Smith is said to be a mathematician." Response: "Really? But he is from Chicago." Whether Mrs. O'Connor is labeled a "conservative" is irrelevant to the question respecting her views on abortion. So would it be on many another subject. The New York Times editorialized July 12 on "What To Ask Judge O'Connor". The four questions it posed (all "philosophical", by the way) were good. To these many another question need be added. For example: What are the candidate's views on: The proper role of administrative agencies and the assumption by them of powers not clearly delegated? The use by IRS of the tax power in order to mold social views and practices? The allowable reach of governmental control respecting family life? Busing for desegregation? The proper role of government with respect to non-tax supported, private religious schools? Sex differentiation in private employments? Freedon of religion and church-state separation? Broad and bland answers could of course be given to each of these questions, but lack of knowledge or lack of specificity in answers would obviously be useful indices of the capabilities or candor of the candidate. Fair, too—and important—would be questions to the candidate calling for agreement with, disagreement with, and 1 Former chairman, Federal Bar Association Committee on Constitutional Law. 31 discussion of, major prior decisions of the Supreme Court. Not the slightest impropriety would be involved in, and much could be gained by, public exposition of the candidate's fund of information on these cases, interest in the problems they have posed, and reaction to the judgments made. Even these few considerations make it clear that the Senate's next job is not to confirm Mrs. O'Connor but instead to find out who she really is—that is, what convictions she possesses on great issues. I thus return to my theme that deliberativeness, not haste, should be the watchword respecting the confirmation inquiry. The fact that a woman is the present candidate must not (as Justice Stewart indicated) be dispositive of choice. It should certainly not jackknife basic and normal processes of selection. At this point, no prejudgment—either way—is thinkable. Other vacancies may soon arise. The precedent of lightning-fast decisions in the matter of choosing our Supreme Court Justices would be a bad precedent indeed.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Specter of Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. In exercising the Senate's prerogative to advise and consent, I think we should evaluate Judge O'Connor on her capacity to interpret the Constitution with respect to the legal issues that will confront the next generation as well as this generation. Among the many difficult matters facing our society, none is more important than bridging the "generation gap." The genius of our Constitution is that it provides a framework for government spanning generations, eras, centuries—which depends on the quality of judicial construction that is up to this tough task. Judge O'Connor, if confirmed at age 51, is likely to have a pivotal part in applying the Constitution 10 years from now in 1991, 20 years from now in 2001, and perhaps even 30 years from now in 2011. No one said it better than Justice Holmes in Abrams v. United States, in 1919, when he wrote: "Time has upset many fighting faiths." As highly charged and important as the issues of today are, and there are many which fit that description, there will be totally unpredictable matters which could confront this prospective Justice in the next two decades and beyond into the 21st century. Accordingly, as I see it, our task is to confirm a Justice who has the intelligence, training, temperament, and judgment to span that generation gap. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. The President of the United States has designated the distinguished Attorney General of the United States, William French Smith, to present his nominee, Sandra Day O'Connor, to the Senate Judiciary Committee. I now request the Attorney General to present the nominee to the Judiciary Committee.
Attorney General William French Smith
Attorney General Smith.
(R)
Attorney General SMITH. Mr. Chairman and members of the committee, I am very pleased on behalf of the President to present Judge Sandra Day O'Connor to this committee and to the Senate, his nominee for the position of Associate Justice of the Supreme Court of the United States. In assisting the President with this nomination, in the weeks before and the weeks after he made his decision, I had the occasion 32 to become quite well acquainted with Judge O'Connor as a jurist, as a scholar, as a person, and as a friend. I can certainly say that I consider her to be highly qualified for this most important post. Throughout her career she has exemplified the quality of judicial restraint which is most essential to the functioning of our form of government. She has also demonstrated a very strong commitment to the critical role that the States play in our Federal system. This is a very proud day for me personally, as it is for the President and for the administration. We went out to find the very best and, as I am confident you will see, we think we have done just that with Judge Sandra Day O'Connor. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. We will now hear from the distinguished Senator from Arizona, the senior Senator, Senator Barry Goldwater.
Senator Barry Goldwater (AZ)
Senator
(R)
Mr. Chairman, members of the committee, I am delighted and honored to have this opportunity to introduce to you Judge Sandra O'Connor and to declare my unqualified endorsement of her nomination to the U.S. Supreme Court. Mrs. O'Connor is a very fine judge. She has a legal and political background, and is extremely well-admired in Arizona. Judge O'Connor has done far more for the community than most women or most men, and has received many awards from civic and religious groups. She has been married for 29 years, raised three sons, and you could not find a more family-oriented person than she is. During these hearings, I think you will find Judge O'Connor to have a deep love of our Constitution and a strong attachment to the first principles that secure our liberties and form our unique contribution to the science of government. Judge O'Connor's balanced background enables her, more than most people, to appreciate and understand the concepts and values which underlie both the law and constitutional government. As a former trial judge, Mrs. O'Connor has the technical ability to know what a civil or criminal proceeding is all about. In her present position as a judge on the appeals court, she has demonstrated proven competence in reviewing lower court decisions. As a State court judge, Mrs. O'Connor brings a perspective to the U.S. Supreme Court that is important to our federal system; and as a former legislator, she comprehends the full meaning of representative government. Mr. Chairman, I have been acquainted with the O'Connor family for many, many years. I know the Nation will be well-served if your committee votes favorably on her nomination. Mr. Chairman, because Congressman John Rhodes has been detained in Arizona, he has asked me to ask you to insert in the record his statement relative to Judge O'Connor, and I thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, the statement will be inserted in the record. [Material to be supplied follows:] The CHAIRMAN. The distinguished junior Senator from Arizona, Mr. DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, my fellow colleagues of the Judiciary Committee, it is a great pleasure to join with you and to join Senator Goldwater today in introducing Sandra Day O'Connor to the U.S. Senate Judiciary Committee for confirmation as an Associate Justice to the U.S. Supreme Court. It is with a sense of history that I find myself presenting to this committee Judge O'Connor, who I believe is about to become the first woman Justice on the U.S. Supreme Court. Judge O'Connor's qualifications are not that she is a woman, although it is certainly long past due that the Supreme Court has its first woman. In fact, the Supreme Court should have more than just one woman. Judge O'Connor's qualifications are many. She has distinguished herself as a judge both at the trial court level and at the appeals court level; as a legislator, where she served as majority leader of the Arizona State Senate and as chairman of one of the major committees; as an attorney, both in private practice and in public service; and as an active private citizen who is willing to devote her time for the benefit of the public as a member of the National Board of the Smithsonian Associates and as president of the board of trustees of the Herd Museum in Phoenix, as well as a long list of public and private service organizations too lengthy to go into today. It should be noted that she has served in the executive, legislative, and judicial branches of Government with distinction. She has gained from those experiences an invaluable insight of how each of those branches of Government work, which will serve her in good stead as a member of the Supreme Court. In addition, her public service and private legal experience gives her an extremely broadbased foundation for a truly outstanding career on the Supreme Court. I have had the unique benefit of knowing of Judge O'Connor's qualifications firsthand but I am certain that by the termination of these hearings you, my fellow members of the Judiciary Committee, will be as convinced as I am that Judge O'Connor will make a superb Supreme Court Justice and should be confirmed. At this time I would like to congratulate President Reagan for nominating an outstanding candidate and for recognizing after all the many, many years that there certainly should be a woman sitting on the Supreme Court, and there will be. My personal experience with Judge O'Connor's legal ability occurred when she was the assistant attorney general assigned to advise the Governor of the State of Arizona, and I at the time was the Governor's administrative assistant during the period 1965-66. She was a Republican legal counsel for a Democratic Governor. That situation many times creates problems that are frequently unsolvable and that make relations unworkable but not with Sandra O'Connor. 35 To her credit, she was always hard-working, fair, intelligent, conscientious, and I have to admit, correct. Her reputation was outstanding. Her friends admired her for her ability and her hard work. Her foes, although in disagreement with her sometimes, always admitted that she was a true professional. Any criticism of her today will not be directed toward her reputation, simply because that reputation is beyond reproach. She exhibits consummate traits that are necessary for a professional, traits that will stand her in good stead when she is sworn into and becomes a member of the U.S. Supreme Court. When Justice Potter Stuart resigned from the Supreme Court, I recommended that Judge O'Connor be considered for that very important appointment. Again, even though we are of different political parties it is necessary that we overcome any political, partisan differences when appointments to the U.S. Supreme Court are concerned. Therefore, as a Democrat I heartily commend a Republican appointment and the superb Justice that Sandra O'Connor will make. At a time like this, partisanship should be shelved. I think you will see by the wholehearted support of the Arizona delegation that certainly is not a question. A gage of her reputation is contained in a document entitled House Concurrent Memorial 2001 commending President Reagan on his nomination of the Honorable Sandra Day O'Connor to the U.S. Supreme Court and urging the U.S. Senate to swiftly confirm her nomination. The memorial was passed with only three negative votes in the two bodies of the Arizona Legislature, which consists of 90 men and women. The memorial was passed with the almost total support of Republicans and Democrats, liberals and conservatives, pro-life and pro-choice proponents. These are the people that have worked with her and know her integrity and her ability. I am inserting in the record a copy of that memorial for the committee's consideration. Sandra is not just an outstanding professional, however. She is accompanied here today by her husband, John O'Connor, a prominent Phoenix lawyer; her three sons, Scott, Brian, and Jay; as well as her sister, Ann Alexander and her brother-in-law, former State Senator Scott Alexander, along with many friends from across the country. Her record as a wife and a mother is commendable. The number and quality of people who are here today from Arizona to testify in Sandra's behalf are equally impressive: In addition to Senator Goldwater, Congressman Morris K. Udall, chairman of the Interior Committee; Congressman Bob Stump, who will have a statement before these hearings are over; Congressman Eldon Rudd; Governor Bruce Babbitt; Arizona State Senate President Leo Corbet, who served in the State senate with Judge O'Connor; Mayor Margaret Hance of Phoenix, the largest city having a woman mayor in the United States; Senator Stan Turley, Arizona State senator who served with Judge O'Connor in the State senate, and who has been a leader in the pro-life movement; Senator Alfredo Gutierrez, former Democratic majority leader of the Arizona State Senate; Representative Donna Carlson West, Arizona House of Representatives member, distinguished, who is a strong pro-life leader; Representative Art Hamilton, the minority leader of the Arizona House 36 of Representatives, who has served with Sandra O'Connor; Representative Tony West, a distinguished member of the Arizona House of Representatives, who is also a strong pro-life leader; Jim McNulty, former State senator who served with Judge O'Connor and is one of the most prominent members of the Arizona Bar Association, and now serves on the board of regents. In presenting Judge O'Connor to you today, my fellow colleagues, I can only add that she has the extraordinary mix of intelligence, industry, imagination, ingenuity, and integrity that will cause those that are here 50 years from now to comment that Sandra O'Connor was not only the first woman Justice of the U.S. Supreme Court but she was, more importantly, one of the best Justices. May I present Judge O'Connor. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. A Senator from West Virginia has made a request to make some remarks. We shall ask the distinguished Senator from West Virginia, Jennings Randolph, to come around at this time.
Senator Jennings Randolph (WV)
Senator
(D)
Senator RANDOLPH. Chairman Thurmond and members of the committee, I appreciate the opportunity to appear before the committee on this historic occasion. For the first time in the 205 years of our Republic's existence, the Senate is called on to judge the qualifications of a nominee to the U.S. Supreme Court who is a woman. I regret that it has taken more than two centuries to acknowledge through this nomination that just as justice should be symbolically blindfolded when determining the facts, we should be oblivious to sex when selecting those who administer justice. Mrs. Sandra O'Connor appears before you today as the choice of the President of the United States, not solely because she is a woman but because her record appears to qualify her to serve on our Nation's highest tribunal. It would be naive to believe that if Mrs. O'Connor is confirmed as an Associate Justice of the Supreme Court, that her sex will cease to be a factor in her decisions. She will be urged to have feminist rulings; she will be criticized if she makes them or if she resists this pressure. I look forward to the time when Justices of the Supreme Court are selected and evaluated solely on their experience, their knowledge of the law, and their dedication to the United States as a nation governed by the laws the people impose on themselves. Mr. Chairman, when Mrs. O'Connor becomes a member of the Supreme Court, she will have succeeded at long last in having a woman occupy virtually every high office our country has to offer. The most notable exception is the White House, and I anticipate the day when the highest office in our land is not exclusively a male preserve. A breakthrough occurred during the first week in March of 1933. That was the time when I came first to Washington to serve as a Member of the House of Representatives. It was on March 4 of that year that President Franklin D. Roosevelt—I remind you of the day he took office—that he broke another precedent by appointing 37 Frances Perkins as the first female Cabinet member during the history of our country. She served for 12 years as Secretary of Labor. She repeatedly— and I speak from experience—demonstrated the wisdom of President Roosevelt's action. Her constructive career made it easier for other women who have subsequently served in the Cabinet. Mrs. O'Connor, I wish you well, not only during these hearings and the Senate confirmation vote but during the challenging, perplexing years ahead. You will be called on to make many difficult decisions but I am confident you will approach them with a spirit of fairness, justice, and equity. I thank you, Mr. Chairman and members of the committee.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The U.S. House delegation in the Congress is represented today by two of its Members. I shall now call upon them: the first, Congressman Udall.
Rep. Mo Udall (AZ)
Rep. Udall
(D)
Congressman UDALL. Thank you, Mr. Chairman. I have a short statement to which I have attached a newspaper column that I wrote expressing my strong support for this nominee, and I would ask that it be put in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, that will be done.
Rep. Mo Udall (AZ)
Rep. Udall
(D)
Congressman UDALL. I will be very brief. Those arranging for Judge O'Connor's hearings today asked me if I would testify and I said—the old cloakroom cliche—"I will testify for or against, whichever would do the most good." [Laughter.] Apparently, it was decided that my appearance might help, and I hope that is correct. I will try to get Senator Kennedy and Senator Metzenbaum and some of my old allies in the proper frame of mind to vote on this nomination. [Laughter.] There is an old story about Woodrow Wilson, the last year of his life. Nobody had seen him; it was rumored that he was dead; arguments were made that his wife was really running the country. A group of old Senators demanded to see for themselves his condition. They had opposed Wilson on most things, including the League of Nations. They were shown to the sickroom, and the leader of the delegation said, "Mr. President, we want you to know that the entire Senate is praying for you," and he said, "Which way, Senator, which way?" [Laughter.] Therefore, all of us in Arizona are praying for Judge O'Connor. We think it is a good appointment. She has a great judicial temperament. She can be tough but she is gentle. She clearly is conservative but she never has placed partisan political values before justice, and those who practice in her court describe her as a practical, conscientious, fair, open-minded judge. Mr. Chairman, you will make no mistake in confirming the President's nomination of Judge O'Connor, and I strongly urge that course upon you. [Material to be supplied follows:]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Congressman Rudd of Arizona
Rep. Eldon Rudd (AZ)
Rep. Rudd.
(R)
Congressman RUDD. Thank you, Mr. Chairman. Mr. Chairman, distinguished members of the committee, I am very pleased to have this opportunity to appear before this committee today, and also pleased to see you in that seat, Mr. Chairman. I am glad to express my wholehearted support for the nomination of my constituent, Sandra O'Connor, to be Associate Justice of the Supreme Court of the United States of America. I have known Judge O'Connor for a number of years, as a political campaigner, as a distinguished legislator in the State of Arizona, and as a distinguished jurist in the Arizona court system. I have supported her in her actions in all of these positions. She has excelled in every task that she has undertaken: as assistant State attorney general, as leader of the State legislature, and as an outstanding jurist in the court of appeals. In all of these positions she has shown devotion to the constitutional processes which govern this Nation, and I am certain that Judge O'Connor will bring the same integrity and the same wisdom to the high court that she did to all branches of the State government of Arizona. Judge O'Connor is a serious student of the law and her record gives evidence of her strict interpretation of the role of the judiciary. Her varied experiences in government have given depth to her views, and I believe this makes her especially well-qualified for the position. Her nomination is indeed a testimonial to President Reagan's commitment to a stable and responsive government. I urge her confirmation as Associate Justice of the U.S. Supreme Court.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Judiciary Committee has received a number of resolutions from various groups, and without objection, they will be placed in the record. Among those are a few I hold in my hand at this time: One by the board of governors of the State Bar of Arizona; one by the board of directors of the Maricopa County Bar 40 Association; one by the Arizona Judges Association; one by the Arizona State 35th Legislature, Second Special Session, 1981, passed House Concurrent Memorial 2001; one by the Texas State 67th Legislature, First Called Session, 1981, passed House Concurrent Resolution No. 7. [Resolutions follow:]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, the time has now come for you to testify. Will you stand and be sworn? Raise your right hand. Do you swear that the evidence you give in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, we will now give you the opportunity to present an opening statement if you care to do so.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Mr. Chairman. I would like to do so, with your leave and permission. Mr. Chairman and members of the Senate Judiciary Committee, I would like to begin my brief opening remarks by expressing my gratitude to the President for nominating me to be an Associate Justice of the U.S. Supreme Court, and my appreciation and thanks to you and to all the members of this committee for your courtesy and for the privilege of meeting with you. As the first woman to be nominated as a Supreme Court Justice, I am particularly honored, and I happily share the honor with millions of American women of yesterday and of today whose abilities and whose conduct have given me this opportunity for service. As a citizen and as a lawyer and as a judge, I have from afar always regarded the Court with the reverence and with the respect to which it is so clearly entitled because of the function it serves. It is the institution which is charged with the final responsibility of insuring that basic constitutional doctrines will always be honored and enforced. It is the body to which all Americans look for the ultimate protection of their rights. It is to the U.S. Supreme Court that we all turn when we seek that which we want most from our Government: equal justice under the law. If confirmed by the Senate, I will apply all my abilities to insure that our Government is preserved; that justice under our Constitution and the laws of this land will always be the foundation of that Government. I want to make only one substantive statement to you at this time. My experience as a State court judge and as a State legislator has given me a greater appreciation of the important role the States play in our federal system, and also a greater appreciation of the separate and distinct roles of the three branches of government at both the State and the Federal levels. Those experiences have strengthened my view that the proper role of the judiciary is one of interpreting and applying the law, not making it. If confirmed, I face an awesome responsibility ahead. So, too, does this committee face a heavy responsibility with respect to my nomination. I hope to be as helpful to you as possible in responding to your questions on my background and my beliefs and my views. There is, however, a limitation on my responses which I am compelled to recognize. I do not believe that as a nominee I can tell you how I might vote on a particular issue which may come before the Court, or endorse or criticize specific Supremv Court decisions presenting issues which may well come before the Court again. To 58 do so would mean that I have prejudged the matter or have morally committed myself to a certain position. Such a statement by me as to how I might resolve a particular issue or what I might do in a future Court action might make it necessary for me to disqualify myself on the matter. This would result in my inability to do my sworn duty; namely, to decide cases that come before the Court. Finally, neither you nor I know today the precise way in which any issue will present itself in the future, or what the facts or arguments may be at that time, or how the statute being interpreted may read. Until those crucial factors become known, I suggest that none of us really know how we would resolve any particular issue. At the very least, we would reserve judgment at that time. On a personal note, if the chairman will permit it, I would now like to say something to you about my family and introduce them to you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I would be very pleased to have you introduce the members of your family at this time, Judge O'Connor.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Mr. Chairman. By way of preamble, I would note that some of the media have reported correctly that I have performed some marriage ceremonies in my capacity as a judge. I would like to read to you an extract from a part of the form of marriage ceremony which I prepared: Marriage is far more than an exchange of vows. It is the foundation of the family, mankind's basic unit of society, the hope of the world and the strength of our country. It is the relationship between ourselves and the generations which follow. This statement, Mr. Chairman, represents not only advice I give to the couples who have stood before me but my view of all families and the importance of families in our lives and in our country. My nomination to the U.S. Supreme Court has brought my own very close family even closer together, and I would like to introduce them to you, if I may. My oldest son, Scott, if you would stand, please.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Stand as your names are called.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Scott graduated from Stanford two years ago. He was our State swimming champion. He is now a young businessman, a pilot, and a budding gourmet cook. Now my second son, Brian, is a senior at Colorado College. He is our adventurer. He is a skydiver with over 400 jumps, including a dive off El Capitan at Yosemite last summer. I look forward to his retirement from that activity [laughter] so he can spend more time in his other status as a pilot. Now my youngest son, Jay, is a sophomore at Stanford. He is our writer, and he acted as my assistant press secretary after the news of the nomination surfaced and did a very good job keeping all of us quiet. If I could promise you that I could decide cases as well as Jay can ski or swing a golf club, I think that we would have no further problem in the hearing. Finally, I would like to introduce my dear husband, John. We met on a law review assignment at Stanford University Law School and will celebrate our 29th wedding anniversary in December. John has been totally and unreservedly and enthusiastically supportive of this whole nomination and this endeavor, and for that I am very grateful. Without it, it would not have been possible. 59 I would like to introduce my sister, Ann Alexander, and her husband, Scott Alexander. They live in Tucson, and are the representatives of my close family at this hearing. Thank you, Mr. Chairman and members of the committee. I would like to thank you for allowing me this time and this opportunity. I would now be happy to respond to your questions.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will now have questioning of the nominee by members of the committee. I presume before we go into this, the members of the committee who accompany you there will prefer to return to their seats or elsewhere. There will be two rounds of questions of 15 minutes each by the respective members of the committee; then, possibly it may be necessary to go a little further. Judge O'Connor, the chairman will begin by propounding certain questions to you. We have a timing light system here, which will confine each member to 15 minutes. When the light turns yellow, it means we have 1 minute left; when it turns red, it means the time is up and the gavel will fall at that time. EXPERIENCE IN ALL THREE BRANCHES OF GOVERNMENT Judge O'Connor, you have been nominated to serve on the highest court in our country. What experience qualifies you to be a Justice of the U.S. Supreme Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, I suppose I can say that nothing in my experience has adequately prepared me for this appearance before the distinguished committee or for the extent of the media attention to the nomination. However, I hope that if I am confirmed by the Senate, and when the marble doors of the Supreme Court close following that procedure, that my experience in all three branches of State government will provide some very useful background for assuming the awesome responsibility of an Associate Justice of the U.S. Supreme Court. My experience as an assistant attorney general in the executive branch of State government and my experience as a State legislator in the Arizona State Senate and as senate majority leader of that body, my experience as a trial court judge in the Superior Court of Maricopa County and my experience as a judge in the Arizona Court of Appeals in the appellate process, have given me a greater appreciation for the concept and the reality of the checks and balances of the three branches of government. I appreciate those very keenly. My experience in State government has also given me a greater appreciation, as I have indicated, for the strengths and the needs of our federal system of government, which envisions, of course, an important role for the States in that process. My experience on the trial court bench dealing with the realities of criminal felony cases and with domestic relations cases and with general civil litigation has taught me how our system of justice works at its most basic level. I hope and I trust that those experiences are valuable ones in relation to the work of the U.S. Supreme Court as the final arbiter of Federal and constitutional law as it is applied in both the State and the Federal courts throughout the Nation. 87-101 O—81 5 60
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, the phrase "judicial activism" refers to the practice of the judicial branch substituting its own policy preferences for those of elected Representatives. Would you comment on this practice in the Federal courts and state your views on the proper role of the Supreme Court in our system of government?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, I have of course made some written comments about this in the committee's questionnaire, and in addition to those comments I would like to say that I believe in the doctrine and philosophy of the separation of powers. It is part of the genius of our system. The balance of powers concept and the checks and balances provided by each of the three branches of Government in relation to each other is really crucial to our system. In order for the system to work, it seems to me that each branch of Government has a great responsibility in striving to carry out its own role and not to usurp the role of the other branches of Government. Certainly each branch has a very significant role in upholding the Constitution. It is not just the judicial branch of Government that has work to do in upholding the Constitution. It is indeed the Congress and the executive branch as well. It is the role and function, it seems to me, of the legislative branch to determine public policy; and it is the role and function of the judicial branch, in my view, to interpret the enactments of the legislative branch and to apply them, and insofar as possible to determine any challenges to the constitutionality of those legislative enactments. In carrying out the judicial function, I believe in the exercise of judicial restraint. For example, cases should be decided on grounds other than constitutional grounds where that is possible. In general, Mr. Chairman, I believe in the importance of the limited role of Government generally, and in the institutional restraints on the judiciary in particular. PERSONAL AND JUDICIAL PHILOSOPHY ON ABORTION
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, there has been much discussion regarding your views on the subject of abortion. Would you discuss your philosophy on abortion, both personal and judicial, and explain your actions as a State senator in Arizona on certain specific matters: First, your 1970 committee vote in favor of House bill No. 20, which would have repealed Arizona's felony statutes on abortion. Then I have three other instances I will inquire about.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Very well. May I preface my response by saying that the personal views and philosophies, in my view, of a Supreme Court Justice and indeed any judge should be set aside insofar as it is possible to do that in resolving matters that come before the Court. Issues that come before the Court should be resolved based on the facts of that particular case or matter and on the law applicable to those facts, and any constitutional principles applicable to those facts. They should not be based on the personal views and ideology of the judge with regard to that particular matter or issue. 61 Now, having explained that, I would like to say that my own view in the area of abortion is that I am opposed to it as a matter of birth control or otherwise. The subject of abortion is a valid one, in my view, for legislative action subject to any constitutional restraints or limitations. I think a great deal has been written about my vote in a Senate Judiciary Committee in 1970 on a bill called House bill No. 20, which would have repealed Arizona's abortion statutes. Now in reviewing that, I would like to state first of all that that vote occurred some 11 years ago, to be exact, and was one which was not easily recalled by me, Mr. Chairman. In fact, the committee records when I looked them up did not reflect my vote nor that of other members, with one exception. It was necessary for me, then, to eventually take time to look at news media accounts and determine from a contemporary article a reflection of the vote on that particular occasion. The bill did not go to the floor of the Senate for a vote; it was held in the Senate Caucus and the committee vote was a vote which would have taken it out of that committee with a recommendation to the full Senate. The bill is one which concerned a repeal of Arizona's then statutes which made it a felony, punishable by from 2 to 5 years in prison, for anyone providing any substance or means to procure a miscarriage unless it was necessary to save the life of the mother. It would have, for example, subjected anyone who assisted a young woman who, for instance, was a rape victim in securing a D. & C. procedure within hours or even days of that rape. At that time I believed that some change in Arizona statutes was appropriate, and had a bill been presented to me that was less sweeping than House bill No. 20, I would have supported that. It was not, and the news accounts reflect that I supported the committee action in putting the bill out of committee, where it then died in the caucus. I would say that my own knowledge and awareness of the issues and concerns that many people have about the question of abortion has increased since those days. It was not the subject of a great deal of public attention or concern at the time it came before the committee in 1970. I would not have voted, I think, Mr. Chairman, for a simple repealer thereafter.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. NOW the second instance was your cosponsorship in 1973 of Senate bill No. 1190, which would have provided family planning services, including surgical procedures, even for minors without parental consent.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senate bill No. 1190 in 1973 was a bill in which the prime sponsor was from the city of Tucson, and it had nine other cosigners on the bill. I was one of those cosigners. I viewed the bill as a bill which did not deal with abortion but which would have established as a State policy in Arizona, a policy of encouraging the availability of contraceptive information to people generally. The bill at the time, I think, was rather loosely drafted, and I can understand why some might read it and say, What does this mean? That did not particularly concern me at the time because I knew that the bill would go through the committee process and be amended substantially before we would see it again. That was a 62 rather typical practice, at least in the Arizona legislature. Indeed, the bill was assigned to a public health and welfare committee where it was amended in a number of respects. It did not provide for any surgical procedure for an abortion, as has been reported inaccurately by some. The only reference in the bill to a surgical procedure was the following. It was one that said: A physician may perform appropriate surgical procedures for the prevention of conception upon any adult who requests such procedure in writing. That particular provision, I believe, was subsequently amended out in committee but, be that as it may, it was in the bill on introduction. Mr. Chairman, I supported the availability of contraceptive information to the public generally. Arizona had a statute or statutes on the books at that time, in 1973, which did restrict rather dramatically the availability of information about contraception to the public generally. It seemed to me that perhaps the best way to avoid having people who were seeking abortions was to enable people not to become pregnant unwittingly or without the intention of doing so.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The third instance, your 1974 vote against House Concurrent Memorial No. 2002, which urged Congress to pass a constitutional amendment against abortion.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, as you perhaps recall, the Rowe v. Wade decision was handed down in 1973. I would like to mention that in that year following that decision, when concerns began to be expressed, I requested the preparation in 1973 of Senate bill No. 1333 which gave hospitals and physicians and employees the right not to participate in or contribute to any abortion proceeding if they chose not to do so and objected, notwithstanding their employment. That bill did pass the State Senate and became law. The following year, in 1974, less than a year following the Rowe v. Wade decision, a House Memorial was introduced in the Arizona House of Representatives. It would have urged Congress to amend the Constitution to provide that the word person in the 5th and 14th amendments applies to the unborn at every stage of development, except in an emergency when there is a reasonable medical certainty that continuation of the pregnancy would cause the death of the mother. The amendment was further amended in the Senate Judiciary Committee. I did not support the memorial at that time, either in committee or in the caucus.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Excuse me. My time is up, but you are right in the midst of your question. We will finish abortion, one more instance, and we will give the other members the same additional time, if you will proceed.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I voted against it, Mr. Chairman, because I was not sure at that time that we had given the proper amount of reflection or consideration to what action, if any, was appropriate by way of a constitutional amendment in connection with the Rowe v. Wade decision. It seems to me, at least, that amendments to the Constitution are very serious matters and should be undertaken after a great deal of study and thought, and not hastily. I think a tremendous amount of work needs to go into the text and the concept being 63 expressed in any proposed amendment. I did not feel at that time that that kind of consideration had been given to the measure. I understand that the Congress is still wrestling with that issue after some years from that date, which was in 1974. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. NOW the last instance is concerning a vote in 1974 against a successful amendment to a stadium construction bill which limited the availability of abortions.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Also in 1974, which was an active year in the Arizona Legislature with regard to the issue of abortion, the Senate had originated a bill that allowed the University of Arizona to issue bonds to expand its football stadium. That bill passed the State Senate and went to the House of Representatives. In the House it was amended to add a nongermane rider which would have prohibited the performance of abortions in any facility under the jurisdiction of the Arizona Board of Regents. When the measure returned to the Senate, at that time I was the Senate majority leader and I was very concerned because the whole subject had become one that was controversial within our own membership. I was concerned as majority leader that we not encourage a practice of the addition of nongermane riders to Senate bills which we had passed without that kind of a provision. Indeed, Arizona's constitution has a provision which prohibits the putting together of bills or measures or riders dealing with more than one subject. I did oppose the addition by the House of the nongermane rider when it came back. It might be of interest, though, to know, Mr. Chairman, that also in 1974 there was another Senate bill which would have provided for a medical assistance program for the medically needy. That was Senate bill No. 1165. It contained a provision that no benefits would be provided for abortions except when deemed medically necessary to save the life of the mother, or where the pregnancy had resulted from rape, incest, or criminal action. I supported that bill together with that provision and the measure did pass and become law.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. My time is up. We will now call upon Senator Biden.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. JUDICIAL ACTIVISM Judge, it is somewhat in vogue these days to talk about judicial activism and judicial intervention, usurpation of legislative responsibility and authority, et cetera. When those terms are used, and they are—although the chairman did define his meaning of judicial activism—I suspect you would get different definitions of judicial activism from different members of the committee and the academic and judicial professions. One of the things I would just like to point out as this questioning proceeds is that judicial activism is a two-edged sword. There is the instance where the judiciary determines that although there is no law that the Congress or a State legislature has passed on a particular issue, that there in fact should be one, and 64 the judge decides to take it upon himself or herself to, through the process of a judicial decision, in effect institute a legislative practice. There is also the circumstance where there are laws on the books that the judiciary has, in a very creative vein, in varying jurisdictions and on the Federal bench, constructed rationales for avoiding. However, today when we talk about judicial activism what comes to mind in almost everyone's mind is the Warren Court and liberal activists. You are about to be confronted, I would humbly submit, by what I would characterize as conservative activists who do not believe they are being activists; who do not believe that they are in fact suggesting that judges should usurp the power of the Congress; who do not believe that they are suggesting that there should be a usurpation of legislative authority when in fact, I would respectfully submit, you will soon find that that is exactly what they are suggesting. For example, in your William & Mary Law Review article you discussed the role of the State courts relative to the Federal courts and you believe, if I can oversimplify it, that Federal courts should give more credence, in effect, to State court decisions interpreting the Federal Constitution. You seem somewhat worried about the expansion by the Congress of litigation in the Federal courts under 42 United States Code, section 1983, the civil rights statute. Then you go on to say, "Unless Congress decides to limit the availability of relief under that statute . . .," and you go from there. I am wondering whether or not you would consider yourself as a judicial activist if on the Court you followed through with your belief—as I understand the article—that there is in fact too wide an expansion of access to the Federal courts under the civil rights statute, whether or not you would implement that belief, absent the amendment by Congress of the civil rights statute to which you referred. Would you be an activist in that circumstance, if you limited access to the Federal courts under the civil rights statutes absent a congressional change in the law?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Biden, as a judge I would not feel that it was my role or function to in effect amend the statute to achieve a goal which I may feel is desirable in the sense or terms of public policy.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Right.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I would not feel that that was my appropriate function. If I have suggested that Congress might want to consider doing something, then I would feel that it is indeed Congress which should make that decision and I would not feel free as a judge to, in effect, expand or restrict a particular statute to reflect my own views of what the goals of sound public policy should be.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I thank you for that answer because I fear that— although it probably would be clarified in subsequent questioning— my fear as this hearing began was that we would confuse the substantive issue of judicial activism, usurpation which should be addressed, and which I think has occurred in many instances, with a rigid view of an ideological disposition of a particular judge. A conservative judge can be a judicial activist. A conservative can be a judicial activist, just as a liberal judge could be a judicial activist. 65 In trying to examine the criteria which should be useds in terms of fulfilling our responsibility as U.S. Senators in this committee under the Constitution, performing our role of advice and consent, a professor at the University of Virginia Law School summarized what he considered to be some of the criteria. Let me just cite to you what his criteria are: He says first, the professional qualifications are integrity, professional competence, judicial temperament and legal, intellectual, and professional credentials. Second, he mentions the nominee being a public person, one whose experience and outlook enables her to mediate between tradition and change and preserve the best of the social law and social heritage while accommodating law for the change in need and change in perception. Third, she would 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. In a general sense, do you agree with those criteria as set out?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I agree that it is important for the American people to have confidence in the judiciary. It appears to me that at times in recent decades some of that confidence has been lacking. I think it is important that we have people on the bench at all levels whom the public generally can respect and accept and who are regarded as being ultimately fair in their determination of the issues to come before the courts. For that reason, judicial selection is a terribly important function at the Federal as well as the State levels.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Judge, in response to the questionnaire you stated—and I think you essentially restated it to the chairman a moment ago—that judges are "required to avoid substituting their own view of what is desirable in a particular case for that of the legislature, the branch of government appropriately charged with making decisions of public policy." I assume from that you do not mean to suggest that you as a Supreme Court judge would shrink from declaring unconstitutional a law passed by the Congress that you felt did not comport with the Constitution.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, that is the underlying obligation of the U.S. Supreme Court. If indeed the case presents that issue, if there are no other grounds or means for resolving it other than the constitutional issue, then the Court is faced squarely with making that decision. I am sure that such a decision, namely to invalidate an enactment of this body, is never one undertaken by the Court lightly. It is not anything that I believe any member of that Court would want to do unless the constitutional requirements were such that it was necessary, in their view. I think there have been only, perhaps, 100 instances in our Nation's history, indeed, when the Court has invalidated particular Acts of Congress.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. There have been many more instances where they have invalidated acts of State legislatures.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, that is true.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. The second concern I have with your view of what constitutes activism on the Court and of what your role as a Supreme Court Justice would be is that it seems, from the com- 66 ments by many of my colleagues on both sides of the aisle over the past several years and the comments in the press, that the Supreme Court should not have a right to change public policy absent a statutory dictate to do so. I wonder whether or not there are not times when the Supreme Court would find it appropriate—in spite of the fact that there have been no intervening legislative actions—to reverse a decision, a public policy decision, that it had 5, 10, 20, or 100 years previously confirmed as being in line with the Constitution. A case in point: In 1954, after about 60 years and with no major intervening Federal statute, to the best of my knowledge, the Supreme Court said in Brown v. The Board of Education of Topeka that the "separate but equal" doctrine adopted in the Plessy v. Ferguson case has no place in the field of public education. Here is a case where, as I understand it, there was no intervening statutory requirement suggesting that "separate but equal" be disbanded, and where the Court up to that very moment—with a single exception involving a law student and where that law student could sit, to the best of my knowledge—where the Court had up to that time held consistently that "separate but equal" was equal and did comport with the constitutional guarantees of the 14th amendment, then decided that that is no longer right. They changed social policy; a fundamental change in the view of civil rights and civil liberties in this country was initiated by a court. It was not initiated by a court, it was brought by plaintiffs, but the action of changing the policy was almost totally at the hands of the Supreme Court of the United States. I wonder, first, whether or not you would characterize that as judicial activism and if so, was it right? If not, if it was not judicial activism, how would you characterize it, in order for me to have a better perception of what your view of the role of the Court is under what circumstances, so that you do not get caught up in the self-proclaimed definitions of what is activism and what is not that are being bandied about by me and others in the U.S. Senate and many of the legal scholars writing on this subject?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. The Brown v. Board of Education cases in 1954 involved a determination, as I understand it, by the Supreme Court that its previous interpretation of the meaning of the 14th amendment, insofar as the equal protection clause was concerned, had been erroneously decided previously in Plessy v. Ferguson so many years before. I do not know that the Court believed that it was engaged in judicial activism in the sense of attempting to change social or public policy but rather I assume that it believed it was exercising its constitutional function to determine the meaning, if you will, of the Constitution and in this instance an amendment to the Constitution. That, I assume, is the basis upon which the case was decided. Some have characterized it as you have stated, as judicial activism. The plain fact of the matter is that it was a virtually unanimous decision, as I recall, by Justices who became convinced on the basis of their research into the history of the 14th amendment that indeed separate facilities were inherently unequal in the field of 67 public education. For that reason it rendered the decision that it did. This has occurred in other instances throughout the Court's history. I am sure many examples come to mind, and I think by actual count they may approach about 150 instances in which the Court has reversed itself on some constitutional doctrine over the years, or in some instances doctrine or holdings that were not those of constitutional dimension.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. If I can interrupt you just for a moment, I think you are making the distinction with a difference, and I think it is an important distinction to be made. I just want to make sure that I understand what you are saying, and that is that, as I understand what you are saying, social changes—the postulates that Roscoe Pound spoke of—those societal changes that occur regarding social mores must in some way, at some point, be reflected in the law. If they are not, the law will no longer reflect the view of the people. It seems as though we should understand that when in fact the legislative bodies of this country have failed in their responibilities—as they did in the civil rights area—to react to the change, the change in the mores of the times, and see to it that that is reflected in the law, on those rare occasions it is proper for the Court to step in. As Judge Colin Sites of the third circuit said, "It is understandably difficult to maintain rigid judicial restraint when presented with a citizen's grievance crying out for redress after prolonged inaction for inappropriate reasons by other branches of Government."
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Senator, with all due respect I do not believe that it is the function of the judiciary to step in and change the law because the times have changed or the social mores have changed, and I did not intend to suggest that by my answer but rather to indicate that I believe that on occasion the Court has reached changed results interpreting a given provision of the Constitution based on its research of what the true meaning of that provision is—based on the intent of the framers, its research on the history of that particular provision. I was not intending to suggest that those changes were being made because some other branch had failed to make the change as a matter of social policy.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes, I am suggesting that. My time is up. Maybe on my second round we can come back and explore that a little more. Thank you very much, Judge.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you.
