Stephen G. Breyer

Speaker, Title, Party Statements
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. Judge and Mrs. Breyer, welcome. We are delighted to have you here. The first issue, when we get to questions, will be resolving what State you are really from. But you are, indeed, privileged this morning to have four of our distinguished colleagues anxious to be associated with your nomination, and one in particular maybe is considerably responsible for your nomination. "Today the Senate Judiciary Committee welcomes Judge Stephen Breyer, the President's nominee to be Associate Justice of the Supreme Court of the United States. In each of the confirmation hearings that I have had the privilege to chair, I have tried to look at the broader issues at stake when we confirm a nominee to the Court—to consider the values by which our Nation defines and redefines itself over time, and the means by which Government can best express and defend those values. At the start of the last decade, the Court seemed poised to reconsider many basic questions that most of us and most of the legal community thought had already been well settled. In the late 1980's, for example, the Nation watched to see whether the Supreme Court would limit the set of personal rights that the Court had previously deemed off limits to the Government and Government intrusion, especially the right of the individual to make certain highly intimate decisions free from Court interference, or, as Justice Brandeis had put it, the ""right to be let alone."" (l) In considering the nomination of Judge Robert Bork, therefore, I focused on the scope of personal rights not named—the so-called unenumerated rights—in the Constitution. My blatantly stated fear at that time was, if you will, a constitutional fear. More recently, we have seen new challenges mounted by the most powerful economic interests in America by those who want to reduce the ability of Government to protect the rights and interests of the majority of Americans. Thus, in the hearings on Justice Clarence Thomas—and most people forget that there really were two hearings. We had had a hearing, and it had ended, on the substance before we had the second, much more celebrated hearing. But in the hearing on Justice Thomas's nomination, I was concerned at the same time the Court would limit individual freedoms, it would tell Government that it must pay a factory owner before it can keep him from dumping chemical waste in a river running through his property and then onto some adjacent farmland downstream. At the time, many people asked why I was concerned about this arcane thing referred to as the takings clause, the takings clause of the fifth amendment. As a matter of fact, many of the press writing today wrote interesting articles about how boring the discussion was and why were we taking any interest in it, except for the Wall Street Journal, which worried me that they got it right. That is supposed to be a joke. You are supposed to laugh a little bit. There may be fewer questions now as to why I raised the issue of the takings clause then, since in recent cases the Supreme Court has used the takings clause to make it harder for Government to regulate polluters or developers or other economic interests and activities in the name of public welfare. In raising the level of protection afforded the rights of owners of businesses and beach-front vacation properties, the Court used language equating these property rights with personal rights, such as the first amendment guarantee of freedom of speech. So our recent confirmation hearings have focused primarily on how the Court's direct interpretation of the Constitution shapes our life. But the focus has now changed again in academia and among legal scholars, and we are soon going to see a whole new set of questions arise in the Supreme Court that I think have far-reaching consequences based on how they will be resolved for the public at large. The focus has now changed, and it must be remembered, it seems to me, that the Court has, in fact, two major responsibilities. The first responsibility is to interpret the Constitution, and the second is to interpret statutes passed by the Congress and signed by the President. While the first job is more familiar to most Americans, it is not in any way more significant. Indeed, what has become quite clear over the last decade is that it is increasingly through statutory interpretation that the Court is shaping the nature and scope of basic rights of all Americans. For example, one of the rights secured by the Constitution is the 14th amendment guarantee of equal protection of the laws. The Constitution empowers the Congress to enforce that guarantee of equality through legislation. And, today, women, Americans with disabilities, older Americans, and others enjoy equal opportunity to work and to conduct their daily lives that are protected not by the Constitution but by statute. In recent years, the Court has tended toward a grudging interpretation of statutes passed by the Congress, signed by the President, and supported by the American people to ensure this greater equality. Through various interpretive rules or, as we lawyers say, canons of interpretation, the Court has raised the bar on Government by adopting unduly restrictive, in my view, rules for interpreting statutes or changing those statutory rules of interpretation midstream and frustrating Congress' intent to ensure equality to women, the disabled, and others. A classic case which I will discuss with you later, Judge, is the Patterson case where the Court ruled that legislation passed after the Civil War guaranteed that an employer could not deny a person employment because they were black, but concluded that if they were fired because they were black, the legislation did not cover them for other reasons. The effect on that woman was the same. She was discriminated against because a grudging interpretation of a statute was made, not because of the failure to find a constitutional right in the Constitution. I will discuss those cases at length with you, Judge, but I now have a second concern and a related one, equally significant in my view; that is, what values the Court will incorporate into its calculus of interpreting statutes. In recent years, an influential group of scholars and judges, known as the Law and Economics Movement, has proposed that legal problems should be resolved from a purely economic perspective. Some proponents of this movement are relentless in their application of this reasoning, analyzing every feature of our lives, including marriage and sex, by reference to transactions costs, search costs, and missed opportunities. Some have even said that we can explain rape by talking about the cost to the rapist of finding a sexual partner. This is a serious, serious undertaking on the part of some very, very bright individuals. Presently, of course, we quite consciously prefer other values, including social and moral norms, when we make policy and resolve legal disputes. We choose to take into account the social values and norms whether or not they make good, purely economic sense. We do that every single day. We make those judgments on health care. It does not make purely economic sense to spend a disproportionate amount of our booty, our money, our taxes, on saving the lives of people over the age of 80. But, as a matter of value, we value— not from an economic standpoint—we, the American people, through their Congress and their President, value the lives of the elderly and conclude even though it does not make economic sense, we have decided to do it. We choose to take into account social values and norms—again, whether or not they make good, purely economic sense. Throughout your career, Judge, you have advocated the use of economic analysis in prescribing solutions for many legal and policy problems. As I read what you have written—and I think I have read most of what you have written—your view is very distinguishable from the school of law and economics. But I will want to know how you will use the economic model that you propose in judicial decisionmaking. Judge Breyer, you have served ably as a judge and chief judge on the First Circuit Court of Appeals for 14 years. As a professor of law at Harvard and, to some of us here, more importantly, as counsel to this committee, you are an established expert in regulation and its reform, in administrative law and processes, and in the intersection of science and law. I began by describing how the confirmation hearings of the past 8 years have engaged us in the constitutional debates of those times. The reason that occurred, in part, was because the nominees before us were active and influential participants in those debates. So it is again today, Judge. You have written and spoken at length about the methods of statutory interpretation, and about the role of economic analysis in resolving legal disputes. Thus, many of the very issues that are now boiling today in the cauldrons of debate among legal scholars and judges are those in which you are considered the foremost expert. So we welcome you here today, Judge, not merely to measure your competence to sit on the Court, but to engage us in a discussion of those important matters. I would ask unanimous consent that the entirety of my statement be entered in the record at this moment. [The prepared statement of Senator Biden follows:] PREPARED STATEMENT OF CHAIRMAN BIDEN Today, the Senate Judiciary Committee welcomes Judge Stephen Breyer, the President's nominee to be Associate Justice of the Supreme Court of the United States. The Constitution vests authority in the United States Senate to give ""advice and consent"" to the appointment of women and men nominated by the President to serve as justices on the Supreme Court. ""Advice and consent"" has come to serve two purposes: the first is for the Senate to learn more about the qualities of a President's nominee and to determine whether to vote for confirmation; the second—a unique function that has developed more fully over the last decade—is to provide the only opportunity the Senate and the American people will have to discuss the great legal issues of the day with the nominee, to get some indication of how he or she views these issues. In each of the confirmation hearings I have chaired, I have tried to look at the broader issues at stake when we confirm a nominee to the Court—to consider the values by which a nation defines and re-defines itself over time—and the means by which government can best express and defend those values. At the start of the last decade, the Court seemed poised to reconsider many basic questions that most of us thought had already been well settled. In the late 1980's, for example, the nation watched to see whether the Supreme Court would limit the set of personal rights that the Court has previously deemed off-limits to government intrusion—especially the right of the individual to make certain highly intimate decisions free from government interference—the ""right to be let alone""—which Justice Brandeis characterized as ""the most comprehensive of rights and the right most valued by civilized man."" In considering the nomination of Judge Robert Bork, therefore, I focused on the scope of personal rights not named in the Constitution. My fear at that time was, if you will, a ""constitutional"" fear: I was concerned that the Supreme Court might, in the name of constitutional interpretation, constrict our right to make these highly personal decisions without interference from the government. More recently, in the early 1990's, we have seen new challenges mounted by the most powerful economic interests in America to reduce the ability of government to protect the rights and interests of the vast majority of the American people. We had not seen such a sustained attack on the ability of government to protect the average { >erson since early in this century, when the Supreme Court struck down child labor aws, minimum wage laws and many others. Thus, in the hearings on Justice Clarence Thomas's nomination, I was concerned that the Court—again interpreting the Constitution—would, on the one hand, restrict an individual's ability to make highly personal decisions without interference from the government, and at the same time make it harder for government to stop a factory owner from dumping chemical waste in a river running through his property and then onto farmland downstream—by requiring the government to pay the factory owner not to pollute. At the time, many people asked why I was concerned about this arcane thing called the ""Takings Clause"" of the Fifth Amendment. What is at stake here may be harder to see, because the method of these challenges has been subtle, involving highly technical legal rules, such as those which allocate burdens of proof. There may be fewer questions now, since the Supreme Court has decided the Lucas case and last month's Dolan case, in which the Court used the takings clause to make it harder for governments to regulate polluters or developers or other economic interests and activities in the name of the public welfare. In raising the level of protection afforded to the rights of owners of businesses and beachfront vacation properties, the Court used language equating the level of protection these property rights with personal rights, such as the first amendment's guarantee of freedom of speech. What's at stake in both these on-going debates are our individual freedoms. Our recent confirmation hearings have focused primarily on the Court's direct interpretation of the Constitution: what individual freedoms are guaranteed by the Constitution, and when may government limit those freedoms? Can the government interfere when an individual decides whom to marry? Whether to have children? How to raise children? Does the Constitution afford as much protection to economic rights as to personal rights? In other words, do we want to protect a developer's desire to build a skyscraper in a residential neighborhood as fiercely as we protect a black family's desire to buy a house in that neighborhood? These types of decision-making are tiie part of the Court's work most familiar to us—but the Court has, in fact, two major responsibilities: to interpret the Constitution; and to interpret statutes passed by the Congress and signed by the President. In the first kind of case, the Court's job is to decide whether certain action taken by the Government complies with the Constitution—or in other words, is the action constitutional? Here, the Constitution serves as the touchstone for evaluating the Government's conduct. In the second kind of case, the Court's job is to decide whether and how a specific law applies to a specific case. Here, obviously, the statute itself, and not the Constitution, serves as the touchstone. What has become clear over the last decade is that the Court confronts basic questions about individual rights, and about the tension between economic interests and the public interest, not only when it interprets the Constitution, but also when it interprets statutes. Indeed, this trend—where, by the method in which it interprets statutes, the Court makes important decisions about how Americans can lead their lives—has been demonstrated over and over again since the confirmation of Justice Scalia. Quite frankly, I wish I had appreciated, at the time of his confirmation hearings, how wedded Judge Scalia was to changing the way the Court interprets statutes—because it is increasingly through statutory interpretation that the Court is shaping the nature and scope of the basic rights of all Americans. Now we have new questions we must ask: What is the proper role of the courts in interpreting the statues passed by the Congress and signed into law by the President—statutes that may directly affect basic individual rights? Should judges look only at the precise language of a statute, or should they also consider its purpose as reflected in what the drafters said and did in adopting it? If Congress enacts a law that accurately reflects a value judgment by the American people but that economists would deem economically unsound, should a court—may a court—use economic standards when it interprets a law to review policy choices made by elected officials? Can what economists call ""the greater good"" be measured merely on a mathematical scale, or should the courts respect the moral yardstick that Congress—speaking for the American people—uses to measure the public interest? Must courts recognize that the American people sometimes reach conclusions they fully understand to fall short of purely economic good sense in order to pursue a desired goal—for example, in spending large sums to make buildings accessible to the handicapped? So what sound like mere technical questions affect, in fact, rights secured by the Constitution. Consider the fourteenth amendment's guarantee of ""equal protection of the laws."" In simplest terms, this means that the government may not discriminate against people because of their race, sex and other characteristics. The Constitution empowers the Congress to enforce that guarantee of equality through legislation. For example—the right of Americans with disabilities to enjoy equal opportunities in employment, housing and other features of daily life; the right of women to work in an atmosphere uncontaminated by sexual harassment; the right of African-Americans to live in any neighborhood they choose; the right of older Americans to continue to work as long as they can do their jobs; all these rights are protected by federal statutes. If you are denied a job because you are a woman, I doubt very much whether it will matter to you whether you have been denied the job by the government, or by a private party. The Constitution protects you against the former kind of discrimination, statutes against the latter. When a question arises about the meaning or scope of these statutes which have the intention of insuring equality, it is often the Supreme Court that resolves the dispute. If we want to know ""how we're doing"" with respect to equality, therefore, we must look not only at how the Supreme Court interprets the Constitution—but also at how it interprets the statutes that have equality as their aim. In deciding how to apply a statute in a specific case, the Supreme Court has two basic choices: the Court can either give the statute a generous reach to fulfill Congress's intent, or it can give it a grudging one that requires Congress to be ever more precise. In recent years, it seems to me, the Court has too often chosen the second course—it has too often been grudging. As a consequence, some of the ""constitutional"" fears of the Bork and Thomas hearings have become, if you will, ""statutory"" fears. But to the woman denied a job because she is a woman, it matters not one bit whether the violation was constitutional or statutory—either way, she is still out of work. In some cases the Court has been grudging by looking only at the literal language of the statute before it, ignoring the statute's history and purposes. In 1989, for example, in a case called Patterson y. McLean Credit Union, the Court was faced with the question of whether a civil-rights statute passed several years after the Civil War protected workers from racial harassment on the job. This statute guaranteed to all persons within the United States ""the same right * * * to make and enforce contracts * * * as is enjoyed by white citizens."" The Court agreed that this law prohibited racial discrimination in hiring—but that it did not prohibit racial discrimination that occurs after a contract is made—-that is, after a person is hired. This conclusion meant that this statute did not protect employees on the job from being insulted because of their race, from being given demeaning work solely because of their race, or even from being fired because of their race, even though they could not be discriminated against in a hiring decision. The Court bolstered its hyper-literal interpretation of the statute by reference to a different law relating to job discrimination, passed almost 100 years after the law at issue in Patterson was passed-j-even though Congress had not said anything about changing the scope of the earlier law when we passed the later statute. Though it was interpreting a statute in Patterson, not the Constitution, the Supreme Court directly shaped the meaning that ""equality"" would have for a black woman named Brenda Patterson—and what it would mean for the lives of all working Americans. In other cases, the Court's decisions have turned not so much on the language of the statutes in question as on interpretive rules that the Court itself has created. These interpretive rules are often called ""canons"" of statutory interpretation. In my view, these interpretive rules have sometimes operated as a thumb on the scales that tips the balance against a common-sense reading of legislation designed to protect individual women, individual blacks, and individual handicapped and older Americans against invidious discrimination. Let me offer an example. Congress passed a law giving handicapped children the right to equal educational opportunities. The law was aimed at states and local governments, and it said specifically that a handicapped child could sue in a federal court government that failed to meet its obligations under the statute. But in a case called Dellmuth v. Muth, the Supreme Court refused to allow a handicapped child to sue New York state in federal court. Congress had the power to grant a right to sue a state, and the legislative history suggested that Congress had intended to allow handicapped children to sue states in federal court. Nonetheless, according to a majority of the Supreme Court, Congress had not used the correct words in granting the right of the family to sue the state. The Court used a ""canon""—one that disfavors suits against states in federal court—to reject the common-sense reading of the statute's language, which would have permitted the suit. As Professors Eskridge and Frickey have pointed out, these sorts of canons operate as ""super-strong clear statement rules,"" that permit the Court to engage in a Tjackdoor version of the constitutional activism mat most Justices on the current Court have denounced. That is bad enough. But I have another problem with these two cases. When you take together what the Court did in Dellmuth and in Patterson, it seems to me the Court was not only grudging, but inconsistent. In Patterson, the Court said that the literal language of a statute counts for everything. In Dellmuth, the Court said that even if the literal language of the statute covers the case, it's not enough. That strikes me as flatly inconsistent. But one thing was consistent about the two cases—their result. In one a black woman, in the second a handicapped child, were denied their right to equal treatment. In both of these cases, the Congress was able to undo the damage done by the Supreme Court by passing a new statute using different words. But the Court's decisions had the effect of delaying the equality intended by the original legislation. These are just two of many recent cases in which the Court has narrowly interpreted laws protecting individual rights, but they illustrate how the Court, without saying anything about the Constitution, can affect the scope of equality by interpreting statutes. As we all well know, there will be many more such cases..To sum up these cases, it would be like me asking the Supreme Court, ""do you know what time it is?"" And the Court replying, simply, ""yes."" Now, you and I, Judge, and everyone in this room realize that what I wanted to know when I asked that question was the time of day. Instead, the Court answered my question formally, not as a request for information but as a test of the Court's cognitive abilities. The Court's answer was not untrue, but you might well call it a triumph of technical sophistry over plain common sense. That might serve as a debating point, Judge, but it does not serve the public interest. In the coming decade, the rights of individuals and the powers of government will be affected as much by the Court's method of interpreting statutes as by its interpretation of the Constitution—and we need a Court more interested in clarifying the true intent of a law than in seeking quibbles that promote its own agenda. I have a second, related concern. As significant as its method of interpretation is what values the Court will incorporate into the calculus of interpretation. In recent years, an influential group of scholars and judges known as the ""Law and Economics Movement"" has offered a new view of how policy should be made and how legal disputes should be resolved. In essence, this movement proposes that legal problems should be resolved from a purely economic perspective, now that seeks economic efficiency as its goal, so that the answer to a legal problem may be derived simply by summing columns of numbers—costs, benefits, missed opportunities and the like. Some proponents of this movement are relentless in their application of this reasoning—analyzing every feature of our lives, including marriage and sex, by reference to transaction costs, search costs, and missed opportunities. Some have even said that we can explain rape by talking about the cost to the rapist of finding a sexual partner. Presently, of course, we quite consciously prefer other values—including social and moral considerations—when we make policy and resolve legal disputes. We choose to take into account social values, whether or not they make good, purely economic sense. Throughout his career, Judge Breyer has advocated the use of economic analysis in prescribing solutions for many legal and policy problems, and I will ask him how he will use the economic model in judicial decision-making, particularly relating to questions of public health and safety and to personal freedoms guaranteed to us under our laws. Judge Breyer, you come before the committee with impeccable credentials and a host of impressive accomplishments to your credit. You have been an able judge and chief judge on the First Circuit Court of Appeals for 14 years. During that time and before, as a professor of law at Harvard and as chief counsel to this committee, you have made an enviable name for yourself as an expert in regulation and its reform, in administrative law and processes, and in the intersection of science and law. I began by describing how the confirmation hearings of the past eight years have engaged us in the constitutional debates of those times, partly because those nominees were active and influential participants in those debates. So it is again today, Judge. You have written and spoken at length about methods of statutory interpretation, and about the role of economic analysis in resolving legal disputes. Thus, many of the very issues that are boiling today in the cauldrons of debate among legal scholars and judges are those in which you are most expert. We welcome you here to engage us in a discussion of these important matters. As we begin these hearings, I am concerned about the four areas I have identified here today, all of which affect our personal liberty—the scope of our most important individual freedoms guaranteed by the Constitution; the apparent emergence of economic rights as standing shoulder to shoulder with—or shouldering aside—our per- 8 sonal freedoms; the proper role for the Court in interpreting statutes enacted by the Congress and signed by the President; and the utility of economic analysis in judicial review of policy choices made by elected officials. These are not small questions, Judge; how we answer them will determine, directly and intimately, how Americans can live their personal lives and pursue their personal goals. That is why this opportunity to discuss these questions is important^-the result should be a Court better prepared to fulfill its constitutional responsibilities and a nation better enabled to pursue the destiny envisioned for it by its founders. Judge Breyer, you are very welcome here."