Senator Charles Mathias (MD)
Senator
(R)
Senator Mathias. IMPACT OF LEGISLATIVE BACKGROUND Senator MATHIAS. Thank you, Mr. Chairman. Taking up, Judge O'Connor, where Senator Biden left off, I seem to recall that Blackstone—if it is not too conservative to quote Blackstone—once said that the law is the highest expression of the ethic of the Nation. Determining exactly what that law is or what that ethic is is, of course, the job that you will face. One of the frequent tasks of the Supreme Court is to define the intent of Congress, to define the will of Congress in a given legislative expression. Senator Thurmond has pointed out that you will be the first nominee to the Court in 43 years to have had legislative experience. How do you think your legislative background is going to impact on your approach to this particular aspect of the job of a Justice?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, I think, Senator Mathias, it would impact in much the same way it has in my role as a State court judge. I do well understand, I think, the difference between legislating and judging. As a legislator it was my task to vote on public policy issues and to try to translate into statutory form certain precepts that were developed as a matter of social or public policy in ways which would then govern the residents of our State. As a judge it is not my function to continue to try to develop public policy by means of making the law. It is simply my role to interpret the laws which the legislature has passed, to try to do that in accordance with the intent of the framers. I have discovered that that is not always easy and that sometimes legislators fail to express their intention as clearly as one might like. Sometimes legislators—because all of us are human— fail to think about another situation that might arise that would be impacted by the legislation. Then the judge is left with the duty of trying to interpret the intent as best he or she can in carrying out the apparent intent of the legislature.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, of course, you are right that legislators— and I bear my full share of the responsibility for this—legislators do not always express in their drafting the precise intent of a given statutory enactment, and that casts upon the court an extra burden, a burden both in volume and in the quality of interpretation of law. However, beyond that question of draftsmanship there is often some doubt in the minds of legislators as to the constitutionality of an enactment. I am sure this never happens in the Arizona legislature but it does occasionally happen around here, that people will say: Well, I am not sure whether this is constitutional or not but I think it is a good idea, and therefore I am going to vote for it because there is always the Supreme Court who will make the ultimate decision about the constitutionality. Now Chief Justice Burger has written that: In the performance of assigned constitutional duties, each branch of Government must initially interpret the Constitution, and the interpretation of its power by any branch is due great respect from the others. Having in mind the fact that we, as legislators, know that sometimes we make a jump in the dark on the constitutional question, how do you feel about Chief Justice Burger's statement?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I appreciate the problem that you are talking about. Indeed, in the Arizona Legislature it was not uncommon that legislators would say, "Well, we have no idea if it is constitutional. Maybe it is not but we are going to pass it anyway." That, indeed, does then move the question along to the judicial branch ultimately. 69 I agree with what I understand Justice Berger to be saying, to wit, that each branch of Government including the legislative branch has a responsibility and a role in upholding and understanding the Constitution and in attempting to pass laws, if you will, in compliance with the intent of our Constitution. I referred to that earlier in some remarks I made. I think it is very important that each branch of Government carry out its function in preserving and complying and living within the dictates of the Constitution.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. However, that would not prevent you from functioning with too great a respect for the views of the legislative branch if in fact you clearly felt the legislative branch had acted in either ignorance or in error?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is correct, Senator Mathias. If I were convinced, based on research that I did and the briefs and the arguments in a given case, that a particular enactment was unconstitutional, I would so hold. CONSTITUTIONAL CONVENTION
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Let me ask you a question that may be a little bit unfair because it is very difficult to recall all the votes that you may have cast in your legislative career. I know I would find it very difficult. However, to the best of your recollection, do you recall any votes in which you called for a constitutional convention to revise the U.S. Constitution in any particular?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am not sure that I do. We dealt over the 5- year interval in the Arizona Legislature with literally thousands of measures, and I have learned to do two things in my public life: One is to have a short memory, and the other is to have a thick skin, and they have stood me in good stead on some occasions. [Laughter.] However, I cannot recall. I do believe, however, that we have had memorials presented during my time in the legislature which did on occasion call for a constitutional convention to address a particular measure, and I may or may not have had occasion to vote on that. At that time I think it was not generally perceived by people to present the kinds of problems that subsequent analysis by scholars has indicated might be the case if that method were pursued.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I appreciate that answer. Let me say that I am not so much interested in how you may have voted on any particular such memorial or resolution, as I am in whether or not you have considered that question because it seems to me that that question is one of the great unknowns that faces us today. We are within a few States of a call for a constitutional convention. There is a great void in constitutional law as to exactly how a constitutional convention would be called, would be assembled, or would operate. Now would it be your view, if a constitutional convention were to be called—the closest call right now is on the question of a balanced budget—whether the convention would be limited to just the subject which was the occasion for the call, or could it become a general constitutional convention as happened in 1787 and look to a general revision of the entire Constitution? 70
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Mathias, this is one of the intriguing and great questions of contemporary concern, I would say, because indeed as you have pointed out we are quite close to having a sufficient number of requests for a convention to consider an amendment, that consideration of these matters is now important, I think, to the Congress and to people generally. As you are no doubt aware, in our Nation's history we have not heretofore used the convention method as a method of amending the Constitution. Therefore, we have absolutely no experience to draw upon other than that convention in which our Constitution was originally drafted. There are a number of scholarly articles which have been written about the question, and as might be expected, the scholars differ greatly in their view of precisely the question you have asked, to wit, whether the scope of the constitutional convention can be limited or not. I think the American Bar Association did a rather thorough study on the question and reached one conclusion. Professors Gunther and van Alstein and others who have written on the subject have reached differing conclusions. I think it simply is one of the unanswered questions. Indeed, it is even uncertain, I suppose, whether those questions raise political questions which the Supreme Court would ultimately decide or whether they do not.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In many respects I think that we could all hope that it will remain an unanswered question, and that you will not have to, in your days in the Court, help to provide an answer because the dangers are very real. However, I really wanted to raise the subject with you and to find out if you were troubled as I am by the possibility of a runaway convention that would go far beyond the mandate of its call.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Senator, it does of course pose concerns to many people, and as I have indicated, to the best of my knowledge we have no answers. INDEPENDENCE OF FEDERAL COURTS
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. The power of the Federal judiciary has been a very controversial subject since the founding of the Republic. Thomas Jefferson, among others, was very critical of the authority granted to the Federal courts, and so throughout our history there have been periods of attempts to curb the courts, to limit the jurisdiction of the courts. It has been suggested that Congress should have the power to overrule the constitutional decisions of the Supreme Court, and various devices to dilute or limit the power of Federal judges, attempts to limit jurisdictions of courts. What impact do you think that proposals of this sort would have on our system of Federal Government as we have known it in our lifetime?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. If some of the pending proposals were adopted and jurisdiction were limited, Senator, over a given subject matter.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, let me be a little more specific: What impact on the doctrine of judicial independence would be—what do you think would flow from such decisions? 71
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, article 3 of the Constitution dealing with the judicial branch provides, of course, that we will have one Supreme Court and such inferior courts as Congress shall from time to time establish. That contemplates, I suppose, the capacity of Congress to determine the extent to which we will have lower Federal courts. I am sure you are aware, also, that it has been held, I believe in the Palmore case, that Congress has power to withhold giving all of the jurisdiction to the lower Federal courts that it has authority to give. Congress has traditionally, I think, acted in the field of determining, for instance, statutes of limitations and length of time within which appeals may be filed, and other procedures which do impact directly on the jurisdiction of the Federal courts in one way or another. These have been traditional exercises of that power. In section 2 of article 3 dealing with the appellate jurisdiction of the Supreme Court, again the Constitution at least refers to such exceptions and regulations as the Congress may impose, and that has not been tested often in the Nation's history. As you know, I think we have the ex parte McCardle case in about 1868, and I am not sure that we have much else in the way of case law defining exactly the contemplated power of Congress in that area.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. That is exactly, of course, the point of my question, that there is a certain constitutional grant of specific authority to Congress to erect the Federal courts and generally to provide the guidelines for their jurisdiction. However, does that grant of constitutional power have to be viewed in context with the other provisions of the Constitution, the Bill of Rights included? Again to be specific, Justice Brandeis referred to separation of powers, and he said that the doctrine of the separation of powers was adopted not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by the means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. How do you view the independence of the Federal courts as a part of that fabric of constitutional government which has to be respected?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do view the independence of the judiciary as an important aspect of our system of checks and balances. I also believe that it was at least contemplated by the framers of the Constitution, perhaps, that the judicial branch would ultimately be in a position to determine what is the supreme law of the land in the sense of interpreting, if you will, the meaning of the Constitution and interpreting, as needed, enactments of Congress. Now to the extent that that jurisdiction is removed, that function of the judicial branch, I suppose, is no longer performed, or perhaps it freezes into place previous determinations and they simply remain on the books as the last pronouncements. These are issues, of course, that we have not faced directly.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I would like to pursue this with you a little but we cannot do it at the present time. Thank you, Judge.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. 72 We had planned to recess at 12:30 until 2:30. We will still come back at 2:30. However, Senator Simpson has an emergency and he has to catch a plane, so the chairman is going to run on beyond 12:30 in order to accommodate Senator Simpson to propound his questions. Senator Simpson, we will call upon you at this time. In that way, we do not discommode anybody of his regular place. In other words, we are taking that much time out of our lunch hour.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I do not think I will take the full 15 minutes.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. That is all right. You go right ahead. We are glad to accommodate you.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you very much. You certainly have always done that, Mr. Chairman, and I am deeply appreciative of it. I am not going to get into issues about abortion, which is an anguishing personal decision, and those of us who have made public statements on that issue I think at least consistently try to stay with those public statements. I know that when I explained my position on it, it had very seriously been thought through by me with counsel with my remarkable family of a wife and three children too, so I will not delve into that because it is so critically personal. I certainly recall very well in my legislative experience dealing with riders on bills. That is quite a process in itself, and especially as a majority floor leader in trying to keep a clean bill floating if one could without getting weighted down with riders, so I understand that one. The issues of the Constitution are so critical to us all as legislators, and I remember so well so many discussions as we legislated, how someone would rise and say, "You cannot do that. That is unconstitutional." This always used to test us on the floor, and then we would say, "Pass it anyway and let the judge decide." I remember that ploy so well. I was also interested, as Senator Biden was, in your article in the William & Mary Law Journal. There are, I think, 30 opinions of yours that have been reviewed by the examining authorities. Certainly your public commentaries in that article might be the freshest. NO FINALITY IN THE CRIMINAL JUSTICE FIELD Now in that there is one thing that I honed in on because it is of great interest to me, and that is trying to reach what I refer to as the "finality of judgment" in this land. I think your comment was that: It is a step in the right direction to defer to the State courts and give finality to their judgments on Federal constitutional questions where a full and fair adjudication has been given in the State court. I think that that is one of the things that has caused us to have such a general reflection of negativism about Federal and State courts, is a lack of finality in judgment, especially perhaps in the criminal field. I mean, how many times can one go on to exhaust due process. We also find this in an area in which I now have come to have a great interest, in immigration and naturalization mat- 73 ters, where we have procedures which, when you are through with them all, you can start over, procedures which do not really give confidence in the judicial system. Anyway, on this issue of finality of judgment, how do we—given the concept that you state and this need for a determination of full and fair adjudication having been provided in the State courts—my question is, I guess, who would then make that determination? Would that then be a determination made by the Supreme Court? Would that be a request for certiorari upon an already burdened court? What might you share with me as to your view on that and how that might be carried out?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Senator Simpson, first of all I think it is a serious concern to a lot of people that there is no finality in the criminal justice field to a given decision, even after an appeal has been heard and resolved, long after the conviction in question, and even after one series of post-conviction petitions for relief, there are others that can be followed in an unending series. I think that is one thing that has caused the public to have some concern about the proper function of the judicial system in that area. Now how we can attack the problem is something that I think has to be considered by both the courts and the Congress in this field because we are talking about the interrelationship between the State court system and the Federal court system as it relates to Federal constitutional issues. Both the State courts and the Federal courts have a role in determining Federal constitutional issues. State court judges take an oath to support the U.S. Constitution just as Federal court judges do, and there is a reason for that, because many of these issues are first raised at the State court level. To the extent that we want to permit State court judgments to become final on the question, it then becomes a matter in part of how the Federal courts view the question and in part how Congress views it because each can play a role in saying, "Enough is enough." To the extent that a State court has given a full and fair adjudication on a given issue, even though it may involve a Federal constitutional issue, then perhaps we should be more willing at some point to give finality to that State court determination. I have seen at least evidence in Supreme Court decisions that would indicate a move in that direction, the cases that have said, All right, in the 4th amendment area, if there has been a full and fair hearing at the State level we will not grant a Federal habeas corpus to review it. Now that was a holding of the U.S. Supreme Court, in effect. In addition, Congress could review it. Certainly the present structure requires the Supreme Court to take appellate jurisdiction of certain holdings, and perhaps the Congress would consider making that not mandatory in the future but consider at least whether that should be handled much like other petitions for certiorari are handled. Therefore, I think in response really that both the courts and the Congress could have a role.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That is of interest to me, I guess because it has piqued my interest as to how we might go about it legislatively, and I guess we will try to look into—and this does not have anything to do with your new duties—but whether there are other 74 methods short of an appeal to the Supreme Court to do this, other than bringing us back virtually to the same position we are in right now with regard to the ready access to the Federal courts through the one instance of the section 1983. Therefore, that is that, and I can visit with you later on that, and I shall. There was a second point about your article which was thoughtprovoking to me, and that was a suggestion of a repeal of the Federal statute which would allow attorneys costs to be paid to successful plaintiffs in civil rights cases. In dealing with that, I have I guess a concern as to whether that might not deny access to the courts for some individuals with valid complaints but with, of course, the financial inability to proceed or obtain legal assistance. Is there any middle ground, in your mind, short of total repeal of that provision that might be acceptable, some modification that would address that issue without cutting off the rights of a potential litigant?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Simpson, yes, and I think the point is well-taken. Obviously there are people whose rights have been abused or deprived in some fashion who are entitled to bring suit, and who if they do not have the means to do it need a provision whereby they can recover attorneys fees, else they are not likely to get the kind of legal advice that would be required to get them relief. Therefore, it is understandable that some provision be there. I think in the article I mentioned that other avenues could be explored short of a total repealer, and so it is not inappropriate then for Congress to look at those provisions in section 1988 and see whether some limitations are appropriate, whether a different set of guidelines to the courts in allowing for attorneys fees would be helpful, something that might discourage the specious claim and the unwarranted one but not ever preclude the valid claim that might be made by the indigent claimant.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, certainly those are some of the problems with any type of public defender system or public prosecutor system, and that is an unfortunate opportunity viewed in some of the minds of my brethren—in my other life I was an attorney— who view that as an ability to raid the treasury of a State or the Federal Treasury. Finally, just one other question that has to do with what Senator Mathias was referring to, and I guess just a wrap-up in that area with regard to your extensive experience at the State level. I think you bring to the bench or will bring to the Supreme Court Bench a fresh perspective on Federal and State relations which I think has been shunted somewhat in the last two or three decades because simply there is no information to be put into the Supreme Court by those who sit on the Supreme Court, a States' voice issue, if you would. If I might just ask for you to give me a brief summary as to what general improvements you might see in Federal-State judiciary relationships, what do you see as desirable, and do you see yourself as having a role in bringing that about and bringing it to fruition?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Senator, speaking to the last first, I am interested in judicial administration. I have not, of course, had experience in the Federal system, and I have a great deal to learn with regard to the Federal bench and its system. 75 Certainly I hope that we can always recognize the very great importance that the State court system has in our overall system of justice in this country. Indeed, the vast number of all criminal cases and all other cases, for that matter, are handled in the State court system. That is the system that is doing the bulk of the work, even though I know that you here in the Senate are hearing a great deal about the great pressures that are being experienced in the Federal courts due to their increase in business. However, if you look at it overall it is the State courts that are handling such great bulk of our work. It is important that those courts function well, that they have capable jurists, that they have an opportunity for training, and I believe in good training of judges. It is possible to go to school and learn something about being a judge, and we have programs like that that are available. They are good programs and merit support. We have to be mindful of the interrelationship of the State and Federal courts, and I hope give some finality where it is possible to State court decisions, even in the Federal area. That is one of the points that we just discussed, so I think there are ways to improve it. Indeed, the occasion for that issue of the William & Mary Law Review to which you refer was an interesting one which brought together representatives of both the State and the Federal court systems to give an overall view of the problems of the interrelationships and to make some suggestions.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, to me it is an exciting prospect that you bring that additional dimension, which is not really discussed greatly but I think is very important. Mr. Chairman, thank you for being very gracious to me in recognizing a special problem I have, and I appreciate that very much. Thank you, Judge.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will now stand in recess until 2:30. [Whereupon, at 1:55 p.m., the committee recessed, to reconvene at 2:30 p.m. the same day.] AFTERNOON SESSION The CHAIRMAN. The committee will come to order. After the gavel raps, the press and photographers will withdraw. Senator Kennedy? DISCRIMINATION EXPERIENCE
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. Judge O'Connor, I do not think that there is any question in the minds of millions of Americans that your nomination represents a great victory for equality in our society, and millions of Americans obviously are looking to you with a rightful sense of pride. You have had a long and distinguished legal career. I would like to ask you whether you have experienced discrimination as a woman over the period of that career and, if so, what shape or form that has taken.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Kennedy, I do not know that I have experienced much in the way of discrimination. When I was admitted to law school I was very happy that I was admitted to law school at a fine institution. My only disappointment I think came 87-101 O—81 6 76 when I graduated from law school at Stanford in 1952 and looked for a position in a law firm in the private sector. I was not successful in finding employment at that time in any of the major firms with whom I had interviewed. However, I did then find employment in the public sector. I became a deputy county attorney in San Mateo County, Calif. It was my experience at that time that in the public sector it was much easier for young women lawyers to get a start. It was a happy resolution for me in the sense that I really spent the bulk of my life in the public sector. Therefore, that start turned out to be very beneficial. DISCREPANCY IN PAY
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU were active in several efforts in Arizona in the State senate to revise employment, domestic relations, and property laws which discriminated against women. I think at that time you pointed out the sharp discrepancies between the pay which men and women often receive for similar work. As you may have seen, recently there was a report by the EOC about the continued aspects of job discrimination on the basis of sex, and the pay discrepancy is still widespread. Do you find that it is still widespread? Is this a matter of concern to you?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It has always been a matter of concern to me. I have spoken about it in the past and have addressed the fact that there does seem to be a wide disparity in the earnings of women compared to that of men. We know that perhaps a portion of that is attributed to the fact that women have traditionally at least accepted jobs in lower paying positions than has been true for men, and that may be a factor. When I went to the legislature in Arizona we still had on the books a number of statutes that in my view did discriminate against women. Arizona is a community property State, and the management of the community personal property was placed with the husband, for example. These were things that had been in place for some years. I did take an active role in the legislature in seeking to remove those barriers and to correct those provisions.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. From your own knowledge and perception, how would you characterize the level of discrimination on the basis of sex today?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Presently?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I suppose that we still have areas from State to State where there remain some types of problems. We know that statistically the earnings are still less than for men. I am sure that in some cases and some instances attitudes still have not followed along with some of the changes in legal provisions. However, it is greatly improved. It has been very heartening to me as a woman in the legal profession to see the large numbers of women who now are enrolled in the Nation's law schools, who are coming out and beginning to practice law, and who are serving on the bench. We are making enormous changes. I think these changes are very welcome. 77
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In your response to the committee's questionnaire—I think it is question No. 2—you gave an extensive answer that mentions your concern and involvement in efforts to provide greater equality for women and for many other groups. You specifically mention the legal aid for the poor. You mention the rights of institutionalized persons. You refer to religious nondiscrimination. You mention native Americans. You mention the mentally ill. However, you do not mention two of the most obvious groups who also have suffered from injustice and inequality; that is, black Americans and Hispanic Americans. I wonder if you briefly would discuss your perception of the degree to which black Americans or Hispanic Americans are denied equality in our society.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. A great deal of the concern that has been expressed through the courts and in legislation and otherwise in our Nation has been obviously over the situation of blacks. This perhaps has been the worst chapter in our history and one in which great effort has been undertaken to try to correct it. In our community in Phoenix the black population is basically small, relatively speaking. On the other hand, the Hispanic population in our community is rather large, and it is one which of course is a concern to all of us. I frankly feel that Arizona has been greatly blessed, Senator Kennedy, with a cultural diversity that we have in that State. I have regarded the Hispanic heritage which we have enjoyed and the Indian American population which we have in Arizona as being one of the great blessings of that State. I think our State at least seems to be working well in relation to trying to eliminate vestiges of discrimination.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. IS it your sense that as a result of continuing discrimination that exists in our society that one of the important priorities is a vigorous enforcement of the civil rights laws that prohibit discrimination?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes. I think that enforcement of those laws which the Congress has seen fit to enact is a very necessary part of the obligation of both the executive and the judicial branches insofar as those things come before them. I am sure you recognize that in the case of the judicial branch it does not reach out to seek matters; rather, it receives those cases and controversies that come before it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. IS there anything special in your background that would indicate a special commitment to equal justice for these two groups? I know that you received some civic awards and have been involved in various societies.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am interested in whether there is anything you would like to mention for the record that would show involvement and personal commitment in these areas.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. In response to the question I have listed a number of activities in which I personally have been concerned and which are addressed to the attention of the disadvantaged in our society. It has been my effort as a legislator and as a citizen to give my attention to these things. I would expect to always have that concern. 78
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. AS you can tell, we are moving from area to area quite quickly in order to cover as much ground as possible. Hopefully, we will be able to come back to some of these questions. However, in this first round of questions I want to come back to an area which some of my colleagues have talked about. That is the issue of judicial activism. There was some exchange about that during the course of the questioning earlier today. Some years ago at Justice Stevens' confirmation hearing when I asked him about his view about judicial activism, he commented on the issue. I would like to read it very briefly and then perhaps get your reaction. Perhaps it summarizes or states your view or maybe you would like to make some additional comment. I quote: I think as a judge of course one must decide the cases as they come. 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. 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. This is what effectively Justice Stevens told us at his confirmation hearing. I wonder whether you agree with his observation that there are cases where judicial activism in that sense is appropriate as part of a judge's duty.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think we are all aware of school desegregation cases, for example, in which it has become the role and function of the Federal district courts to review the factual situation, and where it has found an intentional or purposeful policy of segregation within the public schools to direct appropriate remedial action if that action is not forthcoming from the school districts or school district itself. In that connection, the court has on occasion entered a variety of orders for corrective action. I think Justice Stevens has observed correctly that it then becomes the function ultimately of the Supreme Court if an appeal or review is sought to review the action of the Federal district court to see whether any of those orders of the court have amounted to an abuse of discretion. In that particular area, as you are aware, the Supreme Court has upheld, for example, in the Swan v. County Board of Mecklenberg case a variety of remedial actions as being possible in the case of the purposeful or intentional policy of segregation.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That might also include reapportionment cases where there is State or local prison or hospital discrimination as well?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. There is a variety of cases in which the Federal district court enters orders that might be regarded as affirmative in nature.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That is effectively to vindicate constitutional rights of the individuals or inmates or patients? That would be, I imagine, the justification for such intervention, would it not?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. This has occurred.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In some earlier questions—I think by the chairman—you were asked your position on birth control and abor- 79 tion. Have your positions changed at all over the years or are they the same as indicated in your votes and statements or comments?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I have never personally favored abortion as a means of birth control or other remedy, although I think that my perceptions and my knowledge of the problems and the developing medical knowledge, if you will, has increased with the general explosion of knowledge over the past 10 years. I would say that I believe public perceptions generally about this particular area and problem have increased greatly over the past 10 years. I would have to say that I think my own perceptions and awareness have increased likewise in that interval of time.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Does that mean your position has altered or changed or just that you have developed a greater understanding and awareness of the problem?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. The latter I think, Senator, is what I was trying to express.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Laxalt? EXCLUSIONARY RULE
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Thank you, Mr. Chairman. You have discussed at length judicial activism, social philosophy, and so forth. I think I will spare you that for the next several moments and inquire into something that I deem to be very relevant for any judicial position, particularly the highest court—that is your legal philosophy. We deal from time to time in this committee in the whole area of criminal law. I have been struck by the broad range of experience that you have had in this area as a judge, and most particularly with some of your rulings. I would like to ask you about the exclusionary rule, if I may. You have touched on that in a couple of the cases that you have had. Of course, with a dramatically increasing crime rate and an even greater rise in the number of violent crimes, increasing attention has been given to the laws governing law enforcement. Many of us on this committee happen to believe that perhaps some of the problems we have in connection with crime are procedural. On that particular matter, in State v. Morgan—and I am sure you remember that—you ruled that the defendant had waived her right to appeal on the failure to exclude as "fruits of the poisoned tree evidence alleged to have been procured illegally." I agree totally with that result. As a matter of policy, do you believe that the exclusionary rule may be too narrow, overprotecting the rights of defendants while impeding the ability of the law enforcement people to enforce the law? I am talking about as a matter of general legal philosophy.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, the exclusionary rule, of course, is one that has caused general public discontent on occasion with the function of the criminal justice system, to the extent that perfectly valid, relevant evidence is excluded solely on the basis that it was obtained in violation of some occasionally technical requirement. 80 I am sure that none of us would feel that a policy of encouraging the gathering of evidence by peace officers by the use of force, threats, or conduct of that kind is one which the courts would want to condone. On the other hand, we are seeing a number of cases today where the lower Federal courts are beginning to look at the exclusionary rule and the specific factual situation in that case— for example, in the case of evidence obtained by a peace officer in the mistaken belief that he held a valid warrant or evidence obtained in the mistaken belief that a particular case that had been previously decided was still valid law and it is subsequently overturned. We have seen examples in the Federal courts where under those circumstances the exclusionary rule is no longer being applied.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. DO you agree with that result? Do you agree with that construction?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Let me say, first of all, that some of those things are going to come before the Supreme Court, Senator Laxalt. I certainly would not want to be accused of prejudging an issue that will come before the Court, as indeed I think that this one will. I simply would like, if I may, to point out what I see as some trends and make some other observations about it. There are other instances where peace officers who are acting in good faith, but in a mistaken belief as to the existence of certain facts, have taken evidence. We have instances, for example, in the fifth circuit where the fifth circuit has taken the position that that kind of a good faith mistake will not give rise to the application of the exclusionary rule to exclude the evidence. That has not been either approved or disapproved I believe by the U.S. Supreme Court. It is very likely to come before the Court. As you point out, I have had a good deal of experience at the trial court level and some at the appellate court level with the application of the rule. It is in fact I think a judge-made rule as opposed to one of constitutional dimensions, as I understand it. As a result, the Supreme Court presumably could alter that judgemade rule without doing violence to some constitutional provision or principle. There have been expressions by several of the sitting Justices that they would like to reexamine that. I think that the rule may well come before the Court and could well be the subject of a reexamination.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. DO you think then that there may be a solution in this general area within the judicial system rather than our having to deal with it here legislatively?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. May I say in response that I had perhaps one of the most unfortunate cases that I had in my years on the trial bench that involved a necessity to apply an exclusionary rule that was the result solely of congressional action, not court action at all. That was an application of one of the provisions of the Uniform Crime Control and Safe Streets Act that required the exclusion in court of evidence obtained that had been overheard on a telephone exchange. In the particular case I had it involved a murder which happened to be overheard by a telephone operator, and that evidence could not be entered. Now that ruling was mandated not by 81 any court action because we were not dealing with peace officers but private individuals. This was something imposed by Congress. Yes, I think Congress already has enacted laws that affect this and it might want to consider itself some of those aspects. FEDERAL COURT JURISDICTION
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Thank you very much. Let's talk for a moment or two about Federal court jurisdiction. As you know, we have many social areas in which there is deep division in connection with the principle and certainly in connection with its application. I think due in great part to the excesses of this Congress in conferring jurisdiction we now have a lot of judges actively engaged in operating prisons, school systems, and the rest, to their chagrin. I communicate with them frequently, and they would rather not be in the business. They would rather be in the business purely of being good judges sitting in their courtrooms or in their chambers rather than having to bother with these other institutions. Added to all that, of course, we have the problem of our so-called social reforms traditionally enacted in which many feel that the courts did not belong to begin with, but that is the fact. I speak particularly of items such as right to life, abortion, and busing. We deal with that day in and day out. We are going to have a cloture vote on busing tomorrow on the floor. In order to "obviate" or "circumvent," if that is the proper word, the judicial decision emanating from the highest Court, in the constitutional nature, of course, logically you approach it by way of constitutional amendment, which is a very, very difficult process, first of all, in getting it through the Halls of Congress and then securing ratification out beyond. Recently there has been some thinking, shared by some of my colleagues on this very committee, that perhaps the way to attack that problem would be to utilize the general power of the Congress constitutionally to limit the jurisdiction of the Federal courts, so that by statute this Congress could define guidelines to exclude the Federal courts from acting in certain areas such as abortion and busing. May I have from you, if you have had any opportunity to focus on this, your thinking as to what constitutional limits there are upon us as a Congress to limit Federal court jurisdiction?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I touched on that briefly this morning, Senator Laxalt.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I know you did.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I would review briefly some of those thoughts with you. You have two separate questions. One is the jurisdiction of the lower Federal courts. That, of course, invokes article 3, section 1. Then we have the appellate jurisdiction of the Supreme Court with article 3, section 2, powers of Congress to regulate, if you will, the appellate jurisdiction of the Supreme Court. In neither instance do we have much in the way of case law to examine to guide us with respect to the role of the Congress in this area. Certainly to the extent that the judicial branch of Government is supposed to be the ultimate source of determining what is the supreme law of the land, if you will, and the source of resolving conflict among the several Federal courts of the land, and indeed the State courts insofar as their addressing Federal questions is concerned, then we look to the Supreme Court for the capacity to resolve those issues. To the extent that that capacity were to be withdrawn by the Congress, then it might result in a greater diversity of holdings at the Federal lower court levels or among the State courts. This raises certain policy considerations that I am sure would be of concern to the Congress. To the extent that a jurisdiction were to be removed, assuming that it can validly be removed, it would leave in place, I suppose, those holdings and doctrines that had already been established by the Supreme Court prior to any removal of jurisdiction of that area. Now, as I indicated earlier, I think that some of the constitutional scholars who have examined this question are in doubt as to whether indeed it is valid constitutionally for Congress to remove jurisdiction, for instance, of a particular subject matter as opposed to the type of limitation that has heretofore been utilized. Therefore, to a degree these questions are not answered, although with respect to the appellate jurisdiction of the Supreme Court the Ex parte McCardle case in the 1800's upheld as valid a removal by the Congress of the appellate jurisdiction of the Supreme Court in habeas corpus appeals. That affected a pending case before the Court, as a matter of fact. Not much more is known really about the possibilities. I would say there are some unanswered questions pertaining to these proposals.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. What you are saying in effect is, as you indicated, that there really are not any precedents to guide us casewise. If this Congress should see fit in its wisdom, or lack thereof, to move forward in these areas, it is pretty much an open question for later resolution, probably by the Supreme Court itself.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Possibly; other than in Ex parte McCardle and the Klein case, and so forth.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Yes. How are we doing on time, Mr. Chairman?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. YOU have a little time left. STARE DECISIS
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. All right. I will get into one other area if I may then, Judge. That is the area of stare decisis. I feel—and I think most lawyers do—the stability of the judicial system rests principally on adhering to precedent. You are going to be presented with that sitting on the Supreme Court I suppose in a greater proportion than you have even been presented with it in the trial court and the appellate court. Justice Brandeis wrote: "Stare decisis is usually the wise policy because in most matters it is more important that the applicable rule of law be settled than it be settled right." May I have your views on this very important principle? I am sure you are familiar with the Justice's observation on stare decisis.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, I am, Senator Laxalt.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. May I have your views.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Stare decisis of course is a crucial question with respect to any discussion of the Supreme Court and its work. I think most people would agree that stability of the law and predictability of the law are vitally important concepts. Justice Cordozo pointed out the chaos that would result if we decided every case on a case-by-case basis without regard to precedent. It would make administration of justice virtually impossible. Therefore, it plays a very significant role in our legal system. We are guided, indeed, at the Supreme Court level and in other courts by the concept that we will follow previously decided cases which are in point. Now at the level of the Supreme Court where we are dealing with a matter of constitutional law as opposed to a matter of interpretation of a congressional statute, there has been some suggestion made that the role of stare decisis is a little bit different in the sense that if the Court is deciding a case concerning the interpretation, for example, of a congressional act and the Court renders a decision, and if Congress feels that decision was wrong, then Congress itself can enact further amendments to make adjustments. Therefore, we are not without remedies in that situation. Whereas, if what the Court decided is a matter of constitutional interpretation and that is the last word, then the only remedy, as you have already indicated, is either for an amendment to the Constitution to be offered or for the Court itself to either distinguish its holdings or somehow change them. We have seen this process occur throughout the Court's history. There are instances in which the Justices of the Supreme Court have decided after examining a problem or a given situation that their previous decision or the previous decisions of the Court in that particular matter were based on faulty reasoning or faulty analysis or otherwise a flawed interpretation of the law. In that instance they have the power, and indeed the obligation if they so believe, to overturn that previous decision and issue a decision that they feel correctly reflects the appropriate constitutional interpretation. What I am saying in effect is, it is not cast in stone but it is very important.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. It is still a highly persuasive consideration as a matter of principle.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Very.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. That is all I have for now, Judge. Thank you very much. Mr. Chairman, I waive the balance of my time, whatever it is.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you very much. Senator Byrd is next. I do not believe he is here. Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. Judge O'Connor, I have appreciated the answers you have given here today. I think you have acquitted yourself very well up until 84 now. I fully expect that you will do so not only the remainder of these hearings, but also as a Justice of the U.S. Supreme Court. Let me just ask one question following up on Senator Laxalt's questioning. I think he asked some very intelligent questions pertaining to judicial philosophy and some of your beliefs. To pursue his question briefly, how should judges resolve conflicts between precedent or stare decisis and what they perceive to be the intent of the framers of the Constitution?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. These are very difficult issues for the Court. Obviously the Constitution is the basic document to which the Justices must refer in rendering decisions on constitutional law. In analyzing a question the intent of the framers of that document is vitally important. Now what does one do as a Justice on that Court faced with a situation in which the Supreme Court itself previously has determined that the Constitution in a given area means a certain thing and that was the intent of the framers and that is the holding of the Court; yet a subsequent Justice believes that interpretation was erroneous and, indeed, that was not the intent of the framers at all but something else was intended? What does that Justice do? I think we have an example of that kind of situation in the Brown v. Board of Education case where the then-sitting Justices in 1954 became persuaded that their brethren years previously when Plushy v. Fergusen and its progeny were decided had incorrectly interpreted the 14th amendment and the intent of the framers of the 14th amendment. They cast their vote and decision to alter that interpretation. Therefore, it can occur and that is the process that unfolds, although I am sure that in each instance it is a very significant thing for a Justice to overturn precedent, particularly that of long standing.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In his famous dissent in Plushy v. Fergusen, which you mentioned, in 1893 Justice Harlan referred to our Constitution as a colorblind constitution. Would you agree with this characterization?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am aware that Justice Harlan has taken that view, and several other Justices have likewise so characterized it. On the other hand, we have decisions outstanding of course in the affirmative action area which would indicate that it is not in the view of at least some of the decisions a purely colorblind decision, but that indeed some form of affirmative action is possible in certain areas. Therefore, it is difficult for me to characterize what the Court has done in that respect. I think in some areas it has not applied Justice Harlan's view at this point anyway.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Where would you stand on that issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am sure that these questions, Senator Hatch, are going to come back before the Court in a variety of forms. I do believe that litigation in the area of affirmative action is far from resolved, as I see it, and that we will continue to have cases in this area. I think it would be inappropriate for me to indicate my specific holding should that matter come before the Court, which I think it will. 85 FOURTEENTH AMENDMENT
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I may come back to that issue. Recent scholarly works with regard to the doctrine of incorporation, including Raoul Berger's famous work, "Government by Judiciary," soundly refute the notion that the authors of the 14th amendment intended to make the Bill of Rights applicable to the States. Do the Constitution's words and phrases require the first eight amendments to be applied to the States themselves? Is there any justification for that in the legislative history of the 14th amendment?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I have not made an indepth study at this point of that legislative history such as you would want to do before casting a deciding vote on a case. I am aware of Raoul Berger's article. In fact, I have read it, and I have read other scholarly works that address themselves to the intent of the drafters of the 14th amendment. In fact, I think probably there is some difference of opinion which was expressed by the drafters of that 14th amendment at the time. I think Justice Black placed his reliance, for example, on the comments of one or two of those drafters. Mr. Raoul Berger would have felt that those comments were not particularly appropriate. I am aware of the controversy about the question. We do know, of course, that at this point the Court has held that many of the first 10 amendments are indeed incorporated into the 14th amendment by virtue of its provisions. TENTH AMENDMENT
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In regard to the 10th amendment, it discusses reserved powers. In your opinion what is still reserved to the States?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I suppose the 10th amendment was thought by many for some time to be of virtually no further application. We heard very little about it for a long time. Then I think it gained a lot of notoriety at the time that the Supreme Court handed down its decision in the Ussury case, in which basically the Court said that the 10th amendment prohibited the Congress from applying its powers and wage standards to that of State and local employees and held that in that instance it was a violation of the 10th amendment because it affected the States in their role as States. The attention given the 10th amendment did not last too long I guess because in a succeeding case or two, the Hodell case for one, we had occasion to look at some additional enactments of Congress, specifically pertaining to surface mining I believe. The Court did not apply the 10th amendment to invalidate those as they applied to the States, but indeed determined that in those instances Congress really was addressing its attention to private business rather than the States as States. Therefore, the 10th amendment has had perhaps not a great deal of attention, if you will, in the cases. While we have isolated 86 holdings that have relied on it, we cannot point to any great bulk of authority. Certainly this has been a great concern to the States because States feel that it is out of the States that the Federal Government grew; that the Federal Government did not create the States but the States formed together to create the Federal Government, and indeed that they did maintain and retain very significant rights. I could only conclude that perhaps we have not seen the last of the litigation concerning the 10th amendment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU are correct that the Court in the Usery case cited the 10th amendment with the proposition that State government employees are beyond Federal Government control for some purposes. I think that was a landmark decision. Do you think that this is a reinvigoration of the 10th amendment, and really should Usery be used as a precedent for future rulings by the Court in your opinion?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am sure that will be cited by many as precedent for future holdings and already has been cited. The extent to which the Court will continue along that path I would say is somewhat uncertain. STATUTORY INTENT
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I have been concerned, as you know, about the doctrine of preemption. Under that particular doctrine I think too often the Federal courts have been willing to imply that Congress intended to preempt the whole field of regulation when Congress has not conclusively spoken at all. Where Congress is silent, when should courts imply a Federal preemption? What limits are there on the use of this doctrine, which I believe is an insidious doctrine?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I suppose this involves basically questions of interpretation of statutory intent—the intent of Congress, if you will. There are a number of cases on the books, as you have correctly pointed out, where the courts have determined in essence that Congress has occupied the field fully and therefore the States may no longer exercise any jurisdiction in that particular area. This, of course, is a matter that has to be addressed on a case-bycase basis. I think quite properly the Court would want to look in each instance at the particular enactment or enactments of Congress that are being said to have occupied the field. USURPATION OF STATES POWER
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS you know, I believe the Supreme Court has continually usurped the power of the States and, frankly, has continually invaded the power of the States. It seems to me this is a question you are going to have to be faced with many times in the future as a Supreme Court Justice.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I would assume that is true. In approaching problems of statutory interpretation and intent, it has been at least my practice until now, to examine very carefully the legislative history and the language of the particular statute in determining what Congress does intend. 87 Of course, Congress can be very helpful in that regard by making clear expressions of what it intends. Perhaps it could be therapeutic to consider an expression in the congressional enactment itself that Congress does not intend that this be regarded as occupying the entire field that otherwise States could occupy themselves, or something of that sort.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Of course, you know Congress has almost always been necessarily vague. We are not known for legislative draftsmanship in Congress although we should be. Let me say this to you: During the legislative debate concerning the Civil Rights Act of 1964 many of the proponents said that act would never be used to establish quotas. Yet, in fact, there are many in our society today who feel that is exactly what we have done through the Office of Federal Contract Compliance and the Equal Employment Opportunity Commission. Maybe we will get into that in the next round of questions. Let me ask you this: The Supreme Court recently upheld a Utah statute requiring parental consent for abortions performed on minors. How would you draw the line between the role of a parent, and a family, and the right to an abortion? If parents have the right to give consent, how about the father of the child? Do you see any inconsistency in giving parents the right to consent but denying the similar protection or privilege to the father of the child?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, my recollection of the Utah statute is that it was not one that provided for parental consent but rather for notification to the parents without a consent aspect. In fact, I think that the Supreme Court in an earlier decision had held that a statute from another State which required parental consent for a minor to obtain an abortion was invalid. I think the more recent case from Utah involved notification to the parents and involved a minor who had not alleged that she was of sufficient maturity, or whatever it was, to make up her own mind or to decide. The Court upheld that particular Utah statute and has drawn a distinction between that and its earlier holdings. I think the Court also has invalidated a requirement in State law that the natural father consent as well. EXEMPTING WOMEN FROM COMBAT DUTY
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me ask one more question. You served on DACOWITS, which was the Defense Advisory Committee on Women in the Services, a committee formed by former Secretary of Defense George Marshall in the 1950's to make recommendations on the role of women in the military. One of the recommendations was the right to go into combat ought to be granted to women or at least the law should be removed exempting women from combat duty. As I understand it, the records in fact show that you exercised leadership in attempting to remove all barriers to the assignment of women to combat vessels. I do not know whether you would be influenced by that fact in reviewing congressional statutes on this subject and the principles the Supreme Court has laid down recently. Do you have any position on that particular matter at this time?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, if I could correct some of the statements on that
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I did, indeed, serve on the Defense Advisory Committee on Women in the Service for an interval of time by Presidential appointment. That commission did have occasion to consider a variety of the statutes and regulations governing women in the service. As you know, the Defense Department had established as a policy that a certain number of women would be admitted in the military service and would serve in the various branches of that service. The DACOWITS commission really was asked then to look into the role of these women and make appropriate recommendation. During my service on it I did offer suggestions which were adopted by the group and which subsequently were adopted by Congress asking that the statutory definitions, if you will, of combat be reexamined so that we could be more specific as to what jobs and tasks it is that women may appropriately perform and what they may not. Let me give you an example. At the time that my motion was made women were totally prohibited from serving on ships other than hospital or transport ships. It made no difference whether it was a ship that was in a peacetime mission during peacetime or some other task that did not involve combat at all in the sense that we knew it. It simply was a total prohibition of service by these women on anything but a hospital and transport ship at the same time that the Navy was admitting women to the service and making promotions on the basis of any service that they could have on a ship at sea, so their opportunities were being restricted. It was suggested that Congress reexamine this prohibition and look instead at the particular mission to be performed and the particular capability of the person to be assigned. That was done. The total prohibition was removed. I also recommended that the Defense Department and Congress reexamine some of the definitions of combat to make sure that women were not being unnecessarily precluded from appropriate tasks. For example, if we live in an age where we have missile warfare and the task to be performed is one of being engaged in a missile silo in plugging in certain equipment, is that combat—far from the jungles of Vietnam, but rather in the safety of the missile silo? Some of the existing definitions had that effect. It was our suggestion that they be reexamined on a more specific basis. Indeed, that process occurred. I did not serve on DEACWIS at the time when any recommendation was made to remove totally the prohibition against combat for women.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I notice my time is up. Thank you, Mr. Chairman. ANTITRUST EXPERIENCE
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Metzenbaum?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge O'Connor, I wonder if you would be good enough to tell the committee if you have had any involvement with antitrust issues in your public career.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Very little; let me tell you the extent of it, if I may. When I was in the State legislature I did sponsor and succeed in having passed in Arizona a State antitrust act which was patterned after the Sherman Act. I had occasion as a trial court judge to hear one or two actions, or at least portions of them, which were brought under that act. That is pretty much the extent of it, which is not great experience.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. AS you know, the Supreme Court does become the final arbiter of what the antitrust laws of our country are.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Right.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In the landmark Alcoa case, Judge Learned Hand wrote a decision that really set out what I believe to be crucial: The whole question of small business and small business being vital to the free enterprise system's being able to operate. He stated: Throughout the history of these antitrust statutes it has been constantly assumed that one of their purposes was to perpetuate and preserve for its own sake and in spite of possible cost an organization of industry in small units which can effectively compete with each other. That Judge Hand decision has often been quoted by the Supreme Court. Do you have any difficulty in sharing that view?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, I really do not know what current decisions are pending in the Federal courts in this area. Certainly I recognize that the object of the Sherman Act was to reduce or eliminate monopolies. To that extent, of course it has the effect of encouraging competition and encouraging smaller units to be in operation.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me change to another subject for a moment. During the last session of Congress we removed impediments to Federal court consideration of all Federal questions regardless of the amount in controversy. That was my bill, as a matter of fact. In your William and Mary article, at page 810, you seem to think that was a bad idea. I just want to get a reading from you as to whether my reading of your writings is correct in view of the fact that repeal of the $10,000 requirement was predicated on the assumption that the smallest litigant was every bit as much entitled to have his or her day in court as the largest litigant, and that the $10,000 requirement no longer made good sense. On the other hand, you in your article seemed to be criticizing the repeal. You say, "In fact, however, Congress appears to have moved recently to open further the Federal jurisdictional doors." Then you talk about the limitation of the $10,000 amount in controversy. That concerns me because to me access to the courts, regardless of the economic status of the individual or the size of the case, is a matter of great moment. I would like to be certain that I am interpreting your writings correctly. 90
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I agree with you that access to the courts is vitally important to people regardless of their economic status. The point I was making I think in the article was simply that we have two sets of courts extant in our country. We have State courts and we have Federal courts. It is my belief that we have certain problems in trying to manage the interrelationship between these two court systems. In fact, I think we are the only country in the world that operates parallel court systems, the Federal court system and a State court system. Of necessity, we have certain problems inherent in the maintenance of these two systems. People have access now to the State courts for resolution of Federal constitutional issues. That is the point. The Federal issues can be resolved and are being resolved at the State level. What I was examining here in the article are the trends that I saw in the extension of jurisdiction, if you will, at the Federal level. With all of the problems we have of crowded Federal courts, the need for more judges, and the great problems we have, then what is the trend to expand jurisdiction when these same problems can be heard at the State level? If they are not satisfactorily resolved at the State level, of course there is a right to go forward and have them resolved at the Federal level if they involve Federal questions. However, if we can have a strong State court system, I would assume that these rights can be properly and fairly addressed at that level. That was the thrust of my concern.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Notwithstanding the faCt that the Judicial Conference of the United States supported Federal court jurisdiction for all cases arising under a Federal statute or the Constitution, you still feel that it would be more advisable to deny jurisdiction to those who want to use the Federal court system for cases involving amounts less than $10,000? I should say that there is obvious discrimination between the rich and the poor. For example, if an individual is claiming rights under the Federal Social Security Act, isn't he entitled to a Federal forum regardless of the size of his claim? What would the average citizen conclude about the fairness of our judicial system if, as Prof. Charles Alan Wright put it, they are denied access to the Federal courthouse because they "cannot produce the $10,000 ticket of admission"?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, of course that is a concern, but I think it needs to be viewed in the context of having a strong and capable State court system that can hear and resolve many of these same problems. That was simply the thrust of my comments. Obviously it is a matter for this Congress to debate and consider. There are opposing policy considerations in place. However, to the extent that you truly feel that a litigant can and does obtain a fair and full resolution of a problem within the State court system, then perhaps to that extent you would feel that we have provided an appropriate remedy and resolution. It simply is a matter of whether you want in all aspects both systems to be handling every problem or whether you want the Federal courts to exercise more limited jurisdiction, if you will. 91 ALLOWANCE OF ATTORNEYS' FEES
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge, you suggested congressional action to limit the use of section 1983, which could be accomplished by directly or indirectly limiting or disallowing recovery of attorneys' fees. Would you expand upon that? It seems to me that if either the court inherently has that right to grant attorneys' fees or if the Congress has given it that right, and if the litigant has no other way of providing himself or herself with access to the courts, that is a very discriminatory kind of approach to the law. It concerns me very much. It concerns me that that would be the position of a member of the Supreme Court.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I am not suggesting that the Court itself should draw those distinctions. Indeed, I think it is a subject of appropriate congressional inquiry. We are dealing here with an act of Congress in section 1983 and in section 1988. Obviously someone who is poor, who has no other right of access to the Court, who cannot afford an attorney, and who has a valid claim should be entitled to pursue that claim and should have some avenue of relief ultimately in recovery of attorneys' fees. That is not inappropriate. However, to the extent that the act is being used, if you will, in ways in which you and Congress did not originally envision, if that be the situation, and if you feel that the act in fact is being abused in some areas, then obviously it is within the prerogative of Congress to affect the extent of the use of it by altering or changing the extent to which recovery is going to be allowed for attorneys' fees. Certainly the expansion of the use of section 1983 has been very great. Perhaps it is being used today in a manner which originally was not envisioned by those who drafted it. I do not know that and I would want to do more extensive research, but that is entirely possible.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Certainly it is used more extensively than it was when originally drafted. It is an act of 1871. It is the basic civil rights act. It is the Ku Klux Klan Act of 1871. Certainly in changing times it is being used more extensively. However, the fact is that the attorneys' fees that are being allowed do not reflect any abuse because they were actually allowed by a court. The Court would not have allowed them presumably if there were no merit to the allowance of those fees. Yet you suggest in the William and Mary article that there be a legislative proscription with respect to the allowance of attorneys' fees in civil rights cases. I have difficulty following that line of thinking. Even though it is used far more extensively and would of course be more extensive than in 1871, if you disallow that you do two things: You deny the litigant in a civil rights case the right to recover legal fees when he or she has no other place to turn to, and you also deny by your suggestion of the $10,000 limit the litigant access to the Court. I find that the convergence of these two creates a situation that I think would, at least on its face, appear to be discriminatory against civil rights litigants as well as the poor and those who have difficulty in providing for themselves with attorneys. 87-101 O—81 7 92
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Indeed, Senator, if the Congress felt that the civil rights litigation were the appropriate role and function for section 1983 cases it could restrict the application accordingly. I think you are aware that, in fact, what has happened is that the Court has extended it far beyond civil rights cases and has applied it to virtually any violation of any Federal law. This is a far cry, I assume, from what was intended perhaps at the time that it was drafted. At least that is arguable. Certainly what was being suggested in the article is that Congress take a look at this and, in fact, determine if that is the intent of the Congress and if it is being used in the manner that Congress feels is appropriate and proper. To the extent that it is, then allowance of attorney's fees seems eminently appropriate. To the extent that it is not, of course Congress in its wisdom might see fit to make changes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. AS a matter of fact, the article indicates a conclusive point of view; and that is that such a move would be welcomed by State courts as well as State legislatures and executive officers and then goes on to refer to the fact that the Congress indeed has moved in the opposite direction to open the courts to more access. I am frank to say that that attitude is a matter of concern to me—denial of access to the courts and denial of an opportunity to be represented by counsel who in turn would be paid, provided that the litigant was awarded fees by the court. It provides some concern for this Senator.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Again, Senator, I would like to point out that that article in no way suggested that anyone should be deprived of a judicial forum for airing his or her grievance. I think the thrust of the article was that we have two parallel court systems and it is really a question of choice: Should the litigants be encouraged to direct their inquiries and their remedies be sought initially through the State court system, or do we want to channel everything to the Federal courts? Speaking as a State court judge, it was my view that perhaps we could safely encourage wider use of the State court system—that it was not necessary at every level and in every instance to have the choice, if you will. That was simply a point of view being suggested from the perspective of one who has been involved in a State court system. That of course is a matter for Congress in its wisdom to debate.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. They have the choice, and they would lose the choice under your article. I hope they do not.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. But not their remedy or a forum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Not their remedy, but no choice of forum. I think my time has expired, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. Senator Dole? DIVERSITY JURISDICTION
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Thank you, Mr. Chairman. I have one or two followup questions, one based on the same article on diversity that was alluded to by the distinguished Sena- 93 tor from Ohio, Senator Metzenbaum, in which you did indicate, as I understand it, that you favor the elimination of restriction of diversity jurisdiction as a ground for bringing a suit in Federal court. My only question in that regard would be: What would you recommend to States to accommodate their increased caseloads if that in fact were done?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, I do not think that my suggestion was conclusive in that regard. I simply offered that again as something which I think is appropriate for Congress to consider as it considers how to deal with the increasing caseload of the Federal district courts. Obviously, to the extent that the diversity jurisdiction is reduced or eliminated, it will impact upon the State courts. We do have some jurisdictions—and I think perhaps Los Angeles County is one—where there is a shorter time to get to trial in the Federal courts than there is in the State courts. Lawyers and litigants in that community would be particularly unhappy with that kind of a change. So these raise very serious questions obviously, and that is probably why so little action has been taken over so long a time. There are diverse views on it, and it is a very thorny issue, but I do think it legitimately is one of the things that Congress should be considering as it addresses this whole problem of State and Federal courts.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. I have another question with reference to the same comment: One of the traditional arguments for retaining diversity as a basis for Federal jurisdiction has been the fact that the State courts might have a bias in the favor of litigants who are also citizens of that State. Do you have any recommendations as to how we might address that problem if we abolish diversity?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I certainly have not had experience in other States, but in our State it has not been my experience that that is the case—that a litigant need to be concerned about how long he or she has been a resident of that State or in fact whether he is a resident at all. In fact, I believe that justice is being administered very evenhandedly with regard to that, so I am not sure that that continues to be a valid concern in today's world. APPLICATION OF EXCLUSIONARY RULE
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Senator Laxalt and maybe others earlier today discussed the exclusionary rule. I want to follow up. What is your opinion of whether or not the exclusionary rule should be applied to cases where law enforcement officers have committed technical violations of law which do not affect an individual's constitutional rights?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. These are among the examples that I referred to when I said a number of courts around the country within the federal system are beginning to approach the exclusionary rule in a different way and to eliminate, if you will, from the application of the rule the so-called technical violation. 94 We have not seen a full resolution of that approach yet by the U.S. Supreme Court, but there is every indication that perhaps some of those issues will again be addressed by that Court.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. It would seem to me that, as you have indicated, based on maybe an invalid warrant or a misunderstanding of the facts, if it does not violate one's constitutional rights then I think we need to take a look at that aspect of it. We used to talk about strict constructionists around here—it has been some time. I do not quite remember when that was, come to think of it, but what does that term mean to you? It was one that was widely discussed. I think it is well understood by those on the judiciary. Do you have any definition of that term?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, I suppose, Senator Dole, to me it might mean someone who appreciates the difference between the policymaking functions of the legislative body and the judicial role of interpreting and applying the law as made by the legislative body; in other words, the difference between making the law and interpreting it.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. YOU come down on the side of the interpreters, as I recall your statement and other statements that have been made?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I have expressed the position that I know well the difference between the role of the legislator and the judge, and I understand the proper role of the judge as being one of interpreting the law and not making it, if you will, in very simplistic terms.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. I agree with that. We supposedly make the law. We wonder sometimes if we do it effectively, but we have seen the Court also make law, and I think that has been the concern of many. I know it has been a concern of many on this committee when they talked about judicial restraint or judicial activism. Your view of that term would be in accord with the one I believe is the correct one. Senator Mathias in his first round of questions asked about your views on the power of the Federal judiciary. Of course, we do limit judicial independence in many ways in Congress, whether it is through the appropriation process, the appointment of judges, oversight on appointments, or impeachment. As Congress employs these powers granted to it under the Constitution, it frequently has an impact upon Court decisions. My question would be: To what extent, in your view, should the Court as it sits be cognizant of public and congressional sentiment on issues before the Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, it seems to me that properly the Court would have to be considering really only the facts of the particular case and the law applicable to those facts. It would seem to me rather a dangerous process in general, if you will, to go outside the record and outside the law for guidance in determining how a given matter should be handled or addressed. I suppose that is why we strive to have judicial independence—so that cases are not based on current perception of outside activity but rather on the matters that appropriately come to the attention of the courts.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Rather than what may be the issue of the day before the Congress, whether it is busing or whether it might be some other issue. I think busing has been discussed. That is only 95 one of the issues where Congress, I think, sometimes felt that the Court had a hearing problem. We sometimes believe in this branch that the Court—maybe properly so—is oblivious to what happens in the outside world.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I am sure that through the arguments of counsel and through the brief-writing process and the citation of appropriate authority the Court is never totally oblivious to what is going on. I have to assume that the litigants themselves are making known to the Court through the briefs and the arguments the realities of life. It is just that I do not think the Justices on their own—or judges anywhere for that matter—should be in the process of going outside that judicial process for guidance in reaching decisions.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Senator Thurmond in his questions asked you three specific questions with reference to votes on abortion while a member of the Senate in the State of Arizona. You also mentioned your sponsorship of Senate bill 1165. Is it fair to ask whether or not that particular legislation accurately represents your view on abortion? As I recall, in summarizing what Senate bill 1165 entailed, it was that no payment benefits be made unless the mother's life was threatened.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. In Senate bill 1165 I was not the drafter of the bill; it was the State medicaid bill. The leadership had assigned the subject of Arizona's role in the field of medical care to the poor to a citizens' committee. As I recall, Dr. Merlin Duvall headed up that committee at the' time. He later became the dean of Arizona's medical school. The committee, in any event, recommended the adoption of this particular bill; and it included that provision in it concerning the use of public funds; and I supported the bill and its provisions.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. And that bill did become law?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, it did. It was never funded thereafter for the medicaid function. It is still on the books today.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. But is it fair to conclude that that might reflect your views on that issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, Senator, it reflected my views on that subject when I voted for that measure.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. What about today?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes—in general substance, yes.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Senator Metzenbaum also discussed the question of disallowing attorney's fees in certain areas brought under 42 U.S.C. 1983. I think you have addressed that question. If the legislative reforms which were mentioned in the William & Mary article in civil rights suits are heard in State as opposed to Federal courts, would there be any danger of plaintiffs being victims of bias or prejudice—if they are limited to State courts rather than Federal courts? Is that a problem as you see it?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It is a potential problem; and to the extent that it is there has to be a means for eventually removing the issue, if that occurs, to an appropriate forum where it would not be a problem.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Thank you, Mr. Chairman. Thank you, Judge.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. 96 Senator DeConcini? EXCLUSIONARY RULE
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Judge O'Connor, we have had some discussion today on the exclusionary rule—something that is being focused on by this committee. I wonder if you could comment on a decision that has already been handed down by the Supreme Court in 1971—the Bivins decision? I do not expect you to give us any insight—because I do not think you could fairly do that—on how you would vote on it, and I am not asking that question, but I want to quote from that decision. Chief Justice Burger declared: I see no insurmountable obstacle to the elimination of the suppression doctrine— the exclusionary rule—if Congress would provide some meaningful and effective remedy against unlawful conduct by governmental officials. My question is, Do you generally agree that it is an area that Congress properly, or any legislative body, could delve into and make changes as far as the suppression doctrine is concerned?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator DeConcini, if I understand what you were reading correctly from Justice Burger, it was the suggestion that indeed Congress could appropriately provide a remedy to a citizen from whom evidence had been illegally taken by way of a civil damage action, for example, against that individual. As I recall, the Bivins versus six unknown agents case actually held that indeed there is a cause of action against the peace officer who unlawfully violates someone's fourth amendment rights. So I understand that that cause of action exists today by virtue of that decision, and I think the Justice was perhaps talking about Congress implementing some kind of remedy. I do not know that he was talking about an enactment to eliminate the doctrine, and I would hesitate to express a view on that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you think it is a proper area, Judge O'Connor, for Congress to delve into and consider; and maybe if they come to the conclusion, do you have any problem with Congress altering the present Supreme Court decision on the exclusionary rule? That is really my question.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do not know, Senator DeConcini, whether it would be valid for Congress to simply by congressional enactment eliminate this judge-made rule—I cannot say—but I can, I think, safely say that I understand it is not a constitutional doctrine which has been invoked; it has really been a judge-made rule. Certainly the study of Congress about the problem, and the consideration of it, and the factfinding process that goes on are of great benefit, I would say, to all of us including the courts as the courts reexamine the problem. It cannot hurt, and it could certainly help to have a great deal of examination of the problems that have ensued and from factfinding.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge O'Connor, my research indicates that probably the paramount reason for the exclusionary rule to exist 97 and to be handed down by the Supreme Court was for the purpose of deterrence. It is also interesting to note that six out of seven extensive studies that have been conducted in the last several years have all come to an easy conclusion, I might say, that it has not deterred the police or other law enforcement officials of abusive or illegal searches and seizures, which draws me to the conclusion that perhaps it is a proper time for Congress to consider some other remedy and provide some statutory area where the exclusionary rule might at least be modified. Be that as it may, I believe we will address that problem here. Your article that is constantly referred to in the William & Mary Law Review is one of the finest works that I have had the pleasure of reading. I gather from it—obviously—that you feel the State courts ought to play a greater role in the whole judicial area, perhaps providing a little less pressure on the Federal judiciary. Let me ask you this: What do you think is the proper role for the Federal Government as far as encouraging the State court system to conduct and accept a greater role? In addition to limiting some of the jurisdictional areas that you touch on in your article, do you feel that financial assistance, or educational programs, or training for judges or prosecutors or law enforcement officials; or do you have any thoughts on that subject? JUDICIAL TRAINING PROGRAMS
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do, Senator. In addition to the adjustments, as you mentioned, of any jurisdictional aspects that would encourage the State court systems to operate, it seems to me that judicial training programs are really of enormous benefit to State court judges, as I am sure they are to Federal judges. I am a believer and a supporter of those programs. Naturally, they cost money; and for the judges to attend them some help is needed, whether it be at the State level or with other assistance. Likewise, training programs are vitally important in the criminal justice system for the prosecutors and defense counsel. Our legal system works at the trial level and the appellate level only to the extent that we have capable lawyers representing both sides of the questions. It does not work or function very well if one side is poorly represented in the case before the court. Certainly, to the extent that we want the criminal justice system to operate well, I think it is vitally important that we have skilled prosecutors as well as skilled defense counsel, and that takes training. These are young people for the most part, and you have to give them training as a substitute, if you will, for years of experience.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge O'Connor, can I take it that you do not have any philosophical problem with the Federal Government participating in some educational program, obviously subject to the ability of the Government to pay its bills—which has not been very outstanding in the past number of years—but it does not trouble you if there is assistance, from the standpoint of education and 98 training, offered by Federal programs—if there happen to be some good ones left?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. NO, I cannot say that it does. PERSONAL PHILOSOPHY OF ABORTION
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Returning to the subject—and I am sure it probably will never end—of abortion, you have expressed your views a number of times here today and just now with Senator Dole. I wonder if you could share with us for just a few minutes not the voting record—I know you have had no judicial decisions on the subject matter that we could find—but your personal philosophy or feeling as to abortion so the record would be clear today?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. OK, Senator. Again let me preface a comment by saying that my personal views and beliefs in this area and in other areas have no place in the resolution of any legal issues that will come before the Court. I think these are matters that of necessity a judge must attempt to set aside in resolving the cases that come before the Court. I have indicated to you the position that I have held for a long time—my own abhorrence of abortion as a remedy. It is a practice in which I would not have engaged, and I am not trying to criticize others in that process. There are many who have very different feelings on this issue. I recognize that, and I am sensitive to it. But my view is the product, I suppose, merely of my own upbringing and my religious training, my background, my sense of family values, and my sense of how I should lead my own life.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge O'Connor, along that line I have one last comment about it. This is not something that has come upon you in the last year or two or the last 6 or 7 weeks; this is a commitment and a feeling that you have had for a long period of time, I assume from the answer to the question.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I have had my own personal views on the subject for many years. It is just an outgrowth of what I am, if you will.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. I appreciate that response in depth regarding your own personal background. I regret to some extent that it is necessary to delve into that, but I believe—as you can appreciate here—it is a sensitive subject among many Members on the many sides of this issue. I think it is very important that it be laid out clearly and precisely, and I think you have done just that. JUDICIAL DISCIPLINE To turn to another subject, one of great concern to me, Judge— many references today have been stated about the uniqueness of the status of a Federal judge, including a Supreme Court Justice, mainly that you will serve on the Court for your life. The Constitution provides a mechanism by which the Legislative branch of Government may remove Federal judges, and I refer of course to the impeachment process. As a practical matter, impeachment has been used only infrequently because of its cumbersome nature; plus, there has been 99 virtually total lack of supervision over Federal judges and the Federal bench. A number of highly respected constitutional scholars has argued that the impeachment mechanism is a corollary to the separation of powers in the sense that the extraordinary procedure must be established when one branch of Government seeks to remove members of another branch of Government. However, this formulation leaves open the issue of whether or not it is constitutionally tolerable to allow for some sort of mechanism wholly within the judicial branch itself that would enable Federal judges to discipline and maybe even remove errant or mentally disabled colleagues. It is manifestly unfair to the citizens of this country, it seems to this Senator, to allow incompetent or alcoholic judges to continue to hear cases. Do you believe, Judge O'Connor, that there would be a proper procedure or mechanism that could be set up constitutionally? I might add that some of your soon-to-be colleagues on the Bench have expressed positive views in this regard and one or two of them some negative views. I am interested in your overall position regarding judicial discipline and whether or not a mechanism, in your judgment, might be created within the Judiciary.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Let me speak from my experience at the State level. Of course, as a State court judge I have been subject to periodic review by the electorate; and that is a process that has certainly not distressed me at all. I think it has been satisfactory and indeed helpful to know how you are viewed by the citizens for your performance. In our State we also have a system that incorporates a commission which is charged under our State constitution with review of the capacity of any judge who is alleged to be incapacitated from service and who should be removed or disciplined in some fashion. I think that that commission has worked well within our State, and I think it is appropriate and useful. Whether it would work equally well at the Federal level I am not in a position to say because of course I have not been involved at that level. Whether it raises constitutional problems is a matter that would have to be reviewed from the standpoint of reviewing a particular proposal, listening to the arguments, and so forth. But speaking just in terms of my own personal experience, that kind of a system has worked satisfactorily in Arizona.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Most States have adopted such a system in some manner or another, and Arizona—I cannot remember when it was adopted. You may have been in the legislature when that occurred.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I was—yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And you were probably a supporter of that legislation?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I was—yes—and I have watched its operation and have felt that it was sound. 100
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. The question that comes, of course, is the one you touch on: The constitutionality—something extremely sensitive. We have had testimony here on the Judicial Tenure Act which has passed both Houses and been enacted, not nearly as restrictive as I would have liked to have seen it, being one of the cosponsors, but certainly a beginning, endorsed by the Chief Justice of the Supreme Court and providing for some procedure to handle complaints within the various circuits and then some procedure to take those complaints further up if there was some merit. That particular legislation excluded the Supreme Court from its consideration. History shows us that impeachment procedures are really impractical today, and the struggle that a legislator has—and you might have had the same struggle when you were in the State senate—is how do you attempt to provide the citizens with some way to have a grievance heard when there is indeed a judge. There have been a number of instances written about, a number of instances provided before our committee when we had this bill— the Judicial Tenure Act—before us last Congress, where indeed -there was no question but that the judge was misbehaving under the good behavior clause and there really was no way except through peer pressure. I take it from your answer that you are committed on the State and your experience is that it is very positive and that barring constitutional prohibitions you are not adverse, at least philosophically, to an approach on the Federal level.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is correct, Senator. My experience at the State level with it has been a positive one. The concern that I hear people generally express is that as our society has grown so large and as people feel that they are faced with some kind of faceless bureaucracy in the Executive branch and with a tenured Judiciary, if you will, which is not subject to review on the other hand, it can be a sense of frustration for the common citizen. I can well appreciate the concerns that have caused consideration to be given to the problem. How it will work in practice and whether there are any constitutional problems with what Congress has proposed I am refraining from suggesting.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I thank you, Judge O'Connor. Mr. Chairman, might I suggest a short break sometime this afternoon at the appropriate time?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We plan to stop at 5, but if Judge O'Connor would like to have a break before then we would be pleased to allow it.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, it is fine with me for you to continue—as you wish.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. YOU prefer to continue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is fine with me, Mr. Chairman—at your pleasure.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The judge says she does not need a break. [Laughter.]
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, I just want to be sure you are taking care of her. 101
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Simpson had his round before lunch, so we now come to Senator Leahy. JUDGE-MADE LAW
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. I commend my colleague from Arizona for making sure that all Arizonans are taken care of in the chamber. Judge O'Connor, I apologize for being a couple of minutes late this afternoon. I came in as you were responding to a question from Senator Laxalt. It was concerning the exclusionary rule. We have had a great deal of discussion already this afternoon on that. You distinguished a judge-made rule from one of constitutional dimension. If you have a judge-made rule on a constitutional issue, is that not of constitutional dimension? I do not understand the distinction.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Of course there are constitutional implications. Under the fourth amendment we cannot of course violate the search and seizure provisions of that amendment, and that amendment is applicable to the States under the 14th amendment. What I was referring to by the judge-made portion of the rule is simply the effect, if you will, of the utilization in court of evidence which has been obtained in that fashion—illegally obtained, if you will—as opposed to, for instance, the securing of a confession by force, which raises I think very different problems.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In effect, using the exclusionary rule to bar a confession—are we now at a constitutional level or are we at a judge-made level? I still do not understand the distinction, Judge.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, we of course are dealing with the Constitution when we talk about search and seizure questions; but the rule which the Court applied on the utilization of the evidence is one which the courts really developed themselves and developed initially to apply in the Federal courts and then subsequently carried over for application to the State courts. It is that to which we commonly refer, I think, when we talk about the exclusionary rule.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What about the exclusion of an unconstitutionally obtained confession or any of the evidence that might be obtained from that? Is that also within that parameter, would you say?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Perhaps, Senator. In discussing the question earlier—and perhaps you were not here—I indicated that the concern that has been expressed by some for reexamination of the exclusionary rule has not been heard, at least by me, to encompass such matters as the confession obtained by force, trickery, or something of that sort. The Federal courts that have been discussing and indeed holding that the exclusionary rule does not apply in certain instances have been addressing themselves to the so-called good faith exception, if you will—either the technical error made by the police officer, or the error made by him when he assumes he has a valid warrant and does not, or when he assumes he is operating under a particular case holding which in fact has been overturned, and another 102 type of good faith exception which relates to the officer's understanding of the particular facts involved. These are areas in which I have noted that Federal courts have begun to talk about changes or exceptions to the exclusionary rule.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU see such changes as being judge-made law?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The potential for such changes being judge-made law?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think that I could probably characterize them as such.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Senator Biden asked you a question about Brown v. The Board of Education. It was on the subject of judicial activism, a term that I guess means many things to many people. You said that it did not create new social policy by the Court but was simply the Court reversing a previous holding based on new research, but that new research was not any new research into the Constitution or into the law, was it? Was not that new research rather the effects of segregation on minorities? It certainly was not into congressional debates over the 14th amendment.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I think there was an element indeed of the examination of the intent of the drafters of the amendment. I am sure that particular case was impacted also by perceptions of the social impacts in that particular instance.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But there is no new knowledge of the law in that regard?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. What I was trying to say was that in some cases in which our Court has reached a contrary result after a period of years to a previous decision they do so occasionally based on a reexamination of the legislative history and of the intent of the framers in an effort to determine whether the prior determination was correct. I am sure we do not have much new evidence to be examined, but perhaps people are examining in some instances more thoroughly the evidence that we do have.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But did we not end up with a new social policy with very far-reaching implications?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think in that instance we did—yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And could that not be considered either judicial or social activism?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think it was so considered and still is so considered by many.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. HOW do you consider it?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I consider it as an accepted holding of the Court. I was not there in 1954; and I did not participate in the debate, and the hearings, the briefings, and the arguments; and I cannot tell you all that went into the making of that decision. Certainly it overturned a precedent of long standing, and it did so on the basis of a decision by a very substantial majority—8-1, as I recall—that the previous understanding of the 14th amendment was a flawed understanding. 103 REFLECTION OF POPULAR SENTIMENT
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you feel that that decision can stand as a correct interpretation of the Constitution and not simply a reflection of popular sentiment of the time?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, it has stood since 1954 and apparently is well entrenched.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The reason I ask that is that the Republican platform on which the President ran last year talks about appointment of judges who reflect popular sentiment and respect for the sanctity of human life and tends to be the main criterion for picking judges. Do you feel that is a somewhat narrow criterion on which to pick judges? Would you use a different one?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I think we need to use every possible evaluation of a potential judge in an effort to place very well qualified people on the bench. It seems to me that we want to consider all aspects of the individual's character and ability.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would you put as a primary consideration a judge who would reflect popular sentiment?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I would like to think that the individual characteristics of the person, the capability, the judicial temperament, and the judicial capacity would be critically important.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you feel that a judge should feel perfectly able and willing to fly totally in the face of popular sentiment if the judge felt that that was the only way to reflect the law?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. If that is necessary. I think judges must be prepared to act with courage.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you feel that a judge should feel perfectly prepared to fly in the face of popular sentiment if the judge was convinced that in so doing the judge was upholding the law?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I think we have to approach each case on the basis of the facts of the case and the law applicable to it; and we consider the case as judges in the context of the case which has come before us—the factual record—the briefs that have been filed, and the arguments of counsel. I do not think that judges are permitted to go outside the record in resolving the issues to come before the judge.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Albeit a judge does not live isolated in some type of a never never land. Judges do read newspapers, do see the news, do live as members of the community and should
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I hope so.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [continuing]. In each one of those instances, or else we have a lifeless judiciary. A judge can well be aware of what might be popular sentiment of the time. If a judge feels, however, that the popular sentiment does not reflect the law and must rule on an issue where the law is, in that judge's estimation, contrary to popular sentiment, is there any question where the judge has to go?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Not in my mind. I think the judge is obligated to apply the law as the judge understands it to be.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. What do you feel are the most important criteria in picking a judge? I ask you that question because I would assume that that 104 would be also reflective of your own concept of judicial temperament.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think we have to examine the person's overall character, integrity, capacity, experience, training, and performance.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The William & Mary article—incidentally, the William & Mary Law Review has never gotten so much publicity in 1 day's time. Right now there are dozens and dozens of law schools who wish that their law review editors had had the foresight to ask you to write for them. [Laughter.] You suggest in that article that in the next decade there will probably be significant traditional State court variations in cases involving the issue of illegal searches and seizures under the fourth amendment. You also say that, assuming the State courts are providing a full and fair opportunity for the claims to be raised and the Federal habeas corpus review is unavailable, the State courts are more likely than their Federal counterparts to reach widely varying results on search and seizure issues. Does that present some danger to the notion of a single constitution? Cannot States create a kind of balkanization of constitutional rights, almost?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is an ultimate danger if there is no final review mechanism. That is correct.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. HOW do you feel, on the question of final review—obviously the U.S. Supreme Court is not in a position to review every single case from every single State court—of the great number of cases that might present a constitutional issue?—obviously, a matter of concern to a lot of people. There have been discussions of an intermediate appellate court— a super court of appeals—beyond the normal courts of appeals. How do you feel about that?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I know there is discussion of that. In fact, unless I am mistaken, Senator Heflin on this committee has taken a major role in discussions of that, among others. Justice James Duke Cameron, a former chief justice of the Arizona Supreme Court, has just released an article on the same subject, as a matter of fact. There is wide discussion of the possibility of establishing a national court of appeals to sit somewhere between the Supreme Court and the various Federal courts of appeal. I think there are many variations of that court being discussed— many possibilities. There are both pros and cons to having that development occur, and I am sure that you have undoubtedly participated in some of the hearings and are in the process of being informed about those proposals. I do not have a fixed view on whether that would be desirable, or if it were the form which it should take. I know that some discussions have suggested they should just deal with criminal law. Others have taken a broader view. Some have suggested that the referrals should all be made to the court from the Supreme Court. Others make different suggestions. There is such variety in the proposals that I have heard that it is really hard to know which ones are being seriously considered, but 105 I think it is appropriate for the Congress to air these possibilities and to hear from as many people as it can on the subject to determine whether there is any consensus that that would be a step in the right direction.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Judge. I appreciate your openness and candor before the committee today. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. Senator East?