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I will now yield to my distinguished colleague from Utah, a man you know well, Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, thank you, Mr. Chairman. I welcome you, Judge Breyer, and the distinguished Senators who are here to testify with you. I appreciate your willingness to go through this process. Mr. Chairman, I congratulate the nominee, Judge Stephen Breyer, on his nomination to be Associate Justice of the U.S. Supreme Court. Judge Breyer has had a remarkably distinguished career in the law and in public service. If confirmed, he will bring a wealth of knowledge and expertise to the Court. And I might say I believe that he will be confirmed. As an attorney in the Department of Justice, then as a professor of law, Judge Breyer developed an expertise in administrative law and antitrust, and an appreciation of the costs of excessive governmental regulation. I first came to know and admire Judge Breyer when he worked for the Senate Judiciary Committee, first as a consultant, then as chief counsel. In his work, Judge Breyer was instrumental in bringing about airline deregulation. For the past 14 years, Judge Breyer has distinguished himself on the U.S. Court of Appeals for the First Circuit. Known for his careful, scholarly opinions on a range of difficult issues, he has defied simplistic categorization. While a judge, he also served on the U.S. Sentencing Commission and helped to draft the Federal sentencing guidelines. That was no small achievement. That Judge Breyer has the intellect, character, and temperament to serve on the Supreme Court is not, in my mind, in question. An additional essential qualification for any Supreme Court nominee is that he or she understand and be committed to respect the role of the Supreme Court in our governmental system of separated powers and federalism. This qualification has become all the more important in recent decades, when so many voices from academia, the media, and special interest groups have been attempting to justify the view that the Supreme Court is entitled to operate as a super legislature. Under this view, Justices enshrine their own policy preferences in place of the laws passed by Congress and the State legislatures. Under our system, a Supreme Court Justice should interpret the law and not legislate his or her own policy preferences from the bench. The role of the judicial branch is to enforce the provisions of the Constitution and the other Federal laws according to their understood meaning when they were enacted. Any other philosophy of judging enables unelected judges with lifetime tenure to impose their own personal views or sentiments on the American people in the guise of construing the Constitution and Federal statutes. There is no other way around this conclusion. Such an approach is called judicial activism, plain and simple. And it is wrong, whether it comes from the political left or whether it comes from the political right. Let there be no mistake: The Constitution, in its original meaning, can be applied to changing circumstances. The fact that telephones did not exist in 1791, for example, does not mean that the fourth amendment's ban on unreasonable searches and seizures is inapplicable to a person's use of the telephone. But while circumstances may change, the meaning of the text, which applies to those new circumstances, does not change. We often hear about the supposed needed for a living Constitution. Those who use this phrase typically mean that the Constitution should be reconstrued to give constitutional status to whatever interests they currently regard as important. But the Constitution remains living and well suited to a changing society not because its provisions can be twisted to mean whatever activist judges want them to mean. It remains living because it disperses and limits Government power and, equally importantly, because within those limits it leaves to the State legislatures and Congress primary authority to adapt laws to changing circumstances. After all, the very point of a democratic republic, its core virtue, is that the people generally decide how society will pursue its various goals and combat its various problems. This does not mean that those liberties not specially guaranteed by the Constitution have no protection. The Constitution's real genius—what Madison recognized as its greatest protection of our liberties—lies in its dispersion of Government power among the three Federal branches and between the Federal Government and the States. It is these structural features of separation of powers and federalism that provide our most important guarantee against oppressive legislation. In an earlier era, judicial activism resulted in the invalidation of State social welfare legislation, such as wage and hour laws. Since the advent of the Warren Court, judicial activism has, to cite a few examples, handcuffed the police in the battle against crime; interfered with the ability of communities to protect themselves from the scourges of obscenity, drug dealing, and prostitution; twisted constitutional and statutory guarantees of equal protection into vehicles for reverse discrimination and quotas; chased religious expression out of the public square; and imposed a regime of abortion on demand that is the most extreme in the Western World. The death penalty, which is, of course, expressly contemplated by the Constitution, is currently under attack by advocates of judicial activism. Many voices will urge Judge Breyer to become a judicial activist. Indeed, one judicial activist, in a remarkable display of effrontery, has already written a newspaper op-ed appealing to Judge Breyer to grow. Funny, isn't it, how moving to the left is seen as growing? Judge Breyer can rest assured that his stature will grow by his 10 continuing to do what has brought him to this special point: crafting judicial opinions that support the rule of law. While I do not agree with all of his opinions, I take considerable comfort from Judge Breyer's overall record that he will resist the siren calls of judicial activism. Judge Breyer has not displayed his sentiments on the sleeve of his judicial robe, nor has he pursued an ideological or political agenda. He has not strained to invent hypertechnical rules that benefit criminals at the expense of honest, law-abiding citizens. Instead, he has called into question what he has termed the right creation problem—that is, the misguided view that society's problems can best be resolved by recasting competing interests as rights or entitlements. There are, undoubtedly, areas where Judge Breyer and I will disagree in our reading of the law. I do not expect to agree with any nominee, especially one chosen by a President of the other party, on every issue that will come before the judicial branch. But it has been my consistent belief that a President—and this President—is entitled to significant deference in selecting a Supreme Court Justice, and in this case he has made an excellent selection. President Clinton and I are unlikely ever to agree on the person who ought to be nominated. But so long as a nominee is experienced in the law, is intelligent, has good character and temperament, and gives clear and convincing evidence of understanding the proper role of the judiciary in our system of Government, I can support that nominee. In this case, I have a great deal of regard and affection and experience and understanding of Judge Breyer, and I think a great deal of him, and I intend to support him. It is my hope and my firm expectation that this hearing will satisfy this committee that Judge Breyer meets the test of understanding the role of the judiciary in the constitutional processes of this Government. Judge Breyer, we welcome you here. We compliment you for being selected. We have high expectations of your service on the Court, and I hope you will enjoy these proceedings.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing is adjourned. [Laughter.] Judge, I said earlier that one of the most difficult questions faced today is from what State you hail, and I have decided how to resolve that: to disregard the States and go by a time-honored tradition of the Senate, seniority. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, Senator Hatch, members of the committee, it is a great honor to introduce Judge Stephen Breyer, President Clinton's nominee to be Associate Justice of the U.S. Supreme Court. We all know the fundamental role of the Supreme Court in our society. Our Nation celebrated its 218th birthday last week, proud of the fact that more Americans than ever can enjoy the fundamental rights to life, liberty, and the pursuit of happiness pledged in the Declaration of Independence. The Constitution is designed to guarantee those rights, and it is the nine Justices of the Supreme Court who have the last word on 11 the meaning of that charter of our liberties. Their decisions affect the lives of all Americans today, and for years to come. Judge Stephen Breyer is superbly qualified to serve on our highest Court. Throughout his long and brilliant career, Judge Breyer has committed himself to public service, to excellence in the law, and to the pursuit of justice for all Americans. After graduating with honors from Stanford University, he attended Oxford as a Marshall scholar. At Harvard Law School, he was an editor of the Law Review. He served as a law clerk for Supreme Court Justice Arthur Goldberg, a renowned defender of civil liberties and one of Judge Breyer's proudest mentors and admirers in later years. Judge Breyer next served in the Antitrust Division of the Department of Justice where he sought to enforce the antitrust laws to protect consumers from practices that drive up prices, hurt competition, or involve discrimination. In one important case, he developed the successful argument that the antitrust laws bar real estate agents from agreeing not to show homes in white neighborhoods to black families. Judge Breyer then returned to Harvard Law School as a member of the faculty, where he earned an outstanding reputation for his scholarship in the areas of antitrust law and administrative law, focusing on the profoundly important work of improving our free enterprise system and our system of government. In 1973, he took a leave of absence at the request of Watergate Special Prosecutor Archibald Cox to help in that historic investigation. In 1974, he became special counsel to the Administrative Practice and Procedure Subcommittee of this committee. I was chairman of the subcommittee at the time, and I have known Judge Breyer well ever since. His competence and creativity, his leadership ability and skill at working productively with Senators, interest groups, and constituents of widely different views were evident from the start. He was indispensable to our bipartisan effort in those years to deregulate the airline industry and the trucking industry. Judge Breyer dedicated himself to assuring that all Americans would have safe and efficient air travel at the lowest possible prices for the public, and that shippers and consumers alike would reap the benefits of lower prices in the trucking industry. Those two laws were among the most important achievements of Congress in that decade. I might add that we would have much more competition in the health care industry today if we had given Judge Breyer that assignment, too. I asked Judge Breyer to serve as chief counsel of this committee when I became chairman in 1979. His intelligence, fairness, and his commitment to unifying common ground instead of polarizing narrow ground earned him the admiration and respect and often the affection of every member of this committee, Democrats and Republicans. Those qualities were evident in December 1980 when Judge Breyer was the only judicial nominee confirmed by the Senate after President Reagan's election. Since then, as a member of the Court of Appeals for the First Circuit, Judge Breyer has earned a reputation as a brilliant and 12 fair-minded jurist. As chief judge of that court, he is well known and respected for his efforts to develop consensus and minimize dissent. His opinions are models of clarity, written, as the judge has said, so that the real people who are the parties in the cases, not just the lawyers, can understand the court rulings, too. In his decisions, he has construed the Constitution to defend the basic rights of all Americans. He has protected the right of women seeking family planning advice to hear about their right to choose to terminate a pregnancy. He has protected the right of Government employees to engage in political activity and advocacy. He has protected the right of students belonging to a church group to be recognized by a State university. He has protected the right of every citizen to rent or buy housing, free from the threat of discrimination. His opinions on environmental laws have been praised by environmentalists. His opinions in criminal law cases seek to assure public safety while protecting the constitutional rights of defendants. As one of the first members of the Sentencing Commission, he is widely credited with developing the guidelines to reduce the disparities in sentences given to defendants committing similar crimes. As a judge, he has also continued his dedication to teaching and legal scholarship. In addition to his administrative and judicial duties, he has continued to teach courses at Harvard Law School, and he has also continued to write and publish articles and books analyzing important issues of law and Government. Judge Breyer ranks among the country's most thoughtful scholars of the regulatory process, and his knowledge and experience in this complex area of the law will be a major asset to all the members of the Supreme Court from the day he takes his seat. His most recent book on regulation drew praise from leading experts on all sides of the debate. He has sought to assure that the public health and safety are protected, while avoiding needless inefficiency and waste in government. Not everyone agrees with all of his views, but I suspect that everyone will agree that his views have contributed immensely to our understanding of these complex issues in our modern society. In addition, perhaps because of his service to the Senate, Judge Breyer has emerged as one of the leading exponents of the view that laws should be construed in the manner that Congress intended. If confirmed, he will add a needed and well-informed perspective to the many important questions of statutory interpretation that come before the Supreme Court. Finally, I want to mention Judge Breyer's extraordinary family. His wife Joanna is widely respected in Massachusetts as a psychologist at the Dana Farber Cancer Institute, where she counsels children with terminal cancer and their families. Steve and Joanna's older daughter, Chloe, recently graduated from Harvard and now edits the magazine Who Cares?, which promotes public service by young adults. Obviously, the apple did not fall far from the tree. 13 Their younger daughter Nell recently graduated from Yale, and their son Michael has just completed his freshman year at Stanford. In an address about the legal profession, another outstanding Massachusetts jurist, Oliver Wendell Holmes, wrote that "every calling is great when greatly pursued." Throughout his career, Judge Breyer has shown that the pursuit of justice can be a great calling, and I am confident that he will be a great Justice on the Supreme Court. I commend President Clinton for this excellent nomination, and I look forward to these hearings.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Kennedy. Senator Kerry.
Senator John Kerry (MA)
Senator
(D)
Senator KERRY. Thank you very much, Mr. Chairman. It is my privilege to join with my colleague, Senator Kennedy, and with the Senators from California in formally introducing Judge Breyer both to the committee and to the proceedings. You and members of the committee know him personally and very well, and now with these hearings, the country will get to know him, too. I am confident that our fellow citizens will very quickly appreciate and respect the qualities which were at the center of the President's decision to nominate Stephen Breyer. As this committee knows better than any entity in the country, the confirmation of a Justice of the Supreme Court is always important. It is serious business. It is the exercise of one of the Senate's most important responsibilities, with enormous transfer of power to one individual for a lifetime. So, as always, I know the committee will ask a broad set of tough questions, as Senator Hatch has said. I also know that Judge Breyer will reconfirm the belief in those of you who hold it and convince those of you who do not, as well as convince the country, that he brings great legal skills and personal commitment to this task and a great potential to move and to help shape the Court itself. He brings special qualities to this job, if I can add to those things that Senator Kennedy has talked about of his record. He has worked for all three branches of Government. He has taught. He has published, and he has handed down, as Senator Kennedy said, major opinions in multiple areas of the law. He has shown himself to be an individual of extraordinary range. He is trilingual. He serves on a Federal judicial study committee that contemplates the relationship between law and the science. He reads Proust in the original French, and he has even studied architecture to help make judgments about Federal construction. But mostly, Mr. Chairman, those who know him well have come to know that Judge Breyer is a person who remembers on a daily basis what it means to serve the people and to serve the Constitution, and he has worked hard to stay close to the reality of life in America. You will be pleased to know that that grounding in reality was even demonstrated in a statement about his alma mater, Harvard, when he said that life there is important but it does not 14 affect 99 percent of the people who get up, go to work, have to educate their children, and get their health insurance. And he defines his role on the Court to be "to make the average person's life better." He has said that while the task ahead of him is an incredible challenge, he is deeply humbled in simply thinking about it. I think it is that attitude which indicates the ways in which he has tried to stay close to the people that his decisions have an impact on. A small example of that is seen in the fact that because the court that he currently sits on has jurisdiction over Puerto Rico and because he felt that understanding a culture is deepened by an appreciation of language, he taught himself Spanish. In fact, he convinced all the judges of the first circuit to take Spanish lessons along with him. Much of the substantive work that he has performed he already had dramatic impact on the lives of Americans. Ted Kennedy has already described much of that, and I will not repeat it except to say that his almost singlehanded deregulation, with respect to the committee, of the airline industry led to enormous change, reductions in fares, and the clear benefit to consumers in the country. The committee will remember also that as chief counsel he helped to improve fair housing legislation by drafting a law to create an administrative mechanism for the enforcement of fair housing laws. Most importantly, Mr. Chairman and members of the committee, throughout his career Judge Breyer has shown in his performance of judicial duty a commitment to principle and skill in resolving moral paradoxes. He opposed the removal from tenure of a professor who stated that the Holocaust was a hoax because he believed that it is more valuable to preserve the principle of tenure than to punish one disturbed individual. When dealing with the tremendous conflicts inherent in revising the Federal sentencing guidelines, he chose what was deemed to be a brilliant, innovative, and fair route, arguing that in the absence of any one clear moral path, one should at least codify and clarify the status quo. He summed up his view of the law once by saying, "There is a whole mass of legal material that is supposed to fit together. What it is supposed to do is allow all people"—and this he emphasizes, all people—"even though they have some many different views, to live and work productively together." I believe the committee knows already but will see confirmed in the next days ahead that Steve Breyer is a person of character, which is, after all, a central issue in any nomination. From his youth as an Eagle Scout, to digging ditches for Pacific Gas & Electric in high school, to working as a janitor for San Francisco's school system, he has shared in the American experience and he has been affected by it. Mr. Chairman, Steve Breyer comes to you a nominee with great judicial and personal skills. He has an open, inquiring mind. He can and will think in nonlinear, creative ways, but he is also principled and committed and passionate. He has learned how to serve as mediator and consensus builder, but he also knows how to press the case as an artful advocate. 15 It is interesting to note that the first circuit has been admired for its amazing scarcity of dissents, due in no small part to Judge Breyer's ability to encourage people to empathize with each other and to teach people with disparate views to find new ways to agree. I am confident that it is this ability that has gained him the backing of liberals and conservatives alike, not because he is a centrist or a moderate, which may prove to be inaccurate, but because he has an enormous intellectual honesty and because he is fair. Colleagues, litigants, students, and clerks uniformly agree that Judge Breyer never wraps his ego into an issue, he never elevates politics over principle, and he has earned his reputation as a skilled jurist by being openminded and sensitive to detail. So I am confident, Mr. Chairman, that the committee will overwhelmingly agree, and I could not more strongly recommend Judge Stephen Breyer for your confirmation.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Now we will hear from a distinguished member of this committee, Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much, Mr. Chairman and members of the committee. As one of the newer members on this committee, it, indeed, has been a great, I think, and unique experience to sit on my first confirmation to be an Associate Justice of the Supreme Court, Ruth Bader Ginsburg, and now to go through these hearings for Judge Stephen Breyer.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We credit you with the new-found stability on these issues.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you, sir. And I must say I think both Senators from Massachusetts have well and articulately spelled out the kind of scholarship, the legal history, the common sense, the maturity, and the judgment that Stephen Breyer can bring to the U.S. Supreme Court. For me, being a nonlawyer on this committee, the test is a little different. For me, the test is how an individual jurist can really apply what is happening on the streets of America to the Constitution of the United States and make that document work for the well-being of all of the people, not just this group or that group, because America is, indeed, a very troubled land. I am very proud to say that Stephen Breyer hails from the great State of California. More specifically, I am proud to say that he hails from my home city, attended school at Lowell High School at about the same time as my husband. I am also proud to say that his father, Irving Breyer, was general counsel for the San Francisco Unified School District. And as mayor of San Francisco, I came to count on his good sense and judgment in many serious problems affecting the Unified School District of San Francisco. Judge Breyer brings to the east coast really, in a sense, the best of the west coast: the best of public and private education from Lowell High School to Stanford University; the best of the streets, as Senator Kerry mentioned, whether as a ditch digger for Pacific Gas & Electric or as a waiter for the San Francisco Parks and 16 Recreation Department; or as a member of the Armed Forces stationed at Fort Ord, CA. His community service is known to all of us. His legal service is also known as well. I have tried to read all of the many articles that I have seen in print about Stephen Breyer, and what I see is a man deeply dedicated to the pursuit of the law, a man prepared to struggle to do what is right by the Constitution, but a man that also understands what is important to the people and streets of this Nation. I believe that something that he said when he was introduced by the President deserves repeating here, The Constitution and the law must be more than mere words, they must work as a practical reality. And I will certainly try to make the law work for people, because that is its defining purpose in a government of the people. In a sense, I believe that says all there is to say, well and with heartfelt sense, about Stephen Breyer. So it is with a great deal of personal pride and pleasure, as a Senator and a Californian, that I am able to join with my respected colleagues in presenting to you the very distinguished nomination of Stephen Breyer to become Associate Justice to the U.S. Supreme Court.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Feinstein. Now, last but not least, a Senator who has for some time taken a keen interest in the activities of this committee, whether or not she was on the House side or as a Senator on this side of the aisle, on this side of the Capitol, I should say, welcome, Senator Boxer.
Senator Barbara Boxer (CA)
Senator
(D)
Senator BOXER. Thank you very much, Mr. Chairman and Senator Hatch. This is such an honor for us, and today, Massachusetts and California share the honor of introducing a very, very famous American, and I would say we are very proud, and I think all America will be proud, as these hearings proceed on you, Judge Breyer. Certainly, you know that we are delighted to say that in those early formative years, Stephen Breyer was born and raised in San Francisco, his family put a high value on education, public service, and the important combination of the two. I do not know whether you know, Mr. Chairman, that Judge Breyer's grandfather Samuel served with distinction on the San Francisco Board of Supervisors, where my colleague Dianne Feinstein served, and I served across the Golden Gate Bridge on the Board of Supervisors of Marin. His mother Ann was active in the League of Women Voters and in local Democratic politics. And for more than 40 years, as you heard, his father Irving Breyer was legal counsel to the San Francisco Board of Education. So, from the very beginning, Stephen Breyer seemed destined to carry on his family's tradition of scholarship and public service. His senior class at San Francisco's Lowell High School named him most likely to succeed. They were right. And his aunt Shirley Black explained, He started speaking in sentences, we knew he would be something great, spoken by an aunt. But she was right, too. 17 Stephen Breyer comes to us today with a remarkable diversity of experiences and skills. I will not go into all of those. They have been so carefully explained by my colleagues. But perhaps what you do not know is that Stephen Breyer is not only a husband and father of three, he is a gourmet cook, he is a bird watcher and avid reader, a student of philosophy and a speed typist. I really respect that, because my mother taught me, when I was a kid growing up in the fifties, you had to learn to type, and I only thought that they said that to girls. He rides his bicycle to work and, as we know, he has taught himself Spanish. This is a well-rounded individual. I think it is important to listen to what those who know Stephen Breyer best have said about him. Stu Pollack, a municipal judge in San Francisco, said, "Ours was the age of Kennedy. Government was there as a tool to bring about change. I don't think Steve ever had his faith in public institutions shaken." He further explained, Steve's father spent his professional career as an attorney for the board of education. I think Steve absorbed the ethic that things of value lay in work that had some sort of public impact. Richard Cudahy, a judge on the Seventh Circuit Court of Appeals, said, "Everyone knows he's an intelligent guy, but he also understands the human side of the law and, most important, he has got a great sense of humor." Judge Bruce Selya, an appeals court colleague, said, "The most unusual thing about him is that he makes everyone feel at ease, despite his absolutely stunning intellect." The San Francisco Chronicle praises this nomination, and they do not praise a lot of things. [Laughter.] Once again, I want to say congratulations to Judge Breyer on his nomination, and to thank the Chair and the ranking Senator on the committee for allowing us to share this honor of introducing him to you this morning.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. I would like the record to show that when the phrase "great sense of humor" and the phrase "well-rounded" were used, that all of his children laughed hysterically, which shows that they are a typical American family. [Laughter.] I think the people we really should hear from, to know about Stephen Breyer, is not his wife, not his brother—by the way, sir, you could be his publicist. I watched you on television. You are incredible. If you ever decide to leave the practice of law, there is a future for you, if you could ever say the things about others you say about your brother. I will tell you what, this guy is good, Judge. You should keep him around and keep him close. But the people we really should hear from are your children. So we are going to do something very unusual and swear in your children now and find out what the real story is here. [Laughter.] Judge speaking of swearing in, this is the moment. As you well know, I would like you to stand to be sworn. Judge do you swear that the testimony that you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I do. 18 TESTIMONY OF HON. STEPHEN G. BREYER, OF MASSACHUSETTS, TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. With that, I would like to invite my colleagues who are members of the committee to come and take their seats, and I thank our colleagues from Massachusetts and California who are not members of the committee. Judge while our colleagues are assuming their seats, would you be kind enough to introduce your remarkable family, and they are remarkable, to us and to the Nation.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would like to introduce, Senator, my wife Joanna, who, as Senator Kennedy said, worked at the Dana Farmer Cancer Institute in Cambridge City Hospital.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Joanna, welcome.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NOW, Michael, next to her, is a first-year student at Stanford, and he is going to lead a trek into the mountains of Wyoming this summer.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, he needs Simpson with him, then, and we can work something out. You do not want to wander into Wyoming without Simpson's permission, I just want you to know that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am not sure you want to wander in with Simpson. [Laughter.]
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Nell is a recent graduate of Yale, and she is going back up to New Haven this summer. She is teaching dance to children up there in a special program.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Chloe, as you heard, has graduated from Harvard and she is down here with two young women, and the three of them are putting out a new magazine called Who Cares for public service. Now, she will give you many copies, if you want, and order blanks, probably.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, we have a tradition here of holding up documents to make people famous, so we will be delighted to hold up a copy of Who Cares before this is over. Your brother, let us get to your brother. I mean, this guy has done you a big deal.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. My brother-in-law, who is a lawyer, and, as you say, I guess he is extremely good on television. And my sister-inlaw, who has run a program called City Arts, which puts on public lectures and performances in San Francisco.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I welcome you all. Now the part that makes me the ogre with the women and men of the press, who do not like me doing this. I would ask the photographers to please clear the well, so that we can have the nominee make his statement and answer questions without the feeling that we are all looking at him through the lens of a camera. Judge while we are clearing, a little bit of business here. After your statement, time permitting, and I think it will, we will ask three rounds of questioning. Three Senators will have before we break for lunch. And for the press, who are making their decisions in terms of timing, I expect we would break around 1 o'clock, and that we will resume after the cloture vote- on the floor of the Senate at 2:45 p.m., with questions to resume at that period. So, roughly from 1 p.m. to 2:45 p.m., we will stand in recess. 19 Judge again, welcome. The floor is yours.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you. At the outset, Mr. Chairman, I would like to thank this committee really for the serious attention that you all have paid to my nomination. I appreciate the members taking the time out of enormously busy schedules to meet with me personally. And I recognize that you and your staffs have really prepared thoroughly for these hearings, and you have read the books and articles and the opinions and these things I have written. It seems to me that is some kind of new form of cruel and unusual punishment, quite a few. Now, there are many, many other people I would like to thank today. I am obviously very much deeply grateful to Senator Kennedy, who has given me so much over the years. I have learned and continue to learn lessons of great value from him. I really want to thank very much Senator Kerry and Senator Boxer for having come and taken the time to come here, along with Senator Feinstein, for supporting my nomination. I am especially grateful to President Clinton for nominating me to a position that I said, and I do find humbling to think about. If I am confirmed, I will try to become a Justice whose work will justify the confidence that he and you have placed in me. Now, I would like to begin by telling you a little bit about myself—although you have heard quite a lot—maybe, though, a few of the experience that I think have had an important effect on my life, how I think, and what I am. I was born, as you heard, and I grew up in San Francisco. I attended public schools, Grant Grammar School and Lowell High School. My mother was from St. Paul, MN. Her parents were immigrants from East Prussia, which is now part of Poland. My mother was a very intelligent, very practical, public-spirited kind of person, and she, like many mothers, had an enormous influence on me. She was the one who made absolutely clear to me, in no uncertain terms, that whatever intellectual ability I might have means nothing and will not mean anything, unless I can work with other people and use whatever talents I have to help them. So, I joined the Boy Scouts, I did work as a delivery boy, I did dig ditches for the Pacific Gas & Electric Co., and I mixed salads up in the city's summer camp. It was nice, Camp Mather, because at that time you had policemen and firemen and lawyers and doctors and businessmen and their families, and they were all there together at the city camp for 2 weeks in the summer. It was great. My mother really did not want me to spend too much time with my books. And she was right. I mean my ideas about people do not come from libraries. My father was born in San Francisco. He worked as a lawyer and as an administrator in the San Francisco Public School System for 40 years. I have his watch, as you said, Senator. He was a very kind, very astute and very considerate man. He and San Francisco helped me develop something I would call a trust in, almost a love for the possibilities of a democracy. My father always took me. As a child, he would take me with him into the voting booth. I would pull down the lever, and he would always say, "We're exercising our prerogative." He would take me to candidates' nights. Our school used to go up to Sac- 20 ramento to see the legislature in session. It was Youth in Government Day. There was Boys' State. All this led me to believe, not just that government can help people, but that government is the people. It is created through their active participation. And that is really why, despite the increased cynicism about basic government—and we have really seen vast improvement in the fairness of government—I still believe that, with trust and cooperation and participation, people can work through their government to improve their lives. In 1957, as you said, I served in the Army for a little while. I studied in England, I returned to Harvard Law School, and then I clerked for Justice Arthur Goldberg, who became a wonderful lifelong friend. After 2 years in the Antitrust Division of the Justice Department, I went back to Harvard to teach and to Massachusetts to live. And for the last 27 years, I have been privileged to live in Cambridge and work in Boston. I loved teaching. I loved my students. But if I were to pick out one feature of the academic side of my life that really influenced me especially, I think it would be this: The opportunity to study law as a whole helped me understand that everything in the law is related to every other thing, and always, as Holmes pointed out, that whole law reflects not so much logic, as history and experience. Academic lawyers, practicing lawyers, government lawyers, and judges, in my opinion, have a special responsibility to try to understand how different parts of that seamless web of the law interact with each other, and how legal decisions will actually work in practice to affect people and to help them. Working here on this committee in the 1970's, I learned a great deal about Congress, about government and about political life. There were disagreements to resolve, but everyone shared the same ground rules—basic assumptions about democracy, freedom, fairness, and the need to help others. These vast areas of widely shared beliefs are what has shaped the law of America and the lives of all Americans. Since 1980, I have been a judge on the U.S. Court of Appeals for the First Circuit, and that is Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. Because of my colleagues and the work itself, this job is a great honor, a great privilege, and it has been a great pleasure to have. I have tried to minimize what I think of as the less desirable aspects of the job, one that Justice Goldberg really felt strongly about—that judges can become isolated from the people whose lives their decisions affect. I have continued to teach and to participate in the community and in other activities, which are important in connecting me to the world outside the courtroom. I have been helped in this task by my wife and her work at Dana Farber and at Cambridge Hospital, which shows me and others some of the sadness in this world, as well as its hopes and its joys. I believe that the law must work for people. The vast array of Constitution, statutes, rules, regulations, practices and procedures, that huge vast web, has a single basic purpose. That purpose is to help the many different individuals who make up America—from so many different backgrounds and circumstances, with so many 21 different needs and hopes—its purpose is to help them live together productively, harmoniously, and in freedom. Keeping that ultimate purpose in mind helps guide a judge through the labyrinth of rules and regulations that the law too often becomes, to reach what is there at bottom, the very human goals that underlie Constitution and the statutes that Congress writes. I believe, too, in the importance of listening to other points of view. As a teacher, I discovered I could learn as much from students as from books. On the staff of this committee, it was easy to see how much Senators and staff alike learn from each other, from constituents, and from hearings. I think the system works that way. It works better than any other system. And our task is to keep trying to improve it. My law school diploma refers to law simply as those wise restraints that make men free—women, too, all of us. I believe that, too. I felt the particular importance of all this when 2 years ago, I had the good fortune to attend a meeting of 500 judges in the new Russia. Those judges wanted to know what words might they write in a constitution, what words would guarantee democracy and freedom. That is what they were asking over a 2-day meeting. They asked me. I mean they were interesting discussions, very interesting. My own reply was that words alone are not sufficient, that the words of our Constitution work because of the traditions of our people, because the vast majority of Americans believe in democracy. They try to be tolerant and fair to others, and to respect the liberty of each other, even those who are unpopular, because their protection is our protection, too. You are now considering my appointment to the Supreme Court of the United States. That Court works within a grand tradition that has made meaningful, in practice, the guarantees of fairness and of freedom that the Constitution provides. Justice Blackmun has certainly served that tradition well. Indeed, so have all of those who have served in the recent past, Justice White, Justice Brennan and Justice Marshall. They leave an inspiring legacy that I have correctly called humbling to consider. I promise you, and I promise the American people, that if I am confirmed to be a member of the Supreme Court, I will try to be worthy of that great tradition. I will work hard. I will listen. I will try to interpret the law carefully, in accordance with its basic purposes. Above all, I will remember that the decisions I help to make will have an effect upon the lives of many, many Americans, and that fact means that I must do my absolute utmost to see that those decisions reflect both the letter and the spirit of a law that is meant to help them. Thank you, Mr. Chairman. I might add one thing, if I might, on a slightly different subject. I want to add this, if I may, and that is recently I know—and this is important to me—that in recent weeks there have been questions raised about the ethical standard that I applied in sitting on 22 certain environmental cases in the first circuit at a time when I had an investment, an insurance investment in Lloyd's. I recognize that this question has been raised by people of good faith, and there is nothing more important to me than my integrity and my reputation for impartiality. It is obviously a most important thing to preserve public confidence and integrity in the judicial branch of government. I have reviewed those cases again and the judicial recusal statute, and I personally am confident that my sitting in those cases did not present any conflict of interest. Of course, my investment was disclosed to the public. There has been absolutely no suggestion that Lloyd's was involved as a named party in any of the cases on which I saw. I know of no such involvement. The judicial recusal statute does recusal, as well, if you have one case that has some kind of direct and predictable financial impact on some investment, that is to say if it is not a speculative or remote or contingent impact. The cases on which I sat did not violate this standard, either. That issue has been carefully looked into by independent ethics experts who share my view. Mr. Chairman, as I said, I recognize the importance of avoiding conflicts of interest or even the appearance of such conflicts, and that standard is essential for all judges, and especially essential for judges of the Nation's highest court. So I certainly promise I will do all I can to meet it, including what I shall immediately do, is ask the people who handle my investments to divest any holdings in insurance companies as soon as possible, and with respect to Lloyd's itself, I resigned in 1988. Though, because of one syndicate that remains open, I have been advised that I can leave altogether by the end of 1995, but I intend to ask the people involved to expedite my complete termination of any Lloyd's relationship. I will be out of that as soon as I possibly can be. Finally, as I go forward, I certainly will keep in mind the discussion that has arisen over the last few days, and I will take it into account in reviewing any possible conflict whatsoever.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Judge. Again, a housekeeping matter. As I understand it, you would rather not take a break. One of our tendencies, as you remember when you used to sit back here, is that we get to get up after we ask our questions and make our phone calls and make our visits, and you do not get to move as long as someone is up here asking you questions. So I want to be clear that we want to accommodate you. It is kind of hard sitting there all this time answering questions. Now, as I understand it, though, you would like to proceed with one round of questioning, and then we will take a 5-minute break and come back and hear from Senators Hatch and Kennedy, and then we will break for lunch. Is that how you would prefer to proceed?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is fine, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, let me begin by saying, in recent years, we have seen new challenges to the efforts of government at all levels to adopt regulations that government believes are designed to protect the environment and promote a public goal. These challenges have taken the form of asking the Court to change how it has interpreted the takings cause of the fifth amendment. Less than 3 weeks ago, the Supreme Court of the United States decided a case called Dolan v. Tigert, where, using the takings clause, the Court rejected a local town measure intended to reduce flooding and traffic congestion caused by a business' development along a river. This decision follows a case decided 2 years earlier, Lucas v. South Carolina Coastal Council, and in these cases the Court adopted a new standard for reviewing the takings clause. Judge, my first question is, before the Dolan and Lucas cases, how did the Supreme Court review claims that a regulation designed and stated to be designed to safeguard public welfare was the taking of property, thereby requiring the Government to pay the landowner for the so-called taking? What was the law, as you understand it, prior to Dolan and Lucas? What standard did the Court use?