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Thank you, Mr. Chairman. Mrs. O'Connor, I greatly admire your fortitude here. This is an exquisite form of torture, I think. The Senators, you will note, come and go at their leisure; and we expect the witness to sit here and endure this. I was greatly impressed with your willingness to continue even when our distinguished chairman gave you the opportunity of opting out for a while. I appreciate the great frustration that you feel in this; and I think Senators do, too—that we are never able to explore things in the depth that we would like to and to the extent that we would like to. I guess it inheres to things human that you have time limitations, and so we all have 15 minutes and come back for another 15. I would then like to have it understood that I am trying to get to the heart of what I think are some critical matters, not that these matters that I wish to raise are necessarily the sole litmus test for qualification, but because of the time limitations under which we all work we must single out a few things to make a point or two on and see, when we put it all together, if we have probed to some depth and substance. I would at least like in my own small way to try to contribute to that end. SEPARATION OF POWERS You have stated your general judicial philosophy as regards separation of power, which I think was well stated. You have certainly given us some indication of your conception of federalism, which I again think was well stated. It does seem to me that it is appropriate to pursue certain substantive areas that would reflect upon your basic values on certain subjects because—to be candid—even though we talk about a rigid separation of policy making and judicial interpretation of the law, we all know in the real world of the Supreme Court that, for good or for ill, the decisions of the Supreme Court have enormous policy implications. That has been true since Marbury v. Madison, and one could think of many classic cases illustrating the point you have discussed—Brown v. The Board, Plessey v. Ferguson, Dred Scott, ad infinitum—the enormous policy impact the Supreme Court has. Hence, the basic fundamental values on certain crucial items that respective Justices have to me do become critical factors to consider because we are not working in a vacuum today; you will not work in a vacuum once you are appointed to the U.S. Supreme Court, assuming that things continue to move in that direction. 106 Let me cut through this gordian knot and get to the heart of one issue which has been alluded to before—there is no question about it; namely, this very difficult, hotly debated issue of abortion in the United States. I wish to say again that I do not think it is the sole test for qualification. I do not think it is the only thing that ought to be pursued, nor has it been the only thing that has been pursued, but certainly it is fair game as a part of a whole panoply of items— concept cases—that we might pursue. As I understand, Mrs. O'Connor, your basic personal position on this issue of abortion—just stating your personal values—is that abortion on demand as a form of birth control—you are personally opposed to that? Is that correct?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, Senator.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Let me then follow up with this question: It has sometimes been said that most people personally oppose abortion as a form of birth control—that the real division is between those in the public arena who might wish to do something about it and those who would choose to do nothing about it. As regards that particular division, what do you think would be an appropriate public policy position as far as dealing with the subject of abortion on demand as a form of birth control is concerned?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I really do not know that I should be in the business of advising either this Congress or State legislators with regard to what their present posture should be in developing public policy. I feel that it is a valid subject for legislative action and consideration, and certainly this Congress and your subcommittee have been deeply involved and engrossed in dealing with this precise area and determining to what extent this Congress should take certain action. I appreciate that and appreciate that effort. It certainly is an appropriate role for the Congress. I just do not think that it is a proper function for me to be suggesting to you what you ought to be doing.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Fine. I appreciate your concise and candid answer. Let me pursue then this point: I gather what you are saying is that you do feel that it is fundamentally a legislative function to deal with the public policy question of how one copes with abortion on demand as a form of birth control. You would look upon that in a separation of power context, at the Federal level at least, as being in the domain of congressional action as opposed to the other two branches of the Government? Would that be correct?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I would, subject only to any constitutional restraints which might exist. That is not to say that it should not also be the subject of State legislative consideration.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. I think, just parenthetically, on your latter point it is valid—that initially this was fundamentally a State function—to deal with the question of abortion. It was certainly so envisioned by the framers and certainly so envisioned by any reasonable interpretation of the Constitution. I appreciate your candor on that, Mrs. O'Connor. 107 Let me proceed with this question if I might: I would like to get your reaction to this particular statement by Justice White as a dissenter in Roe v. Wade in which Justice Rehnquist joined him. This is what they had to say about the majority opinion in that case Roe v. Wade—of 1973, which candidly is considered by many, even those who have differing views on the abortion issue, as probably the most glaring and flagrant example we have of judicial usurpation of congressional or—as you rightly put it—State policymaking function. I would appreciate your reaction to this statement. Again, I am quoting directly from Justices White and Rehnquist. They say: "As an exercise of raw judicial power the Court perhaps has authority to do what it does today, but in my view"—Justice White, Rehnquist agreeing—"its judgment is an improvident and extravagant exercise of the power of judicial review which the Constitution extends to this Court." Does that sound to you like a good statement of your judicial philosophy and a pertinent one as regards—yes, candidly—the specific issue of dealing with abortion on demand in the public arena?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator East, I have read, of course, the dissent in Roe v. Wade, and I have read at least several scholarly articles criticizing that decision and have attempted to do a good deal of reading on the subject. I am well aware of the criticisms that are leveled in those dissenting opinions of Justices Rehnquist and White, as I am of the other criticisms that have been raised. For me to join in that criticism would be perhaps perceived as an improper exercise of my function right now, as a nominee to the Court, for the simple reason that I suspect we have not seen the last of that doctrine, or holding, or case, and that indeed we are very likely to have the matter come back before the Court in one form or another. At least many who are dissatisfied with the opinion have expressed that one of the things that should be done is that the Court should be asked to reconsider that very holding, in which case consideration of the views expressed in the dissent as well as the majority and the other criticisms that have been raised and the comments pro and con would be very important and would become a part and parcel of the arguments to be considered when that case is reconsidered.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. I can certainly appreciate your desire not to speculate on hypothetical cases in the future, let alone certainly any existing pending case; but in terms of getting a feel for your fundamental judicial philosophy beyond generality, certainly to comment upon already decided cases and doctrines emanating out of them would be very appropriate in the confirmation hearing process. This is not of course to be interpreted—and I would so publicly state—that you are promising to vote a certain way on a given speculated set of facts or a hypothetical case in the future. I am asking really simply whether you think that specific statement is a reasonably valid one in terms of your understanding of this very significant and very profound case that not only deals with a very important issue but deals with the very fundamental 87-101 O—81 1 108 question that we are after this whole hearing—namely, the judicial philosophy of you as the nominee.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I appreciate that. My concern is simply that which was felt, I suppose, by Justice Harlan when he was asked about the steel seizure cases which had been recently handed down and other nominees who have been asked about their views on the merits or lack thereof of recent decisions before their nomination and their similar reluctance to directly respond. I understand your concern, and I appreciate it; I think it is appropriate. It is just that I feel that it is improper for me to endorse or criticize that decision which may well come back before the Court in one'form or another and indeed appears to be coming back with some regularity in a variety of contexts. I do not think we have seen the end of that issue or that holding, and that is the concern I have about expressing an endorsement or criticism of the holding. With respect to my judicial philosophy, I certainly feel comfortable in discussing that with you and in indicating how I would be inclined to approach a problem or a case. I have tried to indicate today that I have attempted to view the role of the judge as appropriately one of judicial restraint in deciding those cases that come before the court on appropriately narrow grounds and resolving issues based on my understanding of the constitutional doctrines which are being invoked.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Again, I appreciate your candor and your forthrightness. I suppose the frustration—maybe it is somewhat unique, though not at all for a moment reflecting adversely in terms of your qualification or potential service on the bench—is that frequently with nominees there would be, let us say, an extensive record in terms of their background on major substantive questions whereby we would not have to perhaps probe as deeply in a confirmation hearing because we would have a rather extensive written record. It seems to me if we get a nominee where that is not necessarily so, because of your great work at the State level, we have somewhat of a heightened responsibility to pursue your attitudes. For example, I would if time would allow—and it has run out on me—one might inquire as to your general feelings on the rights of women and how that might be reflected in the public policy arena; or the rights of minorities—blacks, for example—and how that might be reflected in the public policy arena; or your attitude on the death penalty and how that might be reflected in the public policy arena. So it is in that spirit that I inquire about it and do agree that I pressed the point to that extent simply because of the dearth of information on the record. Perhaps in my next 15 minutes I can pursue this issue a bit further. Thank you, Mr. Chairman. I appreciate that my time has run out.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. Senator Baucus? 109 LIMIT SUPREME COURT JURISDICTION OVER CONSTITUTIONAL ISSUES
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Thank you, Mr. Chairman. Judge O'Connor, I would like to touch upon a subject that has been addressed by most Senators this morning and this afternoon— namely, what the proper congressional or Presidential response should be when there is profound disagreement with a Supreme Court interpretation of the Constitution. The classic traditional response has been for Congress and the States to attempt to amend the Constitution through the amendment process. Another remedy of course would be for the President to try to appoint nominees who were in accordance with the public's view of the issue. A third approach would be for Congress to attempt to impeach a nominee. Additionally, Congress might try to override the Supreme Court by statute—albeit Marbury v. Madison would pose a problem. A final solution—which has been the subject of discussion in this body in the last couple of years would be for the Congress to try to limit Supreme Court jurisdiction of the particular constitutional issue. Earlier this morning you discussed with Senator Laxalt and another Senator on this committee the McCardle and the Klein cases and how the precedents in this area have been ambiguous. Furthermore, those cases were decided many years ago anyway. My question is: As a matter of public policy—as Sandra Day O'Connor, private citizen—what is your view as to whether Congress should attempt to limit Supreme Court jurisdiction over constitutional issues?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I really would feel constrained about giving you my armchair advice on how you should handle these things that are before you.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Excuse me. I am not asking for you to advise us on how to handle it. I am asking you as an individual citizen what your personal view is.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. When I was in the State legislature, Senator Baucus, we had occasion to consider a particular proposal—a memorial to Congress asking in that instance that an amendment be constructed to remove jurisdiction of the Supreme Court over a certain subject matter. I did not support that memorial for the stated reason that I did not feel, as a State legislator at that time, that I wanted to recommend that the jurisdiction of the Supreme Court be limited by subject matter in that fashion. That was my own response as a State legislator when I had occasion to consider that question. I was concerned that if it started in one area I did not know where it would end and that we could be left without a court to determine the final state of the law in that or other areas.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. IS that still your present view?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, it would be representative of some of the questions and concerns which I would want to address 110 if I were to consider that question as a legislator or Congressman today.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. What are some of the public policy considerations that come to mind on this issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That which I have indicated—to wit: I believe it was contemplated by the framers of the Constitution that the judicial branch, and acting through the Supreme Court ultimately, would determine the final meaning, if you will, of the Constitution and of Federal law and would resolve conflicts on the Federal law which arose in the other Federal courts. To the extent that such power is removed by removing appellate jurisdiction of the Court, then it would have the potential effect at least of leaving unresolved those differences that might arise among the several Federal courts and among the State courts, and it would also have the potential effect in any event of leaving in place any of the decisions which had previously been handed down and which gave rise to the concern in the first place.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. SO one potential danger would be that the 50 States could have 50 different interpretations of the first amendment—of free speech or free press. That would be one unfortunate result that might occur—is that correct?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think that is probably exaggerated because I have to assume that even if jurisdiction were presently removed over an area we would still have in place those decisions that had previously been handed down. So it is not as though it would be leaving everyone to write on a new slate, if you will.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. But if Congress removed Supreme Court review, wouldn't Congress really be winking at the State courts and saying, 'States, go ahead and rule your own way because there is no other body to override any decision you might make"?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. These are among the questions that I think have to be asked and addressed when we consider proposals of the kind which you describe. CONSTITUTIONAL AMENDMENT PROCESS
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. DO you think that the constitutional amendment process works?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, it has worked of course about 26 times, and at least we have that many on the books. Some others have been proposed which were not approved.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. But do you think that the process is too cumbersome or too laborious to address unpopular Supreme Court decisions?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, there have been several instances in the history of our Nation where Congress has attacked a particular holding of the Court by means of offering a constitutional amendment, and it has been successful to the extent that amendments have in fact been adopted. For example, the income tax amendment was really in reaction to a holding of the Supreme Court. So I guess I have to respond that it can achieve the stated goal.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. That is correct. It is my understanding, too, that in that case Senator Robert Taft argued against any attempt I ll to limit Supreme Court jurisdiction on that issue because he felt it better to address it by constitutional amendment—which was ultimately accomplished by the 16th amendment. I raise the question because, during the debate on whether or not Congress should limit Supreme Court jurisdiction, those who favor such legislation argue that the constitutional amendment process is too cumbersome and too laborious. I again ask you whether in your view you think the process is too laborious or too cumbersome or whether it works well. Do you think it is well designed as it is, or does Congress need the additional tool of limiting Supreme Court jurisdiction?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. The amendment process takes varying amounts of time to accomplish and various amounts of effort to achieve. Our most recent example is with the 18-year-old voting amendment. It did seem to take particularly long before that process was completed. We have a number of other amendments in our Nation's history which did not take long to complete. Others have taken much longer and have been much more complex, in terms of dealing with them. So I think it just depends on a case-by-case basis with the particular subject in mind whether the amendment process is the appropriate one to consider. There is another means, of course, of resolving issues which the Supreme Court has addressed and which many find to be unsatisfactory; and that process involves asking the Court by means of other cases to reconsider or distinguish the holdings which were found to be unfortunate. This is another way in which, over time at least, changes in unpopular decisions, if you will, have been modified.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. I take it from an earlier answer you gave to another member of this committee that the Court should not be influenced by attempts in Congress to limit its jurisdiction or by what it reads in the newspaper but more influenced by the briefs and oral arguments of the cases before it?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It does seem to me that the Court should make its decisions based on legal principles and not on its assessment of outside opinion, if you will. It seems to me that the Court should review the facts of the particular case and consider the arguments that are raised, which may indeed be reflective of public concern, but should consider those arguments in the proper setting within the framework of the Court itself and within the framework of the oral arguments and the briefing that is done on the cases. PUBLIC CONFIDENCE OF SUPREME COURT
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Thank you. I would like to turn to a second subject. According to a Louis Harris poll, in 1966, 51 percent of the American public had a great deal of confidence in the Supreme Court. In 1980, 27 percent of the American public expressed a similar confidence—a drop from 51 112 percent to 27 percent in 14 years. What, in your view, explains that drop?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am not sure that I can explain it. I suppose that a portion of it would have to be reflective of public perceptions of the results of particular decisions which have been widely publicized and would cause concern. Perhaps it is a reflection, if you will, of the manner in which the Court has been treated in some form in the media; I do not know. Perhaps we have more public discussion of the Court, or perhaps we have less. I am not sure which aspects have led to the change in the polls. SUPREME COURT PRESS CONFERENCES
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. DO you think the Court should have press conferences?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. DO I think they should as a general rule have press conferences?
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. AS a personal view only, I probably do not think that that is a good plan. The Court does attempt to speak by explaining its reasoning and rationale in the published opinions that it issues, and the hope at least is that in that process the reasons will be sufficiently expounded. EPITAPH
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Finally—I told you I would ask you this question, which is: How do you want to be remembered in history?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. The tombstone question—what do I want on the tombstone? [Laughter.]
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Hopefully it will be written in places other than on a tombstone.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I hope it might say, "Here lies a good judge."
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. What does that mean to you? Do you want to be known as the first woman judge or the judge from the West, the judge who upheld civil liberties—just what does that mean to you?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. If I am confirmed I am sure that I would be remembered, no doubt, as the first woman to have served in that capacity; and I hope that in addition if I am confirmed and allowed to serve that I would be remembered for having given fair and full consideration to the issues that were raised and to resolving things on an even-handed basis and with due respect and regard for the Constitution of this country. I would hope that on occasion my opinions could reflect clarity of thought and of word and be a reflection of the appropriate values and analysis that I think is merited of these constitutional issues to come before the Court.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Are there any institutional changes that you think should be made within the Court?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. YOU might as well let them know before you get there. [Laughter.]
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. AS the newcomer on the block I would hesitate to offer all those opinions. It would probably be inappropriate. 113 I am aware though that the Court has a greatly increasing caseload, and this is a concern I am sure because there are ever more decisions that have the potential for review and that need review, and the Court is limited by sheer virtue of numbers and hours in what can be done; this is a concern.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. What in your view will be the most difficult question the Court will face in the next 25 years—the death penalty? Abortion? What will it be?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do not think I can answer that. It hears all the major issues of the day in one way or another. Most of those land before the Court, and it ultimately addresses most of those grave and serious concerns that this Nation faces in one form or another. I would not know which of those on reflection would turn out to be the most significant.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Thank you very much.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, I am sure you would agree that our constitutional form of government is probably the greatest form of government in the world. Many people feel that the Constitution is the greatest document ever written by the mind of man for the governing of a people. In view of that I guess a good epitaph for a judge would be, Here lies a judge who upheld the Constitution.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think that would be very apt, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you very much. In view of that I think we can now recess, as we planned to, until 10 o'clock tomorrow morning. [Whereupon, at 5:10 p.m., the hearing was recessed, to reconvene on Thursday, September 10, 1981, at 10 a.m.] [Biography of Sandra Day O'Connor follows:] The CHAIRMAN. The Judiciary Committee will come to order. The questioning of Judge O'Connor will now continue. Senator Grassley of Iowa is next in line. Senator Grassley. Judge O'Connor, I remind you that you are still under oath. TESTIMONY OF SANDRA DAY O'CONNOR, OF ARIZONA, NOMINATED TO BE ASSOCIATE JUSTICE, U.S. SUPREME COURT— Resumed Judge O'CONN 116 Court is a strict constructionist but once they take their seat it may be an entirely different matter. That is true of the Senate as well as the Supreme Court. Therefore, this is really the only forum in which we as Senators can learn of your judicial philosophy, thereby allowing us to fulfill our duty in making a proper decision, and it is to that end that I proceed with some questioning. I understand that part of your reason for not commenting on specific cases is that you may have to disqualify yourself from similar cases should they arise before the Court. As a part of your preparation for this hearing, did you read the statute that governs the kind of statements you are claiming privilege from making?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman and Senator Grassley, if you are referring to title 28, United States Code, section 455
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR [continuing]. And the ABA canon 3(c), yes, I have read those. I have also, of course, been guided in large measure by my review of the positions taken by prior nominees to the Supreme Court when they have appeared before this body. I am sure you know, Senator, that beginning with the earliest such occasions the nominees have felt reluctant to answer questions concerning issues that may come before the Court, and there are many expressions of that concern which have I think been called to our attention during the course of these proceedings.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Are you familiar with Justice Rehnquist's comments in Laird v. Tatum, where respondents urged him to disqualify himself because of public statements he made about the constitutional issues that were raised in the case? He made these statements prior to his nomination as a Supreme Court Justice. Justice Rehnquist's comments went on for 6 pages, citing not only the above statute but also various instances where Justices not only had commented publicly on substantive constitutional issues but actually had been principal authors of the laws that later came before the Supreme Court, before the Supreme Court decided the constitutionality of that law, for support for his position. Have you reviewed the transcripts of confirmation hearings of other Court nominees who have appeared before this committee? You have indicated that perhaps you have done that.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, Senator Grassley, I have done that.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. AS far as you know, is it true that n< other member of the Supreme Court has ever had to disqualify himself from a case because of policy statements made outside of the courtroom?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I cannot answer that question. My review of the transcripts of the prior hearings reveals that the nominees have been rather careful in this area not to put themselves in that kind of a position. In Laird v. Tatum, in which the question was raised and Justice Rehnquist had to address himself to it, it really related to certain statements that he had made prior to becoming a nominee for the Supreme Court. We do not live in a vacuum, of course, and I have served as a State legislator and as a trial court judge. Certainly, I would not expect that my statements or activities in that State legislative body or as a State trial court judge could fairly be said 117 to disqualify me from sitting on a case subsequently on the United States Supreme Court, when some of those same issues would subsequently be addressed. Basically, that is what Justice Rehnquist was discussing in Laird v. Tatum but I think it might be useful to also quote Justice Rehnquist from the same case, when he was discussing the situation of a nominee at a hearing such as this, in which he said: I would distinguish quite sharply between a public statement made prior to nomination for the bench on the one hand, and a public statement by a nominee to the bench. For the latter to express any but the most general observation about the law would suggest that in order to obtain favorable consideration of his nomination, he deliberately was announcing in advance, without benefit of judicial oath, briefs, or argument, how he would decide a particular question that might come before him as a judge. In that paragraph I think Justice Rehnquist did try to distinguish the situation to which you refer; namely, statements or conduct that occurred prior to becoming a nominee versus the process following the nomination.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Could I suggest to you that you did not read the entire quote, because in Laird Rehnquist noted that as to disqualification there is no difference between a nominee's statements and prior statements.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, the quote that I have read I thought did correctly reflect and quote Justice Rehnquist's view of the situation of the nominee at the hearing. Indeed, my review of his own confirmation hearing would lend some substance to that view, wherein he on occasion had to consider the same troubling questions that we are considering now in the sense that there were some things which might come before the Court which he felt he was unable to address directly.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. He differentiates between propriety as opposed to disqualification, but at this point I do not care to follow that particular point any more except to ask you, in your process of reviewing nominees' reactions before confirmation hearings, did you have an opportunity to read Justice Powell's comments on Escobido and Miranda in his confirmation hearings?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, yes, I did.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I suppose, then, that you are aware of the fact that he did express an opinion and he was careful to make clear that it was at the time that he was head of or active in the ABA. At the time he said that he expressed the view that the minority opinions were much sounder than the majority opinions. He did express that in the confirmation hearings.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, the practice of holding confirmation hearings really began with Justice Stone. It was dropped, I think, until Justice Frankfurter was nominated to the Court in 1937, and at the beginning of Justice Frankfurter's hearing he observed that he would not care to express his personal views on controversial issues affecting the Court. When the Chief Justice, Chief Justice Berger was asked a question which might bear on how a conceivable case could be decided, he said, I should certainly observe the proprieties by not undertaking to comment on anything which might come either before the court on which I now sit or before any other court on which I may sit. I think I must limit any comments in that way. 118 This is basically the thrust, Senator Grassley, of the nominees who have appeared before the Senate committees and have been questioned on matters which indeed might come before the Court.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. DO you feel that Justice Powell went further than he should have in his comments on the Escobido and Miranda case?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I am sure Justice Powell responded only in a manner which he felt was appropriate at the time.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge O'Connor, could you tell us how many discussions you had with the President personally or by telephone prior to his announcement of your selection?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, yes: two.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Can I ask you for how long a period of time those two were, approximately, in minutes?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, it would be really a speculation on my part because I was very engrossed, as you might imagine, in the conversation. I was not watching any clock or my watch. We had a discussion at the White House—I am not certain how long that lasted—and we had a discussion on the telephone prior to the nomination.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. TO the best of your recollection, what were some of the things that he asked you in those conversations?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I think it would not be proper for me to disclose the contents of private conversations which I had with the President about this matter.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. Did he ask you any policy questions?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I really do not think that it is appropriate for me to relate what was stated, other than that I think it would be proper for me to assure you that I was not asked to make any commitments concerning any issue which might come before the Court.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Would you repeat that, please?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I was not asked to make any commitments, Senator Grassley, about what I would do or how I would resolve any issue to come before the Court. I think it would be proper for me to assure you of that.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, could you generalize to any extent? Was any of the conversation that you had with the President similar to any of the things that the members of this committee are asking you?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I would suggest that I should not properly reveal the content of those conversations.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Did the President ask you not to discuss that conversation?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I would suggest that I should not reveal the contents of the conversation but I am in no way suggesting that that was at his request. That is my perception of what is proper. 119 COURT-ORDERED BUSING
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge O'Connor, yesterday we heard your personal views on some issues. I really was hoping to have not your personal views but how you might express your judicial philosophy, and general approaches to things that might come before the Court. You did give us your personal view on at least one issue, the subject of abortion. Since we are going to probably cast a vote for or against you based upon your personal views more so than statements of substance that we would get on issues that may come before the Court, could I ask you for your personal views on busing, forced busing?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, I assume you mean in the context of the court-ordered busing in connection with school desegregation cases?
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Grassley, as you are probably aware, again any comments that I would make on this subject about my personal views have no place in my opinion in the resolution of any legal issues that might come before the Court.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. No; I want your personal views in the same vein, in the same context and in the same environment you gave us your personal views on abortion. I would like to have your personal views on busing.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Speaking to that end, perhaps illustrative of that is the position that I did take in the legislature when I had occasion to vote in favor of a memorial that requested action to be taken at the Federal level to terminate the use of forced busing in desegregation cases. This is a matter of concern, I think, to many people. The transportation of students over long distances and in a time-consuming process in an effort to get them to school can be a very disruptive part of any child's educational program. In that perhaps I am influenced a little bit by my own experience. I grew up in a very remote part of Arizona and we were not near any school. It bothered me to be away from home to attend school, which I had been from kindergarten on. In the eighth grade I attempted to live at home on the ranch and ride a schoolbus to get to school. It involved a 75-mile trip each day, round trip, that is, and I found that I had to leave home before daylight and get home after dark. I found that very disturbing to me as a child, and I am sure that other children who have had to ride long distances on buses have shared that experience. I just think that it is not a system that often is terribly beneficial to the child.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Judge O'Connor. My time is up.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator from Alabama, Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Thank you, Mr. Chairman. Judge O'Connor, following the line of questioning that Senator Grassley pursued in regard to your meetings and conversation with the President, did the President offer you any jellybeans? [Laughter.] 120
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Heflin, in the Oval Office I was seated next to the jellybeans but I confess to you that I was more interested in what was being said. [Laughter.] POLICE POWER AND INDIVIDUAL RIGHTS
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. For any person going on the Supreme Court, there is a real problem that any court must face between individual rights and police power. I suppose this issue has been an issue that has confronted the Court and each individual member of the Court since the Court has really been in being. It is the issue, of course, of the police power of the State and the issue of the police power of the Federal Government within its jurisdiction. There is the issue of constitutional rights, individual rights. There are rights that are not expressly contained within the Constitution and the amendments thereto but that have developed, such as the right of privacy. I wonder if you would express to us your general philosophy in making decisions dealing with the conflict between the police power and individual rights?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I assume you are speaking in terms of, for instance, legislation enacted for example within the police power jurisdiction of State government?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, for example, with all of our crimes, practically all of the crimes in the States, the issue arises sometimes in the language, sometimes in the application. It raises the issue of individual rights versus police power of the State.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Heflin, I suppose the normal standard for review, of course, which is applied by the Court is whether the particular legislative enactment that is being reviewed bears a rational relationship to a legitimate State objective. Traditionally, if it does the enactment is upheld. Obviously when we are dealing with some rights, for example, under the first amendment—the right of free speech or the right under the establishment of free exercise clauses, something of that sort—the Court has adopted I think a rather more stringent set of tests to determine whether those rights have been preserved. We could examine each of those individually, for instance, in the free speech area or the freedom of religion area because the Court has been rather more specific in those areas. However, just in broad, general terms, absent one of those special rights, the Court has tended to apply the usual test for the most part in determining whether a particular piece of legislation should be upheld. Now if the legislation, either on its face or if determined by the trier of fact, was intended to be discriminatory against a particular group of people—for instance, on the basis of race or on the basis of national origin, and in some cases on the basis of alienage—the Court has applied a much stricter test in reviewing that legislation and indeed has looked to see whether that particular provision, discriminatory provision, is necessary to achieve a compelling State interest or governmental interest. In the area of discriminatory legislation on the basis of gender, the Court has applied a sometimes shifting standard to determine 121 how to review those cases, something in between the strictly suspect standard and the rational basis standard. TENTH AMENDMENT
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Thank you. The early decisions of the Supreme Court have recognized the essential role of the States in our Federal system of government. Justice Chase in the case of Texas v. White declared that "The Constitution in all of its provisions looks to an indestructible Union composed of indestructible States." You know that the 10th amendment reserves to the States and to the people the powers not specifically delegated within the Constitution. At the same time, it has been recognized that the Constitution has granted plenary authority to the Federal Government to do all that is necessary and proper to carry out the express powers enumerated in the Constitution. In light of these provisions, I would like to know your general philosophy of the role of the Judiciary in preserving Federalism.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Heflin, the judiciary in my view has an important obligation in that regard. The Federal Government was the outgrowth or product of the States' willingness to band together and form a Federal Government, and it of course assumed that it had created a Federal Government of limited powers and, indeed, had delegated expressly to the Federal Government those powers that the States then thought were appropriate, and reserved in the 10th amendment to the people and to the States those powers that were not delegated. I guess we would have to say that it is under the 10th amendment, really, that the States exercise their broad police power which has been generally regarded as a reserve power to the States. The Court through the years has not, at least in recent decades, given much specific—or, has not based many decisions on the 10th amendment. I think I mentioned yesterday, perhaps, the one instance that comes to mind in recent years in which the Court invalidated a congressional enactment as it applied to the States, and that was in the National League of Cities v. Ussery case, in which the Federal Government had attempted to apply the wage and hour law to State employees and the Court drew the line in that instance. It more recently, however, declined to rely on the 10th amendment to invalidate congressional enactments in the area of surface mining regulation, and said that in that instance the Congress was addressing its primary thrust to the regulation of business or private interests as such and not attempting to regulate the States as States. I am sure that we have not seen the last of the inquiries that the Court will make, by any stretch, into the application of the 10th amendment, but it sets forth a very vital pronouncement of the role of the States in the Federal system and indeed—as a product if you will of State government, which I am—I have some concerns about seeing that State governments and local government are maintained in their abilities to deal with the problems affecting 122 the people. The reason for that philosophically is because I think I would agree with those who think that the government closest to the people is best able to handle those problems. Now I guess time will tell the extent to which the Court and the Federal courts generally will rely upon the 10th amendment in their resolution of some of these problems. ADMINISTRATIVE LAW
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. There has developed—and it has developed and is prevalent today—a tremendous number of adjudications that take place outside the formal judicial system of the Federal Government. What I am referring to are the administrative agencies. There are many people today who feel that problems are presented because administrative agencies occupy the position of investigator or prosecutor, judge, trial judge, all combined in one. Of course, the administrative law judge system has developed. There are many people who feel that there is neither the independence nor the appearance of independence in that system. I wonder if you have any ideas as to what could be done to give more independence, more impartiality to the decisions that are made in the administrative agencies, and the scope of review by the courts which is basically within the circuit courts of appeals. Do you have any thoughts on this issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Heflin, it is a very important subject. Much of the contact which the public has with government in general, whether it is at the State or the Federal level, is through the administrative branches of government. These are the arms of the Federal agencies and the State agencies that are actually administering the policies established by the legislative body. As you pointed out, the practice in administrative law is to have the agency itself sit in judgment of any disputes that come with relation to that agency's regulation of the public, and many people find that that is a little bit difficult to accept in terms of having a fair and impartial resolution of their problems. That concern is understandable. Nevertheless, it appears to be rather firmly entrenched in both the State and Federal systems. The question then becomes, how do you make it more workable? I think there is discussion, certainly, at various State levels and perhaps nationally about the extent to which you can set up impartial tribunals that are not part and parcel of the administrative agency itself to hear resolutions of the problems; discussions about whether it would serve the governmental bodies well to set up an entirely separate administrative tribunal that could serve as the trier of fact, if you will, for a number of agencies rather than just each agency administering its own. I think that these things have merit. I believe that the Congress is also considering certain amendments to the standards of review in existence for administrative agency decisions. Typically, the standard of review has been to overturn the administrative decision only if there is an abuse of discretion made, and great weight is given to the determinations of the administrative agency. Now clearly, it would be within the 123 legislative function to alter that standard, to have—I suppose if the review were had de novo, that is nonproductive because it forces such a load on the courts but maybe something in between can be considered. Maybe we do not need to grant any presumptions of validity. These are matters that I think are relevant for current discussion and perhaps merit discussion because there is a great deal of concern in the public generally about the field of administrative law. CASE LOAD
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. One other question: I will have to maybe give you a brief background for it. In 1890 the U.S. Supreme Court had filed with it approximately 550 cases. They asked for relief. In 1891 the nine circuit courts of appeal were established to give it relief. After taking cases from the Supreme Court into those circuit courts of appeal, the U.S. Supreme Court determined 275 cases in 1891. Some of those cases were summarily decided without opinion; approximately two-thirds were decided with opinion. Last year the Supreme Court took approximately 275 cases and has consistently taken approximately 275 cases since 1891. Cases filed with the Supreme Court last year were something in the neighborhood of 4,200, as compared to about 550 in 1891. The granting of cert or the mandatory jurisdiction that had to be exercised in those regards constituted about less than 7 percent of the cases that were filed with it. I suppose, looking over the fact that 275 cases has been almost the norm since that period of time but that the population has increased the number of cases, certainly we are more litiguous today than we were then. You have had experience as a member of a court of appeals of your State in which I suppose that the supreme court of your State reviewed the decisions of your court of appeals. Is that correct?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Correct.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. DO you have any suggestions pertaining to the discretionary cases that the Supreme Court takes or a remedy for the overall problem? Largely, the Supreme Court today has to select the ones that they feel are important to society in general. Many cases that they might want to take, they will not take. We also know that we have had two studies of the Fraun proposal, and the Ruska Commission had worked on this. Do you have any thoughts pertaining to some method of relief to the U.S. Supreme Court, and relief to the public and to the litigants that file, where they have cases that cry out for consideration?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Heflin, I believe that you have personally been involved in an in-depth review of this area. You likewise have come from a State court system in which you have taken a great personal interest in the affairs of the administration of justice and I think are very well informed on the subject. However, you have pointed out the extent and really dramatic nature of the problem which the Court presently faces in terms of sheer numbers. Several things I suppose are possible. One of the things that is being studied and considered, I am told, is a national court of appeals, something in between the Federal courts of appeal 87-101 O—81 9 124 and the Supreme Court which conceivably could assimilate some additional number of the issues that need to be resolved, at least to the extent that we have differing opinions among the various Federal courts of appeal. This is certainly one possibility, one that would have to be studied with a great amount of care in terms of determining what its jurisdiction would be, whether in fact it would alleviate the situation or not, what types of cases it would really handle. Justice James Cameron of our Arizona Supreme Court has done some work in this area as well and is publishing something on the subject currently. Another possibility, it seems to me, would be to consider removal of the mandatory jurisdiction of the U.S. Supreme Court. As you know, some cases must be accepted on appeal. Possibly giving the Court the opportunity to have entirely discretionary jurisdiction on appeal could be helpful in the long run. Whether there are other things that can actually curtail the tremendous problem we are having with numbers, I do not know. One would like to think that with less extensive regulation, that perhaps at some point some issues would become settled and would no longer become the subject of as much litigation as we have, so maybe we have to approach it from all aspects. Maybe we are encouraging litigation at the bottom level at the same time we are trying to solve the problem at the top.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Denton of Alabama.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Thank you, Mr. Chairman. Good morning, Judge O'Connor.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Good morning.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. We have had references to this being an ordeal, an inquisition. I do congratulate you on your endurance and your poise, your graciousness. I would like it known that I do not feel like an inquisitor; I do not feel condescending. I had a little scrapbook of sayings which sort of guided my life. They were printed, three or four of them, in a newspaper article once and they were included in a book I wrote. One of them was, An officer should wear his uniform as a judge his ermine—without a stain. Therefore, I have a tremendous respect for your profession, for your position. I have a tremendous respect for you as a woman who has fulfilled the indispensible roles of wife and mother in such a successful way, and then has gone on to extrapolate into fields of professional accomplishment which would amount to, in my opinion, in sum constituting pretty much an ideal woman. I ask you these questions with that feeling toward you. The other gentlemen here have asked you questions about such subjects as judicial activism, civil rights, separation of powers, because respecting you at least as much as I, they are concerned about matters which affect the welfare of this country vis-a-vis the prospect of your nomination. I am compelled to ask, for the same reason, about abortion. As I ask, I have in mind the cultural shock of my returning to this country after almost 8 years away from it. We had changed in a lot of ways, as you could probably imagine—we talked about this 125 together—from 1965 to 1973. It was, I think, a devastatingly accelerated sort of self-degradation period which I believe we are tending to recover from. Among the changes I noted was the abortion issue, abortion being totally accepted, although the ruling had been a little earlier. It was just an accepted thing, and it was appalling to me but not as appalling as it is today. In other words, I have gone through a recognition of how important abortion is, since 1973 to now, a much greater appreciation for what it consists of. I did not understand why there was so much concentration on abortion, for example, by the Catholic Church in 1973 when I returned. I thought, "Why are they picking on that instead of some of the other things that are going on, the massage parlors, the absolute free sex thing, the perversion? Why abortion?" I gradually found out, just from thinking about it, but I did note that, you know, for thousands of years in Judeo-Christian society abortion was about the worst word you could say. In the Navy we used to have an expression: "That plan is an abortion." It was the worst condemnation you could give to it in 1960, and all of a sudden when I come home in 1973, you do not say that any more. It is totally outmoded. What "remarkable enlightenment occurred to mankind to make that happen in Judeo-Christian society, I did not understand, and still do not. I am concerned about it in other ways, as I expressed yesterday and might express again today. Based on my earlier conversation with you and your testimony up to this time, it is my belief that you have changed your position on abortion since you were in the Arizona Legislature. Under what conditions do you now feel abortion is not offensive?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, for myself it is simply offensive to me. It is something that is repugnant to me and something in which I would not engage. Obviously, there are others who do not share these beliefs, and I recognize that. I think we are obligated to recognize that others have different views and some would draw the line in one place rather than another.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. That is the line I am asking you about: In your personal view, where do you feel abortion is not offensive in the respect of drawing that line? We here in the Congress have had to think in those nitty-gritty terms. Each individual in the world, really, and the United States in particular, is thinking in those terms now. It is an agonizing question, and I do respect the differing points of view of others. I do know that I came through several transition periods myself but I am asking you where you now are in drawing that line. Where is it inoffensive?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, for myself I have to draw it rather strictly. I am "over the hill." I am not going to be pregnant any more, so it is perhaps easy for me to speak. For myself, I find that it is something in which I would not engage. For those in the legislative halls, it poses very difficult problems for them in drawing those lines legislatively. They are presently constrained, of course, by the limitations placed on by the Court in the Roe v. Wade decision, and if you were to draft legislation today I suppose it would have to be drafted with that case in mind while it remains on the books. 126
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Well, with all due respect, we are dealing with such nitty-gritty distinctions as rape, incest, and so forth, save the life of the mother. I am asking your personal reflection on the inoffensiveness with respect to those kinds of conditions. Where do you think it occurs? Where does it become inoffensive? I realize that this is not with respect to you, your personal body, but with respect to justice or compassion, the sum of which you view life with.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, it remains offensive at all levels. The question is, what exceptions will be recognized in the public sector? That is really the question.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Where do you feel that the possibility should occur?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I find that it is a problem at any level. Where you draw the line as a matter of public policy is really the task of the legislator to determine. Would I personally object to drawing the line to saving the life of the mother? No; I would not. Are there other areas? Possibly. These are things that the legislator must decide.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Well, candidly, personally, in terms of a tubal pregnancy with the impossibility of delivering that fetus, the operation to take it from the mother can be viewed as an abortion to save the life of the mother. I want to confess that I am in favor of that activity. I would not refer to it as abortion, but I want to say that you are more conservative than I in the answer you just gave. Do you feel that your present attitude will remain as a final position? If not, which way do you feel likely to trend on the issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, I cannot answer what I will feel in the future. I hope that none of us are beyond the capacity to learn and to understand and to appreciate things. I do not want to be that kind of a person. I want to be a person who is open-minded and who is responsive to the reception of knowledge. I must say that I do expect that in this particular area we will know a great deal more 10 years from now about the processes in the development of the fetus than we know today. I think we know a great deal more today than we knew 10 years ago, and I hope that all of us are receptive and responsive to the acquisition of knowledge and to change based upon that knowledge. ROE VERSUS WADE DECISION
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Retrospectively, do you feel comfortable about the correctness of the Roe v. Wade decision?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, I do not quite know what that question means. If you mean, am I unaware of the concerns that have been expressed about it, of course I am aware of the concerns that have been expressed.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. What I mean is, as a person are you comfortable with the status quo of sort of psychological environment, peer pressure about what is right and wrong, that that decision has left?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, I am concerned about the extent of public concern about that issue. Obviously, law which does not have a broad consensus, if you will, is 127 always a concern to us because we are here in a broad sense in Government as servants of the people. Lawmakers, it seems to me, have to be concerned about the views of the public generally and about broad segments of the public who feel strongly about certain issues. That is vitally important in the lawmaking field. I think that the judicial branch is, of course, designed to be not directly responsive to public pressure, and rightly so. I think all of us would concede that it would be unwise to have courts try to resolve public issues in a given case that is before the courts on the basis of public sentiment but, of course, it is always a concern to us and should be a concern to us when there is a broad level of public discontent about some issue.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Well, a great many people regard the Roe v. Wade decision as the most extreme example or one of the most extreme examples of judicial preference for "personal ideas and philosophy" over textual and historical sources of constitutional law. As I understood you earlier in your answers, you were in favor of a judge ruling from those bases rather than from what had become, perhaps temporarily, a public perception in terms of what is OK and not OK.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, yes, I do feel that a judge is constrained by the processes surrounding the judicial system to resolving issues based on the framework of the particular case that has come before the judge, the particular facts, the particular statute, and the law applicable to those. WOMEN SERVING IN COMBAT
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Would you give your present personal position with respect to women serving in actual military combat or ships and planes which would likely become involved in combat?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, it seems to me that consistent with the recommendation I made when I served on the Defense Advisory Committee on women in the service, that the term "combat" should be specifically examined with regard to specific assignments, and that women should be considered if they are in the military for service on assignments taking into account their ability and the specific mission to be performed. I did not favor and do not favor today a complete exclusion, for example, of any women naval personnel from a ship merely because it is a ship and it is in the U.S. Navy. I think that it has to be examined much more closely than that, and that process has in fact been occurring and it is one which I think is appropriate.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. My question was not directed toward the Dacowits testimony, with which I am familiar, but just your personal preference. Assuming that we knew whether or not a woman would be committed in combat, would you be for or against that commitment?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Denton, speaking as a personal matter only, I have never felt and do not now feel that it is appropriate for women to engage in combat if that term is restricted in its meaning to a battlefield situation, as opposed to pushing a button someplace in a missile silo. 128
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. In other words, you would not want them to be in a position to be shot?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. TO be captured or shot? No, I would not. [Laughter.]