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Mr. Chairman, I think usually, when I go back to basics, what I often try to do is I try to keep in my mind some kind of basic, two or three basic points in different areas which are sometimes helpful. The basic point or the basic case or the basic idea I have in my mind in this area is I go back to a case Justice Holmes decided. It is actually a very interesting case. A person owned a coal mine, and the Government said here is what you ought to do: Leave some columns of coal in that mine, because if you do not leave big thick columns of coal, the whole ceiling will collapse, and there are cities that are built on top of that coal mine and they are all going to fall down, and, therefore, we will have a regulation which tells you big thick coal columns. But the owner said I agree with you, I don't want anything to happen to anyone on the surface. But, really, you don't have to have columns that are that thick, you don't have to have that many, and what you have done is taken my coal. So the case presented the issue of when is it a reasonable regulation, for, after all, it is a good purpose to stop the cities from falling I ll into the mine. I mean that is a wonderful purpose. When does a reasonable regulation become a taking of property for which you must pay compensation? You know what Justice Holmes said. You are going to be disappointed, but what he said was this. He said, You can regulate, you can regulate, you don't have to compensate, when you regulate. But, Government, you cannot go too far. What is too far? Indeed, ever since that time, the courts have been trying to work out what is too far, and I don't think anyone has gotten a perfect measure of that. They look into factors, they say how important is the regulation, what kind of reliance has there been on this, has there been a physical, a physical occupation of property. You see, in the case you have, which is very interesting, the one you mentioned, there might have been a physical taking of a piece of property, and then the Government can do less. But as I looked through these cases thereafter, you always come back to what is a kind of human judgment, what is too far. And the more reasonable what you are doing is, the less reliance there has been, the less it looks like it is taking something that historically has been considered a person's physical property, the more likely it is that you don't have to compensate.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Isn't the issue, Judge, what you said, whether the Government has gone too far? Most observers and legal scholars have referenced Lucas and then recently Dolan as evidence of the fact that the Court is changing that standard of how they determine what is too far. As you know better than I, Judge, in Lucas and in Dolan, but in Dolan, in particular, two things changed that seem to me to be different. I would like to talk with you a moment in the same general sense you discussed in the Holmes case. In the past, if a Government agency said we are regulating for the public welfare so cities do not fall in, the burden has basically been on the property owner to say, you know, you have gone too far, Government, and here is why. Second, it has been generally speaking the Government, the Court has looked and said has the government had a rational basis for doing this, have they had a reason that comports with some sense of what seems to be related here, and, if they have, we will accept that, unless the plaintiff can prove, the property owner can prove that they have gone too far. Well, as I read Dolan, two things happened. Granted, it is a case not of great moment in terms of what was at stake, in terms of a bicycle path and a flood plain and an extension of a permit to be able to make a hardware store larger, and so on, but it did two things. One, it shifted the burden of proof to the Government, and, to the best of my knowledge, I think that is the first time in 70 or 80 years the Court has done that. It has explicitly said, hey, look, Government, now you have got to prove, not the plaintiff, you have got to prove that this regulation was necessary and that you didn't go too far. The second thing it did was it established what might be a new rule of construction, a new canon, one might argue, that says that the taking has to be roughly proportional to the needs. It took that bar and raised it just a little bit higher. Now, my question is this: Is there any doubt in your mind, after Dolan and after Lucas, that it is at least incrementally more dif- 112 ficult for the Government to regulate zoning and environmental laws than it was prior, not impossible, but just incrementally at least more difficult, or am I off on that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, no, you are not off on that. Absolutely, the dissent you see in that absolutely thought that was so. The reason I hesitate a little bit is there is something special about that case, and what is I think a little special about the case is that it did at least arguably involve a physical occupation of a piece of property, and at the same time they didn't make all that much out of it. Then, as you just pointed out, they used this test of rough proportionality, and what exactly is that, it looks as if it is a little tougher. So where I end up in my mind is that this is an area that is not determined forever, that there are likely to be quite a few cases coming up, that this problem of how you work out when it goes too far is something that undoubtedly will come up again in the future, and there is a degree of flexibility and flux in these opinions that I think haven't made a definite decision forever. That is basically my state of mind on them at the moment.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, mine, as well, and, therefore, it raises a series of—again, the Court did not do what I am about to say. But if you juxtapose what the Court did do, that incremental change that it made, with some of the leading legal experts and minds in this area—Professor Epstein comes to mind—it is hard, to use a phrase often used by Judge Bork, it is hard to find a principled rationale for how and where this stops, because the burden is a big deal.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, it is.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is a big deal in terms of outcome, whomever has the burden. We understand that in terms of criminal law. We understand that if the defendant had the burden to prove that he or she was innocent, it makes a big difference, the same facts, the same circumstances, it would make a big difference. In these cases, which affect economic rights and affect public health and welfare, whomever has the burden makes a big difference. Now, as you know, Judge Breyer, this is not the first time the Supreme Court has of late elevated—I do not want to be pejorative here—has moved the bar on economic rights. In the early part of this century, as mentioned by my friend from Utah, in the so-called Lochner era, named after the leading case of the time, the Supreme Court routinely struck down health and safety measures as unconstitutional. The Court struck down the types of regulation that everyone in this room now considers normal and appropriate. It struck down minimum wage laws, which we now take for granted, it struck down child labor laws, and it struck down workplace safety laws. The Court finally changed course and put an end to the so-called Lochner-izing toward the end of the 1930's. Now, would our society look different today, if the Supreme Court had not gone back on Lochner and still gave economic rights the same level of protection that it did during the Lochner era? What effect would there have been on labor laws, for example, and environmental laws, had West Coast Hotel v. Parrish not come along and overruled Lochner? Talk to us about that. Be a professor 113 for a minute here. Tell us what the effect would be, as you would see it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think, Senator, that you would have very, very wide agreement with you across a very, very wide spectrum with what Holmes said, that the Constitution does not enact into law Herbert Spencer's social statics. What he meant by that is there is no particular theory of the economy that the Constitution enacts into law. That does not mean property has no protection. There is a takings clause in the Constitution. It does not mean that people's clothes and toothbrushes are somehow at stake and could be swept away randomly. What it means is that the Constitution, which is a document that basically wants to guarantee people rights, that will enable them to lead lives of dignity, foresees over the course of history that a person's right to speak freely and to practice his religion is something that is of value, is not going to change. But one particular economy theory or some other economic theory is a function of the circumstances of the moment. And if the world changes so that it becomes crucially important to all of us that we protect the environment, that we protect health, that we protect safety, the Constitution is not a bar to that, because its basic object is to permit people to lead lives of dignity.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I agree with your analysis, and you state it very clearly. Now, I understand that there is a significant distinction, a difference between the 5th amendment analysis engaged in Dolan and Lucas and the analysis of Lochner analyzing the 14th amendment, in finding the substantive due process right to freedom of contract, which is related to the 14th amendment.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I understand Lochner went far beyond the question of takings. But if we follow Dolan and Lucas to their logical end, I do not see—I am not suggesting that the Court has done that, but if we do, I do not see how different it is from Lochner in its practical effect. It is clear to me that there are some very significant legal minds who are arguing that essentially we find, in the 5th amendment in the takings clause, what had been done in the 14th amendment, which is now totally discredited. Now, in the past, as I said, the courts gave Government the benefit of the doubt when its actions were challenged as unconstitutional. Doesn't the importance of both Lochner and Dolan lie in the fact that they refuse to give the Government the benefit of the doubt, by putting the burden of proof on the Government?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The kind of thing, Senator, that you are concerned about I think was a concern of the dissent, and I know that there are people and commentators thoughtfully reading these cases who worry about, well, how far will they go. When I think about that, I think, well, this is a matter, if you actually look at the case itself, that is still up in the air, and I think it is very widely accepted.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is why I am trying to get you to talk about it, because you may bring it down to the ground.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Here I have a problem talking about things that are up in the air, for this reason, and I will be very frank with you. 114 Let us imagine, if I am lucky and if you find me qualified and vote to confirm me, I will be a member of the Supreme Court, and, as a member of that Court, I will consider with an open mind the cases that arise in that Court. And there is nothing more important to a judge than to have an open mind and to listen carefully to the arguments. So I am trying both at the same time, and I will throughout these hearings—and tell me if you feel I am not striking the right balance—I will try very hard to give you an impression, an understanding of how I think about legal problems of all different kinds. At the same time, I do not want to predict or commit myself on an open issue that I feel is going to come up in the Court. The reason for that is two, there are two real reasons. The first real reason is how often it is when we express ourselves casually or express ourselves without thorough briefing and thorough thought about a matter that I or some other judge might make a mistake. And when you get the thorough briefing and thorough thought, you find, when you really look into it, that the matter somehow strikes you as not right to what you said before. The other reason, which is equally important, is if you were a lawyer or if I was a lawyer or any of us appearing before a court or a client, it is so important that the clients and the lawyers understand the judges are really open-minded. That is why I will hesitate sometimes and
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO far you have been very responsive, and I am not looking for you to give me an answer of how you would rule in any one case. But I am looking to ask you to do what you have begun to do, and that is articulate for us your view of the principled way in which you think we should approach these matters of constitutional import. What I have attempted to establish thus far is that where this balance goes is of phenomenal consequence to the Nation.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Not where you are going to take it. It is of a multi-trillion-dollar consequence to the Nation. To overstate it, if, for example, we adopted the view proposed by some very articulate, brilliant legal scholars, which says that you really have to apply a tort standard in determining whether or not a taking has, in fact, occurred, what we would find is that if tomorrow we passed any law here and said, by the way, no more CFC's can be admitted into the atmosphere, we would have every company that now manufactures CFC's come to us and say, you know, that is a great idea. But because you cannot prove if we manufactured CFC's and they deplete the ozone layer—you cannot prove that Lloyd Cutler got cancer or Joe Biden got cancer because of that—because you cannot prove that, we will stop but you have to pay us to stop, like the coal mine owner. That is a multi-billion-dollar decision for the taxpayer. Right now it is not in question. Until Dolan it was not in question. No one assumed that if we said no more CFC's that we would have to go out and pay every company in America to stop manufacturing CFC's. The taxpayers, the press, the public, the Senators, including me until recently, do not fully appreciate the phenomenal economic consequence of taking a reading of the takings clause to its logical 115 conclusion as espoused by Dolan, and shifting the burden of proof and changing the standard. Now, can you articulate or think of any principled standard to stop the movement announced in Dolan or Lucas? How does that stop? How does this shifting of the burden not automatically take you into the area that I worry most about, which is the one I have just articulated? Is there a principled way in which to say, OK, shifting the burden and requiring this relationship enunciated in Dolan does not automatically lead to the concern I have stated in the case I have just made up?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think the principal concern, as I listen to you, Mr. Chairman, is the Justice Holmes' concern. As I listen to you, what you are saying is think back to those columns in the coal mine.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Exactly.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Are you really serious that it should impose that the law should prevent people in a practical way, through their Government, requiring columns that protect coal miners? And you are saying, of course not. And as I hear that, I think you are saying a law or an interpretation of the Constitution that would seriously impede the coal columns that protect the miners and protect the cities, that would be going too far. And I agree with you that that is what Justice Holmes would have had in mind. That is why I think what the Court is trying to work out is, in my own mind—I cannot read other people's minds, but it is what is called a practical accommodation. Of course, there is a compensation clause in the Constitution. Of course, property is given some protection. At the same time, one must not go too far, and what too far means is imposing significant practical obstacles. It sounds to me
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, let me shift here, maybe, to another area. Maybe we can come back to this. You and I are talking now about the Constitution, the fifth amendment.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Another way to affect the basic rights of individuals who do not have economic power is the way in which the Court interprets statutes passed by the legislature and signed by the President. And it is my view, I will say up front, that whether courts grudgingly interpret the wishes of elected representatives or interpret them in a generous way, obviously has significant impact. One of the things that has arisen in the last 10 years, particularly the last 2 years, is this notion—mentioned by my distinguished colleague, who is, by the way, a fine lawyer and competent to sit on the bench himself—his point made that sometimes the cost of Government actions outweigh the benefits, economically. And I said in my opening statement we often consciously make those decisions to reflect public values, societal norms. We say we know this costs a lot of money to do this, but we are not going to put a value on human life; we are not going to put a dollar value on a particular strongly felt societal value. Now, several years ago, the Environmental Protection Agency decided to phase out the use of asbestos because it posed many health risks, including the risk of cancer. A Federal appeals court reversed the EPA's ban on asbestos in a case you discussed in your most re- 116 cent book. The court decided that the statute under which the EPA acted could not possibly have been intended to allow EPA's asbestos ban because the ban cost so much money for every human life it might save. Now, my question, Judge, is: Is it reasonable for a judge to infer what Congress intended by looking at how much it costs to implement what Congress intended?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU cannot answer the question never. It would depend very much on what you had in mind in the statute. I wrote about that case in my book.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, I read your book.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And I wrote really two opposite things about it, absolutely opposite. The first thing I wrote about it is I thought what was in the mind of the Court, and I thought what was in the mind of the Court is they found an example where they thought that EPA was imposing a ban that cost about a quarter of a billion dollars. And it would save hardly anybody.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But it would save somebody.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; it was like the number of people—they used a kind of absurd example about the number of people who die from toothpicks, eating toothpicks, or something like that. But that is the first way I used it in the book, was to show that there are some EPA regulations which, indeed, seem to be very expensive ways of going about saving lives. The second way is the opposite way I used that case in the book, because that case also provided an example of what you are suggesting; that it is not very good for courts to get involved in making that decision. That is more a decision for Congress to make. And what I said when I discussed the case for the second time is look how the judges, even if they have an example of what they think is absolutely wrong, look what they have to do. They have to say that there is a rule of law that prevents that, and the rule of law that they enunciated in that case was a rule of law that said agencies have to look at all the alternatives, or many of them, before they do anything. But if you take that rule of law seriously, how can agencies have the time to do all that kind of thing?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS a friend of mine at home says, "Bingo."
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Right. Well, you see, that is why the courts are not the right ones to decide. I mean, I cannot say never, because you can always think of an absurd case. You know, you can think of something. There was one that Judge Wisdom wrote called aqua slide, if you want to look at it sometime. But, I mean, you can find sometime there is an absurd case. But I basically—
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, let me make sure I understand your, for lack of a better phrase, rules of construction. If Congress delegates to the EPA the authority to make a judgment about what is necessary or reasonable to protect against a particular risk and not delegate that to the Court, then doesn't the Court basically have to show that the agency acted in a capricious manner?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, absolutely.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, if Congress delegates authority to an agency to consider costs and benefits in implementing the statute, your 117 view is, then, that the Court should, unless there is a clear disregard of that requirement, yield to the agency.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, I have much more to ask, but I will end my round with this last point: What about the case where the Congress is silent about considerations of costs and benefits, as we often are? Under what circumstance may a court require an agency to balance costs and benefits when Congress is silent? There is a friend of ours—and he is a friend of mine. I do not want to mention his name, and the reason I do not want to mention it is because I will do an injustice to his larger theory. But you wrote in Southern California Law Review about the presumption that one of your colleagues in the profession of teaching suggested, which was that if the Congress is silent, the Court should presume that the Congress intended the Court to make a cost-benefit analysis. And you wrote in that article, you said, "Can the Court legally adopt new up-to-date canons such as [this professor] has suggested? Such modern canons favor the use of cost benefit analysis in regulatory statutes, [among others,] but"—this is your quote— but can the Court simply adopt them? Where would it find the legal authority for doing so? My question is: Can it simply adopt such a canon?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, not in my opinion.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And where do those who suggest—your answer is it cannot simply adopt them. But where do those who suggest that it should find legal authority for doing so?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I have to say that is a question better addressed to them. The basic thing that I start out with, which I have written and I certainly have no compunction about discussing anything I have written, is as you suggest. What you suggest to me is that you are talking about an area of substantive decisionmaking, not procedure. You are talking about what is the best health policy? What is the best safety policy? What is the best environmental policy? That is a question that you basically answer in Congress. And if you don't say anything in the statute, normally what you do is you delegate that authority to fill in the interstices to an agency. And the agency's opinion in those matters is an opinion that the courts must respect. They must do that, first for a legal reason. The power flows from the people through article I of the Constitution to the Congress and then to the agency. That is a legal reason that has to do with democracy. And there is a second, very practical reason. The very practical reason is, quite honestly, judges, who cannot phone anyone, who have a lot of cases in their offices, who do not have expertise in these areas, simply will not understand the basic practicalities of how you deal with substantive environmental health and safety policy, and, therefore, it is best that they let those whom you have told to do it do the job.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, as you no doubt know, from a personal standpoint that answer pleases me very much. But I will come back in my second round, which will be sometime next week, I suspect—no, which will be sometime tomorrow, I hope—to discuss what Professors Eskridge and Frickey refer to in their article on statutory interpretation. What they both are worried about is that the Courts' new canons of statutory interpretation, to quote them, amount to a back-door version of the constitutional activism that most Justices on the current Court have publicly denounced. Now, I would like to talk with you a little bit about that. I will also discuss with you—and I will tell you ahead of time—the Patterson case and Dellmuth v. Muth, where the Court seemed to have used canons to reach the exact opposite conclusions. In Patterson, there was a statute passed in the post-Civil War period that said you cannot fail to hire someone merely because they are black. And then in the 1960's, Congress came along and said we are going to pass the Civil Rights Act. Then an action was brought. A person was fired because she was black. She was hired, but then fired. She said, "Wait a minute, that statute covers me." And the Court looked down at the words of the statute and said: We do not find any explicit reference to the 1964 statute, but we are going to infer that Congress must have, when they passed that 1964 statute, meant that it should cover it, not the Civil War statute. Then Dellmuth comes along, and Dellmuth is about a handicapped person, and a handicapped person being able to sue a State. And when that person was denied equal access under the handicapped law, which the Senator from Utah and the Senator from Massachusetts played a great role in passing, the Court looked down at the statute and said, well, the 11th amendment basically says there is a presumption against an individual suing a State in Federal court. So since Congress did not mention explicitly that we want to discount that presumption, we are going to assume they meant let the presumption prevail. So they looked in one case at the statute and used a rule of construction to find that Congress must have been talking about something that happened 100 years later, and in the second statute they looked at the language and said, well, it did not mention the 11th amendment so Congress must have meant that the 11th amendment prevailed. The end result was the same. A black woman got fired because she was black, and a handicapped child could not sue the State of New York. The result was the same. People without power got left out. Totally different rules of construction. I want to talk to you about that, and a lot more. In the meantime, let's now take a break for 5 minutes, and then we will come back to Senator Hatch. I thank you very much, Judge.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you. [Recess.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. While we are waiting for the photographers to clear the well, I want the record to show, so I do not get graded badly by Professor Heinzerling from Georgetown, who is sitting behind me, that I do know that Ms. Patterson was not fired; she alleged racial discrimination. And I just want the record to show that, because I get graded by the visiting professors who come and help us on this. So I just want the record to reflect that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Senator HATCH. Thank you, Mr. Chairman. Judge Breyer, throughout your career, you have set forth what can fairly be called a pragmatic, nonideological vision of the law. In your own words, you said at one time: 119 Law itself is a human institution serving basic human or societal needs. It is therefore properly subject to praise or to criticism in terms of certain pragmatic values, including both formal values, such as coherence and workability, and widely shared substantive values, such as helping to achieve justice by interpreting the law in accordance with the reasonable expectations of those to whom it applies. Now, I would like to explore what implications if any your pragmatic vision of the law has for your understanding of the role of a Supreme Court Justice. It is, after all, one thing to have a pragmatic view of the law; it would be something quite different to believe that some or all actors in the legal system have a roving mandate to pursue their individual visions of pragmatic justice. In your view, what constraints, formal or informal, legal or prudential, really bind a Supreme Court Justice in his or her own decisionmaking?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think, Senator, I would start by saying this, and I have said this before, and it is something that has considerable significance to me. Why is it that judges wear black robes? I have always thought that the reason that a judge wears a black robe is to impress upon the people in the room that that particular judge is not speaking as an individual. In an ideal world, the personality of the judge, the face of the judge, would not be significant because when the judge speaks with a black robe on, in no matter what court, the judge is speaking for the law. And in an ideal world, the law is the same irrespective of the personality of the judge. That is a very different thing. It is an absolutely true thing. But it is consistent with believing that the law that the judge interprets and enunciates with his black robe on is in fact a body of rules and institutions and so forth that is supposed to work properly for people. And so, remembering that, I would imagine that on the Supreme Court, what I would be bound by is the words, the history, the precedents, the traditions, all of those things which in fact go up to make this great body of institutions, including legal advice and how businesses and labor unions interpret it and so forth, that we call law. The role of the subjective preference of the judge is not supposed to be relevant, and while no one can escape from his own background, from his own opinions, from his own personality, et cetera, Learned Hand once described in fact, at a speech given to commemorate Justice Cardozo, he described the judge as a runner, stripped for the race. He may have been quoting Holmes then. But in his view, what that meant was to the best ability, a judge should be dispassionate and try to remember that what he is trying to do is interpret the law that applies to everyone, not enunciate a subjective belief or preference.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would you agree, then, that a judge's authority derives entirely from the fact that he or she is applying the law, not simply imposing his or her policy preferences?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course, that is true. And why it is difficult, in an important court like the Supreme Court, is of course people disagree, often, about how, in vast, uncertain, open areas of law, where there are such good arguments on both sides of such important policy issues, of course people disagree about what the proper outcome of those issues is. But in trying to find the correct solution, the helpful solution consistent with the underlying human 85-742 - 95 - 5 120 purpose, the judge follows canons, practices, rules, cases, procedures, all those things that help define the role of the judge, which is the same for judge A as it is for judge B.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would you agree, then, that the meaning of the law is to be ascertained according to the understanding of the law when it was enacted?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Almost always. Almost always.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Can you think of any situation
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason that I hesitate a little is because of course, there are instances, particularly with the Constitution and other places, where it is so open and unclear as to just how the Framers or the authors intended it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And I accept that. Would you also agree that separation of powers concerns mandate that courts be careful not to intrude on the terrain of the various political branches?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. Those are important issues to me and I think to everybody who understands or is concerned with constitutional law. Judge Breyer, as you know, the first liberty protected in the Bill of Rights is religious liberty. Specifically, the free exercise clause of the first amendment provides that Government shall make no law prohibiting the free exercise of religion. In its 1990 decision in Employment Division v. Smith, the Supreme Court held" that a neutral, generally applicable law need not be justified by a compelling interest even if the law has the incidental effect of severely burdening a particular religious practice. And as you may know, I was very concerned that in the aftermath of the Smith case, the freedoms of religious minorities in this country were vulnerable to hostile majorities. For this reason, I was the lead sponsor along with Senator Kennedy in enacting the Religious Freedom Restoration Act, which became law last year and which restored the compelling interest standard that was widely understood to be in force before the Smith case. I would like to ask you about an opinion that you wrote before the Smith case was decided, and that was New Life Baptist Church Academy v. Town of East Longmeadow, back in 1989. You ruled that a local school committee's proposed procedures for reviewing the adequacy of the secular education provided to students at a Fundamental Baptist Church school did not violate the free exercise clause. And as you know, your ruling in this case has been criticized as not sufficiently protective of religious liberty. How would you respond to those criticisms about your decision in that case? Both Senator Kennedy and I are watching you very carefully.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. SO is Chloe. Chloe was out last summer in Los Angeles. She was working with a minority religious group, the Vietnamese Buddhists, and they were actually having a very practical problem, because they were trying to set up home temples in areas of the city where the rules and regulations had made it tough for them, and the question was could you work that out in a way that both satisfied the needs of the city and also allowed these people to practice their religion. That was terribly important. So she is also very interested in that. 121
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, good for you, Chloe. When we enacted the Religious Freedom Restoration Act, we were strongly supportive of protecting religious liberty and freedom.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Go ahead.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course, and the particular case, I found extremely difficult. Why? I will tell you a little bit about it. If you go back into the Constitution, even free speech, I read recently it really descends historically from the need to protect religion. There is nothing more important to a person or to that person's family than a religious principle, and there is nothing more important to a family that has those principles than to be able to pass those principles and beliefs on to the next generation. That is why schools are so important in this area. That is why people feel so strongly about schooling. So one starts with the realization that what was at issue in the first amendment, I think both for speech and for religion, was a decision made sometime around the 17th century, that it is about time to stop killing each other because of religious beliefs, and what we are going to do is respect the religion of each other, and people are going to be free to practice that religion and to pass it on to their families. They are going to teach their children, and their children can teach their children. That is absolutely basic.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, as you know
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The opposite side of the coin is that, of course, the people, as organized in government, have an interest to see that you or I or any other family do not abuse our children, and they have an interest in seeing that our children, each other's children, do receive some kind of education—that they learn how to read, they learn how to write, they learn mathematics—and for that reason, it is absolutely well-established that although people can teach their children at home if they wish, because of the need to pass on their religion, it is equally well-established that the State has some interest in seeing that education is going on and that the children are being taught. Now, in that particular case, it was a little unusual because the argument came up—and I read through that record with pretty great care—and what had gone on, I think, was everyone in the State said they could teach their children at home, that particular religious group. There were some complaints about the quality of the education—they had a special school—and everybody agreed that the school system could go in and look and see what was being done. Indeed, the religious school itself had said at one point, We do not mind if you come in and look; what we do not want to do is we do not want to acknowledge the school board, because we believe there is no higher authority than God. And the school board, making an effort to accommodate, had said, Do not acknowledge us; we do not want you to acknowledge us. Just let us look and see what is happening, the same way as you might any visitor at all. And then the school had said, Yes, that is OK. But somehow in the legal argument in the lower court, that became a little confused, and before you know it, what had happened was that the lower court had entered a decree which said the way to go about this, 122 State, is to test the children after they leave school; while the State had said, no, no, it is better to go in and see. Now, there, the question was does the Constitution require afterschool testing, or does it require visits, or is it up to the State? And that is a rather narrow point, and what we held in the case, unanimously, was that the Constitution does not require after-school testing; if the State wants to do it that way, they could. But you see, some people might think that was more restrictive; others might think it was less restrictive. In other words, it was a fairly narrow technical matter growing out of the record.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I just hope that you and other members of the judicial community will recognize these important issues, and I think you do—and certainly recognize the importance of the Religious Freedom Restoration Act
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. And the overwhelming vote that it had in both Houses of Congress.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The principle is absolutely right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Congress intended to give strong protections to religious belief and liberty.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Unfortunately, just recently, in a case involving an order to a church to return tithes made in good faith by churchgoers who later became bankrupt, we have the current administration, despite its support for the Religious Freedom Restoration Act, interpreting the act in a manner that would effectively gut it, in my opinion. Now, I am not asking for your views on that case, because undoubtedly, that is going to come before the Court; but I hope that all of you will consider this particular act and its importance, and that religious freedom is the first of the mentioned liberties in the Bill of Rights. And I hope you will consider the overwhelming congressional intent with regard to that. The establishment clause of the first amendment provides that Congress shall make no law respecting an establishment of religion. Under the test devised by the Supreme Court in 1971, the Lemon v. Kurtzman case, a practice satisfies the establishment clause only if it, first, reflects a clearly secular purpose; second, has a primary effect that neither advances nor inhibits religion; and third, effectively avoids an excessive entanglement with religion. Now, I am very concerned that this abstract, arid, and ahistorical test is often applied in a manner that is insensitive to practices that are part and parcel of our political and cultural heritage. In particular, narrow reliance on the Lemon test ignores a richer strain of Supreme Court precedent that recognizes that interpretation of the establishment clause should comport with what history reveals was the contemporaneous understanding of its guarantees. In Justice Brennan's words, "the existence from the beginning of the Nation's life of a practice * * * is a fact of considerable import in the interpretation" of the establishment clause. Now, do you agree or disagree that the historical pedigree of a practice should be given considerable weight in the determination of whether a practice amounts to an establishment of religion? You 123 mentioned that historical precedent is important to you. Do you feel it is important in this instance?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is important; there is no question it is important. The establishment clause has tremendous foresight, tremendous foresight, I think. The simple model—there is always in my mind, like, two or three fairly simple things—I think of the establishment clause, I think of Jefferson, and I think of a wall. And the reason that there was that wall, the reason, which has become so much more important perhaps even now than it was then, is that we are a country of so many different people, of so many different religions, and it is so terribly important to members of each religion to be able to practice that religion freely, to be able to pass that religion on to their children. And each religion in a country of many, many different religions would not want the State to side with some other religion, so each must be concerned that the State remain neutral. Then, there are also cases arising. And when cases arise with secular institutions, the question becomes have you injected too much religion into them. You can inject some—I mean, you have chaplains in Congress. Schools—what about schools? You see teaching your own children—it becomes very important not to, in a secular school, inject much religion into a school. What of the other side of the wall? Can the State aid religion? The answer is certainly, sometimes. Nobody thinks—nobody thinks—that you are not going to send the fire brigade if the church catches fire. Nobody thinks that the church does not have the advantage of public services. The question becomes when is it too much. And again, schools are critically important because of the importance of schools to religious people. So that is the framework that I use, and in trying to decide whether and when, what is too much, of course you look at history, and you look at tradition, and you look at the current world as we live it in the United States.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. At one time, you stated that, "Of course, the wall between church and State is not absolute."
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; no one is going to say—to use an extreme example—no one would say that if the church is on fire, do not send the fire department. No one would say that the public services of a city are not available to the church. The question becomes when have you gone too far in terms of trying to preserve a country of many different religions where Government is basically neutral as among them. Those are very difficult questions.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I think, as we have seen up here on Capitol Hill, the word "wall" of separation is a metaphor
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, absolutely. That is true.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. And it leads to a lot of hostility.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And there has to be some reason brought into the system.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In Lee v. Weisman back in 1992, the Supreme Court, relying on Warren Court rulings, held by a 5-to-4 vote that a school district violated the establishment clause when it invited 124 a rabbi to lead a prayer at a school graduation. Now, in my view, we have reached new depths when a nonsectarian prayer by a rabbi at a school graduation ceremony is censored by the establishment clause. Notwithstanding the fact-specific language of the Court's opinion in Lee, some have since tried to portray Lee as having invalidated all prayer at school graduation ceremonies including, for example, nonsectarian student-led prayer. Would you consider it a relevant factor for purposes of the establishment clause whether it is a member of the clergy or a student who leads the prayer?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is very specific, and I
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am not asking you if the factor would be dispositive, but simply whether it would be relevant.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It sounds as if it is—as you said, it sounds as if it is a relevant factor. And I understand the point and agree that it is not absolute, these things, and I do think—it sounds as if it would be a relevant factor.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would you consider it relevant whether the decision to have prayer at a graduation was made by school officials or students?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, you bring up matters, Senator, which sound as if they are relevant.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think that is good.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Would you repeat that, what was good?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I say that is good, his discussion of that. Judge Breyer, let me turn to the matter of copyright briefly, and on a subject upon which you have written.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am sure you know what I am going to ask. In 1970, you wrote a Law Review article entitled '"The Uneasy Case for Copyright." It was considered quite controversial in many quarters because it questioned many of the basic assumptions upon which copyright law had long been based. In addition, you strongly argued against extending copyright to what were then new areas of protection, such as computer programs, but that was nearly 25 years ago. Since 1970, our copyright laws, of course, have been fundamentally altered, first by the adoption of the landmark 1976 Copyright Act, which greatly strengthened Federal copyright, extending it even to unpublished works; second, by the 1980 statutory recognition of the copyright-protected status of computer software and data bases; and, finally, by the 1988 U.S. ratification of the Berne Convention for the protection of literary and artistic property, which is the principal international copyright treaty. Now, have your views on copyright changed since 1970? [Laughter.]