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Well, it may astound this audience, but at the Naval Academy not too many months ago there were young ladies standing up and demanding to be placed in just that position, and saying that that was their right to do so because they were accepted into the Naval Academy, so it really is not all this laughable, you know. I am glad to hear that is your opinion, Judge O'Connor. Yesterday in describing yourself as a judge, you said that two of the characteristics that have stood you in good stead over the years are a short memory and a tough skin. I see my time is up. I will be asking you something about the Starr memorandum in the next session. I thank you very much, Judge.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator from Pennsylvania, Mr. Specter. DEATH PENALTY
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Chairman. Judge O'Connor, I compliment you on your tour de force of yesterday. I think that indirectly you have answered a number of questions, with respect to capability, by the preparation and legal skill that you have demonstrated with your answers, and with respect to your temperament, your good health, and stamina. Did you have occasion while in the Arizona Senate to vote on the death penalty issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, yes, I did, I think more than once.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. HOW did you vote?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, after the Furman v. Georgia case, which basically overturned a good many State death penalty statutes for all practical purposes, Arizona along with other States engaged in an effort to reexamine its statutes and determine whether it was possible to draft a statute which would be upheld by the Supreme Court in the wake of Furman v. Georgia. I participated rather extensively in that effort, in a subcommttee which actually put together the language that was ultimately adopted in the State legislature for reenactment of the death penalty in Arizona. I voted for that measure after it was drafted and brought to the floor. I subsequently had occasion to, in effect, apply it as a judge in the trial court in Arizona in some criminal cases. I had previously participated in a vote on another death penalty bill that I recall that may have come about before the one in the wake of Furman v. Georgia, and that was a proposal to enact some mandatory penalties in certain situations. My recollection is that I voted against that proposal.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Have you changed your views since you voted in favor of the death penalty?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, I felt that it was an appropriate vote then and I have not changed my view. 129 PRETRIAL BAIL
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, have you had occasion to set pretrial bail?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator, yes, I have; not often, but I have.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. In the setting of pretrial bail, did you consider the dangerousness of the defendant or did you limit your consideration to his likelihood of appearing at trial?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator, the circumstances in which I was called upon to set bail all related to some murder charges in which, under Arizona's statutory provision, the judge also considers, if you will, the nature of the evidence against the defendant and other factors in setting bail. I am aware of the current discussion that is going on at the Federal level generally about whether dangerousness should be considered as a factor, and indeed whether it can be under the eighth amendment and the prohibition against excessive bail.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. When you set the bail, did you consider the issue of dangerousness to the community in your evaluation of the bail?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator, only indirectly, I suppose, because what I was considering was the fact that it was a death case and the extent of the evidence which had been obtained. Upon the strength of that, the bail was determined, so indirectly dangerousness perhaps was a factor. PREVENTIVE DETENTION
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, what are your philosophical views about bail and preventive detention as that concept may conflict with the presumption of innocence in criminal trials?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator, these matters are certainly presently being debated and considered here, I believe, as well as in the courts. Unless I am mistaken, there is a case now awaiting action at the U.S. Supreme Court on a petition for certiorari, possibly, from the District of Columbia area involving the validity of the District of Columbia amended bail statute. Therefore, I would be reluctant to indicate a particular view on the validity of that but I would indicate to you my broad personal concern as it reflects upon individual liberty. It seems to me that all of us come to the judicial system encumbered, if you will, by our previous known activities. If people have been previously convicted of offenses and these convictions are known, or if for example someone has been charged with an offense and released on bail and then charged again with another offense and these factors in the record are known, these things perhaps—speaking purely as a matter of personal belief and not as a reflection on the legal issues involved—possibly merit consideration in the determination of bail. FUNDING FOR JUVENILE CRIME
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, with admittedly limited resources available, what priority would you personally assign to 130 funding for juvenile crime prevention as contrasted with other aspects of the criminal justice system?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, I would assign a high priority to that particular area. One reason I would do so is because the great bulk of crime is committed by people who are very young and it seems to me that we need to concentrate our efforts on that particular age group. If there is something we can do at an early age to discourage a criminal career, it is all-important, because I think the public is very, very distressed with the extent of crime in this country. Indeed, I regard it as one of the most serious problems that we have in this Nation and I would like to see effort devoted to prevention of crime at an early age. LIKELIHOOD OF REHABILITATION
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Does your experience in the criminal court suggest to you that there is a better likelihood of rehabilitation among juvenile offenders?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, yes. I think the earlier you reach an offender, the first time something happens if something effective can be done you have a better chance of stopping a subsequent repetition of that offense.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, do you think that it is appropriate for Supreme Court Justices to be advocates for social reform, as Chief Justice Burger has been for improvements in the correctional and prison system?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, it does seem to me that the Chief Justice has a significant role to play in expressing views on the administration of justice and on matters closely related thereto. It seems to me that that is something that all of us in this Nation can value and can benefit from.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. DO you think it appropriate for Supreme Court Justices to participate in other activities, as Chief Justice Warren did on the Warren Commission, or Justice Roberts did on the Pearl Harbor Commission, or Justice Jackson did at Nuremburg?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, that bothers me somewhat. I just wonder how there is time to do anything like that. As I view the work of the Court, I wonder that there is time to eat much less engage in a lot of other outside activities. LIMITED JURISDICTION
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, if the Congress can limit the jurisdiction of the Supreme Court on constitutional issues, as you say ex parte McCardle suggests, how can the U.S. Supreme Court maintain its role as the final arbiter of the Constitution?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, I do not think that I have suggested that that line has been finely drawn by the Court. It has not been reexamined, really, since ex parte McCardle, and I did not mean to suggest or imply that that is a fixed, final position because that issue is very likely to be addressed. However, I have also expressed yesterday my concerns that to the extent that the Supreme Court lacks appellate jurisdiction to resolve some area of the law, then we no longer would have a capacity within the Federal judicial system to have that Court 131 determine, indeed, what is the proper interpretation of a particular provision, or the law in the area from which its jurisdiction has been taken. This of course should be a concern to people in reviewing proposals for deprivation of jurisdiction.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, in your testimony yesterday you left open that aspect of an interpretation of ex parte McCardle. My question to you is, how can the jurisdiction of the Court be limited on constitutional issues, given the Court's responsibility under the Constitution? Is there anything that is an open issue there to be decided? I am not asking you for a preview on your judgment. I am asking you, if there is any justiciable issue there? Is it not plain that the Court must retain jurisdiction over constitutional issues and that the Congress cannot possibly eliminate that jurisdiction if we are to preserve the role of the U.S. Supreme Court on constitutional issues?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Mr. Chairman, Senator Specter, these are the concerns that I have tried to express that I think have to be considered, of course, in connection with any discussion of the limitation of the Court's jurisdiction. My effort was simply to point out that we really do not have much to look at after ex parte McCardle, which was a case which did uphold, as you know, the withdrawal of jurisdiction of the Supreme Court from considering appeals in habeas corpus matters. That affected a pending appeal. The Court simply upheld that particular exercise, and we have very little since then. As I tried to explain, I think the constitutional scholars who have written on this subject have come to different conclusions as to the extent to which subject matter jurisdiction can be removed.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, is it not inevitable for the Supreme Court to be influenced, at least to some extent, by considerations of social policy when the Court interprets the U.S. Constitution?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, in one sense we are all the product certainly of our experiences. People assume the role of judge encumbered, if you will, by the product of those experiences. Judges do, I suppose, as has been pointed out, read newspapers and listen to radio and watch television to some extent, so all are influenced to some greater or lesser degree by those experiences. However, the framework within which a given case is decided should, in my view, be limited to the record and to the briefs and the arguments, and should not really be resolved on the basis of outside social concerns, if you will.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I thought the questioning and your responses yesterday on Brown v. Board of Education, Plessy v. Ferguson, and the exclusionary rule were very enlightening, so I took occasion last evening to go back and reread Brown. I would disagree respectfully with your suggestion that the Court in Brown rested on a more intensive look at the origin of the 14th amendment. Without citing the direct language, I think the holding is very plain that the Court was looking to the effect of segregation on public education. 132 With respect to the exclusionary rule and what you described as a judge-made rule, Mapp v. Ohio was based on constitutional grounds and I think explicitly by the holding. When you consider the intervention of the Supreme Court in the criminal field starting with Brown v. Mississippi and its prohibition against forced confessions, which neither the legislature of Mississippi or the Congress of the United States had addressed—I am just wondering if under your interpretation of "strict construction" you would not agree that there is an avenue and an opening where even the most strict constructionists would look to social policy in the decisions of the U.S. Supreme Court in meeting issues to which the Congress or State legislatures have not directed their attention?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, I simply would acknowledge that to a degree that has occurred.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Don't you think it is proper—if you take a strict constructionist like Justice Harlan in Brown v. Board of Education, and we could give a lot of other examples—that however strict a constructionist may be, there is some latitude appropriately to consider public policy or social policy in interpreting the Constitution?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Specter, it is a factor in the sense that it is properly brought before the Court, and I have indicated to you that I think in the presentation of cases these matters are brought very poignantly to the Court through the briefs and through the arguments. To that extent, obviously, they are considered in that sense but by an appropriate mechanism, I suggest to you. The suggestion that the Court should look outside the record in the presentation of the case in an effort to establish or consider social concerns or values, is what I have indicated I think would be improper in my view.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Judge O'Connor. Thank you, Mr. Chairman. PRAYER IN PUBLIC SCHOOLS
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. We shall now begin the second round of questions. Judge O'Connor, I shall propound certain questions to you but I want to make it clear that if you feel that any of these questions would impinge upon your responsibilities as an Associate Justice of the Supreme Court, then you say so after the question is asked and before any answer is expected. Judge O'Connor, the first amendment forbids the establishment of a State religion. The first amendment also prohibits interference with the free exercise of religion. This second prohibition is often overlooked. Please share with us your views on the free exercise clause as it relates to, first, prayer in public schools.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, as you know the Court has had occasion in several instances to consider the State action, if you will, in connection with prayer in the public school system. The Court has basically determined that it is a violation of the first amendment, both the establishment and free exercise clause, to 133 mandate a particular prayer, even though it is nondenominational in character, for recitation by the pupils on a regular basis. The Court has even so determined despite the fact that an individual pupil may ask to be excused from that exercise. In succeeding cases the Court has also prohibited the required Bible reading in the public schools as part of a regular program. I do not think it has prohibited, however, reference or reading the Bible in connection with other studies, for example, of history. These cases of the Court have been the subject of an enormous amount of concern by the public generally. That concern, I think, is reflected because of the many connections that we have as a people with religion. I think this Senate opens every one of its sessions with a prayer. Certainly every session of the Supreme Court opens with a statement concerning the role of God in our system. We have a motto in this country of "In God We Trust." We refer to God in our pledge of allegiance. I think the religious precepts in which this country was founded are very much interwoven, if you will, throughout our system. That is why the resolution of these problems under the first amendment has been very difficult. I think at the present time the Court has indeed restricted the recitation of prayers in the public school system which in any sense are part of the public school program, despite the free exercise clause. This has given rise, of course, to different constitutional amendment proposals on occasion that have been considered in this Congress. At the present time the Court rulings continue to stand. CHARITABLE EXEMPTION
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. NOW would you share with us your views on the free exercise clause as it relates to the use of the Federal taxing power to pressure religious schools.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, I believe that what you are referring to probably is the action by the Internal Revenue Service to withdraw the charitable exemption status under section 501(c) of the Internal Revenue Code to a particular school or schools, based on alleged policies of admission of pupils to those schools. At least I understand that there have been some such instances. Speaking very generally only, the Internal Revenue Service policy in this regard has been said, I believe, to raise questions in the area of the extent to which the Internal Revenue Service should be a revenue-collecting agency as opposed to an agency concerned with public policy issues; and secondarily issues concerning the extent to which the Internal Revenue Code authorizes IRS to effectuate those policies. Now I believe that there are at least two cases in which petitions for a writ of certiorari raising these issues are presently pending before the Court, and I would anticipate that action would be forthcoming with regard to those petitions, Mr. Chairman. FIRST AMENDMENT DOES NOT EXTEND TO OBSCENE MATERIAL
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, the Supreme Court has consistently held that obscene material is not protected by the first 134 amendment. What are your views on the application of the first amendment in the area of pornography?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, generally speaking, I think the law is established by virtue of the cases that have been handed down in this area, that the first amendment right of free speech does not extend to obscene material. The problem has been, of course, in the definition of what is obscene. It would be very tempting to quote from Justice Potter Stewart on that subject, but I will refrain and mention only that I think the most recent determination of the court on what is obscene is found in Miller v. California, in which the Court laid down basically three tests to consider in determining what is obscene. That includes, I believe, an examination as to whether the average person applying contemporary community standards would find the subject obscene or appealing to the purient interest; and, second, whether the act in question or material in question depicts patently offensive sexual conduct as specifically defined by State law; and then, finally, an examination as to whether the material has any underlying literary or scientific or other value. Having applied those tests, if it is determined then that the material is obscene, the Court has held that its distribution or sale can be restricted. I, in the legislature, had occasion to attempt in various years to prepare and consider legislation in Arizona which would be in compliance with the Supreme Court's holdings on obscenity, and believed that as a matter of public policy the distribution of material which in fact is obscene is undesirable, and particularly with respect to distribution to minors.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, in response to an earlier question from Senator Hatch you emphasized, and I believe correctly, the importance of seeking the intent of the original framers when faced with the need to interpret a provision of the Constitution. The Supreme Court is also called upon to construe specific statutes. What is your approach in construing specific statutes? Would you feel constrained by the language of the statute and the legislative history or would you feel empowered to imply or create a consensus that might not have existed in the legislative branch?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, it seems to me important in construing statutes that the Court look at the specific legislative enactment itself, the language used, and any legislative history which is available in connection with it, as aids in the proper interpretation. These are crucial factors. The difficulty arises, I suppose, when the legislative history does not cover the particular question and where the language is somehow confused or conflicts with some other statutory provision which has been enacted. In those instances I think the Court simply has to rely on traditional means of interpreting statutes. RIGHT TO KEEP AND BEAR ARMS
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, as you know the second amendment to the Constitution states that "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." In light of that consti- 135 tutional prohibition, to what extent if any do you feel that Congress could curtail the right of the people to keep and bear weapons that are of value in common defense?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, this question is one that has not been addressed very often in the courts. I think I recall only one instance, and that was in United States v. Miller, which was a very long time ago in the 1930's. The Court had to consider the National Firearms Act of 1934, which was an enactment of Congress, and it restricted as I recall the carrying of certain types of guns in interstate commerce. The Court upheld that enactment and said that the second amendment did not guarantee the right to people to have any certain type of weapon or arms. I do not know that we have anything that has been handed down since then by way of Supreme Court interpretation. Certainly, as far as I am able to determine, most cases in the lower courts have applied the second amendment as being a prohibition against Congress in interfering with the maintenance of a State militia, which appeared to be the thrust of the language in the amendment. Certainly the various States have considered a variety of statutes concerning the possession and use of weapons in connection with their police power which is reserved to the States. Typical examples of those are laws which, for instance, prohibit the carrying of concealed weapons or laws which impose additional penalties for crimes committed with the use of a gun. That kind of legislation is rather frequent.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, should the opinions of any one court of appeals be given any greater precedential value than those of the other Federal circuits? Would you prefer a continued emphasis on concentrating venue for certain subjects in one particular circuit, for example, administrative law questions in the Court of Appeals for the District of Columbia, or do you feel that diversity of thought would be beneficial?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, I suppose in reality we give more credence to the opinions of those judges whom we respect and admire, and perhaps that is how we view them rather than giving more credence to the opinions from one particular circuit than another. I am sure that the court of appeals serving the District of Columbia inherently gets many more administrative law questions than other districts, by virtue of the fact that we have so many Federal administrative agencies located here, and that has resulted in a concentration. However, generally speaking, I would think that the opinions of all the appellate circuits at the Federal level are entitled consideration and very weighty consideration. INTERPRETATION OF THE CONSTITUTION BY STATE COURTS
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Judge O'Connor, as a State court judge did you ever feel that the Federal judiciary considered its ability to interpret the Constitution to be superior to that of judges in State courts? Do you believe that State courts can be depended upon to interpret the Constitution as correctly as Federal courts?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, that depends of course on the capacity of the individual State court but, speaking very broadly 136 only, it seems to me that we do have in this Nation many very fine State courts and that we would do well to allow those State courts to function as indeed I think they are intended to function in considering a wide range of issues, including those of Federal constitutional principles as those cases arise. It is my belief that our State courts can serve us well in that regard, and I have confidence for the most part in their capacity to handle these very complex issues.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. The distinguished Senator from Delaware, Senator Biden.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you very much. To follow up on the question of the chairman about State courts, and the article you wrote in the William & Mary Law Review, Judge, isn't it true that historically the State courts have not done too well with regard to interpreting the Federal Constitution? The rationale for why the Supreme Court is better able to interpret the Constitution relates to the independence of that body, lifetime tenures, and the fact that many State courts are elected bodies and subject to political pressures. As for familiarity with the material, the fact of the matter is most State court judges do not regularly resolve constitutional questions, whereas the Federal judges do. One of the things I would like to ask you is, do you truly believe that on balance the Federal judiciary is not more qualified than the State judiciary to interpret the Constitution of the United States of America?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Biden, we obviously in kur system have adopted the notion that we do need a Federal court system and we do need a U.S. Supreme Court to be the final determiner of these issues. I do not quarrel with that. I think it is a wonderful system but what I have tried to point out is that we have a dual system of courts in our country. We have State court systems that also deal day-in and day-out with these constitutional issues. Indeed, the vast bulk of all criminal cases are tried in the State courts, not the Federal courts, and there is not a trial in a criminal case in a State court that does not raise certain Federal constitutional issues with which those courts have to deal. State courts are in fact dealing day-in and day-out with Federal constitutional issues and it is my belief that they are well-equipped to do this, and that we should not assume that because their manner of selection may differ or their length of tenure may differ, that they are less independent. I have seen some really remarkable examples of courage among State court judges in dealing with issues. LIFE TENURE
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I do not dispute that but if that is true—I do not dispute that there are remarkable examples, but if that is true then the need for life tenure on the Supreme Court becomes much less significant. Some of my colleagues right here in the Senate suggest that there should not be life tenure. Some suggest that there should be mandatory retirement. I even heard it suggested there should be election. Therefore, if in fact that is true, Judge, you are undercutting the argument that in fact life tenure is essential to the independence 137 of the Supreme Court. There must, by definition, be some difference at least in degree. I go back to the point again—I do not want to belabor this—but the reason the Federal courts got into this business in the first place is that the State courts did not—I emphasize, did not— interpret the Constitution in a way that the Federal courts felt proper. They got into the business because citizens in the South and citizens in my State decided that they were going to keep some citizens in different positions than other citizens. They got into the business because they thought that they had to protect individual rights of citizens in certain States that the State courts obviously, on their face, refused to protect. That is why they got into the business, and I just get sick and tired, quite frankly, of all this talk. Everything that has to do with the Federal branch of Government, whether it is the Federal courts or the Congress or anything Federal is bad, and States are good. I remind you and I remind my colleagues and I remind the audience that the reason the Federal Government got into 90 percent of the business it got into is that the State courts did not do the job. I do not want to debate it with you. You are welcome to respond if you would like but I just think it is malarky to talk about how State courts historically are so competent and State court judges are equally competent on balance as Federal court judges. If that is the case, then we should change the Federal system and make it much easier.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator, I have not suggested that there is not a need for the Federal courts, and I am sure you recognize that. That has not been suggested.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO; I am not saying that, but do you think there is a need for life tenure? Is there a need for life tenure for Supreme Court Justices?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Life tenure, of course, is provided in the Constitution and to change that would require a constitutional amendment.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I know that. Is there a need for that? Let me ask you a direct question: Do you think there is a need for that? I know it is in it. Do you think there is a need for it?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Biden, it seems to me that judges can function independently under alternate systems of tenure.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I agree.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do not believe that it is essential to the integrity or function of a given judge that that judge have life tenure.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I see.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is quite a different question from saying, should we with the U.S. Supreme Court amend the Constitution so that we do not have it? I think it has served us perhaps reasonably well through the years, and those are different questions, but I do truly believe that it is possible for judges to function independently and well under alternate systems. 138
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I agree that that is the case. We have examples of it. I also agree that there are a number of public officials who are destined to be in the second edition of Profiles in Courage. I believe that there are brilliant women and men in every field, but I would suggest that the Founding Fathers were pretty smart. They perceived the vulnerabilities that exist in human nature and the exigencies of the times and what pressures they bring on people, and decided that it was not worth the chance to count on exceptional courage. Let me go to one other point, to follow up on what Senator Specter said. Judge, I am going to vote for you. I think you will make a very good judge but I am a little disturbed about the reluctance to answer any questions. [Laughter.] I am not being facetious. I mean that sincerely. Let me read you from the Brown case. In the Brown case it says: In approaching this problem—the problem referred to is whether or not "separate but equal" is an appropriate doctrine—"we cannot turn back the clock to 1868 when the amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation of public schools deprives these plaintiffs of equal protection of the law." I see nothing in the decision, there is no place in the decision where the Court said anything other than, straight up, "We are not reexamining the 14th amendment, we are not reconsidering it; we are saying that social changes, social policy, and social mores in America have changed to now make it reprehensible to allow any school board, any State, any jurisdiction, to say black folks cannot go to school with white folks for whatever the reason." That was a fundamental change in the social mores of this country. The Court made no pretense about on what basis they were making it. They did. not go back and say the 14th amendment was misinterpreted. They flat out said, "We are reflecting the change in social policy." I know you know that, and I know it is difficult for you to respond to that because as soon as you respond to me you are going to have 14 other men jumping on you to say something else, so I will not even ask you to answer it, but I hope you know that I know you know. [Laughter.] DISQUALIFICATION However, I will ask you some specific questions that will not get you in trouble but have to be asked in my capacity as the ranking member. I guess these are the very dull questions that nevertheless should be on the record. They relate to the questions of recusal or disqualification. With all due respect, they relate to your distinguished husband. Title 28, United States Code, section 455, requires disqualification of a judge when their spouse (1) has a financial interest in the subject matter in controversy or any other interest that could be substantially affected by the outcome of a proceeding, or 139 (2) is a party to a proceeding or an officer, director, or trustee of a party, is acting as a lawyer in a proceeding, is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. Now your spouse is a distinguished partner in a law firm in Phoenix, Ariz., and by virtue of the community property laws of Arizona, you have an undivided one-half interest in that partnership, as we understand it. What standards will you use to determine when to disqualify yourself? Will you make an effort to determine what cases your spouse has worked on in the past? Will you keep yourself aware of the names of clients that your spouse has represented in the past? Will you determine when deciding an issue in the future whether your spouse has any connection with the parties in that case?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Biden, yes. These are very serious matters and of great concern to anyone serving on the bench. It is a concern when the judge is married to an attorney that the judge be informed about the clients that the spouse is representing, and indeed the clients that the firm is representing, and to exercise great care in avoiding participating in any case in which it might be said that there was some relationship there.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I have no doubt you will do that, Judge, but give us an idea mechanically of how you plan on being kept apprised of what cases your distinguished husband's law firm is involved in. I mean, mechanically how does that happen? I know that is clearly your intent; I have no doubt about your integrity but, mechanically, how do you do that?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, at the Federal level as I understand it and in the Supreme Court, the parties are required, for instance, in the case of a corporation to reflect and list for the benefit of the Judges of the Court all of the subsidiaries and related companies involved, so that you do have an opportunity to know in fact what the links are with that party. Then it becomes necessary for you to determine whether that is on any list of clients that the office has, and of course they maintain such lists, so that is fairly easily done in a mechanical sense. In addition, if the law firm in any capacity had been connected with the case, that would appear in the record someplace in the case below. I mean, they would have appeared as parties; they would show up on the pleadings. You know who has been representing them, so you have the further question, then—assuming that neither the spouse nor the law firm had any connection whatever with the case—if it related to a client, an occasional client or even a frequent client of the firm but in this instance the client was dealing with a matter that arose in another State and with another law firm. Then you have to determine whether that connection is such that a disqualification is necessary.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I appreciate your taking the time to go into that. I think it is important that it be on the record, and for the public who are watching this hearing and for those who have a more cynical view of our system, our Congress, our courts, that there is a mechanism, that you are aware of the mechanism, that you have every intention of maintaining in a very scrupulous fashion adherence to that mechanism. That is why I bothered to ask the question. 87-101 O—81 10 140 My time is running out, but let me ask you one other question, if I may, about the appropriateness to be involved in promotion of social issues. Would it be, in your opinion, inappropriate for you as the first and only woman at this point on the Supreme Court—if you are confirmed, as I believe you will and should be—to for example be involved in national efforts to promote the ERA?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Biden; I believe that it would be inappropriate.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Why would it be inappropriate for you to do that while it is appropriate for Justice Burger to be traveling around the country telling us and everyone else what State and Federal jurisictions should do about prison construction and what attorneys should do about law schools and how they should be maintained, and whether or not we should have barristers and solicitors. I mean, what is the distinction? Is it a personal one or is there a real one?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I do not suggest he should not do that; I want to know what your distinction is. [Laughter.]
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It seems to me that it is appropriate for judges to be concerned and, indeed, to express themselves in matters relating to the administration of justice in the courts, and as to matters which would improve that administration of justice in some fashion. Certainly the court system is very heavily involved in the criminal justice system.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. However, doesn't he also speak not just about administration of justice? Hasn't he spoken—correct me if I am wrong—but hasn't he spoken about procedural changes in the law, not just for the administration of justice, in the broad sense of whether there are prisons or whether there are backlogs in the courts, but actually what should be the law relating to criminal matters and other matters? I mean, he has gone beyond and suggested legislation.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Biden, yes, I think that the canons of judicial ethics do say that a judge may engage in activities to improve the law and the legal system and the administration of justice. I am sure that those statements which have been made are made in
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I just do not want you to wall yourself off, Judge. You are a tremendous asset. You are a woman and the first one on the Court; don't let these folks, me included, run you out of being that. You are a woman; you do stand for something that this country needs very badly. We need spokespersons in positions of high authority. Don't lock yourself in, in this hearing or any other hearing, to do things that you are not proscribed from doing in the canons of ethics. It is your right, if it were your desire, to go out and campaign very strongly for the ERA. It is your right to go out and make speeches across the country about inequality for women, if you believed it. Don't wall yourself off. Your male brethren have not done it. Don't you do it. You are a singular asset, and you are looked at by many of us not merely because you are a bright, competent lawyer but also because you are a woman. That is something that should be adver- 141 tised by you. You have an obligation, it seems to me, to women in this country to speak out on those issues that you are allowed to under the canons of ethics. Don't let us intimidate you into not doing it. [Applause.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I will warn the audience there will be no clapping, and the police will remove anyone who attempts it again.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Will they remove the person who causes it, Mr. Chairman? [Laughter.] I apologize. My time is up.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I wish to tell the police to remove anyone who attempts to express himself in such a manner, if it occurs again. The distinguished Senator from Maryland, Senator Mathias. TV IN THE SUPREME COURT
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman. These last few moments, Judge O'Connor, have been recorded on television and transmitted to the world. In fact, not only these last few moments but these last 2 days we have all been basking in the bright lights that are required for television. I am wondering what your attitude is towards the introduction of television cameras into the courtroom of the Supreme Court. Justice Potter Stewart recently said that— Our courtroom is an open courtroom. The public and the press are there routinely. Since today TV is a part of the press, I have a hard time seeing why it should not be there too. As I understand the present technology, disruption is hardly a threat anymore, and I think it is difficult to make an argument to keep TV out when you allow everyone else in. Of course, that is the conclusion that our chairman has made about this meeting, and I am wondering how you feel about TV in the Supreme Court.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, I would certainly want to wait until I had served on the Court, and discussed the situation with others and been privy to the concerns that others may have on the subject before I would formulate a position on it. However, let me tell you that at least in Arizona we have been allowing cameras in the appellate courtrooms, television cameras, and I have participated as an appellate court judge in court with television cameras present. The experience has been reasonably satisfactory, I would say, as far as I am concerned. I have not yet participated in or did not participate in a trial in which television cameras were permitted in the courtroom. It has been my thought that, as the technology improves and as it is possible to have that recorded without the necessity for the bright lights and with cameras which are not readily apparent, and without noise and interruptions, that it is conceivable to me that the technology will be such that we will conclude that it is less disruptive than perhaps originally might have been the case. Therefore, I would anticipate that we have not seen the last of the development in this area because, as you have correctly noted, television has become an important means of communication for people generally. 142
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I think that is right. Through television, you have become known to millions of Americans. The disruptive aspect which might be complained about in a trial is unlikely to be a problem in the Supreme Court. Let me move on now to another subject which is routinely considered by this committee when we have nominees for the courts or nominees for the Office of Attorney General before us, and that is the question of private clubs that discriminate on the basis of race, religion, sex, or national origin. Do you believe that it is appropriate for Federal judges to belong to organizations of this kind?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, the judicial conference has been considering this precise question, and in general has espoused the view that it is not desirable for Federal judges to belong to clubs which discriminate on the basis of race, sex, or national origin. It is suggested that in each instance that will be left to the individual conscience of the judge, at least that is the present status of it. I do not disagree with it in general as it is applied to professional associations, certainly, or to clubs which discriminate on the basis of race. I, myself, belong to several women's clubs and they are service clubs, if you will, organizations that have devoted themselves to bettering the community. They do not discriminate on the basis of race or national origin but have no male members. I cite specifically the Soroptimist Club of Phoenix and the Charter 100, and the Junior League of Phoenix of which I am now a sustaining, not an active, member. It is not my feeling that those memberships should necessarily be dropped because of going on the Federal bench. FIRST AMENDMENT
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Let me turn to the first amendment. Chief Justice Burger has written that "a responsible press is an undoubtedly desirable goal but that press responsibility is not mandated by the Constitution and like many other virtues, it cannot be legislated." Would you feel in general harmony with those views of the Chief Justice?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, I am not sure that I know the total thrust of that language or those comments. Would you care to expand and explain to me?
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, I think generally it is whether or not you feel the first amendment is a comprehensive guarantee of freedom of expression; whether or not efforts to limit the first amendment in various ways, adopting the Chief Justice's words, to make the press more responsible, are in fact proper and constitutional.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, the first amendment right of free speech, Senator Mathias, is a crucial right. It is a right which in this country has been recognized by the Court as having some precedence over many other rights that are also important. Cases examining statutory restrictions on the right of free speech have applied very strict standards, and appropriately so, very appropriately so. 143 The restrictions or exceptions have been rather limited in nature. They relate generally, as we know, to matters which are obscene; in the area of commercial speech to fraudulent speech or misleading speech; and in the case of other speech to speech which is basically to incite a riot or other criminal action. Beyond that, very few limitations have been upheld, and appropriately so, in my view.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Would you go as far, do you think, as the late Justice Black, who said that you had to take the first amendment right at face value: that when it said that "Congress shall make no law respecting the limitation of freedom of speech," that it meant just that?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, I suppose not in the sense that I accept and recognize the exceptions that have already been placed, as I have mentioned. BALANCE BETWEEN FREE PRESS AND FAIR TRIAL
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What about the place where the first amendment collides with other guarantees, let's say, the guarantee of a fair trial or the right of privacy? Where would you make the balance between a free press and a fair trial?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, these are very difficult issues and, of course, the Court has been addressing them in connection with criminal trials. In the Gannet case, of course, the Court held that it is at least possible and that it would draw the balance in that case in favor of upholding the ability of a trial court, under appropriate circumstances, to close a pretrial hearing. In a subsequent case, however, arising out of Virginia, the Court said that the trial itself will generally be open to the public and the press despite the defendant's wish to perhaps have it closed, except in certain circumstances which the Court did not define. It did not absolutely rule out the possibility that in a particular case that a defendant's right to fair trial would not take precedence, but it did not enlighten us as to the circumstances when that would occur. I have found in my own experience that the conduct of the business of the courts is public business. On no occasion did I close the doors to my courtroom to the media. We conducted all of the business which I had, at least, in public. I felt that that worked well. There are other things that a court can do to protect a defendant's rights in a given situation, such as sequestering the jury if that is necessary. It is also possible to change the venue of the trial if the media attention is so great that no fair trial can be obtained, so I think there are ways of dealing with the situation that give some flexibility to the court in an individual situation.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Therefore, you think—as I hear you answering—that the balance should be wherever possible in favor of the free press, the first amendment question?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, I do not want to be drawing any lines that are going to prove troublesome in connection with a given case, but I do feel that the conduct of trials in public is appropriate and that it is hard for me to visualize 144 circumstances that would make it absolutely necessary to close the doors, although it is conceivable that there are such. There are other avenues open for a judge to employ.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, to go back to the question we discussed earlier kf electronic coverage of a trial, suppose it would be determined in a given case that television coverage was going to be disruptive for some reason. Would you then consider that, let's say, radio coverage which does not require lights, does not require cameras, might be an appropriate way in which to provide for a full public access to the information that was available?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, that would not be offensive to me personally, had I been a trial court judge. I would want, of course, to comply with the canons of judicial ethics applicable in my State, and would be very concerned about doing that. As you know, not all States have made it possible for courts to be recorded either on the radio or by television; in fact, very few have. DOCTRINE OF PRIOR RESTRAINT
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Of course, here in the Senate we have on some occasions, notably the Panama Canal Treaty debate, used radio as an alternative for television as a means of informing the public of precisely what is happening here. Now one recurring issue with respect to the first amendment is the applicability of the doctrine of prior restraint. We had a notable case recently, the Progressive Magazine case, in which they had published a diagram of how to build your own atom bomb. What are your views on the doctrine of prior restraint, and particularly when it is raised with a plea of national security?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Mathias, again the balancing test is sometimes extremely difficult to employ. Under the first amendment, it would appear that the line will be drawn in favor of no prior restraint unless the Government bears and meets its extremely heavy burden to establish that indeed there is an actual danger affecting the national security which is very real and very present, before any prior restraint would be authorized. It seems to me that that is an appropriate way to approach the issue. It is not an easy burden for the State—or the Federal Government in that case—to bear and, indeed, they usually lose but it should at least be possible for the Federal Goverment, it seems to me, to present an appropriate case that would truly affect national security.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Therefore, you would describe the burden not merely as heavy but as extremely heavy, before they can successfully argue for prior restraint.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Mr. Chairman, Senator Mathias, I would hope I would not be held to that in writing an opinion but it is somewhere in that range. It is a very great burden which the Government has in order to justify a prior restraint.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Personally, I would think the burden would be an extremely heavy one. Thank you, Mr. Chairman. 145
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Massachusetts, Mr. Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much. Thank you, Mr. Chairman. To follow along on the issue which Senator Mathias has raised but to approach it in a somewhat different manner—and that is the claim of national security and how you balance the national security interest versus the first amendment—I think at the time when I was going to law school a number of years ago, the general rulings at that time were that whenever the Executive claimed national security, a very heavy deference was given to the Chief Executive or to the Office of the President. We have seen and recent history has taught us the need to scrutinize the claims of the executive branch with great care before contemplating the inhibition on free speech, free association, free press, and the right of dissent. These cases which involved the Pentagon papers, the Elsberg break-in, I think reflect that as really a different view or a different role by the Court in reviewing the claims of national security. I was interested in hearing your own attitude, how you as an individual view the role: whether you view the role as an umpire in our Federal system, weighing the competing first amendment and national security claims. Are you going to give the complete, basic, and overwhelming presumption to those who make the claim? Are you going to examine in some detail the background for such claim? How will you approach this general issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Kennedy, I think I would not approach it by the application of presumptions but, rather, that it would be appropriate to know the basis upon which the claim is made as fully as possible.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Therefore, as I understand your answer, rather than just deferring to those that claim it, you would assume an active role in examining the underlying assumptions for such a claim.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Kennedy, yes, it would seem to me to be the appropriate role of the Court.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In another area that was raised by some of our colleagues on the issue of crime and law enforcement, and your responses to another Senator's inquiry about the doctrine of stare decisis, I wonder as you view the development of criminal law rulings that have been made over the last 20 years, whether you will follow the doctrine of stare decisis for the holdings of the Supreme Court in some of these important areas of preserving the individual rights of the defendant. Will you follow that doctrine of stare decisis as closely as you may in some of the other areas? Whatever our definition of judicial activism will be, or how it has been established over the course of these hearings, is it your basic feeling that you will follow those criminal law holdings of the Court in the past as precisely as you might in other areas of policy?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Kennedy, I would expect to apply my view of the rule of precedent evenhandedly, without respect to the area of the law to which we are referring. 146 MIRANDA RULE
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. AS a judge, and in your experience as a judge, how much impact has the exclusionary rule and the Miranda rule on confessions actually had on prosecutions that you have dealt with?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Kennedy, I want to distinguish the two because I had different experiences concerning them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I would be interested in both.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I had many criminal felony trials on the trial court bench, many. That is all I did, all day long, for 2 years, and had others throughout the remainder of my time on the bench. The Miranda rule was one which frankly those in Arizona did not greet with a lot of enthusiasm. It came from Arizona; it was an Arizona case and, of course, those in Arizona thought they had done the right thing, so it required a period of adjustment. It requires the recitation of some rights which frankly can become rather mechanical in its recitation, and as applied to those criminals who have had extensive experience with the law, I think some of those defendants could recite the rights more easily than the peace officers assigned to do the task. However, for some it has had meaning, for some who are not experienced in the criminal law, being advised of their rights has had a substantive effect and a meaning. My experience on a trial court is that the application of Miranda has not resulted in an inability of the police to still be reasonably successful in their efforts to gain information and obtain statements. It has, no doubt, precluded some but on a broad, general basis I cannot say that I think the police have been unable to cope with it. We have had to have Miranda hearings in advance of every trial to determine to what extent these statements must be excluded, and it was seldom that we had to exclude the statements. People continued to make statements despite the fact that they had been warned of the consequences, in large measure. Therefore, I cannot say that I think the application of Miranda has simply tied the hands to the extent that police work is ineffective. EXCLUSIONARY RULE
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW about in the exclusionary rule? How many times did that come up, say, in the time of your 2 years?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Many, many times. Almost always in a drug case.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I see. How many times did that really affect the outcome, either in an acquittal or a reversal?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. A number of times. I think the exclusionary rule, from my simple observation as a trial court judge, has proven to be much more difficult in terms of the administration of justice. There are times when perfectly relevant evidence and, indeed, sometimes the only evidence in the case has been excluded by application of a rule which, if different standards were applied maybe would not have been applied in that situation, for instance, to good faith conduct on the part of the police. 147 I am not suggesting, and do not want to be interpreted as suggesting that I think it is inappropriate where force or trickery or some other reprehensible conduct has been used but I have seen examples of the application of the rule which I thought were unfortunate, on the trial court.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think that either rule has had much of an impact on the rate of crime, for example, in Arizona?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is a very speculative sort of a thing for me to respond to. I would not think that the Miranda rule has actually affected the crime rate. Conceivably, the exclusionary rule has had some effect in some areas of the crime rate, possibly in the drug enforcement.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In an entirely different area, the Court has had increasing involvement in complex claims involving Native Americans, redress, broken treaties, and these have involved large tracts of lands and large sums sought for compensation. Your record shows an awareness of a special obligation to Native Americans. Could you give us some idea, in general, as a westerner, how you would approach these issues in order to try and deal with a sense of justice and equity to the Native Americans and still balance the legitimate claims of others, without unduly disrupting the lives and the economy of the rest of a State's citizens who are perhaps completely innocent bystanders?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Kennedy, Arizona is fortunate in having approximately 14 Indian tribes and a great deal of reservation land in the State. I think it adds to the cultural diversity of Arizona and the interests that we enjoy. It also has given rise to some litigation, as you have mentioned, in a variety of contexts and it has given rise to some disputes on the legislative level concerning the appropriate boundaries for representative bodies. As you know, on the reservation Indians are not subject to State taxation, and I would say that much of the litigation which I have seen arises out of the framework of the taxabilitiy of certain transactions which occur on the reservation, transactions involving non-Indians and Indians, or non-Indians but on the reservation, and so forth. These matters have developed over the years a body of law dealing particularly with these relations, and the Indian tribes enjoy certainly a special status and special exemptions in the area of taxation and other State regulation.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I was thinking not only of taxation but water rights. Even in my part of the country, because of the failure of the Congress to pass enabling legislation, there still are some very serious questions about land distribution and the real title to various land. I was just interested in your own concern about the fairness and equity to Native Americans, and how you balance some very solemn obligation responsibilities that we have with the rapid development in some parts of the country among agricultural interests and other types of interests. How you are going to approach these matters. Clearly you have had a strong interest in these issues in the past. I think for many Native Americans they would be interested in the concern that you will bring to the Court about their interests. 148
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Mr. Chairman, Senator Kennedy, I view with interest and concern the problems of the Native Americans, as I do every other discreet group which has suffered from disadvantages. I would approach each particular case involving a question of taxation or water rights or land ownership as I would any other case for any other citizen, I would hope, very evenhandedly. I would try to deal with it in as fair a manner as I know how. I am aware of the background and the heritage and the problems, and I would try to resolve the cases on the basis of the facts of the case and the law applicable to that particular situation.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Utah, Mr. Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. Judge O'Connor, I have to apologize to you because I have to conduct my own committee this afternoon, so I will not be able to sit in and listen to your responses, but I have satisfied myself from our almost an hour discussion and other discussions subsequent to that, that you are an excellent choice for the U.S. Supreme Court and a long overdue one at that. However, I do have some questions I think are important to put on the record, and I would like to just take a few minutes of your time and ask them here today. In a number of decisions over the years, the Court has held that the 14th and 15th amendments require proof of intent or purpose prior to a finding of a constitutional violation. Given that this is the standard, and given that Congress chooses to use either of these amendments as the basis for a statutory measure, would you believe that the Congress might constitutionally adopt some lesser standard for identifying violations? I might add, putting policy aside, do you believe that the Congress would have to have constitutional authority to do this? AFFIRMATIVE ACTION
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Hatch, I am not sure I quite understand yet the thrust of the question. Now this is in connection with affirmative action?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes; it would be affirmative action, and let's use that as a perfect illustration. I will give you an illustration: In recent years, some in the civil rights community and in the Justice Department have developed a test for determining the existence of discrimination that looks to the effects or disparate impact of an otherwise neutral action, rather than to whether there is some discriminatory intent or purpose or motivation, in other words, some wrongful state of mind. Now considering that, and considering that the Court has held in a number of cases that the standard of proof generally requires some degree of intent or purpose, even circumstantially, do you believe that Congress could adopt a lesser standard than some proof of intent in these cases, and do you think that the Congress might constitutionally adopt some lesser standard in order to resolve some of these problems or identify violations? 149
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, this whole area of affirmative action is one that has given rise, of course, to some fairly recent litigation touching upon both congressional enactments and State statutory enactments and policies. In general, it appears to me that what the. Supreme Court has done is to say that the enforcement clauses of the 14th and the 15th amendments, giving Congress the power to enforce those amendments by appropriate legislation, has been to acknowledge a power of Congress that goes beyond, if you will, the direct application of those amendments on their face. In other words, if the 14th amendment or the 15th amendment on its face would have been held by the Court, as it has been, to require proof of discriminatory purpose, or intent, on the other hand the Court has said that Congress can apparently go beyond that in its enactments, to a degree. I think the area of the law is still undeveloped in some respects but we are seeing several examples, at least, in court decisions that have been handed down where the power of Congress under the enforcement sections has extended beyond the bare applicability of the statutes. I would assume that Congress in its wisdom would be considering, as I know you are, the appropriate statutory resolution of these matters. I am sure that we will continue to see additional litigation. DISCRIMINATORY INTENT
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me put it another way: There seems to be a fundamental distinction between men and women of good will on the issue of identifying what constitutes "discrimination." To some, the act of discrimination requires some mental element, some demonstration of a mind purpose, or a motive. To others, statistical imbalance is enough to show racial or ethnic discrimination without any proof of intent whatsoever, even by circumstantial evidence or otherwise. Do you have any views on this matter personally? In other words, can you brand somebody a discriminator or as racially motivated or a racist without some element of intent, whether it is circumstantial or otherwise?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, again without intending to represent that this is a legal decision on any of these very complicated matters that would come before the Court, my general personal approach would be to look for discriminatory intent, evidence of that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you. Yesterday Senator Metzenbaum asked you a series of questions about 42 United States Code 1983, which is a very volatile subject today in American jurisprudence. His questions, it seemed to me, may have left a lingering impression that I would really like to see resolved. He maintained that Federal rights such as those arising in social security cases and the like should be accorded a right of access to the Federal courts. Now is there any particular type of claim or particular class of cases that give a claimant a right to have his claim adjudicated in the Federal courts? 150 Maybe I could clarify that even a little bit more. In the McCurry case of this year, the Court reversed a court of appeals holding that appeared "to be a generally framed principle that every person asserting a Federal right is entitled to one unencumbered opportunity to litigate that right in the Federal district court, regardless of the legal posture in which the Federal claim arises, but" the Court continues "the authority for this principle is difficult to discern. It cannot lie in the Constitution, which makes no such guarantee but leaves the scope of the jurisdiction of the Federal district courts to the wisdom of the Congress." The Court then proceeded to reject every other "conceivable basis for finding a universal right to litigate a Federal claim in a Federal district court." Now does this Supreme Court language seem to support your reading that the State courts are worthy of more credence in these type of cases?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, I do not know whether that is what the Court had in mind when it wrote those words, but we have discussed I guess at length in these hearings my belief that indeed State courts can provide a hospitable forum for the hearing of Federal rights. Certainly the Supreme Court in the recent session handed down several decisions in this whole area of examining Federal statutes to determine when those statutes created a cause of action for someone and when they did not. It appears to me to be an area in which the Court, at least more recently is looking more closely at the congressional legislation to determine if indeed there is such a right. This is an area, I might add, in which I think the Congress has a very important role as well as the courts, Congress in its role to make clear whether it intends to be creating some cause of action, and if so, what.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yesterday, in response po one of Senator Thurmond's questions, you noted that you supported a bill in the Arizona Senate, 1165, I believe, which disallowed funding for abortions unless medically necessary, but later you told Senator Dole that this bill bascially reflects your views today, or at least that is the way I understood it. How did you understand the meaning of medically necessary in 1974, and can you draw a distinction, either in your past role as a State legislator or in your current role as a judicial nominee, between Federal rights and Federal funding to further rights?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, my recollection is that that is not exactly the language of the bill, and I will refer to it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am not sure myself.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It contained a provision that no benefits would be provided for abortions except when deemed medically necessary to save the life of the mother
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I see.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR [continuing]. Or where pregnancy resulted from rape, incest, or criminal action. That was the language of the bill.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Therefore, you would limit it to that language. 151
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That was the provision to which I referred, which was adopted and passed. The other portion of your question was
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The other portion was, can you draw a distinction either in your past role as a State legislator or in your present role as a judicial nominee, between Federal rights and Federal funding to further rights?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, yes, I think that the establishment or recognition, if you will, of a particular constitutional right has been held by the Court not to carry with it a right to funding for the exercise of that right, if that is what you mean, and I believe that has been reasonably established.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think that helps. Several recent Supreme Court decisions have sharply—I will go back to that Thibidoe decision that I brought up prior because I think it is an important issue of today—several recent Supreme Court decisions have sharply expanded the liability of municipalities under section 1983. The Thibidoe case, for an example, extended th scope of 1983 to include violations of any Federal law instead of just civil rights law. The Owens case eliminated even the good faith defense for municipalities. Now what distinctions would you make to prevent further expansion of 1983, or really can it be expanded any further?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, I am not sure that I know that it can. Since the Thibidoe case the Supreme Court has handed down several additional cases to which you have referred this morning which have in fact not found a cause of action being created in those specific contexts of the legislation, so I think Thibidoe has been modified to a degree by subsequent cases.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It has been expanded, in many ways.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It has been expanded in other areas. Certainly the municipalities have no good faith defense, athough I think the other public officials and employees are still granted the good faith defense. Another recent case has held that no punitive damages are allowable.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Of course, you cannot convince the municipalities of that because there are multibillions of dollars of actionable claims against municipalities all over this country today, as a result of Thibidoe, both the Thibidoe and the Owens cases.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, I think it is a matter of concern and I think it is a matter of concern not only within the context of individual cases to come before the Court but to the Congress itself as it reviews these provisions. ATTORNEYS FEES
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In your article in the William & Mary Law Review, you indicate that the attorneys fees statute, section 1988, might profitably be modified to reduce the number of section 1983 suits and to reduce the burden on State and local governments. Now since we are discussing that in our committee now—on the Subcommittee on the Constitution, which I chair—do you have any 152 specific recommendations for amending section 1988 with regard to attorneys fees?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Hatch, nothing specific other than to suggest that categories of types of actions perhaps could be considered and weighed with regard to it. To preclude appropriate causes of action or to discourage appropriate causes of action by removing the capacity to collect attorneys fees would no doubt be unwise, but to discourage causes of action that are specious, or in areas in which the Congress never intended, if you will, that the section be applicable would present another matter for consideration.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Judge, I would just like to say in closing that I have certainly enjoyed listening to you. I think this is a very difficult position to be in, with all these lights and all these people and all these questions and all these Senators, but I think you have acquitted yourself really well. I personally am very proud of you, and I am going to support you, as I indicated quite a while ago, and be very proud to have you on the Supreme Court of the United States of America. I am very pleased with having you here during these hearings, and having you have this opportunity.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The committee will now stand in recess until 2:30. [Whereupon at 12:55 p.m. the committee recessed, to reconvene at 2:30 p.m. the same day.] AFTERNOON SESSION The CHAIRMAN. The Judiciary Committee will come to order. Questioning of Judge O'Connor by the members of the committee will continue. Judge O'Connor, I would remind you that you are still under oath.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will now hear from Senator Laxalt of Nevada. PRESIDENTIAL AUTHORITY OVER INDEPENDENT AGENCIES
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Judge O'Connor, in 1972 legislation which was sponsored by you was enacted by the Arizona Legislature giving the State attorney general power to approve all regulations proposed by State agencies. Here at the Federal level the experts have debated what inherent authority the President has over Federal agencies, including the so-called independent agencies, due to his constitutional role as Chief Executive. We are in the throes now of attempting to enact and implement administratively as well as up here legislatively substantial regulatory reform. The essence of that problem is jurisdictional in part. I would like to have your views as to what Executive authority over the so-called independent administrative agencies you believe a President of the United States has. 153
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Laxalt, I think it may depend on the legislation in each instance as to what role has been envisioned for the Executive with respect to some particular agency. I recognize that Congress is dealing today in terms of legislative review of the relationship that would be appropriate in terms of agency regulation. In fact, I think some consideration is being given—if I am not mistaken—to even having the legislative body itself involved by some sort of legislative review. These proposals, of course, have not been tested yet; and I cannot speak to the constitutional validity of them, I think; but it involves essentially a question of the essential separation of powers concept and the extent to which, under the separation of powers at the Federal level, it is considered desirable to have some form of oversight of the administrative bodies, whether it be by the executive branch or the legislative branch. To the extent that these administrative agencies are executive agencies or agencies under the executive branch of Government and that the executive branch is given some role of oversight in connection with them, it does not appear to involve a question of separation of powers. To the extent that the concept or vehicle used is one of legislative review of the regulations or the actions, we have different questions at play. In Arizona, as you have indicated, the State adopted a practice in the year that you mentioned of having the attorney general part of the executive branch review the regulations of agencies of the executive branch for legality prior to their adoption by those agencies. That system seems to have served reasonably well.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. If I understand you correctly, in the absence of some legislative prohibition there would be no constitutional bar on the grounds of separation of powers or otherwise, restraining a President from exercising direct authority and responsibility over the independent agencies if the legislation in question opened the door for him to do so?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Mr. Chairman, Senator Laxalt, it would appear to me—again without attempting to express any legal opinion on a given case—that within the executive branch, provided the legislation allowed for it, the executive branch could be assigned certain roles for review of those executive branch agencies.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. AS you indicated, a combination of proper oversight here of those agencies plus general supervision on the part of the Executive theoretically at least should get the job done?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, we would hope so. VENUE RULES
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Let us talk about venue for a moment. I do not know whether or not you have followed the progress of rather substantial venue legislation we are pursuing through this committee. Under section 1391 of title 28 of the United States Code actions in which the Government is a party may be brought in one of four 154 places—I am sure you are already familiar with this—No. 1, where the plaintiff resides; two, where the defendant resides; three, where the cause of action arose; or, four, where any real property involved in the action is located. As you probably already know from your previous experience in a Western State, many cases involving Federal land located in Western States are brought here in Washington, D.C. As a result, there is little opportunity for individuals vitally interested in the outcome to participate in such a proceedings effectively. We have had land decisions decided here; we have had water decisions affecting our water decided here by district judges within the District of Columbia. In addition, there is some feeling that the Federal judges in those Western States have a better understanding of the practical consequences of these lawsuits over land use. Considering that the Federal Government owns or controls approximately 50 percent of the land in the Western States—and in your State and mine substantially more than that; ours is 87; I do not know exactly what yours is, but I think it is near that—people in those States increasingly feel that they have no say about significant matters that affect them on a daily basis. Now, Judge O'Connor, do you consider a change in the venue rules which requires suits to be brought in the district where the outcome of the suit will have the greatest impact an appropriate action by this Congress?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, it appears to me that that determination is one that is peculiarly appropriate, I suppose, to the legislative branch to determine. If there were no other impediments involved normally we would want to consider in terms of where a cause of action is brought some of the factors affecting the convenience of the parties. In other words, if most of the parties find that it would be more convenient to have the trial brought in a particular location rather than another, that is a factor that normally one would want to consider. As far as any statutory changes are concerned concerning the provisions for venue, that seems to me to be a policy question appropriate for the legislative branch to address certainly.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. DO you see that this poses any degree of constitutional question?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, I do not know offhand whether any particular constitutional issue could be raised concerning it. I really have not studied that problem and would want to have the benefit of some research before I could answer that. None comes immediately to mind, but I have not researched the question. JUDICIAL NOTICE
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I understand. Let us talk about judicial notice for just a moment or so. Reviewing your own record, it has been very pleasant for this Senator as a former lawyer and one who has worked on this committee for quite a while to find that you have, in fact, as a judge, exercised considerable judicial restraint. You, in fact, in your position, have been a 155 judge rather than a public official or a legislator; and you have operated within those constraints. One of the areas where license can be used, I would imagine, by any judge, is in looking beyond the record factually as a judge may or may not find that record and getting out into the labyrinth that we call judicial notice. This brings into play then, factually and otherwise, an independent situation which may or may not be proper. In this general area I would like to ask you this, Judge O'Connor: In the context of several of your own opinions you have been called upon to address the permissible scope of judicial notice. As a matter of policy rather than one of statutory construction, what do you, as a judge who has sat on the State level and who now aspires to sit on our highest court, view as the proper range of judicial notice? I suspect that in controversial cases that have been alluded to here previously Roe v. Wade and others—perhaps our Supreme Court in that situation did, I think, indulge in far too much latitude in this area. May I have your views?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, with respect to the application of those things of which a court can take judicial notice I can share with you my views as a State court judge when I have had to face the question, and that basically is that the court was allowed to take judicial notice only of matters which were, in effect, beyond dispute—for example, a date or the time within which the Sun rose or set on a given date, or the location of a particular community geographically, or something of that sort. These are the instances in which we would normally apply judicial notice at the State level—I would say very limited circumstances.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. DO you see an application of the doctrine in respect to the functions of the Supreme Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, I have not had occasion to review all the instances in which the Supreme Court has been called upon to take judicial notice of something, so I would be perhaps not in a position to give you examples of where the Court may have adopted a broader view if it has. I can only speak from my experience as a State court judge in which the application of the doctrine would be very limited. REGULATORY STATUTES MAY VIOLATE CONSTITUTIONAL DOCTRINE
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Judge O'Connor, as chairman of the Regulatory Reform Subcommittee within the framework of this general committee I am becoming increasingly involved with issues of lawmaking by administrative agencies. Senator Heflin alluded to this during the course of his questioning but did not have an opportunity to pursue it further, so I would like to if I may. Many have criticized the Congress for giving this power to agencies too broadly without sufficient guidelines, essentially abdicating congressional responsibility to legislate to the agencies. That has been part of our problem here. We have passed legislation for many years in general form and, I think as a political 87-101 O—81 11 156 matter, passed the buck downtown and let them do the dirty work by fleshing it out with rules and regulations on the part of many agencies, none of whom in terms of personnel are responsive to the process—unelected people. Some eminent legal figures have concluded—I guess eminent legal figures are ordinarily those who agree with you—that certain of these statutes violate constitutional doctrine that Congress may not delegate its lawmaking power without clear and adequate guidelines. Now, Judge O'Connor, do you believe that some existing regulatory statutes may be unconstitutional because of the failure of Congress to adequately lay down the general policies and standards that animate those statutes?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Laxalt, it seems to me that there was a time in our Nation's history when the Supreme Court used to look under the separation of powers doctrine at the delegation of legislative power to the executive and administrative agencies and review very strictly those delegations. Those were the days of Schlecter Poultry v. United States back in the 1930's. Such an uproar arose at that time that ultimately the Court reversed that trend and began to approve very sweeping delegations of power to administrative agencies and has upheld agency regulations which had really a very tenuous basis of support in the legislation itself. One can recall for example the Red Lion Broadcasting case where, under very limited delegation by Congress, very sweeping regulations were upheld. My observation is that in recent years there are some indications at least that the Court is examining the legislative basis for agency regulations more carefully than had been the case for a while. A very recent case dealt with whether an agency had to make a cost-benefit analysis of its regulations, and I believe the Court indicated that because that was not reflected as a duty in the legislation therefore none would be implied. Certainly it would appear to me that the legislative branch has a very important role to play in this area in terms of determining for itself the extent to which it wants to be specific in its delegation and limitation of power to the Administrative agency to adopt regulations. Just as a personal view expressed by one who has been in the legislative branch, it seemed to me then that very careful guidelines were appropriate to be drawn by the legislative branch in permitting agencies to adopt rules and regulations. Certainly the legislative branch has a terribly important role in this. The Court's role then becomes one of examining the legislation to determine whether, in fact, the administrative agency is authorized to adopt the types of regulations that it has. In that regard I can only indicate to you what I may see as a trend of more careful study of that matter by the courts.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I thank you very much, Judge. Mr. Chairman, that concludes my time and my questioning. I thank the chairman. I thank the judge.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Ohio, Senator Metzenbaum. 157 CONCERNS OF THE POOR
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge O'Connor, your testimony yesterday led us down some paths about which I would like to make a few comments. Your thoughts for limiting attorney's fees in section 1983 cases and keeping the $10,000 jurisdictional prerequisite for other Federal question cases, in my opinion, actually strike at the heart of Federal jurisdiction. I think that what disturbs me particularly is that apart from whether the Federal courts should have this jurisdiction in general, the attorney's fee and $10,000 limitations actually strike only one group of litigants, and that is the poor. That is one reason Congress created the right to attorney's fees in section 1983 cases just a few years ago, in 1976. Since this is a matter that seems to me to be so relevant, since I am concerned that if there is any group of people in this country at the moment who are the forgotten people of the country and who are going to be even more forgotten in the months and years ahead, I am disturbed about that kind of expression or that direction. I wonder if you would care to comment, because in your past legislative history, in all fairness, I see nothing to indicate that you have been indifferent to the concerns of the poor.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, indeed I am not indifferent to the concerns of the poor. The legislation in section 1988, as I read it, is certainly not limited to the award of attorney's fees to people who are impoverished. Indeed, I suppose a very wealthy individual can file a suit under section 1983 and seek attorney's fees under section 1988. So I do not believe that the legislation, as drafted at least, is in any way limited to a protection of the poor. No doubt a portion of the motivation for its enactment was to enable suits to be brought by anyone regardless of their means to do so.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But the attorney's fee question hurts them the most because those who are the "haves" can hire their own lawyers. It is the "have nots" who really have the difficulty of finding counsel, and counsel taking it then on an "if come" basis could get awarded attorney's fees under the law. Your article suggests a contrary point of view.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, my article suggested that Congress should review very carefully its delegations of authority to sue in the first instance and also a review of those matters in which it thinks attorney's fees provisions are appropriate. The article in no way suggested that that was a function of the judiciary, and I am sure that Congress in its wisdom will consider all of these factors as it makes this type of review. I have not suggested, I think, that people who are impoverished be denied access to the courts. In fact, that would be a most unfortunate suggestion and one which I would not make. But the extent to which Congress wants to authorize suits in the first instance in the Federal courts as opposed to the State court 158 and the extent to which Congress wants to authorize suits and have attorney's fees a possibility are appropriate things, it seems to me, for the Congress itself to consider as a matter of policy. MORE LITIGATION IN STATE COURTS
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU mention the matter of the State courts. Actually you also suggest that more litigation ought to be in the State courts rather than just full access to the Federal courts. But actually State courts really have had more experience in the constitutional issues where criminal matters were involved, and much less experience with respect to civil constitutional claims, which are the subject of all section 1983 civil rights cases and other Federal question cases. You would agree with that, would you not?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes; I would agree generally that the expertise of the State courts in the constitutional area, while not exclusively confined to criminal cases, has been primarily in terms of numbers in that area. I think that the State courts have developed a pretty good capacity to deal with those questions, and I see no reason why that capacity could not be extended to other areas as well.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In view of your desire to shift Federal question and section 1983 cases to the State courts and to rely on the State legislatures as indicated by your response to the Judiciary Committee questionnaire, would you disagree with this statement by Justice Stewart speaking for a unanimous Court in Mitchum v. Foster in 1972 that, "the very purpose of section 1983 was to interpose the Federal courts between the States and the people as guardians of the people's Federal rights to protect the people from unconstitutional actions under color of State law whether that action be executive, legislative, or judicial"? Obviously, he is saying that we need to have that Federal right and the right to go into the Federal court because in many instances the denial of rights occurred not alone at the executive level, not alone at the legislative level, but also at the judicial level. If you force those cases back into the judicial level, then how does the litigant get a chance to protect his or her civil rights?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, I do not disagree at all with the statement that you read. The framework of review could of course encompass making an initial presentation of one's case at the State level in any given situation, and if it were believed that a Federal right had been violated and that it was not adequately vindicated at the State level then to pursue the remedy further through the Federal courts. That certainly is a possibility, it strikes me.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not sure I follow that. If you cannot get your rights litigated and the court has ruled against you in the State court, are you suggesting that you could relitigate the issue in the Federal courts?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am suggesting, Senator Metzenbaum, that to the extent that one is in a Federal court and believes that the 159 result on an issue of Federal law was erroneously received or determined one can raise that issue then in the Federal court.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO you not think res judicata would prevail to cause the Federal court to dispose of that matter rather summarily on the basis that the case had been decided and the constitutional issue had been raised in State court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, not if you are appealing from that very matter of course res judicata is not attached. If you are pursuing your remedy in Federal court, and you feel an error has been made, and you then go to the Federal court for review, no, you are not precluded from doing that. If on the other hand you had litigated your case, and dropped it, and had taken no appeal or petition for review in the Federal system, and then tried to pursue it again, yes, then you would have a res judicata problem.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. If you had litigated the issue in the State court, and the State has ruled that you had no Federal right or constitutional right, and you do not appeal, and then you file suit anew in the Federal court, is it not entirely probable or logical that defense counsel would immediately file a motion to dismiss on the basis of res judicata?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes, Senator Metzenbaum, if you do not pursue your immediately available remedies within the Federal system and let it be terminated at the State level. Yes, of course, you are thereafter precluded.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. What would be the immediately available remedy in that instance? You have lost in the State court; now what is your immediately available Federal remedy?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. YOU can file your petition for certiorari of course if it has been determined adversely on the Bederal issue. If you have gone to the highest State court you can certainly do that.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW you have to take your case all the way up through the appellate procedure and then file your petition for certiorari with the Supreme Court. That really is not really a very practical remedy for the average litigant because by that time he or she has pretty well run out of money, particularly if they are not well-heeled. That would mean you were in the fourth court: You had been in the lower court, the appellate court, and the supreme court of the State, and then you take the case on certiorari. Then you have to make out that Federal issue that is involved. I just wonder whether realistically speaking, by moving more of the civil cases through the State courts and forcing litigants there and also denying them their attorney's fees, a great injustice would not be done to hundreds of thousands and maybe millions of Americans who might otherwise want to litigate a Federal question.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, these are the precise things that I would assume this body would consider when it considers that issue. Of course you want to review all these matters very carefully. I am sure that the Senate in its wisdom will do precisely that. 160 JUDICIAL ACTIVISM
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. All right. Let me change the subject. In your response to the committee's questionnaire and your other answers here you have made it very clear that you are opposed to judicial activism. Exactly what is and is not judicial activism is not that easy to define. It is very easy to say that the Supreme Court or the court should not make laws. I would like to ask some questions about some of the major issues in some cases that have already been decided by the Supreme Court. Most of them are quite old and probably will never again come before the Supreme Court. The Baker v. Carr case—this 1962 decision allowing the Federal courts to require local legislative bodies to be fairly apportioned— probably did more to reshape our political system than almost any other decision of the Supreme Court. It largely ended the gross malapportionment that existed in many States. In your opinion was that decision an inappropriate exercise of judicial activism?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, you are correct in your characterization of the dramatic results of that decision and its progeny. I think what the Court really did in Baker v. Carr was to reexamine the question of what is a political question which the Supreme Court will or will not consider. I think before Baker v. Carr the Court had taken a more restrictive view, if you will, of what is of justiciability—of what is a political question—and in what case will the Court avoid deciding it at all because it is a political question. In Baker v. Carr it really drew more liberal lines, if you will, in determining what is a political question which the Court will consider. That now appears to be the leading case on the subject of what is or is not a political question.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And that is the case that established the one man, one vote rule.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is correct.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Was that an inappropriate exercise of judicial activism?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, I may have been heard to comment at the time that it concerned me but—that perhaps it was. Certainly the time that has intervened in the meantime and the acceptance of that decision has put it pretty much in place in terms of its present effect and application. SEX DISCRIMINATION
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO you think there was inappropriate judicial activism in 1971 for the Burger Court to rule for the first time in Reed v. Reed that sex discrimination was unconstitutional?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, it was in my view an appropriate consideration of the problem of gender-based discrimination. 161 CRUEL AND UNUSUAL PUNISHMENT
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO you think it inappropriate judicial activism for a Federal district court to order major changes in a prison after finding that conditions in a penal system constituted cruel and unusual punishment? That was in the case of Hutto v. Finney, which reached the Supreme Court in 1978.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, I think the constitutional provision against cruel and unusual punishment has been of course part of our Constitution for many years; and it is certainly not inappropriate for the Court to consider a case that alleges that a particular prison condition constitutes cruel and unusual punishment. I do not view that as any unusual exercise of judicial activism. You can examine then the particular remedies that are selected by the Federal district court, assuminx it finds such a condition, and then begin to discuss the extent to which the district court remedies exceed what is regarded as an appropriate exercise of the Court's discretion once that condition is found. It seems to me that is a different question.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have just one last question. I have a number of other cases of this same kind of judicial activism, but my real question is this: Is not the matter of judicial activism a question of which side of the court you are on—and I mean tennis court, not the court in the other sense—a question of which way the ball bounces as to whether one man's or one woman's judicial activism is not another party's legalistic approach to what should or should not be done, and that overreacting to the question of judicial activism could be just as bad as overinvolvement by the courts in attempting to make new law? I would just hope that this question of judicial activism would not be of such a nature as to cause you to lean over backward or forward with respect to the actions of the Supreme Court, because I think it is these cliches that get us all in trouble. I do not think they will get you in trouble, but I at least for one would hope that the Court would not do less in meeting its responsibilities than it has done in the past in order to protect constitutional rights of the people of this country.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Metzenbaum, there is always a danger in oversimplification and in sloganism, and I understand that.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you very much. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Kansas, Mr. Dole.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Thank you, Mr. Chairman. Judge O'Connor, in your testimony yesterday you expressed your feeling that it is not the job of the Court to establish public policy through its judicial work. As a practical matter we know that the Court has frequently found justification for such policymaking by expansive readings of the constitutional or statutory law. Today we find courts running school systems, apportioning legislatures, managing railroads, and generally involved in a whole host of activities which would have been unthinkable a generation ago. 162 Sometimes those of us in the Congress feel that the Court has gone beyond interpretation of law to an extent that it makes it difficult to know who, in fact, is setting policy for our Nation. We have talked generally about your philosophy of judicial restraint. I wonder if you might be more specific on the question of how that philosophy can be imparted to lower courts. Is there something that the Supreme Court might do to impart some of that restraint to lower courts?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, I suppose every time the Supreme Court acts in terms of publishing an opinion that expresses a point of view that point of view is read and heard and considered by all the other Federal courts and the State courts. To the extent that the Supreme Court expresses concepts of judicial restraint I assume that those are addressed. Obviously, the other very simplistic answer is that judges, like lawyers, enjoy attending training programs, seminars, and so forth; and all of these means are constantly available for dissemination of concepts of appropriate judicial management and action. BAKKE DECISION
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. I think also it appears to many of us on the outside at times that the Court avoids controversy and attack from outside sources by avoiding decisions on difficult issues until it is presented with a very narrow, well-defined case. There are a number of examples of that. One I recall is the affirmative action decision—the so-called Bakke decision. The Court avoided a decision on the constitutionality of reverse discrimination until presented with the issue of quotas in that case. Do you have any opinion on whether or not the Court shirks its responsibilities by following this practice—by waiting for just the right case, a very narrowly defined case?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, I have not participated of course in the discussions that surround that particular activity. I believe that the Court had previously rejected an affirmative action case on the grounds that the issue was then moot—in other words, that the plaintiff who had filed was no longer attending the institution and the question had become moot. That was not the situation, I gather, in Bakke, and the Court took jurisdiction. The doctrine of not accepting a case which is moot is not an absolute one. Exceptions have been made in the past, particularly for those instances in which otherwise the case could never get to the Court. However, in general the Court has attempted to, I suppose, accept jurisdiction of those cases in which it feels an issue has been appropriately raised that would lend itself to resolution.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. SO you are not concerned that they may, in effect, sometimes avoid coming to grips with a matter by waiting for some narrowly defined case to come before the Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, of course it is a concern. We all hope that matters of great significance and in which there is a need for a final voice, if you will, are given the opportunity to be heard. 163 These are very delicate questions, I am sure, that have to be addressed on a case-by-case basis; and applying all the normal principles of review, is this case appropriate for acceptance? I am sure that another factor of course is the tremendous number of cases and the limitation inherently that exists because of the incapacity to accept more than a fairly limited number of matters each term. ILLEGAL ALIENS
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Let me shift to another matter which is of considerable interest and probably will become more of interest—and maybe for that reason you cannot fairly comment on it. The Court has never decided whether aliens who enter the United States illegally should be afforded the full protection and rights guaranteed under the 14th amendment. The dispute finds recent expression in a suit filed against the State of Texas by certain organizations who claim that the State must make educational facilities available to the children of illegal aliens. Do you have any general views as to the extent to which due process and equal protection rights should be afforded to illegal aliens?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, that is an issue that is currently either awaiting certiorari or has been accepted. It is a matter which is going to make its way I think soon to the U.S. Supreme Court and a matter of grave concern to many people. Our country has, as you know, received within its borders in recent years large numbers of illegal aliens; and the question of the right of those individuals to a public school education, for instance, and other rights is a matter that is of concern to many and which does raise serious constitutional questions, and those questions are likely to be heard soon, I believe. Certainly with regard to the subject of aliens generally the Court's primary reported decisions have really dealt with those who are legally in the country, and various standards for review— in fact, a rather strict standard for review—in many instances has been applied to cases arising in that area.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. I certainly accept that answer. I am certain this case will find its way to the Court, and you will be asked at that time I assume to apply the proper principles of law or equity. I addressed a question to you yesterday with reference to the exclusionary rule following a question asked by Senator Laxalt, and I think there was a question asked this morning by another member of the committee. You responded with an example of a case in which you had to exclude wiretap evidence under title 3 of the 1968 Omnibus Crime Control and Safe Streets Act. In that legislation Congress attempted to provide for admissibility of wiretap evidence under a formula which called for court supervision over the use of electronic surveillance techniques by Federal and State enforcement authorities. This statutory scheme has subsequently been upheld by the Supreme Court, and this scheme could well serve as a precedent for 164 other congressional efforts to limit the scope of the exclusionary rule. I would be interested in receiving your thoughts on your problems with the 1968 act in the cases you referred to yesterday.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, for one thing the act applied to information obtained by private individuals in addition to those who are peace officers. The exclusionary rule as we know it under the fourth amendment is applicable only to information or evidence obtained by peace officers. If a private individual obtains evidence illegally it is not excluded in court in a criminal action based on the exclusionary rule. However, Congress in that act has applied it not only to peace officers but to information or evidence obtained by private citizens. In addition, the act by its terms I believe makes a blanket prohibition of the use in court and provides for no "good faith" exception, if there is such a thing, as has been addressed in some of the Federal courts with regard to the criminal exclusionary rule.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Finally, I was not able to be here this morning, but we were monitoring the session, and I understand that Senator Thurmond asked a question concerning the second amendment right of citizens to keep and bear arms. Your response, as I understand it, included the citation, United States v. Miller—one of the few instances where the Supreme Court has ruled in recent years on the scope and meaning of the second amendment. In that case the Supreme Court upheld the constitutionality of the National Firearms Act of 1934. That act was based on Congress' power to place transfer taxes and national registration on gangstertype weapons such as machine guns and sawed-off shotguns. These and similar weapons, however, certainly would be appropriate for use by militias or State militias, and it seems to me that the state of the art firearms technology of that decision would be open to question if the matter came before the Court again. In these days—and I think as recently as yesterday—we hear announcements of increased crime rates, especially violent crimes committed with firearms. Can the several States or the Federal Government impose restrictions on private possession and use of sporting firearms without violating the constitutional guarantees of the second amendment?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Dole, possibly there is a difference under the second amendment question with respect to what the States can do and what the Federal Government can do. At least that is a possibility. The Miller case addressed the power of Congress to enact certain prohibitions under the commerce clause of the carrying of certain types of weapons. In a very brief decision actually, the Court simply held that the second amendment did not guarantee the right of people to have a certain type of weapon but rather was addressed to a prohibition against Congress interfering with the maintenance of a State militia. 165 We just do not have additional determinations by the Court of the meaning of that act. We do know, however, that the States, acting in their police power, have adopted a wide range of statutes regulating the possession and use of firearms. It is a matter of great concern to many people. In Arizona at least that regulation has been limited by and large to a regulation prohibiting the carrying of concealed weapons and provisions limiting the use of weapons at all in certain inhabited areas, regulations concerning the use of firearms by the very young, and also statutes that impose additional penalties on people who commit crimes involving the use of weapons. It has been the view, at least in our State, of the legislators at this point that the legislative power if it exists to further limit the use or ownership of firearms by citizens for sport purposes or for self-defense should not be limited. I think that has been a policy decision at the legislative level and not tested under the second amendment that is applicable.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Judge O'Connor, the other questions I have you have addressed, I think, directly or indirectly. I yield back the balance of my time, and I want to indicate my strong support for your nomination.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Senator.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Arizona, Mr. DeConcini. PROBLEM OF CRIME
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, thank you. Judge O'Connor, thank you for your fine testimony today. It has been exceptional, as was yesterday's. I would like to address a couple of general areas with you. If you can labor through them I would be most appreciative. The problem of organized crime, violent crime, and drug-related crime in this country has surfaced once again as a primary subject and a primary objective of many of us in the Senate; and certainly now the administration has come forward with a, not termed a war on crime, but some specifics; and I think some of them are very positive. A number of Senators here have suggested specific legislation. I wonder, Judge O'Connor, if you could just characterize in a general sense what you believe—first of all, if you agree that it is the problem that I believe it is; and, second, what you believe the Court can do and should do to participate in a more active way or passive way, but in some way, to bear some of the burden of improving the safety of the citizens of this country?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator DeConcini, you have done a tremendous amount of work in this particular area, perhaps because of your background in law enforcement in Pima County and your continued interest thereafter at the State level and this body. It seems to me that it is a subject of tremendous concern to a tremendous number of people. We have truly an unacceptably high crime rate in our Nation. We certainly have an unacceptably high crime rate in the State of 166 Arizona and in the city of Phoenix and surrounding areas. All public officials in our area have exhibited a real concern about it. It seems to me that there is no avenue, whether it be legislative or judicial, that should not be explored to see how we can improve the situation. If I had an answer to these problems of how to instantly reduce crime I would be more than happy to give them to you; I do not know. But we must, I think, within the judicial system itself strive constantly to resolve criminal cases rapidly. I think delay in that area simply promotes a disillusionment of people with the ability of the system to function. So we have to be concerned about the speed with which we handle these matters. I think we have to be concerned within the judicial branch about at what point we can say that a case has been fairly litigated and fairly reviewed on appeal or on post-conviction review and now it is at an end. There must be some way to more effectively do that. That has to be a concern of people on the bench as well as legislators. We have to be concerned, I suppose, with the imposition kf fair and appropriate remedies. It will always be a concern, I am sure, to judges on the bench that there are appropriate facilities in which to place convicted defendants if an incarcerative sentence is appropriate. We have to be concerned, I think, with insuring that there is the power at least to order those who are convicted to make restitution in appropriate instances and the means of enforcing that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge O'Connor, you spell it out well. Obviously, you feel the Court has a responsibility and should be a partner in any effort by any government, whether it is State or Federal, to attempt to improve the quality of life by lessening the crime. Mr. Chairman, I would like to call to the committee's attention a letter, dated September 9, 1981, from Congressman Bob Stump, the Congressman from the third district of Arizona. I understand the chairman is going to insert it in the record in the proper place. I want to explain to Judge O'Connor that Congressman Stump has written a very laudatory letter, one that is very explicit about serving with you in the Arizona State Senate when he was minority leader and you were majority leader. I will furnish you a copy of it. I am very pleased that that will be in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, that letter will be placed in the record. I intended to do it at the conclusion of the questions by the Senators, but I can do it now if you wish.x
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NO. That will be fine, Mr. Chairman. I just wanted to call it to the attention of Judge O'Connor. Judge, in your William and Mary law review article—which I am sure now you probably wish you had published and had a royalty from the sale of those that everyone will be clamoring for—you go into the area of more involvement of the State courts. You com merit on the expanded jurisdiction that Congress has recently granted to the Federal magistrates and the bankruptcy judges. Do you feel that there is room for continued expansion of the role of these officials and these courts and others like them that might alleviate the burden on the article 3 courts, providing obviously that it does not diminish quality of justice?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator DeConcini, I suppose we will want to look at the results of the expanded jurisdiction and the bankruptcy level to see in fact how that works and if it is a satisfactory solution. I think that it is not inappropriate to consider the establishment of additional tribunals or different tribunals to handle a specific aspect of the workload, and I am sure that lawyers everywhere will be wanting to monitor the work of the new bankruptcy court. I think you had a substantial responsibility in connection with that legislation.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you think it is worth pursuing, whether it is on a trial basis or otherwise, an attempt to broaden the jurisdiction of other than article 3 courts to attempt to relieve and provide some other access to the courts other than just the article 3?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. It merits consideration. I hope that it is not always at the expense of State participation or involvement. COURT ADMINISTRATION
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. The problem of court administration has greatly increased over the past 15 years or so. On the Federal level Chief Justice Burger has been keenly aware of the problem and has attempted in a very positive manner to deal with it; and though I have not agreed with everything he has said or done certainly it is an improvement, in my opinion. In addition to your work, assuming you are confirmed—and I am sure that that is going to happen—on specific cases that you will handle as an Associate Justice, do you anticipate that you will be active in a broad sense in court administration? Are you bent in that direction at all? Do you feel it is a proper area for you to delve into, and can you share with us any ideas or what your direction will be?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator DeConcini, I do have an interest in court administration. It is very important to me because, having been a judge, it has become apparent to me that effective court administration is essential in this day of burgeoning caseloads in both the State and the Federal courts. The numbers are such that unless we do the job more efficiently we are not going to do it well. I think my greatest concern has been in the area of delay. We have made efforts both at the State and Federal level to handle criminal cases more expeditiously, and mandates have been legislated to require that. This is at the expense then of the ability of the courts to handle expeditiously general civil litigation. People who have to wait, for example, to go to trial in a civil case are being denied justice, in my view, very dramatically. That simply is not acceptable in our system. 168 We have to find ways to make the system work so that people can have more rapid access to the courts when access is needed. So court administration is a vital tool in this area. I participated in an experiment in the trial court in Maricopa County to provide speedier trial practices for civil cases generally. That experiment was very, very successful, thanks largely to the efforts of presiding Judge Bloomfield. I think there is room for improvement nationwide in this area. I have an interest. Whether I will be encouraged or even allowed by virtue of time pressures to engage in that if I were to be confirmed for the U.S. Supreme Court I cannot say, but time and other circumstances permitting I would be very interested.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU are not reluctant to get involved in it assuming the time is there?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. NO.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU mentioned the experiment in Maricopa County. After you are confirmed I do not know if we will be able to ask you over, Judge, to testify and give us a little background on that. Can you just tell us very briefly—because it has been a great interest of mine—how that project did succeed?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. The project for the civil delay reduction had several components. One was that we required that lawyers be ready for trial much sooner than normally is the case, so it compressed their preparation time substantially.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What happened if they were not ready?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. There were always avenues if justice truly required it to extend the time, but we found that in the great bulk of cases it was not required. Then the lawyers were given a specific date on which the matter would go to trial, and there was a no continuance policy. So the lawyers who came in and had a vacation or had other reasons for continuing the case were simply turned aside, and we went ahead on the trial date that was scheduled. If the particular judge to which it was assigned was already in trial then another courtroom and another judge were found, even if we had to go to the community to find judges pro tempore. The system had the effect of encouraging a great many settlements, and those that did not settle did go to trial as scheduled, and it was very effective.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Has Maricopa County adopted that on any larger basis, or has any other jurisdiction in Arizona, to your knowledge?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, Maricopa County has greatly expanded the program due to its success.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I want to compliment you and the court system there for that trial experiment. Obviously, I think it has been successful from what I have heard, even though there has been a little moaning and groaning by members of the trial bar there, but I think that is a good sign. Judge O'Connor, much of the Federal courts' judicial and nonjudicial activities are conducted behind and beyond the public eye. The executive and legislative branches have opened many of their proceedings to public scrutiny under the so-called sunshine laws, particularly in those areas of the Federal court nonjudicial work, 169 such as meetings of the Judicial Conference of the United States or the council meetings of the various circuits where no cases are discussed or no debate is focused and the decisions are administrative or quasi-legislative matters. Do you think it would help the process at all if some sort of sunshine laws were applicable in this specific area of the judiciary?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator DeConcini, you mean concerning only the conference matters, or the rulemaking function, or policymaking functions?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I really do not know whether sunshine laws would be helpful in that regard or not. I have not had information as yet on the extent to which opening the meetings has been productive or nonproductive. I can speak only from my experience as a legislator in which I did support open meeting laws in Arizona and operated extensively in the public sector under those laws and have found it satisfactory. I have not had experience at the judicial level with that application.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you think it is worthy of some consideration by the judiciary and some debate within the judiciary?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator DeConcini, that is not inappropriate at all to expect it to be discussed and considered.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge O'Connor, I want to thank you again for your fine testimony the last 2 days. Mr. Chairman, I yield back the balance of my time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. Senator Simpson was next, but he is not here. Senator Leahy, the distinguished Senator from Vermont, is next. JUDICIAL ACTIVISM