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, the reason I laugh
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. HOW can you get a bigger home-run ball than that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason I laugh is that that article was awfully important to me, because what turned on that article for me was a job. The question was whether I would get tenure, so I put quite a lot of effort into that article. 125
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. AS you point out, Congress has passed a statute since then. The law has changed since then. I certainly would follow the statute rather than views, but I cannot resist saying this: that recently I did reread that section on the computer part, and what I thought at that time years ago—it was 25 years ago—I think a lot of the computer people thought that what we would all be doing is we would have like a big electricity plant or something in the middle of the city and everybody would be hooked up to this thing with wires, and you would have the terminal that went up to this big computer utility. And then, if that had been so, I said, well, you do not really necessarily need copyright to protect the program because the guy owning the utility, which would probably be regulated, could just charge. You would come to the same thing. Then I put in a paragraph and said, you know, it would be different if what happened would be that everybody would have his own little computer, and the programs would be made by 100 or 1,000 different companies, and they would sell them off the shelf, and it would be really easy to copy them. And then I do not know what we would do. So I do not know that I have to change that view because it was
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. OK. With regard to the takings clause, I have to say that I find it most curious that our chairman is very protective of rights that are not enumerated in the Constitution, as are many on this committee, yet is, I hate to say it, Joe, somewhat disdainful of rights that are specifically mentioned in the Constitution. And I am very concerned, as are all Westerners and I think people all over the country, about the unlawful taking of property, whether by whole or by part, by Government and Government regulation, and taking it without just compensation. So those are matters that I just want to reemphasize a lot of us are concerned about on the other side of that issue even though I think the chairman makes some good points otherwise. Various doctrines of justiciability, for example, standing, ripeness, and mootness, operate to help confine the Federal courts within our constitutional scheme of separation of powers, the adjudication of live claims raised by parties who have suffered concrete and particularized injuries that can be readdressed. If these elements are diluted, the judicial power is expanded at the expense of the executive and legislative branches. Are you in agreement with the current Supreme Court case law in standing, ripeness, and mootness? And if not, what are your areas of disagreement?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The basic principles arise really out of article III. Article III of the Constitution says the judicial powers shall extend to all cases. It talks about cases, and it talks about controversies. And some of the rules that you mention are really designed to make certain that the courts decide real .cases and real controversies. I think that those are principles that people agree upon. I think there is another principle that they agree upon, and that is when you in Congress pass a statute, there are certain groups of people whom that statute means to protect. And there are also 126 a lot of people, when your statute is unclear in this respect, that might argue their way into protection. Now, any of those people, if they are really hurt, should be able to bring a lawsuit, because those are people that you mean to protect, or at least arguably you mean to protect them, from the very kind of injury that you are worried about in that statute. I think most people would agree with that. Then there are areas of what I would call gray areas in the law about whether the Court is pushing a little bit more this way or a little bit more that way in respect to how we go about making a little more concrete what I have just said generally. On those matters, I think I should like to reserve judgment, because I think that those are matters that are very much at issue in Supreme Court cases.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I thank you. I notice that my time has just about expired, but I appreciate your answers. I have really enjoyed listening to you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Senator KENNEDY. Thank you, Mr. Chairman. Judge Breyer, the Preamble to the Constitution makes it clear the purpose of our system of law is to enhance the lives of every American; in the Framers' words, "to secure the blessings of liberty to ourselves and our posterity." And at the White House ceremony, when you were nominated, you said quite eloquently that your goal as a Justice was to help make the Constitution and laws work for real people. So I would like to discuss with you several areas where your work made an impact on real people, on the rights of working women, on the safety of medications, on the quality of our environment, and also on the security of Americans from the threat of crime in our homes and on the streets in our communities. Let's begin with the area of gender discrimination on the job, and one of your decisions, in particular, is a classic case involving two working women in the town of Peabody, MA, which illustrates what the law can mean in real human terms to the people involved. The case I am referring to is Stathos v. Bowden. The plaintiffs, Stella Stathos and Gloria Bailey, worked in clerical jobs at the Peabody Municipal Lighting Commission. Both women devoted their entire working lives to the city agency, starting when they finished high school and continuing until they reached the retirement age. Ms. Stathos worked there 36 years before she retired in 1985; Mrs. Bailey worked there 41 years until she retired just last year. In 1977, the Lighting Commission reorganized the plant where the women worked and drew up an organization chart which made it clear for the first time that men holding the positions equivalent to those held by Ms. Stathos and Mrs. Bailey were being paid about $12,000 more than the two women were receiving, and the women repeatedly asked for a pay increase to eliminate the disparity, and their requests were denied. They filed suit under two Federal antidiscrimination laws, and I am sure it took a lot of courage to sue their employer. It really was fighting city hall then. But in the end, they prevailed, and they won a jury verdict in their favor, 127 requiring the employer to raise their pay and pay them damages. And when the city appealed, you wrote an opinion upholding the trial court on several points of law and affirmed the award. One line in your opinion seems to me to be particularly revealing on how you viewed the case. The defendants had argued that they were entitled to upset the verdict because the jury had not been asked to consider whether the defendants had acted in good faith. And in rejecting the claim, you wrote, and I quote, "We do not see how anyone could think that paying women less just because they were women would not constitute unlawful discrimination." Can you tell us how this case is a reflection of your attitude toward equality, equal opportunity for women, and about your approach in interpreting the laws against sex discrimination?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Some things seem fairly obvious to me, Senator, and I think that was one of them. I suppose I was restrained in that. I guess it is fairly obvious, isn't it, that you are not going to pay a woman less for doing the same job as a man? What is very easy to me is I think of Chloe and I think of Nell, and they are going to be in the workplace. And, my goodness, I should come back and somebody should have to tell somebody that a woman is going to make less money for doing the same thing or is going to have some other onerous condition that a man would not have? I mean, you try to explain that to Chloe or to Nell or to any other woman in the workplace. There is no explanation. And I would think in 1994 that that is rather clear to people. I would think it is rather difficult to make a defense saying, oh, dear, I did not know that. What else is there to say? You see, I start with certain things that I assume is fairly obvious.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I think there are many of us that would certainly agree with both your analysis and conclusion, but I think we also understand the reality in terms of the American workforce that too often that is not the case, and it is a real issue that is out there. Your response to that injustice I think was very well received. I took the opportunity to call last night, I called Stella Stathos and Gloria Bailey, who still live up there in Peabody, and they said interesting things. They told us that after they won the case, the Lighting Commission accepted the outcome and showed them no animosity, which I thought was somewhat hopeful. And they also told me how proud they are that their case may open up the doors for other women in the same situation. I asked each of them what they thought about you, which is rather an opening, and Mrs. Bailey said, "Did he ever do it the right way." And Mrs. Stathos said, "He really stood up for all of us," and I think that says it all. You have been one of the leading scholarly commentators on administrative law and regulations, and while obviously these subject matters seem dry and arcane, they can be of enormous importance to every American. Americans have a right to expect that the food they eat and the water they drink and the medications they take and the air they breathe and the place where they work will be safe and free from dangerous substances or machinery. Congress passes the laws that set the broad standards in these and other 128 areas, but it is up to the administrative agencies like the EPA and the Occupational Safety and Health Administration and the FDA to adopt the regulations that spell out the standards to apply them in particular situations to protect health and safety. This is an important work of administrative agencies, and a great deal has been written about your views on these subjects. Most of what has been written has been complimentary, but I would like to give you the opportunity to respond to some of the rest. My question is: How do you respond to the suggestion some have made that you are hostile to the health and safety regulations?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I have said in my book that I think regulation is necessary in those areas. I guess if you wanted a simple statement, a simple statement, I wrote a book review not too long ago in which I tried—because it was written about the economics of AIDS. And I wanted to explain in that book what I saw as an important difference, as you have said, actually, an important difference between what you might call classical economic regulation, like airlines or trucks, and the regulation involving health, safety, and the environment. I said as to the first, trucking, airlines, it is not really surprising that economics may help. It is not the whole story, but it tells a significant amount of the story because our object there is to get low prices for consumers. And maybe economics can help us. When you start talking about health, safety, and the environment, the role is much more limited because, there, no one would think that economics is going to tell you how you ought to spend helping the life of another person. If, in fact, people want to spend a lot of money to help save earthquake victims in California, who could say that was wrong? And what I ended up there saying is that in this kind of area, it is probably John Donne, the poet, who has more to tell us about what to do than Adam Smith, the economist. That is a decision for Congress to make reflecting the values of people. So I tried to draw that distinction, and that does not mean all those areas work perfectly either. Everyone can have a lot of criticisms about every area, but, nonetheless, there is a difference in the way economics feeds into the enterprise. And that is what I have tried to spell out in that review.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, in two of the areas—one in the area of FDA and the other in the environment—you have not written many decisions on the FDA, but there is one that in particular you decided, U.S. v. 50 Boxes More or Less. You voted to uphold the FDA's right to seize prescription drugs because the manufacturer had not presented adequate and well-controlled studies to demonstrate its safety and effectiveness and the conditions for which it would be prescribed. What is significant about your opinion in this case is that you upheld the district court's grant of summary judgment to the FDA, even though the drug in question has successfully been on the market 35 years. But the manufacturer had not met the strict regulatory standards for proving the safety and effectiveness of the drug, and you upheld the drug seizure by the FDA. 129 It seems to me that that opinion could hardly have been written by someone who is hostile to health and safety regulations. My question is: Would you spell out the reasons for reaching that decision?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That decision reflected an administrative agency's rules and regulations that had evolved slowly over time. Those rules and regulations followed from a statute that Congress enacted. They might not have been perfect, but basically it was the administrative agency's job and the courts over time had ratified that job to work out a system that would remove dangerous drugs from the market. The particular drug in question fell within that system, and I thought there—and I think now, and I think the law reflects that— that it is risky for courts to start monkeying around with a caseby-case deviation from a regulatory system that has been thoughtfully worked out over the years. You cannot say never with anything. But you have to remember that the basic statute designed to protect people has been worked out in Congress, delegated to the agency, and when that works fairly well over the course of time, it is not surprising that the law says follow what the agency says. That is what I think was basically going on there.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Your opinions in the environmental cases have earned high marks from the environmentalists in New England. One was very important in Massachusetts involving George's Bank, which is one of the most productive fishing areas. You upheld a district court ruling that former Interior Secretary James Watt could not auction off the rights to drill for oil in that fishing area because the Interior Department had not done an adequate environmental impact statement on the effect of drilling on those important fisheries. Could you tell us about that decision and how generally your rationale basically would reflect your approach on environmental regulation?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that decision, again, reflects the need for courts to go back to the underlying intent of Congress, and I think it reflects our own court's view of what that intent was in respect to environmental impact statements. Basically, there had been an environmental impact statement that was going to permit—the Interior Department wanted to drill for oil off George's Bank. But between the time they first looked at it and the time it came up to our court, everybody had changed his mind about how much oil was likely to be there. They first thought billions of barrels. They second thought hardly any. The question was: Do they have to go prepare a new environmental impact statement if they still want to drill? They did still want to drill. Our court said if you do, you better prepare a new statement. Why? Because there has been such a big change. You might want to hurt the environment if you are going to get billions of barrels, but, really, do you really want to hurt the environment for a little bit? Now, what had been argued on the other side of that case was: Well, we will do the statement; just let us go forward with our auction in the meantime. But we said no, that is not the purpose of the environmental impact statement. The purpose of that state- 130 ment is to make this great bureaucracy think about this hard before the gears start in motion. So do not go let out the bids and everything and then write the statement, because once the agency is committed to the action, it is too late to write statements. The very purpose of the law, to protect the environment in this area, is to get the statement written before the agency becomes bureaucratically committed to a course of action that could hurt the environment. And that is what was going on in that opinion.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, it is a good example of how sound environmental regulation can protect the public interest. I would like to introduce into the record a letter, Mr. Chairman, from Douglas Foy, who is the executive director of the Conservation Law Foundation, certainly the leading public interest environmental law group in New England. Mr. Foy writes in part: Stephen Breyer has fashioned a remarkable record on environmental matters that have come before the First Circuit Court of Appeals. His opinions reflect an unusual sensitivity to natural resource concerns, whether in matters involving air and water pollution, off-shore oil and gas drilling, the clean-up of Boston Harbor, or protection of the Cape Cod National Seashore. Judge Breyer brings a New Englander's common sense to natural resource matters, and couples that common sense with an impressive understanding of administrative procedure and agency foibles. My only regret is that Judge Breyer cannot sit on the Supreme Court and the First Circuit at the same time. To which I can add that the first circuit's loss is the Nation's gain.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be placed in the record.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Turning to another area involving the criminal justice system, as you know, Senator Thurmond and I worked for many years with Chairman Biden to pass the Sentencing Reform Act of 1984, the law that abolished the Federal parole and created a sentencing guidelines system in the Federal courts. And with all the talk about truth in sentencing, it is important to remember that we created truth in sentencing at the Federal level 10 years ago. 131 Before that time, the sentencing system was a matter of law without order; judges in two different courtrooms sentencing two equally culpable defendants might hand down two completely different sentences. One defendant might get 10 years, another might get probation, and there was nothing the prosecutors could do about it. And because of parole, the sentence imposed by the judge had little to do with the time the defendant actually served, and many criminals served only a third of their sentences even in cases involving violent crimes. This system led people to lose faith in the ability of the legal system to do justice and protect the interests of victims of crime. So we abolished parole in the Federal system and created a commission to write sentencing guidelines so that criminals who commit similar crimes will get similar sentences and actually serve the time they get. You served as one of the first members of the commission. You helped forge the key agreements that got the job done. These guidelines provide for tough, no-nonsense sentences, increasing the time served by violent criminals and by white-collar corporate criminals who used to get special treatment in the Federal courts. Could you briefly describe how the guideline system achieves truth in sentencing and why you think that truth in sentencing is an important goal.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that you decided, Senator, and the other Senators on this committee decided, at that time correctly, that the public was very confused about sentencing. A judge would sentence a robber to 6 years in jail, but the robber would be out after 2. Sometimes, the judge would sentence him to 18 years for a violent robbery, and he would be out after 6. Sometimes, the judge would sentence him to 8, and he would not be out until after 7. No one knew what in fact was happening, and the public's cynicism grew. Therefore, you and this committee and the Congress decided that under the new Federal sentencing system, the sentence given by the judge would be the sentence that was served—not completely; there is 15 percent good time that could be awarded—but basically, the sentence given would be the sentence served, and that is what has happened. The second basic objective that you had, which I think still is a worthy objective, I could describe like this: Many judges in the first circuit have a lot of experience in sentencing, and they do it well. Judge Toro, the chief judge in Massachusetts, across the hall, for many years would describe to me how he sentenced people, and it seemed very sensible. But then, a different judge in Los Angeles, let us say, an equally good judge, an outstanding judge, would sentence the same kind of person for the same kind of crime, and the results would be dramatically different. So what you said is that the sentence should not depend on who the judge is. In New York, they would have a wheel and assign judges by lottery. Well, why would you need a wheel, unless people thought that the personality of the judge was playing a role in the sentence? Well, that should not be. And so you set up the Sentencing Commission to try to even that out. That is a hard job. I think the Sentencing Commission has come up with guidelines that do tend to even that out. The basic philosophy of the statute, 132 the basic philosophy of the guidelines, is that they will write guidelines that apply to specific types of crimes and specific types of criminals, and judge, when you are sentencing a person for a particular kind of crime, a particular kind of person, you follow the guidelines. That gives you very little leeway—if you have an ordinary case. Judge, if you have an unusual case, you may depart from the guidelines. Use your own judgment there. But you have to give your reason, and it will be reviewable in a court of appeals. Now, that is the basic theory. Guidelines, I know, are controversial. I know that these guidelines have not worked perfectly. But it does seem to me to be a step in the right direction toward more uniform justice and toward more uniform justice and toward more understandable justice so that people will understand that punishments are uniformly applied, and the punishment announced is the punishment that will be given.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you want to add anything with regard to whether the mandatory minimums have been additive and useful and helpful?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, what I have said publicly, Senator
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I was going to keep you out of controversy until that one.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. This is a legislative matter. This is a legislative matter, and I think that Congress will in its wisdom determine that political matter. I have expressed in my writings sometimes some criticism of that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I will include that excellent article as part of the record Senator KENNEDY. My time is almost up, Judge Breyer, but I want to offer a brief comment about your extraordinary career of public service, and that is that throughout your life, you have dedicated yourself to the public interest. You have served as a law clerk to Justice Goldberg; from there, you went to the Justice Department, where you developed creative ways to use the antitrust laws and fight housing discrimination. When you became a professor at Harvard Law School, you did not retreat into an ivory tower; you focused on the tough problems of economic regulation and making government work better. And whenever the call to public service was heard, you answered, helping Archibald Cox to investigate Watergate, helping the Senate address complex regulatory matters, and serving with great distinction as chief counsel of this committee. And when you became an appeals court judge, your commitment to the administration of justice did not stop there; you took on the different task of adopting tough, fair sentencing guidelines, and you continued to teach law to young people and to analyze the toughest problems of the day. That kind of work is not glamorous. It does not get you a lot of publicity or honors. But it is the kind of work that helps real people, and it is the kind of work that will make you a first-rate Justice on the Supreme Court, where you will enhance the lives of Americans for years to come.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. My time is up, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. It is also the kind of work that allows me as chairman to get some of the first-rate minds like the two professors sitting behind me to come and work for little or nothing because people like you end up on the Supreme Court. So I thank you for that, for saving the taxpayers a lot of money by getting first-rate staffpersons to take cuts in salaries to come and work with us. Judge, I thank you for this morning, and as I indicated, what we will do now, since we have a very important vote that will take place on the floor of the Senate at 2:30, we will wait and reconvene at 2:45, at which time, the first order of questioning will be Senator Thurmond and then Senator Metzenbaum. We are recessed until 2:45. [Whereupon, at 12:56 p.m., the committee was recessed, to reconvene at 2:45 p.m. this same day.] AFTERNOON SESSION [2:58 P.M.] The CHAIRMAN. Welcome back, Judge.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We now turn to the senior member of this committee, our one and only chairman, Senator Thurmond.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Judge Breyer, we are glad to have you with us.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you. 135