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. Mr. Chairman, I appreciate the opportunity to be here as I mentioned before. As I think some of us have mentioned to Judge O'Connor, unlike the chairman, for some of us this is the first time that we have been present at the confirmation hearings of a Supreme Court Justice. That is only one small reason for the good attendance by Senate standards at these hearings. I think Judge O'Connor's personality and abilities are the main reason. I am glad we have had this opportunity. Judge, I would like to follow up on a point raised earlier this morning by Senator Specter. In Brown y. Board of Education I suppose we go back and forth on the question of whether we were trying to determine judicial activism, whether it is a question of judge-made law or simply further research into the old law—why we have Brown v. Board of Education as law today and not Plessey v. Ferguson. I would just read from one part of Brown v. Board of Education because I quite frankly had not read it since law school days and went back and reread it. That is the part in the Chief Justice's decision where he says, * * * in approaching this problem we cannot turn the clock back to 1868 when the amendment was adopted or even to 1896 when Plessey v. Ferguson was written. We must consider public education in the light of its full development and its present 170 place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. I state that simply—and I do not mean to get back into the whole debate on it all over again—because in my mind it appears more that the Court in effect was making law rather than simply finding some new interpretation of the Constitution.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Leahy, the Court did hold ultimately that separate educational facilities in the public school system were inherently unequal under the equal protection clause. The Court did, of course, ask for extensive historical research and data in connection with its study of the problem. In its written opinion you are correct in stating that the Court did not particularly refer to the historical analysis in reaching its decision. However, the effect of it is to determine that the equal protection clause meant what it says and that separate is not equal. I suppose that most students of the law today would agree that that was an appropriate interpretation of that language. To an extent, and certainly in its famous footnote, it referred to matters that traditionally are not referred to by the Court in reaching those solutions, and that of course was the subject of a lot of attention at the time.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Of course what is judicial activism to some may probably be strict constructionism to another. I recall probably one of the most memorable days I spent in law school, and that was the day I was selected to have lunch with Hugo Black. Hugo Black was seen by many people certainly as a judicial activist. I recall him saying—I recollected it I believe this morning when Senator Mathias mentioned him—his views of the first amendment. He said, The First Amendment says there should be no abridgement on the right of free speech, and I read that as a strict constructionist meaning there should be no abridgement on the right of free speech. He was adamant on that. In applying that standard of course in some of the decisions he wrote he was accused of judicial activism. In a decision that your immediate predecessor, Justice Stewart, wrote in 1972—he said, quoting United States v. Bass, Unless Congress conveys its purpose clearly it would not be deemed to have significantly changed the Federal/State balance. Congress has traditionally been reluctant to define as a Federal crime conduct readily denounced as criminal by the States. We will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between Federal and State criminal jurisdiction. I would assume that that would be along the lines—without going into that particular case—of how you feel a Justice should approach a case involving judicial construction and federalism?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I think that was an appropriate statement,
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. 171 Senator LEAHY. The reason I mentioned the difficulty is that in that same case Justice Douglas dissented—and here is somebody who is seen very much as an activist—where he said, The Court today achieves by interpretation what those who were opposed to the Hobbs Act in this case were unable to get Congress to do. He was joined by Chief Justice Burger, Justice Powell, and Justice Rehnquist, who were all convinced that Congress had intended to usurp the power of State government to prosecute violence committed during a lawful labor strike in this particular case. I am a former prosecutor, and I think Justice Stewart was correct. I agree with his statement. He strictly construed the statute and deferred to State authorities to prosecute acts of labor violence. Our distinguished chairman of course has been here much longer than I have. He now feels that we need legislation that would make labor violence a crime to be handled by Federal authorities. So the issue can go back and forth. I am not really looking for an answer. I am just saying that we can make a bad mistake, and those who report on these hearings can make a bad mistake by trying to fit any one case or any one Justice into a one-line definition. I think you would agree on that.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes; I would. I would also simply comment that Congress can be very helpful of course to the courts if it indicates what its intention is when it passes legislation as to whether it intends to preempt State jurisdiction or not. Sometimes those direct expressions can be most useful to the courts. RIGHT TO PRIVACY
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I could not agree with you more. I think we make a bad mistake in the Congress where, in trying to get legislation through that everyone can rally around, we make it sometimes either too bland or too nonspecific, and then we pass it on to the regulators for applicable regulations. They have little to guide them. You put one more layer in there, and everyone sits back comfortably thinking that at some time or another some advocate for one side or another will bring it before the Court for the Court to work it out. That is a bad situation. I know that there are areas where we will continue to have regulation and litigation. I know of your own fights in Arizona for tough antipollution controls, which bring about regulations and litigation, but it is a price that society should be willing to pay. The Constitution does not speak of a right to privacy, but lately the question of a right to personal privacy comes up in opinions more and more. Do you have any views on that right within the Constitution?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Leahy, you are correct that the Constitution does not mention the right to privacy directly. The Constitution has been interpreted though by the Court as carrying with it a penumbra of rights under the Bill of Rights, and within that doctrine the Court, I think in Griswold v. Connecticut, first addressed directly and recognized a right of privacy. That was the case involving the right to sell or possess contraceptive devices in that State and overturned a State statute prohibiting that. 87-101 O—81 12 172 The right to privacy has been recognized again by the Court in several other cases, one involving the possession I believe of some obscene material among other things. The Court seems to have established that there is such a right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. HOW do you feel on that?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I accept the fact that the Court has established that. The ninth amendment of course refers to a reservation to the people of other rights not enumerated. I do not believe the courts have directly pinned the right of privacy to the ninth amendment by any means; but it is simply a reference or an acknowledgement, if you will, in the Constitution that people do have certain other rights that are not enumerated. WILLIAM AND MARY ARTICLE
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Reference was made once more to the William and Mary article. Just as a matter of curiosity, how did you come to write that article?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I am beginning to wish, Senator Leahy, that I never had. [Laughter.] However, the William and Mary Law Review in its wisdom was aware that the relationship of our dual system of State and Federal courts and their workings is an unusual one in terms of the international field—other nations do not have such systems—and that inherent in such a dual system are certain areas of concern and interrelationship that is of interest at least to those in the system. The Law Review decided to invite some noted legal scholars to write some major papers on the subject and then decided to invite several Federal and State court judges to participate in the seminar and in the panel discussion and to make remarks. That sounded to me like it would be fine—as a State court judge I would be happy to participate—and after I said fine I learned that they would like an article in addition. That is how the article came about.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge O'Connor, I am in one moment going to do something that Senators do only with the utmost reluctance, and that is yield back the balance of time available to us. We do this even with more reluctance if there is a television camera going somewhere. I will just simply repeat what I said yesterday and what I said earlier when we met in my office: I really do not care whether an appointee to the U.S. Supreme Court is Republican, Democrat, conservative, or liberal. I care about competence, honesty, and integrity. I feel that you have certainly demonstrated that throughout these hearings, and I will very enthusiastically vote for your confirmation.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from North Carolina, Mr. East.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Thank you, Mr. Chairman. 173 Mr. Chairman, before I begin my questioning I would like to request that a memorandum that has been prepared by the staff of the Subcommittee on Separation of Powers dealing with the subject of appropriate questions for the nominee to the Supreme Court be made a part of the record of these hearings. I would like to make that request.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, it is so ordered. [Material follows:]
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Thank you, Mr. Chairman. Mrs. O'Connor, I welcome you back again. I bumped into you briefly a few moments ago over in the Senate building, and we are back in here again. It is a pleasure to be with you. Time presses upon us. I would like, in the 15 minutes that I have, to commence by picking up a loose end we were talking about when time cut me off yesterday. If I might, please, I would just very briefly here review the bidding. I had focused—it is true—upon this issue of abortion. It is of course an important public issue in its own right, but I think one could pick other issues dealing with race relations, rights of women, the death penalty, and so on and so forth, to allow us some way or other in microcosm to get at this question of judicial philosophy and basic personal values on fundamental issues of the day. As I understood your position yesterday on this matter of abortion—you of course have repeated since then—you are personally opposed to it, except in extraordinary circumstances, as a general policy of birth control. You were negative on it, as I understood your position. I then turned to the question of how one might approach it in dealing with it in the public arena as a matter of public policy. As I understood your position there, you said you thought it was very much a legislative type of function. I do not wish to put words in your mouth. Please correct me if you think I am in error here. You thought it also might be looked on as a State function—at least historically it had been prior to Roe v. Wade. I then turned to Roe v. Wade and asked you what you thought of this quotation from Justices White and Rehnquist in which they described the majority opinion as being an improvident and extravagant exercise of the power of judicial review. On this matter of Roe v. Wade it is not only important because of the issue that it dealt with—namely, the abortion issue—but it is also probably the premier case that many offer in suggesting that the Supreme Court had gone way beyond any reasonable conception in its role as an interpreter and applier of the law. As is said here, it is just an improvident and extravagant exercise of the power of judicial review that is the legislative function. In fact Justice Rehnquist in his own dissent said, The decision here to break the term of pregnancy into three distinct terms and to outline the permissible restrictions the State may impose upon each one partakes more of judicial legislation than it does of the determination of the intent of the drafters of the fourteenth amendment Just to put the question to you again, as I understand it you do not wish to comment upon Justice Rehnquist's observations on this case? I think it is particularly intriguing because you and Justice Rehnquist of course were in law school together, as I understand it, and were classmates and I presume might even have had the same teachers for constitutional law. So it adds a bit of heightened interest to it. Again if I might have your response to their observations on this case? 199
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator East, with all respect, it does seem inappropriate to me to either endorse or criticize a specific case or a specific opinion in a case handed down by those judges now sitting and in a matter which may well be revisited in the Court in the not too distant future. I have great reluctance to do that. I recall the late Justice Harlan who at his confirmation hearing was asked, much as you have asked, questions about Roe v. Wade. He was asked his comments and reactions to the then-recent steel seizure cases. His response was that if he were to comment upon cases which might come before him it would, "raise the gravest kind of question as to whether I was qualified to sit on that Court." More recently the Chief Justice was asked to comment on a Supreme Court redistricting decision which was subject then to a great deal of criticism by some Senators. The Chief Justice noted that: I should certainly observe the proprieties by not undertaking to comment on anything which might come either before the Court on which I now sit or on any other Court on which I may sit. These are things that have concerned others before me and concern me now.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. I was noting earlier though, for example, your willingness in response to a question from Senator Metzenbaum about Baker v. Carr. You said that you were concerned about that case at that time, which I gather meant you had reservations about it. I might for example inquire: Were you concerned about Roe v. Wade at that time? Is there a tendency here to be selective in terms of which cases or doctrines you will or will not comment on; or, I guess, quite specifically, is the reluctance particularly applicable to Roe v. Wade and the abortion issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator East, I am trying not to be selective in those matters to which I am willing to react, if you will. Certain things have been rather well decided and are not likely to be coming back before the Court directly or in any closely related form on the merits, if you will. With that situation my observation in the prior transcripts is that there is not the same reluctance expressed. I felt it was a little unlikely, I suppose, that the Court was going to retreat or reconsider the basic precepts behind Baker v. Carr. ADVISE AND CONSENT
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Of course the reapportionment issue, as the death penalty issue, as the rights of minorities issue, as the rights of women's issue, as the question of abortion—these things—I am simply probing—do they not constantly recur? Let me restate it. If you are arguing that a prospective Supreme Court nominee cannot indicate particular values or sentiments on prominent issues of the time—if I might shift the focus of this to the whole problem of the Constitution and separation of power—it seems to me the confirmation process becomes almost meaningless; it simply means it is reduced to ceremony and resumes. 200 I do not, for heavens' sakes, wish this to be understood in terms of any personal reflection upon you because you have done an outstanding job. I am concerned as a Senator, as I look at the concept of separation of power, where we are supposed to be a part of this process of appointment to the Supreme Court. The President nominates, and we are supposed to advise and consent. If in our fulfilling that obligation which the framers gave to us we are forbidden to get real substantive comment on issues of consequence—for example, previous doctrines and cases—I dare say we set a precedent—potentially, do we not?—whereby we cannot really fulfill any meaningful constitutional obligation; hence, we might suspense with it. It is frustrating, as a Senator, because the Senate and the Congress are trying, I feel, in so many ways to reassert their policymaking function which many feel has been eclipsed by the bureaucracy under the direction of the executive branch or frequently by the Supreme Court and the judiciary. We are given a few tools in the Constitution to try to assert our check and balance in separation of power. One of those is to be a part of the confirmation process. We have clearly that check or balance under the Constitution, but if we are forbidden by our own practices or those insisted upon by nominees, I query whether that formal and fundamental check and balance—and probably the most fundamental one we have in the appointment process—is not negated and eliminated simply because questions cannot be asked in a fairly thorough and substantive way. I can appreciate you cannot promise anything; I can appreciate you could not comment upon pending cases; but when we are told that there cannot be comment upon previous cases and previous doctrines of substance, I query as one lowly freshman Senator whether we are able really to get our teeth into anything. We are setting a precedent here. It has been noted that half of us have never been in on this process before, and you are probably the first of a number we are going to have coming up down the road with President Reagan. I would hope that the Senate and the Judiciary Committee would set the precedent for confirmations of substance and depth and meaning. You have certainly been an outstanding witness; there is no question about that. I probe it not in a personal way; I probe it in a constitutional sense as to whether we the Senators are really going to be in a position to make a substantive judgment. I appreciate your candor in Roe v. Wade, and I certainly respect your judgment and your unwillingness to pursue it in greater depth. I do not wish to belabor the obvious, and so I will let the issue of Roe v. Wade rest because you have clearly indicated your reluctance to get into the specifics of it. If I might please, Mrs. O'Connor, let me shift to one other point—time moves on—a different area beyond Roe v. Wade, but it relates to the check and balance that the Congress has upon the Supreme Court and the Federal judiciary. This is the question that Senator Specter so properly raised this morning on the question of jurisdiction under article 3. 201 Under article 3 of the Constitution, as you are well aware, there is the language dealing with this question of the appellate jurisdiction of the U.S. Supreme Court. We are told that, "the Supreme Court shall have appellate jurisdiction both as to law and to fact with such exceptions and under such regulations as the Congress shall make." That is very explicit language to me, indicating that we do have that check or balance to set the limits, great or small, of the Supreme Court's appellate jurisdiction. You were noting that article 3. Then the question was: Do we have any Supreme Court precedent on it? You noted ex parte McCardle. I was interested in your comment. You said, "This is all we have; we don't have much to look at." I would query, Mrs. O'Connor. We have an express provision in the Constitution. We have a Supreme Court decision that expressly upholds it. I would say that is a great deal to look at. That is about as convincing as one might make the case if stare decisis, precedent, and express language mean anything. Am I correct in understanding your position that this is a very open, clouded issue whether the Congress has the power to deal with the question of the appellate jurisdiction of the U.S. Supreme Court? Do you think that is very much an up-in-the-air question?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator East, only in the sense that we do not have experience as yet in the area of the Congress having actually passed legislation which becomes law and which says, for instance, the U.S. Supreme Court shall have no further jurisdiction over any question relating to, let us say, busing of schoolchildren. We have not had that kind of legislation enacted, and therefore no test, if you will, of the validity of that. When I said that it was an open question I think I referred to the fact that a number of constitutional scholars have written articles on that very question simply because there are so many proposals now pending in the Congress to limit the appellate jurisdiction of the Supreme Court and also jurisdiction of the lower Federal courts in a variety of areas. So the subject has become one of interest. I did point out that some believe that ex parte McCardle was perhaps not the complete answer to all questions which might potentially arise without power to be exercised in some fashion by the Congress. So I suppose in that sense we would logically expect that such an enactment could be questioned. Ex parte McCardle is the case which was decided on a specific enactment of Congress repealing appellate court jurisdiction of the Supreme Court in that instance of any habeas corpus holdings of the lower courts. That simply is all that we have on that area. If I might go back to your previous question for one moment to make one comment I would appreciate it. That is, in trying to draw the line on past cases where you feel comfortable in making comments as a nominee and those which you do not, I am simply aware in this instance that there are a number of people who have urged and continue to urge that the Roe v. Wade case—those who believe it was incorrectly decided who urge that the matter should be brought back before the Court at the earlier date and the Court 202 should be asked to consider again that question or questions related closely to it. I think that it does fall in a category for that reason of concern as opposed to those cases where we are not hearing that kind of an approach.
Senator John Porter East (NC)
Senator
(R)
Senator EAST. Mrs. O'Connor, on that point, every fundamental constitutional question is never fully resolved; it is always recurring, in whatever field it is. I see what you are saying, and I respect your judgment on it. I just respectfully disagree in that questions are always recurring, being reexamined, and redefined. I do not see anything that is unique about this one as opposed to the others because they too shall be coming back, and I suspect this one will be coming back for an indefinite period of time. But, again, I thank you for your courtesy and responsiveness. Mr. Chairman, I have run out my time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Montana, Mr. Baucus.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Thank you, Mr. Chairman. Judge O'Connor, I think it would be helpful if we pursued the same issue a little further. It is my understanding that subsequent to the McCardle case the Kline case was decided which held that the Congress cannot limit Supreme Court jurisdiction in order to achieve a certain result. Not only are there various constitutional scholars who come down on different sides, but the case law here is a bit confused, too. Is that not the case?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, you are correct. I think approximately 4 years after ex parte McCardle we had the case in 1872 of United States v. Kline. I believe—I am not certain—that case involved a removal of jurisdiction at a lower Federal court level and was not directly related to the appellate jurisdiction of the U.S. Supreme Court. I could be wrong, but that is my recollection. The case involved a matter which was then pending involving a litigant in the lower Federal court who had obtained a Presidential pardon for^disloyalty in the Civil War, and he had a claim which was being made which he was entitled to make based on the Presidential pardon. The Congress passed a law which in effect directed the court to dismiss the lawsuit of any person who had obtained a Presidential pardon for disloyalty in the Civil War. It was directed of course at that precise lawsuit, and the Supreme Court did hold that that action by Congress, which was directed toward resolving a particular case, was invalid.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Yesterday when we discussed this same issue I asked you as a matter of public policy how far you felt Congress should go in limiting Supreme Court review of constitutional questions. You appropriately did not give a definitive answer to that question. Nevertheless, I was left with the impression that you had certain problems with limiting Supreme Court jurisdiction because you cited a vote that you had cast in the Arizona Senate on a related issue. 203 I would like to quote from the minutes of the Arizona State Senate, which quote you, after your vote in opposition to Senate Memorial No. 1. This was on February 25, 1970. It substantiates the point you made to me yesterday. I quote—this is you: The issue is whether we want to advocate stripping the supreme court of jurisdiction over certain matters because we disagree with some of its decisions. I too disagree with certain United States Supreme Court decisions in the field of pornography and obscenity, but I cannot advocate limiting the Court's appellate jurisdiction. Once we start such a procedure, where do we stop? My question is whether you still subscribe to that view.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, I was of course speaking as a legislator in 1970, and I do not want to be put in the position of suggesting to other legislators how they should view the situation today. But that certainly was my expression at that time in regard to the proposal that was before us. I do not think that I would have retreated from that position thereafter as a legislator. SPECIALTY COURTS
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Turning to another area, because our country is getting more complex, some have suggested that we create specialty courts, particularly specialty courts of appeal—a tax court of appeals for example; some have suggested an environmental court of appeals. My question to you is what is your general view of the degree to which Congress should set up specialty courts of appeals as opposed to letting the circuit courts of appeals and the Supreme Court handle complicated and arcane issues as generalist judges.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, Senator DeConcini was really addressing some of the same questions with me this afternoon. I do not know that I have a clear picture in my own mind of precisely how such courts would work. I think the Congress is now in a position to evaluate the bankruptcy court structure that it has established—and that certainly is a specialty court in a sense—and can determine whether the enhanced jurisdiction that has been given to that bankruptcy court will work well in that specialized area. If it does and if people generally are satisfied, then perhaps it can be considered in some other areas.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. I am wondering though, as an appellate court judge, what guidance you might give us. Do you think it is good public policy to move in the direction of setting up specialized courts; or is it better public policy for appellate court judges as generalists to hear cases arising from different directions?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, as an appellate court judge, I have personally valued the opportunity to deal with a wide range of cases and issues. I have been happier in my work, if you will, just as a personal matter, to have the opportunity to deal with a broader range of issues. What we really want to know is what best serves the public generally—what is going to make the court system work best and not what pleases the appellate court judges.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. That is correct. 87-101 O—81 14 204
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. In that regard I think we have to develop a little experience before we can say that it is appropriate to go off in a certain area. It is conceivable to me that in some areas they are so completely specialized that it is not totally inappropriate to at least consider it—conceivably in the tax or patent area, for example—but do we need ultimately some avenue back into the general court system for some final review from that specialized first treatment? These are the questions that need to be evaluated, I think. REDUCTION OF VIOLENT CRIME
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. AS you know, this committee and the Congress have been asked by the President to take up a major crime package. On that agenda are many items including the death penalty, sentencing reform, bail reform, preventive detention, elimination of the exclusionary rule, and a massive program to build more prisons. Based upon your experience as a jurist, a legislator, a mother, or as a citizen, tell us how you think we should go about addressing the problem of violent crime. In which of these areas do you think we should spend most of our time and attention? How much do you think we should devote resources to rehabilitation? Or is that passe? Should we spend time on enacting tougher longer sentences? I am just curious as to what your general philosophy is toward violent crime and how we reduce violent crime.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, I wish I had a ready and an easy answer, because I think the problem is of enormous significance to us as a people and as a nation. I think it is of grave concern to our citizens, and certainly it is to me. My experience with the criminal justice system has resulted in some disappointments in the lack of effectiveness; the recidivism rate is extremely high, and the crime rate generally is extremely high. We have to ask why. It is a question that I have asked myself many times, and I think it is partially a result and factor of a general breakdown, if you will, of the standards that we apply in our society to moral behavior. I truly believe that. Whether there is some legislative remedy to that I question. It is a matter that has to concern every one of us, and we have to attempt in every way we can to set standards that will discourage criminal behavior. It seems to me that we are a mobile society, we are no longer a rural society, and we live big cities, our neighbors do not know us, and we do not know our neighbors. We do not have extended families living together, and so the pressure that comes from peer pressure, if you will, to behave in certain acceptable ways no longer exists for most people in our Nation. I think these things contribute, frankly, to the crime problem. I also believe that our ready access, at least in the Southwest, to the drug traffic has contributed heavily to the crime problem in those Western States. It has been a very serious matter, and if there were some way to spend a little more effort and control in 205 the problem of traffic in heavy narcotic drugs I think it would be time and effort well spent. If there is a way to provide more prison space, it is evident that there is a great need for that at both the State and the Federal level. We simply have more population, we have high crime rates, we have people who are being sentenced, and there is no space for them. In Arizona, for example, we have a State prison sentence that the legislature has devised as a sentencing structure that was intended to be very specific for the judges. Certain crimes would have certain fixed sentences imposed. We are so short of prison space in Arizona that a 5-year sentence that is imposed by the judge might result in a release within 3 months because there is no room at the prison. That kind of system is not effective. So there are many means, and I think we need to approach them on a broad front. I wish I had some easy answers, but I do not think I do.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Frankly, I commend you on your answer because I think it is very complex and there is no simple solution. For example, I think that the building of prisons or lengthening of sentences alone is not the answer. It is a very complicated problem. It reminds me of something that H. L. Mencken once said, "For every complicated problem there is a simple solution, and it's usually wrong." We have to exercise every effort at our command to try to resolve it, but it is going to be a complicated and a very difficult effort. As a westerner I know you are very aware of some of the resource conflicts that are emerging in our country. The West has a lot of coal; oil and gas development is a potentially promising source of energy for our country; oil shale is developing in the West. As I am sure you know, the Western States also are trying to protect their own resources. They have enacted severance taxes to compensate for the costs of development, including the disruptions and dislocations that might occur in those States. As energy becomes more desired in our country, there is a greater potential for more conflict between Eastern States and Western States—the producing States in the West and the consuming States in the East. I am curious as to how you see the tension resolving itself and the degree to which you think the 10th amendment will have any meaning as these cases arise. The Supreme Court, as you may know, not too long ago held that Montana, for example, properly imposed a severance tax on coal that is mined in the State of Montana. The court held that the commerce clause did not prevent the State from imposing such a tax. How do you see the Federal-State tensions moving, and what guidance would you give us in trying to help resolve that?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Baucus, I do not think I can give the Congress any particular guidance in that area. These are matters as far as the Congress is concerned that affect very directly the 206 State and Federal relationship. So these issues will be debated fully here and explored from a policy standpoint. With regard to the 10th amendment, to the extent that the regulations I suppose are directed or the Federal statutes, if you will, are directed toward the activities of private business as opposed to the activities of the States as States, the most recent pronouncements indicate that the 10th amendment would not be considered as a bar. So I do not know that we can look to that for guidance in the extent to which the Federal Government is properly regulating activity of private business within the States in this developing field.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. I guess my question really is what you see in the Constitution that enables States to control the development of their own resources as opposed to provisions in the Constitution which allow the Congress to limit State control over resource development. Unfortunately my time is up, so we cannot pursue this any longer. I want to close, though, by saying that this is probably the last time you and I are going to have to chat publicly over these matters. I think you have been an excellent witness. There is a possibility that you may reappear later after the other witnesses. That has not been finally determined, but in all probability you will not return. I frankly want to praise you and tell you that I think you have done very, very well. I wish we had more opportunity to discuss more substantively some of the issues that are coming before the Court. I understand your reluctance to get into some of these matters in great detail. I agree that you should not discuss them publicly more than you have. Your restraint in addressing these questions has caused my admiration for you to increase rather than decrease. Further, I think it is in large respect your personal views on substantive issues is less important than your competence and your integrity. You have certainly demonstrated the highest integrity and the highest competence in your testimony before us. I just want to wish you the very best of luck. You are going to have to bear heavy responsibility on the Court. In many ways I envy you. We all send our best wishes with you. Thank you.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you very much, Senator Baucus.
Senator Max Baucus (MT)
Senator
(D)
Senator BAUCUS. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Iowa, Mr. Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge O'Connor, since I tend to look so serious whenever I ask questions I would like to spend just a few minutes being philosophical and commenting in much the same vein as my predecessor, Senator Baucus, has just done. This may be the last time you and I will have conversations unless, for instance, you would be nominated for Chief Justice some day and come back before the committee. As I think about the things that I would hope for you, I have to think about the first thing you said to me when we met privately in my office. I was very relieved to have you say it and open up the conversation in that way. You said something to me like, "And 207 you're a farmer, too." You then went into a discussion of your background, having obviously done your homework about what Chuck Grassley was all about. That did not mean so much at the time, until I was later visiting with somebody in my home State who said things that were complimentary about you. Although the way I repeat them they may not come out that way, they are intended to be complimentary. As he was trying to explore with me whether or not you ought to be confirmed—and it was his opinion you should be—he too had read something about your rural background, and that you had worked your way through the legal system and the political system to become what you are today. He looked upon your appointment as a breath of fresh air. His understanding of your background had a great deal to do with his looking sympathetically and approvingly at your nomination. I think the implication was that here you are, a person who has been successful, you have come from a rural State with a rural background, and people who have that sort of background cannot be all bad—in fact, your having a rural background could bring a dimension to the Supreme Court that was refreshing to him. I put together what he said with what you first said to me, and realized that there is something very personal about you, brought out in meetings like this, that cannot help but impress us very much. I say this now because I am always one to ask questions, never having time at the end of a 15-minute interval for these kinds of comments. At any rate, this is the way that I have looked at you in the 6 weeks or 2 months that I have had an opportunity to know about you and read about you. LEGISLATIVE VETO Now I would like to ask you a question that would follow up on what I believe Senator Dole brought up. He was getting into a philosphical discussion with you about whether or not administrative agencies had been delegated too much power by the Congress and the extent to which that delegation ought to be reviewed, and further controlled by Congress. I would like to ask you somewhat the same question that I asked you in our private conversations in my office—how you look at the whole subject of congressional veto or whatever terminology you might want to use—the whole process by which Congress could have some sort of check on the administrative agencies as a followup of the delegation of legislative authority, and not as a congressional control over administrative decisions that are constitutionally within the realm of the President. I think that that is a differentiation that we must make. I would like to have your opinion on congressional control or review over the delegation of a legislative authority.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, I know that that is a topic of great interest presently in the Congress. Several proposals are being made for a legislative veto in one form or another. 208 These proposals are being aired in various forms at the State level also. I understand they have actually been adopted in a number of States in one form or another. I had no experience in Arizona with a legislative veto, if you will, because during my years there no such proposal was adopted. So I have had no personal experience at all with it. As it has been discussed and considered in the Congress some have expressed concern about the separation of powers concept and the extent to which Congress should have veto power, if you will, over administrative agency regulations after those regulations have been adopted. These are really unanswered questions in two ways: One, the Congress has not adopted such a provision yet really; and, two, the courts have not had a chance to review them in respect to the allegation of separation of powers. It strikes me that Congress has a very effective power irrespective of any legislative veto provision that it might want to adopt, and that is the power to take a look at the administrative regulations which the particular agency has adopted, and if Congress feels that that agency has gone beyond the scope of the intended authority of Congress, Congress has the power to directly legislate in such a fashion as to make clear that it was not intended to have that power and to effectively by direct enactment curtail that kind of power. So I assume that that is a very direct means which Congress can also use.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. That would not be included in one of the instruments though because that is just a natural response and obviously a constitutional response.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Legislation amending existing statutes would be the sort of instrument—and I use that term very generally— that would be considered and is being considered by the Congress. How would you view something beyond what we know and understand we can do presently under the Constitution?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, I wish I could give you a more definitive response, but my experience with it is limited, and I do not believe the court has had a chance to rule on it, so I cannot speak from that viewpoint. I assume that a lot of questions are being addressed by the Congress as they consider these proposals. For instance, if the reviewing body is less than the entire body of Congress; if it is confined for instance to a designated group within one branch— either the Senate or the House—then you run into questions of bicamerality.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. That is true.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. If it is less than a whole body, what do you do with that?
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU do not need to go into those details. Maybe I can make it easier for you by asking if there is anything in the concept that you find abhorrent to you personally from your legal experience, from your being a legislator, or as you have an understanding of the Constitution today.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, I would only say that there may be basic issues of separation of powers involved in a particular 209 enactment, but I would certainly want to look at the particular enactment that was produced before formulating any conclusion and would also want to have the benefit of briefs, arguments, and discussion.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. On another point—and this again has been asked by one or two other Members but not quite in the way that I am asking it—the Court has recently required that the plaintiffs in civil rights litigation specifically demonstrate how it is they have been discriminated against before the burden of proof shifts to the defendants. Previously the plaintiff was only required to make the allegation of discrimination and then the defendant had to rebut that allegation. Would you favor placing a stricter burden on the plaintiff?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, I do not know that I have reviewed the decision adequately enough to know precisely what standards are being employed. I would look initially I think at the statutory provision involved—if it is a proceeding under title 7, title 6, or whatever it is—and determine the intent as expressed by Congress in reviewing such a matter. Then I would certainly want to look at the precedent established in the cases. If the precedent is established as you say quite firmly with respect to that provision, then that would of course be very significant.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Again there has been reference made by several members of the committee to the recent Law Review article that you wrote from the perspective of a State court judge. In my reading of that, as I had done previous to my private meeting with you, I got the impression that you would look favorably upon returning to the State court exclusive jurisdiction in some matters which involve Federal constitutional questions. Is my impression correct, and over what matters do you believe only State court review is necessary?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, I do not think I ever expressed the view that State jurisdiction should be exclusive on Federal questions. Indeed it cannot be under our constitutional system. But I did feel that there are many instances in which a full and fair hearing of a Federal issue can be had at the State level. In those instances perhaps we already have seen indications that when that is the case perhaps the Federal courts will decline the granting of a further review other than a review to determine whether there was a full and fair hearing granted at the State level. Those types of trends seem to me to be healthy.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. That was obviously written during your present position on the court of appeals. How do you view your consideration of that article and specifically this point now that you are being considered for the Supreme Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, that remains to be seen. I was asked that question, I think, by someone when I spoke at the seminar and was asked, "Well, I wonder after years of experience on a Federal bench if you would view the thing in the same light?" I can only say to you that if given that opportunity I would be happy to report back. [Laughter.] 210
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. DO you feel your attitude toward the State court system has been affected by the fact that you became a State court of appeals judge after having been a State trial judge?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Grassley, I do not think that it altered my perceptions of the capacity of the State court system to consider certain questions. I would say it reinforced those views.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, I yield back the remainder of my time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. Senator Denton is next. He had to go to the White House, and so we have agreed on account of that emergency for him to question in the morning on his second go-round. Senator Specter, we have now reached you. LENGTHY COURT DELAYS
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge O'Connor, in light of the hardship on litigants occasioned by lengthy court delays do you believe it would be useful to limit the time that appellate courts could take to decide cases, along the lines of the Federal Speedy Trial Act for criminal cases?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, that is a difficult question in a sense. I am extremely concerned about the length of time that it takes to get civil litigation concluded. Certainly at the appellate level some cases require a great deal more work and study than others. At the appellate level some cases take longer time within which to gain a consensus than do others. This is a natural part of the process, and so a time limit that would be quite suitable for a run-of-the-mill case for which there are no unusual difficulties and no unusual disagreement among the Justices would not pose particular problems. On the other hand, some other cases could pose problems. State legislatures have occasionally addressed this problem. Indeed, the legislature in Arizona has and has mandated that judges may not receive their paychecks unless work is completed within a certain amount of time, granted certain exceptions however at the appellate level.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. What is the result then of withholding pay?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I do not recall any checks having been withheld. Whether that is because the work is done or it is not being enforced I could not tell you.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. IS there any realistic way that the Congress could act to limit the courts from writing such long opinions?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, I wish there were. I think that we can do a good job in general with less verbiage. At least that is my belief. It is my hope that I would be able to do that. Time will tell.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. In dealing with the complexities of the cases, the Supreme Court limits the length of briefs and limits the time for litigants to make their arguments. Why would it not be equally possible to limit the length of court opinions or the length of time that the courts could spend? They deal with the same case in terms of complexity. 211
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, I am sure that we would hear if we were to consult with others the fact that some cases require more words to explain than others, some issues are more complex, in some cases the court has to address more issues which have been raised by the litigant, and it obviously takes more words and more paper to do that. Just speaking in broad generalities, I tend to favor, if you will, brevity but not at the expense of clarity or not at the expense of a failure to analyze or expound on the necessary issues. That is terribly critical. I am sure litigants would rather have an extra page of paper, if that is what it took, to deal with a specific issue than to have some arbitrary limit on the length. But just speaking in general terms, I think brevity can be a virtue and dealing with matters expeditiously is clearly a virtue.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Our research has shown that you have not written any dissenting or concurring opinions. Is that accurate?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. NO; Senator Specter, it is not. In the sense of the published opinions it is possible that that is the case, but I have participated on my panels in the court of appeals in many cases, and there have been at least some occasions in which there has been a dissent or a concurring expression by me. Whether it was in a memo decision or decisions I am not sure. MULTIPLE OFFENDER STATUTES
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, do you think it wise, as many States have done under multiple offender statutes, to give the trial judge the discretion to impose a life sentence on a person convicted of four major felonies such as robbery, rape, burglary, arson, or drug selling?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. DO I think that is an appropriate sentence possibility?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Yes; do you think it is wise to give a trial judge the discretion to impose a life sentence for the so-called career criminal defined under many multiple offender statutes as a person who has committed three or perhaps four major felonies among the ones I enumerated?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, without expressing any opinion on the eighth amendment implications, if any, I am generally in favor of giving trial judges discretion to impose lengthy sentences if necessary, including up to life sentences, for repeat offenders. That concept seems to me to be generally a valid one. It has been my observation that a life sentence can be a lot shorter in actuality than a lengthy term of years. Be that as it may, I think discretion is appropriate. MANDATORY LIFE SENTENCE
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. When I asked you this morning about the death penalty you commented in addition that you were opposed to mandatory sentences. What would your objection be, if any, to having a mandatory sentence of life in jail for someone who is established as a career criminal—a repeater of violent crimes—by 212 a standard of having committed three or four major felonies such as rape, robbery, burglary, or drug sales?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, this morning in response to your question on the mandatory sentence I indicated that I had voted against a mandatory death penalty statute in Arizona; and that was not intended by me to be an expression of the view that I am opposed to a legislative body mandating certain narrow ranges of sentence for all other crimes. I did not really address that subject, and you now are. I think that certainly the legislature has a prerogative—a very great prerogative—in the area of determining the range or appropriate sentence for criminal behavior. In fact, I can think of no more frequently exercised topic of discussion and action for State legislative bodies than in that very area. It is not inappropriate in my view that a legislative body might determine that there are certain very closely defined limits for sentencing of repeat offenders.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. DO you agree with the feelings of many of us who have been active in law enforcement that as a generalization judges do not impose sufficiently long sentences for violent criminal repeaters?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, it is hard to generalize on that. There is no doubt that the criticism perhaps can be made of some judges with some sentencing patterns. The public has often been dismayed at the sentencing habits of individual judges. These are very individualized matters, of course, because each defendant in being dealt with by the court at the time of sentencing presents a different set of circumstances as to background, age, and circumstances of the offense, and so forth. It is a very individualized matter. The expression of the public sentiment and disappointment about judges' sentencing patterns has resulted in some States, such as Arizona, in the adoption of an entirely new sentencing structure in Arizona and in the production of an entirely revised criminal code. The result of that effort was to closely restrict the discretion of judges in sentencing. To an extent, that effort of the legislature has been frustrated in large measure by the fact that there is not prison space and that the sentences that are mandated and handed down are not served. So it has been, I am sure, a continuing frustration both to the citizens and the legislators. FEDERAL AND STATE JUDGE SALARIES
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, do you believe that there is a real danger to the quality of the Federal bench posed by resignations because of low pay?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, this has occurred of course. It has occurred at the Federal level—I have read of instances—and it has occurred at the State level. I am aware of a number of those instances. I may say that the pay of State judges generally is substantially lower on the average than that of the Federal judges. So if there is a problem at the Federal level it is even more acute at the State 213 level, and it is and should be a matter of concern to people generally to see that judges receive adequate salaries in my view, sufficient to attract competent people to the bench and hold them.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. In a day with so many very deep Federal cuts in so many programs—social programs and perhaps now defense— is it appropriate to raise Federal judges' salaries to offset a significant threat being posed to an inadequate Federal judiciary by current wage levels? This is a question consistently before the Congress.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, it seems to me that the Congress has to consider seriously the plight of all officers and employees who are serving at fixed salaries in a period of heavy inflation. It seems to me that that is absolutely crucial that those factors be considered in determining what is appropriate.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Are you familiar with the Supreme Court decision, United States v. Will?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is the salary case, Senator Specter?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Yes.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Yes—generally I am.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. That case posed a situation where for four pay periods the U.S. Supreme Court decided, in favor of judges, to raise the compensation for Associate Justices from $72,000 to $88,700, circumventing what is customarily the congressional prerogative to establish compensation for Federal judges and did so on the very narrow ground that where cost-of-living adjustments had been passed by the Congress and in 1 year the President acted to rescind it on September 30, and in another year the President acted to rescind it on the morning of October 1. The Supreme Court of the United States said that where the year had started and the cost-ofliving adjustment had gone into effect rescinding it would be a violation of the constitutional prohibition against diminishing the salary of a judge in a term of office. I think there are many of us who felt that whatever case there was to be made for increases in compensation, including Federal judges, it was a matter that ought to come through the Congress, as with all other Federal employees, as opposed to having the U.S. Supreme Court itself take the bull by the horns, so to speak, and give themselves that kind of a pay raise. I think that is a case which is not likely to come back, at least in that form, so perhaps that is one where I might appropriately ask if you agree with that specific decision.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, I frankly did not study that decision at all. It was not of that great a concern to me because I little expected that I might some day be sitting on that court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, the case may have some extra significance soon. There has been a fair amount of comment about the desirability of letting the public have a greater understanding of the work of the U.S. Supreme Court, and there has been a popular book written recently, "The Brethren", which perhaps had as sources of information disclosures by employees of the Supreme Court Justices. 214 Would you consider restricting in anyway your law clerks, your secretaries, or anyone under your direct control from making any such disclosures to journalists?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, I do not know whether I would or not. I certainly would instruct employees that they must maintain the strictest confidence concerning pending matters before the Court. That seems to me absolutely crucial and vital. I think little is to be gained by anything less than a very firm policy in that regard. No doubt other matters such as personalities or the general way in which the business of the Court is conducted are matters which will always be discussed to an extent by those who have knowledge of those aspects. DIVERSITY IN SUPREME COURT APPOINTMENT
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Let me skip quite a number of questions since my time is almost up and ask you one final question, Judge O'Connor. Do you think there is any basis at all for appointing a Supreme Court Justice with a view to diversity on account of sex, race, religion, or geography; or would you think it preferable to appoint the nine most qualified people that could be found for the job, even if they all came from Stanford in the same year and lived in Arizona?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Specter, that would undoubtedly guarantee quality if that were to be the case. [Laughter.]
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. It might also, in the process, eliminate the potential conflict of interest issue which was raised by Senator Biden with respect to Mr. O'Connor.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Very possibly.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. DO you think though that there is any realistic basis to look for diversity—more than one woman; perpetuating, if I may say, a black seat on the Supreme Court; or seeking geographical balance in the appointments to the Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator, I think the Court traditionally has reflected some effort to achieve diversity. Anyone who is skilled in the political arena knows that it is often desirable for political reasons to see that diversity in any given body in which the appointment process is being exercised reflect a certain amount of diversity. I would expect the political process to always take that into account to some extent. At the same time, I think it is quite possible, even though one might want to have diversity, whether it is of geography, race, or sex, to all select people of competence, ability, and quality, because I think people of that capacity abound in all races, in both sexes, and in all parts of the country.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge O'Connor, I started this morning by complimenting you on your tour de force of yesterday and I would add to that my compliment for today. In the interest of hearing the balance of the witnesses who will be coming forward I will refrain from making any commitment as to my own vote, but that is the only reason.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you. 215
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I have a letter addressed to me as chairman of the Judiciary Committee, from Congressman Bob Stump of Arizona. It is a very complimentary letter about you, Judge O'Connor. Without objection, we will place this in the record.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Mr. Chairman. [Material follows:]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I have a letter from Senator Gordon Humphrey requesting that you answer certain questions. I would turn that over to the staff. If you could answer those by tomorrow it would be appreciated. [Material follows:] The CHAIRMAN. Senator Biden has asked for a special concession of 3 more minutes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. Judge, I want to just cover one area that, although I had to be out of the room for about an hour and a half, I do not think was covered. That was relating to court procedure in standing. In deciding whether standing exists or whether a class action would properly lie, should a Supreme Court Justice take into account his or her belief, assuming that it is held by that Justice, that the courts are too congested and that the dockets are too crowded when determining whether or not standing exists or whether or not a class action properly lies?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Biden, I have not had to address this question. As a judge, it seems to me that primary in determining whether to decide that a given case is a justiciable case would be perhaps factors other than court congestion—the importance of the issue, the posture in which the case is, the other factors that one normally considers.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I would hope that that would be the case. Although the courts clearly are congested in many areas and although the dockets are sometimes too crowded, it seems to me that the ability to have access to justice should not be precluded as a consequence of the inability of either the judiciary and/or the legislative body to make accommodations for access to justice. I would hope that as a Justice you would not make as part of your decision whether or not to preclude access the fact that it was crowded—in other words, "You came too late, fella—sorry—even though you have a justiciable case." I would hope that would be your position, as you stated. I have no further questions. Thank you very much for your comments.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator East, did you have any further questions?
Senator John Porter East (NC)
Senator
(R)
Senator EAST. NO, thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. That concludes with you this afternoon, Judge O'Connor. We have some other witnesses, so we are going to go ahead. I want to be sure we finish tomorrow, if possible, by 1 o'clock.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. YOU are welcome to stay.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Senator Biden.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. With the permission of the Chair then, thank you, Mr. Chairman. I shall withdraw. TESTIMONY OF HON. SANDRA DAY O'CONNOR, NOMINATED TO BE ASSOCIATE JUSTICE, U.S. SUPREME COURT—Resumed
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Thank you, Mr. Chairman. Good morning, Judge O'Connor.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Good morning.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. At the outset, let me clear up what amounted to a misunderstanding on my part yesterday. I had questioned you on your personal views on abortion, and you stated during that exchange, "It remains offensive at all levels," and stated that you think it is a problem at any level. Then I thought I heard you say that you would not be in favor of abortion even to save the life of the mother. After several others had thought the same thing, and then having been questioned by some news people, I did look at the transcript and so forth and find out that that is not what you said. You actually said: "Would I personally object to drawing the line to saving the life of the mother? No, I would not." You went on to say: "Are there other areas?" Then you said: "Possibly." Therefore, I would have to withdraw my statement since it was based on error in understanding you. I misunderstood you. I would have to say that it appears that indeed you are not more conservative than I on that issue, and I would remind you that legislatively the Congress has done what it could to outlaw or forbid pay- -237 238 ments for Government funding of abortion except to save the life of the mother. That is where Congress drew the line but we could not go any further than just stop Goverment funding for it. We could not get into the legislation of abortion with respect to the public because we were preempted by a Supreme Court manifestation of judicial activism in the Roe v. Wade decision. Therefore, there is a real problem of that judicial activism, and I am sure that not all of my colleagues would agree that it is the wrong kind but, nevertheless, there was that example. Therefore, I have learned that you are less conservative than I, and as I go into the Kenneth Starr memorandum I would refer to a previous statement of yours which said that you felt that your personal feelings should not constitute the basis of decisions made on this matter or any other matter in the Supreme Court, before the Supreme Court, but rather that if there is a constitutional principle which applies, it should be the determining factor. I submit that in the Declaration we do have the statement, "all men created equal," et cetera, "endowed by their Creator with certain inalienable rights. Among these are life * * *." Then in the Constitution, in the Bill of Rights, article 5, "No person can be deprived of life without due process of law." Senator East, as you know, has been conducting hearings to determine whether or not a fetus is a person. I agree that that is a very difficult question. I do not agree that it is difficult to determine that it is human life. I believe that that is irrefutable. I believe that, as I said before, our democracy is predicated on respect, infinite respect, for human life. Socrates, whom we may be proving right these days, has said that a democracy cannot work because sooner or later the people will perceive that they can get their hands in the till; elected officials will cater to that trend, and bankruptcy will result. I think we are on the way to proving that, were on the way to proving that true. We are trying to turn that around. He also indicated that the majority would crunch the minority in every case in a democracy. By our system we have been proving him wrong so far—and I am justifying why I am going into the Kenneth Starr memorandum and the abortion issue further. The Judeo-Christian ethic brought compassion into the picture. The ethic did not exist as a religious principle in Socrates' day. He tried to talk about a "one god" thing and they poisoned him because he did not believe in all of the gods being the way to go. Therefore, we do have a substantial portion of the world believing in that God, and among those nations the United States has been one of the more notable. That ethic of compassion applied to the dog-eat-dog majority rule in the political sense, and the otherwise dog-eat-dog, free-enterprise system, is in my opinion what has gotten us to the point where we have proved Socrates wrong, have made a success out of democracy. To me, compassion is the key to civil rights, to human rights, to caring for the needy, to the survival of a democracy. If you break down compassion, you will find the prefix "com"—with—and the word "passion"—passion for what? Humanity, infinite, godlike humanity. 239 The human life in the womb is the most needy, most dependent, most helpless minority, for which—for whom, depending on how you want to look at it—we must have compassion. Our real political, economic, military, and psychological problems from my point of view—and I thought of this a great deal in prison and after coming home—all stem from our growing preoccupation—which has been repeated over and over in history—as a nation becomes more preoccupied with luxury than necessity, we have become me-istic. We have stopped thinking about the other guy as much, our wife or our husband, our brother, our fellow of another color, our colleague of another color. I believe that abortion is the opposite of compassion for that being which needs it the most. I believe that history will prove that once a nation goes that way, from an ethic like ours, as Nazi Germany did, you immediately get involved with infanticide, euthanasia, genocide, and the whole idea of selective murder. This brings into play the question of the convenience of the existence of that person which is based on human judgment. That is why I feel so strongly about what might be called fetal rights, the right to survival on the part of that human life. I do not believe, with you, that learning more about fetuses will ever change the fact that there is life there, God-given life which we do not understand, and we do not even know what makes grass grow. How can we get into the process of deciding, for convenience or for money—because that kid is going to cost money if it is born—or embarrassment that we want to spare the 13- or 14-yearold girl—and you have said that you are opposed to it for birth control purposes. However, I want to know what you meant yesterday when you said, "Are there other areas?"—besides saving the life of the mother—and then you said, ''Possibly." I would have to say that that is less conservative than that which Congress has indicated as its collective will, and it leaves me befuddled as to where you are. I feel I have gotten nowhere, in that you have said possibly there are other areas. We could go on for perhaps a month, and if that is all the specific you are going to be, I would not know at all where you are coming from philosophically on that issue.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I believe that I recounted previously for the committee my vote in the legislature on funding in connection with the bill for providing medical care to indigents, where I did support a measure that provided for certain exclusions in addition to what was necessary to save the life of the mother. In that instance it included instances of rape and incest, criminal actions, and I supported that.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. However, the criminal action—a little baby to be—is not involved in.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. I simply was trying to indicate, Senator Denton, where I had had occasion to vote as a legislator on the issue. These are very difficult questions for the legislator because, of course, people—many people—share your very eloquent views and your very perceptive views on this most pressing problem. There are others who, perhaps out of different concerns, might draw the line in some slightly different fashion or indeed in some substantially different fashion, and these are the troubling issues 240 that come before a legislator when asked to specifically draw the line. I appreciate that problem. I think I can simply indicate to you how I voted at that time on that issue.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. OK. Well, with respect to some of those votes, then, I would like to go into the document which has become known as the Starr memorandum. I would preface that by a question. You feel abortion is personally abhorrent and repugnant. Would it follow that you believe the unborn ought to be legally protected? If so, how and at what stage of their development?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, excuse me. Is that your question?
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes. You have stated that you feel it is personally abhorrent and repugnant, and that it is a legislative matter to deal with it. Do you mean by that that we should legally protect the unborn? If so, how, considering the Roe v. Wade activism from the judicial branch?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Senator Denton, a legislative body at the State level today would be limited in that effort by the limitations placed in the Roe v. Wade decision. I recognize that. If a State legislature today were to try to draw the lines, it would have to reckon with that decision, which of course places substantial limitations on the freedom of State legislative bodies presently.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Until that decision is changed or if something comes up to render it subject to change, it makes your appointment extremely important and your philosophy on that matter extremely important. Therefore, I hope you can appreciate the interest of those tens of millions—and there are tens of millions on the other side—who are interested in your position on that. I am not clear that we have drawn much out. Let me get on this
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I do appreciate the concerns and the strongly held views of so many people on this issue.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. I understand that. On July 7, 1981, you had two telephone conversations with Kenneth W. Starr, counselor to the Attorney General of the United States.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Excuse me. On what date, please?
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. July 7, 1981, is my information. Did you state in one or both of those conversations that you know well the Arizona leader of the right-to-life movement, a prominent female physician in Phoenix, and have never had any disputes or controversies with her?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I am sure that I indicated that I knew Dr. Gerster. Indeed, she lives in the same community in which I live, the Scottsdale-Paradise Valley area.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes, and you are acquaintances.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. We have children who have attended the same school, and I have seen her on any number of occasions. I had occasion, of course, to see her in 1974 in my capacity as a legislator as well. She at that time was interested in the house memorial 2002, dealing with the question of whether the Arizona Legislature should recommend to the Congress an amendment of the U.S. Constitution as a means of addressing the Roe v. Wade decision. Dr. Gerster 241
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Excuse me. I do not mean to be impolite but in the interest of trying to stay within the time, the only part of the question that I am—the question deals with whether or not you said that you had never had any disputes or controversies with that leader, Dr. Gerster. Did you say that, because the Starr memorandum is quoted as having had you saying that?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I am sure that I did indicate that and I would like to explain precisely why I said that. As a legislator, I had many instances in which people would come before the legislature and espouse a particular position with regard to a particular bill. I as a legislator was obligated to listen to those views along with the views of others, and then ultimately cast a vote. My receiving of information of that sort and ultimately casting a vote, even if it were cast in a manner other than that being espoused by the speaker, did not cast me in my view in the role of being an adversary. I did not feel that in my position as a legislator, that every time I voted against a measure that someone in the public sector was supporting publicly in front of me, that I became an adversary. I was not a leader in connection with the passage or defeat of house memorial 2002. I was a legislator
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. I understand. I really do understand the thrust of your answer. It does appear, however, that the thrust that one would take from that answer which was quoted is that you and the right-to-life movement leader there really had no disputes on probably that issue. That I think might have been gleaned from that statement. I leave that to speculation. It certainly would have been my inference from it.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Well, Senator Denton, I think that it is important to recognize that what I am trying to reflect is that because I may have voted differently than Dr. Gerster would have, had she been a legislator, does not mean that we are adversaries.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes, I understand. However, there has been much opposition to your nomination and public statements by Dr. Gerster, which probably we will hear some of later, concerning her opposition to many of your past legislative decisions. Therefore, there was an inconsistency, not in what your attitude was or what your statement was but I think with respect to the thrust of what that inclusion in Mr. Starr's report might have been intepreted as meaning. Did you tell Mr. Starr that you did not remember how you voted on a bill to legalize abortion in Arizona, or that there is no record of how you voted on legislation to legalize abortion in Arizona? I believe we heard you say that you had some difficulty remembering one, and you had to get it out of a newspaper because it was not in the legislative records. Somebody in Arizona has said that that was the equivalent of not remembering how one would have voted on the Panama Canal issue.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, as I explained I think in the first day of these hearings, with respect to house bill 20 I frankly had no recollection of the vote. We voted on literally thousands of measures and that bill never went to the floor for a vote. I tended to remember with more clarity those measures which required a vote on the merits on the floor. Committee votes are something 242 else: Technically speaking, you are not voting on the merits in a committee vote. You are voting to put it out of committee with a certain recommendation. In the year 1970, as reflected in the newspaper articles which I eventually unearthed, house bill 20 was not a major issue at that time in terms of having much public attention, in terms of having many people at a committee hearing, in any other way. It was simply not a measure that attracted that much attention. In addition, house bill 20 was destined never to go to the floor in the State senate. I think it was widely known and believed even when it was in committee that it would never emerge from the Republican caucus. The votes were never there. It was a dead bill.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes. Then it might be relevant to follow up: You stated that some change in Arizona statutes was appropriate, and "had a bill been presented to me that was less sweeping than H.B. 20, I would have supported that. It was not." You broke off, but you meant it was not introduced. Is that correct?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. That is correct.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Can you then remember why you did not support S.B. 216, which was a more conservative bill regarding abortion which was pending in the Senate Judiciary Committee after March 23, 1970, roughly a month before the committee's vote on H.B. 20?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, was that Senator McNulty's bill, if you know?
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. The bill provided for therapeutic abortions in cases involving rape, incest, or the life of the mother. I have just been informed that my time is up. It was Senator McNulty's bill, yes. May she finish the answer to this question, Mr. Chairman?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. She may finish the answer to your question.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, as I recall that bill it provided for an elaborate mechanism of counseling services and other mechanisms for dealing with the question, and I was not satisfied that the complicated mechanism and structure of that bill was a workable one.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. OK. Thank you, Judge O'Connor. With my time up, Mr. Chairman, I would ask unanimous consent that a speech I made on August 26, 1981 delivered in Birmingham, Ala., on the subject of adolescent pregnancy be made a part of the record on this because it deals with the subject. Sir, I must respectfully submit that, considering the importance of the matters being questioned into, although I am a freshman Senator, relatively inexperienced, I feel quite frustrated that these matters have not been developed in my opinion to the degree required for such an important appointment as a lifetime appointment to the Supreme Court. I just would like to mention that to you at this time as my feeling.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. All Senators had 15 minutes on the first round and 15 minutes on the second round, except Senator Simpson who is not here today for his second round and so waives it, and Senator Heflin who has stated he did not care for a second round, and Senator Robert Byrd, the distinguished minority leader, who has not had either round on account of his duties. 243 Senator, out of my great respect for you, I will call on Senator Byrd and then come back to you for an extra 15 minutes which will give you three 15-minute rounds, if that is agreeable.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. It will certainly offer more opportunity, sir.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Byrd of West Virginia.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Mr. Chairman, thank you. I will be very glad to wait and let the Senator complete his line of questions. I have found that it is very important that a Senator be able to finish his line of questions without interruption. I thank you for allowing me to speak at this time but if the Senator would like to complete his questions, I can wait another 15 minutes. I have very little to say and I can say it in 2 minutes but I would be very happy to wait.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. All right. Senator Denton, we will call on you now and give you an extra 15 minutes.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. All right, sir. Thank you. The complicated mechanisms to which you refer, Judge O'Connor, I would not think would be ruled out in view of the complexity of the issue and so forth. I would have thought that you would allow that those complicated mechanisms should be considered—in continuance of your remarks, as we were broken off.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, again I would ask you to reflect on the fact that we are talking about the year 1970. That was a time when at least my perception as a State legislator in Arizona indicated that this subject was not the subject of the public attention and concern that it is today. I did not perceive very much in the way of public support at that time for the invocation of expensive counseling machinery in connection with this area. It is simply something that was basically a new approach being suggested in the legislature and I was not satisfied at that time that that was an appropriate approach. STARR MEMORANDUM
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. OK. You keep referring to the social awareness, and so forth, and yet I keep remembering your statement about constitutional principle. I believe that upon further reflection on your part you might see a connection, and I believe you may have already begun to see a connection between the constitutional provision for protection of life and due process maybe, and this issue, and certainly the statement in the Declaration of Independence, and so forth. The Starr memorandum makes no mention at all of your April 23, 1974 vote against a House-opposed right-to-life memorial which called on the U.S. Congress to constitutionally protect the life of the unborn. Was that discussed with Mr. Starr? If not, why not?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I certainly believe that it was. That memorial was the subject of a good deal of concern. Of course, I have not seen the so-called Starr memorandum. I have seen references in the newspaper to it but I did not see it. If I am correct in your date, that is something that occurred after the nomination had been announced, or the selection, rather, had been announced by the President. 244
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Well, since this memorandum is such an important issue with so many people and such an important issue bearing on the subject we are discussing, I would ask permission from the chairman to deliver this memorandum—a copy of it, it is relatively brief—to Judge O'Connor, sir, so that she can address
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The staff will deliver a copy of the memorandum to Judge O'Connor.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Mr. Chairman, I would respectfully request that a copy of the memorandum be placed in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, it will be placed in the record. [Material to be supplied follows:] dum could be characterized as a fair representation of your record on the abortion issue. The CHAIRMAN. NOW as I understand, this memorandum was made by Mr. Starr of the Justice Department
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Sir, I have no other
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN [continuing]. To the Attorney General. It was not made by the witness, Judge O'Connor. I just wanted to get the record straight on that.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. It appears, sir, the dateline, the heading is Office of the Attorney General, Washington, D.C., Memorandum for the Attorney General from Kenneth W. Starr, Counselor to the Attorney General. I have no
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Of course, Judge O'Connor is not responsible for what some member of the Justice Department wrote to the Attorney General.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes, sir, I totally agree.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. However, we admit the memorandum for such consideration as it deserves.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I wonder if the Senator from Alabama could make a copy of that memorandum available to other members of the committee, please.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Yes, sir. I have one other here so we could make a copy of it, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Staff informs me that copies of the memorandum are being made available and will be handed around. Senator Denton, you may proceed.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. All right. Judge O'Connor, as a lawyer, would you say that this memorandum could be characterized as being a fair representation of your record on the abortion issue?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, it is somewhat incomplete. It does not reflect my vote in 1974 on the funding of medical care for the indigent, and so forth. I think it is not totally complete on that issue.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. It has been represented or perceived by many that that memorandum, which many understand to have been the principal input to the President regarding your record, you might say is a bit optimistic from the standpoint of those who are prolife in its characterization of your record. That is why I brought it forward.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I can only comment
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. If you will pardon me just a minute, now, Senator, if you are going to the process by which the President made his selection, that is one thing. The question we are considering here is her fitness for this position. I have no objection if you wish to ask the question but I want to emphasize this: that we, the members of this committee, will determine her fitness for this position and not the method by which the President went about making his selection. That was his business and not ours. You may proceed.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes, sir, I totally accept that admonition. Her statements in the memorandum are relevant to the issue of deciding where she stands or figuring out where she stands on this issue. 246
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I think you can ask any question as to where she stands on the issues but as to what the President had in mind when he selected her, that is another question. I do not think that would be appropriate, for her to try to interpret or imagine what the President had in mind when he made this selection. PARENTAL RIGHTS
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Yes, sir. I do not remember asking her a question on that but I certainly will not. On the issue of parental rights, there has been only one case in which the constitutional issues involved in parental notification for contraceptive services to minors have been considered. In that case, Doe v. Irwin, a Federal appeals court held that parents do not have a constitutional right to be notified of their daughter's decision to visit a State-supported family planning clinic, at which place she can be issued the contraceptives and so forth. Do you believe that the Supreme Court acted properly in allowing this decision to stand by refusing to review the case?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, the Court has had several occasions to consider the question of parental consent in the area of abortion or contraceptive availability and so forth. I would have to say that I think the questions in that area are still somewhat in doubt. I do not know that we have perceived the full range of what the Court's ultimate holdings will be. The Court has indicated in the Ginsberg case back in 1958 that the Supreme Court has consistently recognized that the parents' claim to authority in their own household is basic in the structure of our society. I think that is an apt expression of the concern that has been expressed in the Court, and certainly the role of family values is very important in this area. On the other hand, the Court in the Danforth case ruled unconstitutional, as you know, a statute requiring parental consent before an unmarried minor could obtain an abortion, but the Court did note in that case that it was not ruling that every minor was capable of giving effective consent, so it left the question very much open. In the Baird case in 1979, the Court struck down a statute which required parental consent prior to the performance of an abortion but the Court did not agree in that case on a rationale, and I do not think we know what that might be. Certainly the Matheson case decided last year from Utah, to which Senator Hatch had referred, did uphold a requirement of notification to the parents. It certainly is my hope that every young person faced with a decision whether to get an abortion, or indeed whether it is appropriate to get birth control supplies, would feel able and willing to discuss that with the parents and get parental guidance. That is my hope. I know that in fact in some families that kind of relationship between parent and child simply does not exist. I suppose we all realize that that is one of the failings of our current society, that not every family functions in a way that facilitates that kind of communication. 247
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. However, where the family is in existence and the 13-year-old wants an abortion, would you be in favor of her being required under normal circumstances to have the parents notified, and so forth?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, again without expressing a view that could be interpreted as my position on any legal issue that would come before the Court in connection with the subject of how far a statute can go in mandating parental consent, I would simply say that it is my personal view that I would want to have the child consult the parents and have the parents work with the child on that issue. RIGHTS OF HOMOSEXUALS
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. In reconciliation, a bill which permits a child to go to a place where that procedure would be in effect was passed. Whether or not it is appropriate is going to be another question, so I am happy to hear that you are in favor of that. The other system of doing it gets 10 times as much money as the new one, where they do not have to ask the parent about anything. The parents are not brought in. Do you believe there are any constitutional limitations on laws which might be passed by a State or the Federal Government forbidding homosexuality, homosexual practices, or limiting the rights of homosexuals because of their sexual deviance? For example, do you believe that Congress has the authority to make rules and regulations which establish that homosexuality is a cause for dismissal from Government jobs requiring security clearance, unless an honorable discharge from the military?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I can only say that the state of the law concerning homosexuality is, in one word, unsettled. I hardly know how to characterize the state of the law in this particular subject. Back in 1977 in the Carey case, the Supreme Court indicated in a footnote that it had not yet definitively answered the difficult question whether and to what extent the Constitution prohibits State statutes regulating private consentual sexual behavior among adults. Then in the Doe case in 1976, a three-judge court had initially ruled on the question and then the Supreme Court simply summarily affirmed that lower court decision denying a challenge to a State criminal statute prohibiting sodomy. Therefore, that is all we know I think at the moment on the Supreme Court holdings in that area. The cases concerning the rights of people who are homosexuals in connection with being deprived of a position as an employee or having custody of children are really very confused on the lower court level. Some of those cases are working their way up to the Supreme Court and, I think, pose some very unsettled questions on which the Court will indeed be asked to rule.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Thank you. How much more time do I have, Mr. Chairman?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. HOW much more time do you want, Senator? I want to accommodate you.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. All right, sir. 248
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Your time is up now but we will give you more time if you want it.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Finding out where she stands on other areas where abortion would be permissible than to save the life of the mother is an area of investigation which seems fruitless.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Would another 15 minutes suffice?
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. I do not know whether another month would do, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, would another 15 minutes allow you to complete your questioning?
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Unless Judge O'Connor wishes to expand or describe in some kind of specifics what other areas she thinks abortion is not offensive or should be
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, suppose we allot you another 15 minutes, which in all gives you a full hour of questioning.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Would you care, then, Judge O Connor, to say anything further about what you mean by other areas in which abortion should be permissible other than to save the life of the mother?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Denton, I understand your concerns and frustrations and I hope that you appreciate my concerns and my hope not to prejudge matters that surely are going to come before the Court, if you see fit to confirm me for this nomination. I feel the same sense of frustration in part as you do in having to be somewhat careful about what I say because of the constraints which I feel legitimately exist. I understand your concerns, and I have tried to adhere to that line which has been indicated to me— in my review of previous hearings—has been followed generally by other nominees.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Well, as no lawyer, I cannot gainsay your stand that you are prejudicing the situation by giving specific answers on a position regarding your feelings as to the permissibility or morality or whatever of abortion other than to save the life of the mother. However, I will quote from the constitutional lawyer's comments which I have submitted previously for the record, and the chairman graciously, and the other members without objection, permitted. He says that— One thing stands out supremely when a vacancy on the Supreme Court occurs. The replacement should be deliberate, not impulsive. The public interest is not served by a fait d'accompli, however politically brilliant. The most careful probing and the most measured deliberation are what are called for. He maintains: Unhappily, the atmosphere surrounding the nomination to the Supreme Court is one almost of panic. Considering that the liberties of the American people can ride on a single vote in the Supreme Court, any politically or ideologically motivated impatience should be thrust aside and time taken to do the job right. Plainly there is no need for instantaneous confirmation hearings, and the most painstaking effort should be made to fully know the qualifications, including philosophy, of the candidate. My first plea would be, therefore, do not rush this nomination through. I must admit the chairman has been more than careful to permit in this case all the time he chooses to give to my questioning. The problem is that I do not think I am getting the answers to which the next part of this gentleman's memorandum or paper refers. He says: 249 My second misgiving relates indeed to the matter of philosophy. Some zealous supporters of the O'Connor nomination, who themselves have notoriety as ideologues, have made the astonishing statement that on the Supreme Court of the United States ideology does not count. They say, in other words, that it should be of no significance that a candidate would have an actual and proven record of having voted or acted on behalf of racism or anti-Semitism or any other philosophic point of view profoundly opposed by millions of Americans. Those concerns are not dispelled by a recital that the candidate is "personally" opposed to such a point of view. Why the qualifying adverb? Does that not imply that while the candidate may harbor private disgust over certain practices, he or she does not intend to forego support of those practices? He maintains: Philosophy is everything in dealing with the spacious provisions of the first amendment, the due process clauses, equal protection, and much else in the Constitution. It is perfect nonsense to praise a candidate as a "strict constructionist" when in these vital areas of the Constitution there is really very little language to strictly construe. As to other areas of the Constitution, for example, article 1, section 4, "The Congress shall assemble at least once in every year," to speak of strict construction is also absurd since everything is already "constructed." The more relevant thing that he says is that: Broad and bland answers could of course be given to each of these questions, but lack of knowledge or lack of specificity in answers would obviously be useful indices of the capabilities or candor of the candidate. Fair, too, and important would be questions to the candidate calling for agreement with, disagreement with, and discussion of major prior decisions of the Supreme Court. Not the slightest impropriety would be involved in, and much could be gained by public exposition of the candidate's fund of information on these cases, interest in the problems they have posed, and reaction to the judgments made. Even these few considerations make it clear that the Senate's next job is not to confirm Mrs. O'Connor but instead to find out who she really is, that is, what convictions she possesses on great issues. I thus return to my theme that deliberativeness, not haste, et cetera. He ends by saying: Other vacancies may soon arise. The precedent of lightning-fast decisions in the matter of choosing our Supreme Court Justices would be a bad precedent indeed. My only problem is that I do not feel I have made any progress personally in determining where you stand on the issue of abortion. I believe when you say "and there may be other matters," or issues, or however you stated that makes it totally vague, and therefore I find myself at a loss, considering this constitutional lawyer's opinion. I have not determined your position, and William Bentley Ball seems to feel—that is the name of this gentleman—that it would have been desirable for you to comment on past Supreme Court decisions because in the future the precise case will not come up in that identical form. However, you have maintained that it would. I will have to defer to your position on that but I do so with regret because it makes it very difficult for me to understand where you are on that issue with which I was so concerned. Thank you very kindly, Judge O'Connor, for your responsiveness. I have to respect your position on this. I must note that Alexander Haig took about a month to get through; Mr. Donovan in here did not receive quite the polite application of questioning that you have, but I do not regret politeness. I did not ask him any impolite questions either. With that, Mr. Chairman, I conclude my questioning.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, do you have any more questions you would like to propound? 250
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. I do not think they would be fruitfully put forward, sir.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I believe Senator Simpson, as I mentioned, is not here, and Senator Heflin has indicated he has no second round. Senator Byrd of West Virginia.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge O'Connor, I have observed the hearings from afar, to an extent, and I have been aware of the subject areas of the questions that have been asked and aware of your responses to a considerable degree. The fact that I have not been able to attend the hearings does not in any way demonstrate a lack of interest in your nomination. I told you several weeks ago that it was my intention to vote for your nomination unless something developed which I did not foresee and which might otherwise cause me to change my mind. I have listened to the questions about how you stood on various bills and why you voted for or against various bills in the legislature 10 or 12 years ago. I do not know of any more difficult question that can be asked than "Why did you vote for H.R. 1476," or "Why did you vote against 1415," 10 years ago or in my case 30 years ago, in the State legislature. I do not know of any more difficult question that can be asked than "Why did you vote for or against this or that bill 2 years ago?" If someone were to ask me why I voted for the Panama Canal treaties, I can answer that question. It was a very controversial issue at the time. There was a great deal of opposition to the treaties on the part of a lot of people who had never read them, and who perhaps have not read them yet today. It was a matter that was before the Senate for a considerable length of time, very heatedly debated, and one which I can respond to questions on on the spur of any moment. However, there are many bills which we voted on, many votes we took last year which did not command my attention to the extent that I can, at the drop of the hat, answer why I voted for this or that amendment. Sometimes it is even difficult to remember that such and such an amendment was called up. That is not to derogate those who ask such questions. It is simply to say for the record that it is asking almost for the impossible in some instances to expect a former legislator or a current legislator to relate the details of why he reached such and such a decision on such and such a bill at such and such a time. As a former State legislator in both houses of the West Virginia Legislature, I voted on some issues there undoubtedly in a way that I would not vote today if I were a member of that legislature. I voted against the 1964 Civil Rights Act, and spoke I believe 16 hours against it; it may have been 14 hours. However, I voted my conscience at that time, and I voted against the Voting Rights Act when it was first enacted, but I was in good company when I voted against those pieces of legislation. Sam Ervin, who is an acknowledged constitutional scholar, Senator Russell, and other Senate greats who were steeped in the Constitution, for constitutional reasons opposed those acts, both of them. 251 For what I thought to be sufficient constitutional reasons—not only sufficient but for compelling constitutional reasons—I voted against those pieces of legislation, spoke against them, but I have since changed my mind on the Voting Rights Act. I voted for its extension and intend to vote for its extension again. The Supreme Court has upheld the act. The great constitutional scholars who presented what I thought were irresistible arguments in opposition to those pieces of legislation apparently were wrong, and I feel that I was wrong in voting against the 1964 Civil Rights Act. Therefore, I think that is the position that you are in as a former legislator, and I have to take cognizance of those difficulties when it comes to answering the kinds of questions that have been asked of you. Again, I cast no aspersions or reflections on the Senators who are asking those questions. They are conscientiously pursuing a line of questions that they feel is necessary in order to put to rest certain concerns that they have. Also, I can appreciate the fact that one's personal views need not be compelling when it comes to interpreting the Constitution. Your function will be to interpret the Constitution and to apply that interpretation or construction to the sets of facts that are before you from time to time. I can appreciate the fact that you may personally have a feeling on this or that subject but, when it comes to interpreting the Constitution, you are not supposed to let your own personal biases, prejudices—if that is what they may be—enter in to it. I can say that in my case I do not claim to be one who is without some biases and prejudices but, if I were attempting to interpret the Constitution and construe it and apply it, I do not think I should let my personal feelings intervene. I think it would be my reponsibility under my oath to do the very best I could to avoid letting my own personal feelings sway my judgment. It may be impossible. Perhaps one's subconscious feelings, his personal feelings may come through. However, I respect the position you have taken. Perhaps your personal views on many of these things do not parallel my own, but I have faith that you are going to attempt to interpret that Constitution and construe it and apply it in accordance with the oath which you will take, and that you will not let your personal views be the determining factor, difficult though it may be at some times. STARE DECISIS I can also understand the desire of Senators to understand what your philosophy is. For a long time I felt that the Supreme Court of the United States was a permanent constitutional convention and that it was setting itself up as a higher legislature than Congress. Therefore, from that standpoint I am interested in what your philosophy is, but it will go only to this extent: What is your philosophy, if I may use that word, with respect to the subject of stare decisis? I understand that others have brought up the subject, and it seems to me that that is one of the very important questions that should be asked. Recognizing the difficulty in answering it to the satisfaction of any given Senator, I still would like to ask it again. 87-101 O—81 17 252 Just how much weight will you give to former precedents of the Supreme Court? I do not think that I would have been critical of the Supreme Court of the United States in the recent past if I had felt that the Justices on that Court were adhering to the doctrine of stare decisis a little more closely than what they apparently, to me at least, were demonstrating. How do you feel about that doctrine? Is it going to be a doctrine that will be a supervening one, one that you will be always conscious of as you deal with cases that come before the Court? Just how will you be guided by previous decisions and by the previous precedents that have been laid down by the Court?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Byrd, I have addressed this same question previously, as you were aware, and will characterize again my thoughts on this concept. The doctrine of stare decisis is a very significant and important one for the judicial system in our country. Indeed, it is a very basic concept in our system. The reason for it, of course, is to give predictibility and stability to the law, an effort so that the public generally and other judges can be guided by the knowledge that the law in a certain area has been decided. Indeed, as one previous famous judge has indicated, sometimes it is better that the law be decided than that it be decided correctly. On the other hand, all appellate courts have recognized that there are instances when the judges become convinced in their own minds that a previous decision was decided incorrectly or was based on some flawed understanding of the previous judges of the issues or principles involved. We have examples throughout our system of instances in which a subsequent case has overruled a previous holding, so it happens. It happens perhaps not frequently but it occurs, and it is appropriate that it can occur. Certainly, as Justice Cardozo pointed out, if we approached every case on a case-by-case basis the law would be hopelessly confused and the administration of justice would be impossible. We do not do that, but at the constitutional level there have been indications that only if the Court has the capacity to change its mind, if you will, on the correctness or principles of a previous decision, is it possible for an erroneous interpretation of the Constitution to be corrected. It is either that, or we amend the Constitution. Therefore, we have instances in the Court's history, of the U.S. Supreme Court, in fact approaching perhaps 150 such instances in the Court's history in which the Court has in effect overturned a previous decision. We have, I think, an indication from the Court that in the case of statutory interpretation—for instance, when the Court has occasion to rule on the interpretation of a statute enacted by Congress—if indeed that interpretation is erroneous the Congress itself can take appropriate action, presumably, to make corrections. Therefore, the doctrine of stare decisis might indicate that one would be very much more reluctant to change. I think in essence that sets forth my understanding of the concept.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, do I understand you to say that while you recognize that new precedents have to be set and that from time to time the Court has to reverse previous precedents, that nonetheless the doctrine of stare decisis is a sound one and that it establishes a 253 principle that you will constantly keep in mind, and as much as possible adhere to where the circumstances permit?
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Byrd, it is an important and a sound concept in my view and one which will always be appropriately considered. Only when the judge or justice becomes convinced in his or her own mind that something was previously incorrectly resolved and that there are sufficient reasons for reaching a contrary result, would that obtain, but this is a very serious business.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Judge O'Connor, I think that we strict constructionists should feel very comfortable with that response. I am applying the term to myself, and I feel very satisfied with it. If I had been able to express it so eloquently and so succinctly as you, were I in your position, I would have said just what you said. I think your responses reflect that you have been well prepared. I think they have indicated on your part a juridical approach to the questions. You have I think been as forthright as one can be and you have been honest, in my judgment, in your responses. You have at all times been conscious of the fact that you cannot go beyond a certain line in responding to questions, lest once you have been confirmed you would find you have created difficulties for yourself, in which case you either would have to act in a way that left others thinking that you broke your word, or on the other hand you would have to be untrue to yourself. I compliment you. I think you have demonstrated the demeanor and the bearing that a Justice should have, and I intend to support your nomination enthusiastically. I congratulate you, and I will do everything I can to expedite the Senate confirmation of your nomination once it is reported from this committee.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Senator Byrd.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Thank you, Mr. Chairman.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Senator Byrd, I have addressed this same question previously, as you were aware, and will characterize again my thoughts on this concept. The doctrine of stare decisis is a very significant and important one for the judicial system in our country. Indeed, it is a very basic concept in our system. The reason for it, of course, is to give predictibility and stability to the law, an effort so that the public generally and other judges can be guided by the knowledge that the law in a certain area has been decided. Indeed, as one previous famous judge has indicated, sometimes it is better that the law be decided than that it be decided correctly. On the other hand, all appellate courts have recognized that there are instances when the judges become convinced in their own minds that a previous decision was decided incorrectly or was based on some flawed understanding of the previous judges of the issues or principles involved. We have examples throughout our system of instances in which a subsequent case has overruled a previous holding, so it happens. It happens perhaps not frequently but it occurs, and it is appropriate that it can occur. Certainly, as Justice Cardozo pointed out, if we approached every case on a case-by-case basis the law would be hopelessly confused and the administration of justice would be impossible. We do not do that, but at the constitutional level there have been indications that only if the Court has the capacity to change its mind, if you will, on the correctness or principles of a previous decision, is it possible for an erroneous interpretation of the Constitution to be corrected. It is either that, or we amend the Constitution. Therefore, we have instances in the Court's history, of the U.S. Supreme Court, in fact approaching perhaps 150 such instances in the Court's history in which the Court has in effect overturned a previous decision. We have, I think, an indication from the Court that in the case of statutory interpretation—for instance, when the Court has occasion to rule on the interpretation of a statute enacted by Congress—if indeed that interpretation is erroneous the Congress itself can take appropriate action, presumably, to make corrections. Therefore, the doctrine of stare decisis might indicate that one would be very much more reluctant to change. I think in essence that sets forth my understanding of the concept.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, do you have any other questions? Senator Byrd, do you have any other questions?
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. NO.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. DO you wish to confess any other errors of the past? [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, if that happens you will find the attendance will really swell around here. [Laughter.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Does any other Senator have
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Mr. Chairman, will you allow me to respond to that question? [Laughter.] I have heretofore confessed to those errors, so it is not a matter of news but simply a matter that I thought was appropriate for this record in this particular instance.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Does any other Senator now request any additional time? We gave the Senator from Alabama additional time and we want to be fair to all Senators. Does any other Senator request any additional time on either side?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, I would like 60 seconds to make a comment.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, I think that the line of questioning about the nominee's personal views on abortion is appropriate and has been appropriately directed to her. I think her distinction 254 between her personal views and what she would or would not do as a Justice of the Supreme Court is equally appropriate. If I can make an analogy, I think it would be appropriate for us to ask the Justice, were it an issue, what her view on membership in the Nazi Party would be and whether or not that should disqualify her from the bench—and that is not an issue in that case, but to make the analogy—but it would be inappropriate for us to ask her how she would vote as a Justice of the Supreme Court on the Nazi Party marching through Skokie, 111., or whatever the suburb was. I think it would be inappropriate to ask her to comment on that but I do think it would be appropriate, were it an issue of the day as abortion is, to ask her what her personal view would be on whether or not she should or should not be a member of the American Nazi Party. Therefore, I think you have made the distinction well. I want to publicly compliment my colleagues. I must make a public confession also. I was not at all sure that there was going to be the judicial demeanor and the good manners and the good conscience displayed by some of my friends who are characterized by the press and me as the New Right. I compliment them on their demeanor. I think their questions were appropriate. I think they conducted themselves well, did justice to themselves and the committee, and that your answers were equally judicious and appropriate.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Does any other Senator have any further questions?
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Mr. Chairman, if I may just comment, I think Senator Biden has done pretty well, too. [Laughter.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Does any other Senator have any other questions?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, was the Senator from Kansas asking for a vote on that last observation? [Laughter.]
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. I would not want to have a vote on Senator Biden. It would be too close. [Laughter.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Denton, did you want any additional time now? COMMITTEE REPORT
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. NO, sir. I would request that a written record be made, a written report, of these proceedings. Is that in order?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, all of this will be printed.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. A report written by the committee staff is the request I am making, which I understand is distinct from the normal transcript and so on.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The entire hearing will be printed and reported, and the committee's report will be prepared by the staff. If you have any questions, why, you feel free to get in touch with the staff. If we finish this hearing today, which I think we will do, then we will place this nomination on the calendar for Tuesday. Of course, any member can carry it over a week if he wants to, but at the same time we wish to expedite it and to get action as soon as convenient.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Sir, I was informed that there is a provision when you have a committee report for including supplementary views, and that was the reason for my request.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. That is correct. Any Senator who wishes to state supplementary views to the majority of the committee report will have the opportunity to do so. If no other Senator has any other questions now, we are going to excuse Judge O'Connor. COMMENDATION OF WITNESS Judge O'Connor, before you leave I want to say that the committee as a whole I am sure has been deeply impressed with your intellect and with your candidness, with your capacity, with your dedication. We feel if the Senate confirms you here that you will make an outstanding Associate Justice of the U.S. Supreme Court.
Sandra Day O'Connor
Nominee
(R)
Judge O'CONNOR. Thank you, Mr. Chairman, and thank all the members of the committee and you for the courtesy shown to me during these proceedings. I appreciate that very much.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will now hear from other witnesses. The next witness is the Governor of Arizona, the Honorable Bruce Babbitt, if he will come around and take the witness stand. Governor Babbitt of Arizona, will you stand and be sworn? Do you swear that the evidence you give in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you God? Governor BABBITT. I do. The CHAIRMAN. Have a seat. Governor, we will be glad to hear any statement you wish to make.