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I am glad to see your fine family here with you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Today, the Judiciary Committee begins hearings to consider the nomination of Judge Stephen Breyer to be an Associate Justice of the Supreme Court of the United States. If confirmed, Judge Breyer would be the 108th person to serve as a Justice and is the 26th Supreme Court nominee which I have been privileged to review during my service in the Senate. A Justice on the Supreme Court occupies a life-tenured position of immense power. As members of the Judiciary Committee, we have a responsibility to our Senate colleagues and to the American people to closely examine Judge Breyer's qualifications. It is our solemn duty to ensure that a nominee to the Supreme Court possesses the necessary qualifications to serve on the most important and prestigious Court in America. Over the years, I have determined the special criteria which I believe an individual must possess to serve on the Supreme Court, and they are as follows: First, unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair. Second, courage. A nominee must possess the courage to make decisions on difficult issues according to the laws and the Constitution. Third, compassion. While a nominee must be firm in his or her decisions, mercy should be shown when appropriate. Fourth, professional competence. The nominee must have mastered the complexity of the law. Fifth, proper judicial temperament. The nominee must have the self-discipline to prevent the pressures of the moment from disrupting the composure of a well-ordered mind, and be courteous to the lawyers, litigants, and court personnel. Sixth, an understanding of and appreciation for the majesty of our system of Government—its separation of powers between the branches of our Federal Government; its division of powers between the Federal and State governments; and the reservation to the States and to the people of all powers not delegated to the Federal Government. Mr. Chairman, I have known Judge Breyer and followed his career for 20 years, since his first days as special counsel on the Administrative Practices Subcommittee. Of course, he later served as chief counsel for the Senate Judiciary Committee and was most cooperative in that role. Since December 1980, Judge Breyer has served with distinction on the U.S. Court of Appeals for the First Circuit and as chief judge of that circuit since 1990. In 1985, then-President Reagan appointed Judge Breyer as one of the three judge-members of the U.S. Sentencing Commission, a post he held until the expiration of his term at the end of October 1989. Under the very able, continuing leadership of its chairman, Judge William W. Wilkins, Jr., of South Carolina, the Sentencing Commission accomplished on schedule the formidable task of devising a workable set of guidelines to govern the imposition of sentences for Federal crimes. 136 I was pleased to coauthor the law which created the Sentencing Commission, along with Senators Kennedy, Biden, Hatch, and others. Judge Breyer is the type of individual who we envision would serve on the Commission to make our goal of effective sentencing reform a successful reality. In this regard, Judge Wilkins and others have told me of the invaluable contributions Judge Breyer made in assisting with drafting the initial guidelines and in helping to explain them to others, particularly to Federal judges who must interpret and apply them. Sentences now imposed under the guidelines are fairer, more uniform, and certain. They are also tougher in the areas of violent crime, major white-collar crime, and major drug offenses—areas where past sentencing practices often were too lenient. Mr. Chairman, Judge Breyer has come a long way from the summer in 1958 he spent as a ditch digger for the Pacific Gas & Electric Co. I recall his capable work on the Senate Judiciary Committee and as a Federal judge on the U.S. Court of Appeals for the First Circuit. While I may not agree with Judge Breyer on every issue, I have found him to be a man of keen intellect, and he appears to possess the necessary qualifications to serve as an Associate Justice of the U.S. Supreme Court. Mr. Chairman, this concludes my opening remarks, and I will use the remainder of my time during this round for questioning
Stephen G. Breyer
Nominee
(D)
Judge Breyer.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, if you will yield for a moment, I would like the record to show, to emphasize what you stated at the outset. I will put it another way: One out of every four Justices who ever served on the Supreme Court in the history of the United States, you oversaw the hearing. One out of four. That is astounding. What are you going to do the next 25 years?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I expect to have a part in a good many more in the future. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Good. All right. I thank you for yielding. One out of four. That is incredible. Twenty-six percent of all the Justices, you have voted on.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, I have some questions. If there are any that you feel it would be improper to answer, well, you say so. Otherwise, I will propound the questions. The role of the judicial branch of Government is to interpret the law. Unfortunately, there are times when some judges go beyond that authority and legislate from the bench rather than interpreting the law before the Court. Where, in your view, does a conscientious judge draw the line between judicial decisionmaking and legislative decisionmaking? Additionally, if confirmed, what approach could you use in resolving whether or not a decision was the type that should be made by a judge or an elected legislative body?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you. I think that is a good question. I think that is an important question, and the short answer to the question is: Of course, a judge should not legislate from the bench. The difficult part of the question is how you know. How do you know when there are broad, open areas of law? And I think you 137 ask yourself two things. Particularly if it's a statute, you ask yourself who did Congress give the power to, to fill in the blanks? One strong possibility is they gave it to someone else like the executive branch or they kept it for themselves. Another question you ask is: Can I, in fact, justify this interpretation of the statute through its language and through its history? And if the answer to that question is no, then there is a danger signal that you are legislating, which you should not do.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, in McCleskey v. Kemp, the U.S. Supreme Court held that a capital defendant who contested his death sentence on the basis of racial discrimination is required to prove that the decisionmakers in his own case acted with discriminatory purposes. The Court rejected the use of statistics from unrelated cases to establish racial discrimination in the imposition of the death penalty. Recently, the House of Representatives adopted a provision in its crime bill which would overturn the McCleskey decision and allow a capital defendant to challenge and avoid his death sentence based on statistics from unrelated cases. Do you believe that statistics on race from unrelated cases should be used and, further, are reliable indicators to determine the appropriateness of the death penalty?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would say, Senator, that there are statistics and statistics. Obviously, statistics must be reliable. Obviously, it is easy to use statistics that are not reliable to prove almost anything. I do not think there is an absolute rule that bars the use of statistics, where they are reliable, in proving a legal point. In respect to the particular law that you are discussing, which is now legislation pending before Congress, I think that, of course, is Congress' decision, and as Congress decides it, so should the courts enforce it.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, if confirmed, you will succeed Justice Blackmun, who recently stated his belief that capital punishment is inherently flawed under the Constitution. While I disagree with his pronouncement, I want to know if you find his position reasonable in light of Supreme Court decisions in this area and your own personal reflections on whether capital punishment is constitutional under appropriate circumstances?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, if a judge has strong personal views on a matter as important as the death penalty, views that he believes might affect his decision in such a case, he should, perhaps, if they are very strong—and this happens sometimes. In lower courts I have seen it happen where you feel you have a personal view that does not necessarily reflect the law, and you might take yourself out of the case. I have no such personal view in respect to the death penalty. So I would sit on such a case. In respect to the constitutionality of the death penalty, it seems to me that the Supreme Court has considered that matter for quite a long time, in a large number of cases. And, indeed, if you look at those cases, you will see that the fact that there are some circumstances in which the death penalty.is consistent with the cruel and unusual punishment clause of the Constitution is, in my opinion, settled law. At this point it is settled. 138
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, it is likely that Justice Blackmun is most widely known to the public as the author of Roe v. Wade. What was your impression of his majority opinion in that landmark decision? In particular, give us your thoughts on where he draws the line at different points during pregnancy as it relates to the State's interest in the regulation of abortion-related services? For instance, do you agree that the first trimester of pregnancy is distinctive and that the State should not be able to prohibit abortion during that period?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU are asking questions, Senator, that I know are matters of enormous controversy. The case of Roe v. Wade has been the law
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Speak a little bit louder.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; the case of Roe v. Wade has been the law for 21 years or more, and it was recently affirmed by the Supreme Court of the United States in the case of Casey. That is the law. The questions that you are putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I do not think I should go into those for the reason that those are likely to be the subject of litigation in front of the Court.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, article I of the Constitution gives specific legislative powers to the Congress. One particular power granted to the Congress is the power to tax. Members of Congress are elected by the people and are accountable through the ballot box for their support or opposition on tax matters. Do you believe that Federal judges who serve for life and are unaccountable to the American electorate should have the power to order tax increases or new taxes as a part of a judicial remedy?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Again, Senator, I think there it is not possible to be categorical. I think much depends upon the circumstance. I know that the Supreme Court has held that there are circumstances in which such tax orders are permissible, and, therefore, I start with the assumption that that is the holding of the Court. And since the Court has held that, there could be such circumstances. Exactly what they are, I cannot tell you at this moment.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Then Congress, of course, would have to change it if we think it is improper.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, that is correct. That is correct.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. And that is what I hope we can do. Judge Breyer, as an original judge-member of the U.S. Sentencing Commission, you were closely involved in drafting the sentencing guidelines. Congressionally enacted mandatory minimum sentences are now applied through the sentencing guidelines. In November 1992, while chief judge of the first circuit, you prepared a memorandum for Phil Heymann, who recently served as President Clinton's Deputy Attorney General. In that memo, you outlined major criticisms of the guidelines which you believed were valid. The criticisms in your memorandum are as follows: First, mandatory minimum sentences in statutes distort the guidelines. Second, the guidelines insufficiently encourage departures. Third, the guidelines are too complicated. Fourth, the guidelines are not re- 139 sponding sufficiently to empirical research. Fifth, the guidelines pay inadequate attention to intermediate punishments. Judge Breyer, what prompted you to prepare that memorandum, and do you consider it an accurate reflection of your current views on the guidelines?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, basically that memorandum was a summary of a speech that I gave to a group of judges in Williamsburg, VA, and the memorandum was attached to the whole speech, but I thought a summary might be appropriate. I think the actual wording of it was a little more tactful, possibly, than it was listing criticisms and was saying to some extent they are justified, to some extent they are not justified. I think those are a list of the criticisms that have been made of the guidelines. I think to some extent they are justified. I think there is room for improvement. They are not fatal to the guideline effort, and I think Judge Wilkins would agree, frankly. I think Judge Wilkins has always been on the side, as of I—we have always seen eye to eye on this, and basically we think that we would like it, as former Sentencing Commissioners, if Congress really would delegate to the Commission the authority to create the sentence. Then if the Commission does not do a good job, then Congress would change it. But Judge Wilkins and I, I believe, have always thought we would like to see that authority delegated to the Commission.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I believe you also suggested here somewhere, too, that moderate judges be appointed to the Commission. Is that correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; it seems to me that in order to build the— the Commission was given an awfully difficult job, and one of the difficulties is, of course, you are operating in a world where the judges are used to deciding all these things on their own. And it is not surprising that some are suspicious of a new entity. And to the extent that you could bring sort of moderate judges, not—you know, just judges with experience in sentencing and so forth, and you bring them on to the Commission. I think it helps win acceptability for the Commission within the world of the judiciary.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Would you care to tell us what kind of person you consider a moderate judge?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think a good person, Senator. I am in favor of moderate judges. I would not like to name names.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, we frequently hear the argument that courts act in response to various social problems because the legislature has failed to act on its own. How would you respond to this defense of an activist judiciary?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I basically think that the judge has to believe more and it has to be true that there is more. The judge cannot act unless there is more than a simple belief that there is a social problem. Rather, it must be the case that there is a statute or the Constitution itself that creates a law that perhaps another branch of Government would be better off implementing the sub-laws or statutes or regulation. But basically the judge's decision must be tied back to a law, just as the greatest law which has lead to the greatest change is the 14th amendment to the Constitution. And judges who implemented that great law, which promised fairness 140 to all Americans, were not following their own point of view. They were, rather, carrying out the basic promise of fairness that was written into the Constitution. And it is that grounding of law that I think made those decisions lawful, justified, and effective.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, I was pleased to learn of your concerns with excessive regulation. There has been criticism that, too often, regulatory bodies go beyond the issuance of regulations pursuant to a congressional delegation and actually begin legislating. What steps, if any, do you believe that Congress and the courts each should take to curtail improper or excessive regulations?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The primary audience to which I have addressed what I have written on this subject is the Congress, the regulators, the environmentalists, the health groups, the industry—those who are affected and who have a direct stake in the regulation. And basically there I have said this is what the situation seems to be. If you agree, fine. And then it is up to you to implement that, primarily through rules and regulations and statutes, not judicial decisions. And they either will or will not agree.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, the free exercise clause of the first amendment guarantees that Congress shall make no law prohibiting the free exercise of religion. In effect, this secures to each American the ability to exercise his or her religion free of encroachment by the Government. Proponents of in-home education often do not use the State schools because of their desire to include religious instruction in their children's curriculum. Would you discuss your views on an American's right to educate his or her children in the home as it relates to the Government's interest in regulation in-home education?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think, Senator, that that right is an important right that, I think it is widely recognized, stems from the first amendment to the Constitution, which is designed to protect what is so very important to every American and every American's family: the right to practice your own religion, the right to pass on your religious beliefs to your children. That is there, and it is protected in the expression of free religion. The Government, of course, has some interest to see that education is actually taking place. There is always a Government interest in making certain that there is some kind of education really going on. To balance those two things is difficult and requires fine judgments in particular cases. When I wrote my case on the subject, the law itself, which since at the constitutional level changed, required that balancing. You in Congress have written a statute that goes back to that balancing approach. I can go no further because I think that that statute is likely to be the subject of litigation.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, under the 10th amendment to the Constitution, powers not delegated to the Federal Government are reserved to the States and the people. I have been deeply concerned that this amendment has undergone significant erosion as the Federal Government continues its expansion into every facet of people's lives. Do you believe that the 10th amendment is an effective limitation on the expansion of the Federal Government? 141
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think there are two separate questions there, Senator. The simple answer is yes, but there are two parts to the answer. To what extent does the Constitution itself and the 10th amendment prevent Congress from acting? And I think there most people would believe there is some kind of a core in respect to State activity, particularly at the governmental level, protecting, say, the State government from others saying whether it should have one house in a legislature or two houses in a legislature. The way in which the State sets up its own governmental institutions, whether that is protected by the 10th amendment or the republican form of government clause or something else is a matter of debate. But I think it is widely accepted there is some range of constitutional protection. Beyond that, although the Supreme Court in the League of Cities case began to expand the area of constitutional protection to include wages and hours of municipal employees, that sort of thing, it then retracted that view in Garcia. And where we stand today is, yes, there is protection, but it seems that most of the degree of protection is up to Congress. After all, Congress talks to the mayors, talks to the Governors, develops programs of cooperation, decides what the role of the State or the city will be, and thus it becomes primarily a congressional decision to tailor programs that appropriately recognize the roles of the States.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Related to this, unfunded Federal mandates are an overwhelming financial burden upon the States. What is your opinion of unfunded Federal mandates upon the States?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I smile a little, Senator, because it seems to me that that is an excellent example of your last question. Indeed, I know there are great difficulties, and I know you are more familiar with those difficulties than I by quite a long shot. And you are the person who is very sensitive to the problems of the towns and the States and the cities that may arise from those mandates. And I do believe that those problems are best translated—indeed, I think that is the state of constitutional law at the moment, as I understand it. I am hesitant because I am not an expert on this point. But basically that is transmitted through Congress, and Congress will give appropriate recognition to that kind of concern.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. AS you may know, Judge Breyer, I am the ranking member of this committee's Antitrust, Monopolies, and Business Rights Subcommittee. As a judge who has written extensively on the antitrust laws, could you please summarize your views very briefly on the purposes and goals of the antitrust laws and their importance to the competitiveness of U.S. business, both here and abroad?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, I was quite lucky about, I guess, lVfe, 2 years ago now and was at this conference I spoke of earlier with 500 Russian judges, and they are very interested—there I would get into a lot of private conversations. And they are very interested not only in basic constitutional protections but also economic organization. The point that I would frequently make in those conversations is that if you are going to have a free enterprise economy, if you are not going to have the Government running everything, then you must have a strong and effective antitrust law. 142 If you are not going to regulate airlines, you must have a strong antitrust law for airlines. 'Hie reason is that antitrust law is the policeman. Antitrust law aims, through the competitive process, at bringing about low prices for consumers, better products, and more efficient methods of production. Those three things, in my mind, are the key to antitrust law and really a strong justification for an economy in which there are winners and losers, and some people get rich and others do not. The justification lies in the fact that that kind of economy is better for almost everyone, and it will not be better for almost everyone unless the gains of productivity are spread. And the gains of productivity are spread through competition. That brings about low prices, better products, and more efficient methods of production. And that is what I think antitrust law is about, and that is what I think that policeman of the free enterprise system has to do. It is called protect the consumer.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, I believe my time is about up. I would just ask you this: I believe you attended Oxford and graduated there?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, sir, I did.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. And you found that compatible with the military?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, sir, I did. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think your time is up, Senator. I was about to say you can have as much time as you would like.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Breyer, nice to see you this afternoon.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me start off by saying where I am. I expect you to be confirmed, and I expect to vote for your confirmation.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU are clearly a man of integrity, exceptional legal skill, high intellectual ability. You have been widely praised for your political and academic credentials. You have had some very able spokespersons speak on your behalf today, four very distinguished and well-respected Members of the U.S. Senate. There is not much question about the fact that you have exceptional legal credentials. I must say, however, that I am concerned about your position and your views on the fair competition laws which affect the day-to-day lives of all Americans. I am talking about the antitrust laws that Senator Thurmond just raised with you, the antitrust laws that are in place in order to keep prices low and products safe for consumers, to make the competitive market work. Those same laws protect small businesses against abusive corporate giants and prevent price-gouging monopolies and cartels from harming consumers. You have been outspoken with respect to the consumer protection laws known as antitrust, but your record suggests, unfortu- 143 nately, to my mind, that you almost always vote against the very people the antitrust laws are in place to protect. A 1991 study in the Fordham Law Review reported that in all 16 of your antitrust decisions, Judge Breyer voted against the alleged victim of antitrust abuse. You seem to see antitrust laws in terms of abstract economics. And it seems that theories of economic efficiency displayed in complicated charts, one of which I will use at a later point in the hearing, and graphs replace individual justice for small businesses and consumers. As you well know, that is not my view of antitrust. I see it as the protector of mom-and-pop businesses and the guardian of consumer rights. Let me be clear. To me, antitrust is not some mysterious legal theory that only lawyers can understand. Antitrust is just an oldfashioned word for fair competition. It is a word that made sense to the average American 104 years ago when the first antitrust law was passed. At that time, trusts, which were cartels of big companies, such as oil companies, railroads, and other giants, fixed prices or cut prices or boycotted small businesses or used whatever underhanded tactics it took to ruin their rivals. These trusts were so ruthless that small businesses and consumers did not stand a chance against their power. So Congress came along and outlawed trusts and cartels and monopolies, in President Wilson's words, to protect "the little man." John Sherman, a Republican Senator from my own State, wrote the first antitrust law in 1890 to give every American a fair shot at starting a business and getting a square deal as a consumer. President Teddy Roosevelt, the Nation's legendary trust buster, used the antitrust laws as a weapon against corporate abuse. Today, I am frank to say that many public officials have forgotten what the antitrust laws are supposed to do. They have let highpaid lawyers and corporate giants convince them that our only legal yardstick should be whatever is good for business. They would have us believe that antitrust lawsuits are too complicated, too difficult to understand for juries of average Americans, and that economic theory is more important than common sense and experienced business judgment. To me, that kind of thinking is simply absurd. I can tell you from personal experience as a long-time businessperson and as chairman of the Senate's Antitrust Subcommittee that small businesses and consumers rely on the protection of our antitrust laws. I think it is important that in this hearing in some way this Senator try to sensitize you to the fact that, even today, small businesses and consumers are threatened by unfair competition from big businesses. Fortunately, we do not need new laws to protect them. What we need are judges with the wisdom and courage to use those laws to stop corporate big-wigs from abusing their market power. While I will begin my questioning of you by focusing on antitrust, I would like to point out another matter that troubles me. As you know, Judge, I have made clear my concerns about your participation in cases that involve environmental pollution issues, given your investments in Lloyd's of London. In your opening statement this morning, you very properly this morning promised to divest 144 yourself of all insurance holdings as soon as possible, and I am frank to say that I appreciate your sensitivity and willingness to respond to some concerns that I had expressed to representatives of the White House about that subject and about any appearance of impropriety. I still have a number of questions concerning your involvement in Lloyd's and the distinctions you drew when recusing yourself from asbestos. This one I had difficulty in understanding, why you recused yourself in the asbestos cases but not other environmental cases. Now, I am frank to tell you, Judge, that you are the first nominee to come before us who is actively involved in Lloyd's of London, and I got to tell you, I am grateful to you. I have learned more about Lloyd's of London in the last several days than I learned in my entire previous 77 years. I thought that I knew something about what was happening in the business world and even in the insurance area. But I am frank to say that by my studying that which I understand to be approximately 100 investments of yours in different syndicates at Lloyd's, that is pretty unusual for an American businessperson, because each investment involves unlimited liability that can vastly exceed the actual amount of money invested. I am frank to tell you I am not sure whether the 100 figure is right. At one point, I heard it was 69, and at one point, I heard it was something else. But I gather sometimes one syndicate rolls over into another syndicate, and it is a question whether that is two numbers or one number. While most of your syndicates have been closed, and an approximate amount of profit or loss ascertained, one syndicate that has become a high-profile issue—Merritt 418, which was the syndicate from 1985—cannot be closed. Merritt 418 includes extensive environmental pollution coverage that no one has been willing to take over. So, as I understand it, you remain personally liable for a portion of Merritt 418's massive losses, and we are not talking about insignificant amounts of money. We are talking about significant hundreds of thousands of dollars, as I calculate it. You may remain liable on that investment sometime into the future, and I do not think you know how long that will be or I know, but I think you are hopeful to get out of it as soon as possible. And you made that clear in your opening statement. But I also understand it is a rather difficult one to get out of. At a later point in the hearings, I intend to ask you about environmental decisions which might affect you financially. For today, I will go back to the subject of antitrust, but in a subsequent round of hearings, I do expect to get into that entire matter. Coming to the question of antitrust, I must say I am extremely troubled by your reasoning in Town of Concord v. Boston Edison. You overturned a jury verdict and a district court judge's review of that verdict. As I understand the case, the jury found the consumers in Concord, MA, were overcharged on their electricity bills by $13 million. That verdict was trebled to $39 million as an antitrust penalty against Boston Edison, which sold Concord 95 percent of its electricity. After hearing testimony for 13 days from experts on both sides, the jury found that Concord's small, municipally owned electric company could only get most of its energy from Boston Edison, a huge power company which generates, transmits, and sells electricity. Boston Edison serves the communities adjacent to Concord. The jury found that by raising Concord's wholesale rates, which Federal regulators automatically rubberstamp and only review later, Boston Edison unfairly raised Concord's costs and actually stole some of their customers as well. In overturning the jury decision to provide the consumers of Concord $39 million, you wrote, "Effective price regulation at both the first and second industry levels makes it unlikely that requesting such rates will ordinarily create a serious risk of significant anticompetitive harm." Here the regulation could not bring back lost business. The district court judge found the jury had ample evidence of competitive harm. And my question is: In view of the jury verdict, the court's verdict, the position that the city of Concord and the people of that community were in, why did you disregard all of those facts and replace them with a graph and a chart that are completely hypothetical? Let me show you the graph and the chart. It says here— I do not know what the chart means. It says up there "Town of Concord v. Boston Edison," and then it says "Total M's cost price." Down here it says, "It costs $1 to make a widget. A single monopolist M will maximize his profit by setting a price of $6, and selling five widgets, his profit is $25 [represented by the area RSTU]," and it goes on. Now, frankly, I do not know whether the people of the city of Concord had too much interest in the widgets, but I think they were very interested in the $39 million verdict that they had and, frankly, that you took away from them. And I wonder if you could explain how you arrived at this conclusion to reverse the lower court in that case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think, Senator, that I should start with a general point, a negative general point, then a positive general point, and then something rather specific. The negative general point is, of course, I don't count up how many victories are for plaintiffs or defendants and do statistics. Sometimes plaintiffs did win in antitrust cases I have had. And, as you point out, defendants often won. The plaintiff sometimes is a big business, and sometimes is not. The defendant sometimes is, and sometimes is not. What I am interested in is is the case correct as a matter of law, and I consider the cases one at a time, and I consider the merits, the legal merits of the arguments in front of me. My general positive point is this, where I hope and expect very much that you will agree, because, frankly, I have read what you say often on antitrust, and you are going to think that this comes from things that you have said to business people, because I have read them and I think it does. But there is a keystone to antitrust, and you have said it before and you say it again, and the keystone to antitrust, what antitrust is all about is getting low prices for consumers, not high prices, and getting better products for consumers, not worse products, and get- 146 ting more efficient methods of production. And that simple threepart key which I carry around I think engraved in my brain I try to use to unlock these incredibly complex, unbelievably technical legal arguments that are brought up in an area like the one in the case that you mentioned, something called the price squeeze. Now, in fact, as I will explain now in detail, that key does unlock that door. But in order to show how would I have thought our court's decision, our unanimous decision there, how I thought that that key, low prices, led to the technical result, what I want to do is write an opinion that will explain these technical matters, boy, this was very technical, but will explain it so that a person who is willing to put in time and effort, even without economic training, will see the point intuitively. And the chart that you mentioned, which has a numerical example and has a graphic example, is designed to help a person who is really interested in following every bit of that, to use the chart or use the numbers or use the language three different ways to show how the key, which is the low price, unlocks the complicated door of the case. Now, this is how in my mind it did in that case. How can I explain what a price squeeze is? My goodness. Basically, the idea is this: Electricity is made by big integrated companies. They make electricity by having turbines go around. Let's say—and I will use a hypothetical, I don't like to use that here, because I know this isn't a classroom and I know these are serious matters and I don't like to be professorial, frankly, but I think in this instance, maybe thinking of, say, they turn this wheel around and they charged 8 cents for the electricity, and that might help. They then transmit it across a wire. They then sell it to themselves, because they are in the retail operation, too. And they sold it, let us say, for 10 cents. So they make it for 8 cents and they sell it to themselves for 10 cents, and the price to the consumer is 10 cents. Now, the plaintiff in this case came along and said, you see, 8 cents is what we have to pay for it, because they sold a little bit to independent retailers, too, and that plaintiff was an independent retailer. And that independent retailer was saying, wait, I buy this for 8 cents and they resell to themselves for 10 cents, that 2 cents isn't big enough as a space, I am getting squeezed. And if he had won that case, if that plaintiff had won that case, what would have happened is, instead of that price being 10 cents for all the consumers in Massachusetts, that price would have gone up to 11 cents or 12 cents. That is how I saw the case. So, while I know you could make theoretical arguments the other way, the practical argument was that if plaintiffs here won—by the way, the plaintiffs here were not losing an amount of money, they were making a little bit of profit—the principle under which they would win I thought, and my court thought, would drive up the price of electricity to consumers all over Massachusetts. Now, two things: One, the State regulatory commission is holding that price down. The State regulatory commission says 10 cents is the right price. And if you have a State regulator out there protecting the citizens of Massachusetts and saying 10 cents is right, then 147 I do not think an antitrust court should come along with a rule of law that makes for a higher price. There is too big a risk of that happening. But, after all, there could be a lot of special circumstances. So, we are fairly careful in that case in the opinion to say we are not saying this could never be bad. We are not saying this is absolute. We are not saying there could not be circumstances where the price squeeze would be a bad thing. But in these circumstances here, it is not good for consumers for the plaintiff to win. By the way, all the facts in the case, the court of appeals, as you correctly point out, are assumed in favor of the plaintiff. That is because the jury found in favor of the plaintiff. Then the question is, assuming all the facts in the plaintiffs in the favor, does the antitrust law require a verdict for the plaintiff. And I absolutely grant you that is a highly controversial area. It is a difficult area, and I cannot be certain as I sit here now that we have come to the exactly correct result. What I can be certain of is what our court tried to do. We tried to focus on where the ball really is, which is the low price for the consumer, and we tried to work our way through a very complicated area to see if antitrust law, which has as its objective, technically would come to that result. I do not guarantee I was right. I do not guarantee that others do not have good arguments the other way. What I do guarantee is what we were trying to do, how we were trying to interpret the law.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge, I have to take issue with you about your wanting to bring about lower rates. The jury wanted to bring Concord's electric rates down and hold down rates for Boston Edison with proper regulation, and, with the jury's verdict, the rates would have been lower. But you stepped in and you said juries will be permitted to second-guess the regulators' allocation rules or its specific investment allocation decisions. What antitrust benefit would be gained by permitting juries to speculate in this way, is your question? Let me answer your question: Congress did not give the regulators the power to make antitrust determinations. We gave antitrust determinations to the juries and the courts. This jury was protecting consumers who were gouged, and a small company, a very small company, the Concord company was a very small company, that was unfairly squeezed. Unfortunately, as I see it, you seemed more worried about ruffling the regulators' feathers than protecting the consumers. My question is why was it appropriate for you to discount the expert testimony, disregard the jury factfinding that the district court found fully supported by the record in this case, and reverse the lower court and the jury's verdict? That is where I have difficulty, and your answer is that you were helping to keep rates down, but here was a $39 million verdict for the city of Concord, and I have difficulty in following your line of reasoning as to how your verdict against the plaintiffs and taking way the jury verdict helped to keep prices down.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Basically, the reason, Senator, was that I think it was our obligation, in trying to interpret the antitrust law, to work out how the rule of law in that case, perhaps in that case it 148 would have meant lower prices for Concord, though I am not sure how, but even there the issue is what about all the citizens of Massachusetts, what happens to all the citizens who buy electricity. And my belief was, and what we wrote in the case and tried to explain why, is if a little company—and he was small—can insist that that rate go up from 10 cents to 12 cents, everyone all over Massachusetts, not just Concord, is going to be paying 12 cents and not 10 cents, and that is higher prices, not lower prices, and the antitrust laws ought not to allow that, if we are following their basic principles. And then I trace through in the opinion why I think that is what would happen if the plaintiff won. As I said, I do not think we took away any factfinding from the jury, and I understand that the plaintiffs in the case may disagree. I understand people who study this in very good faith may disagree. I understand that there are two sides to the issue. But I do think that what the court is trying to do in that case is trying to follow through the basic thrust of the antitrust law and to determine how that aim at low prices works out in this complicated area. And I think that the holding in the case, rather than the contrary holding, means lower prices for electricity consumers in Massachusetts and elsewhere. I can give you another example, if you like.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge, I only have about 5 minutes left, and may I go on?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Please.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you. I do not think we are going to come to an agreement.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In good faitn, I think people do disagree about many of these holdings.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In one of your earliest cases, Allen Pen Co., Inc. v. Springfield Photo Mount Co., Inc., you sided with the defendant. The plaintiff was a small firm that bought school supplies from the Springfield company. The way I read the case, Springfield offered lower prices to its favored customers and everyone else had to pay more. The undisputed evidence was that when Allen Pen fell out of favor with Springfield, it had to pay 5 percent more for the same supplies. So it sued Springfield for discriminatory pricing under the antitrust laws. The district court judge did not let the jury decide the case. Instead, he directed a verdict for the defendant. You affirmed that decision. What you said was that Allen Pen, which was a small company, could not win its case, because It produced no economic expert, it did not go out of business, it showed no absolute drop in the sales, the sales affected were but a tiny fraction of its total business, and there was no causal connection between any antitrust violation and any significant actual injury. Let me ask you, does a small company have to go out of business before our fair competition laws apply? Is that the sine qua non?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, no; I think that case was a matter of evidence, and I would guess that how much evidence there was was a matter of the court looked at it and thought there was not enough evidence. I cannot repeat to you now. I mean it is just that sometimes—look, let me give you Cartel. Cartel is a good case. Cartel is a case in which a defendant won. Cartel is a case in which 149 the big defendant won. Cartel is a case in which the smaller plaintiff lost. Cartel is a case in which that big defendant was an insurance company in the health insurance area. What the big defendant was trying to do to the insurance company was to hold down the price of health care. The plaintiffs were people who wanted to raise the price of health care. They wanted to raise the price of health care and they thought the antitrust laws helped them do it. It seems to me that by looking at the basic purpose of the antitrust laws, which is to keep prices down, to protect the consumer, when you do that, you get the key to a lot of these matters, and that is basically what I have tried to do, and I cannot tell you I have always done it right.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, in this particular case we are talking about, the small company put its president on the stand to testify about how much money it lost when it had to pay higher prices. It gave the jury his best estimate of what the company's losses were, based on his knowledge of the business and the company's history. You actually criticized the company for using a businessman, instead of an economist, to show that it was injured by unfair competition. Again, this is a case of whether a small business company has to pay for an expensive economic expert who can charge $500 or more just to get his case to the jury. What concerns to me, and I think some who have studied your record, is that you are more inclined to follow some esoteric theory of the law or maybe some regulatory approach to the law, than you are the whole concept of letting free competition work, and the whole question of protecting that small business person. I have a number of other cases I will ask you about that come to a similar conclusion, where the little guy gets squeezed out, was not able to buy parts and has to buy a particular automobile package in order to get—I think it was Subaru cars—and, one after the other, Judge Breyer is not sensitive to the fact that the little guy does not have a chance, except for the antitrust laws, and Judge Breyer routinely—there are some exceptions. In the Cartel case, you are correct, you ruled with the plaintiff. But the fact is, in too many cases, time after time, as the Fordham article indicates, your hold against the little guy, the small business person, the consumer. I do not think you did anything wrong or improper. All I am hoping to do in these hearings is maybe sensitize you enough, and when you get on the Supreme Court, maybe you will remember, gee, I remember those questions I had when I was appearing before the Judiciary Committee, maybe the milk of human kindness will run through you and you will not be so technical.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I guarantee you, I will remember. [Laughter.]
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have other questions, Mr. Chairman. My time has expired, but I know we are going around.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, I am sure at the first conference, after the first case, he will turn to Justice Scalia and say, you know, let's think how Metzenbaum would do this. [Laughter.]
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I know that you and Justice Scalia will work it out. 150
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I just want to know if Howard finally got it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. What did you say?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He wanted to know if you finally got it, he said.
Senator Alan Simpson (WY)
Senator
(R)
Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you very much, Mr. Chairman. I am glad I was not involved in that line of inquiry there about the milk of human kindness. My friend Howard Metzenbaum and I do not always agree, but I mean sincerely I shall miss his presence. He and I have sharpened our rapiers on each other for 15 years, and it has been an experience that started I think with suspicion, and certainly ends with mutual respect. I enjoy him. As I say, we do not agree, indeed. But if he is speaking on antitrust, you want to listen. Well, it is a pleasure to see you here. I listened intently this morning and thought I had known a great deal of your background. But when they got to the part about architecture, I want to find more about that. It is time to talk of many things, of shoes and ships and ceiling wax. I want to find out more about that, and I shall. It is good to see your family here, and I remember meeting them when I was a freshman on this committee. Michael, while you are out there hiking through the country, I will be astride a horse out in Wyoming. You will be walking, and I will be riding. I hope you will enjoy the Wind Rivers. It is a marvelous area, if that is where you are going. I hunch you are. Seldom I think in these times, certainly in this century, certainly not at any time in my 15 years on this committee, have members had an opportunity to consider a nomination to the Supreme Court of a person who many of us personally know so well. And I would note that while the consent role of the Congress has always been strictly observed, in this case of your nomination, I believe the advice provision of article II for the first time in my experience has been a significant factor, because many of us on this side of the aisle and on the other side, as well, have offered the advice that your nomination would be quite well received by the Judiciary Committee. Nearly half of the members of this committee knew you when you served as the chief counsel of this committee. We all are personally familiar with your intellect, your ability, your professional bearing, and your sense of fairness. A term that I noted was used several times in your statement, fairness or fair. And you were very courteous and helpful to me, as a freshman Senator, never judging or measuring things with a political yardstick, interestingly enough, always grounded in fairness. That is a word I think that typifies what I know about you from my personal observation post. And you have had a fine, remarkable education. I loved your statement about the things you learned about people which you didn't learn from books, or something to that effect, and I think that is certainly true in my life. Yet, the books took me to where 151 I could go into a profession that I loved, into law. And your work in academia and your work on the bench has been exemplary. The Supreme Court is unique in both the size of its workload and in the closed and I think necessarily private environment in which it works, which is going to be a tough one for you, but you will handle that. You mentioned that, too, in your statement. I forget the term, but not to cloister yourself away. That was not the term, but I cannot see you anywhere near that, with your persona. But to simply be able to cope with the volume of work requires a superior intellect, but, just as important, the absolute necessity to work collegially with your fellow Justices. As chief counsel of this committee you dealt with some of the most controversial issues that came before the Congress, and that was the ideal crucible to develop and display those qualities. They say there is no proving ground like it, here in the Judiciary Committee—and I do always admire our chairman, Joe Biden. He is very fair, and he faces controversy with more patience than I do. When I get a belly full of something, it shows all over my face, and then I am in deep trouble. And our ranking member, Senator Hatch, is patient and always willing to listen. But I shan't forget when Senator Kennedy came before us in an imploring fashion, after we had dispatched the former President in 1980, and said: How about Steve Breyer? And we said: "no". And then Senator Thurmond, who was ranking member, interceded, the committee met and duly judged that you should pass into the ranks of the robed. And you did, and you have had a remarkable record. And this committee is a tough audience, and there are tough inquiries. Senator Metzenbaum, others of us, Orrin, myself, Ted, and Pat Leahy, all of us do ask tough questions for which we get some tough commentary at times, and that goes with the territory. But it is interesting that very few Senators really stand in line to serve on this committee, but when they do, they become quite riveted to what we do here and what we must do in our role, especially in this role. I nave always served, as a legislator, on the Judiciary Committee—chaired one when I was in the State legislature. So we have seen you handle controversial issues with competence. We have watched you deal with members of both parties with fairness—that word again—and good humor, rare good humor, and patience, extreme patience. So, then, one might wonder why we are making this investment of time and energy, significant, indeed, on a nomination which seems to have general approval, why the staff has spent thousands of hours collectively poring over everything Stephen Breyer has spoken and written on the law. I think there are several factors at play here. The first is that we want a thorough and unhurried examination of the nominee. That is always justified in the case of a lifetime appointment to a Court co-equal with and independent of the Presidency and the Congress. But there is an even more important factor, I think, which justifies the size of the investigative staffs we now see on this committee and the intensity of our scrutiny of Supreme Court nominations. We learned in the 1950's and 1960's that this co-equal branch of Government, the Supreme Court, could, would, and did 85-742 - 95 - 6 152 take upon itself the job of making profound changes in American society and politics when Congress was slow to act or had determined not to act. And this judicial activism on the part of the Supreme Court led to this clearly reduced pace and increased thoroughness of evaluating nominees to the Court. It became important in the eyes of many members of this committee to attempt to learn intimately the attitudes and values of persons nominated to serve on the Court. But sometimes we, all of us, become overly zealous on the singularly posed question: How would you vote on this or that critical issue of the day? And in my mind, a nominee who is fully qualified by education and experience and temperament should, nevertheless, be rejected if a nominee believes it is the Court's duty to act when the Congress fails to do so or to allow his or her personal views and prejudices to influence his or her decisions. And yet, conversely, I am much less concerned about a nominee's ideological bent if he or she is otherwise well qualified by education, experience, and temperament; and clearly a person who would assiduously follow the Constitution, the precedents, and the laws of the country, despite his or her strongly held personal views to the contrary. So this great and sometimes ponderous effort to determine the social and political views of nominees reflects all of our own concerns about judicial activism, whichever side of that we happen to be on. Some claim that this has led to the appointment of what have been called "stealth nominees," a description which assuredly would not fit you, for you have left a paper trail a mile wide and a yard deep: 91 speeches, 50 articles and book chapters, and 80 opinions. Of course, I have nearly completed my own personal exhaustive review of these various tomes and treatises. Summer reading, I call that. And I suspect that we have sometimes overdone it in the thoroughness of our efforts to learn the ideological beliefs of nominees. And we should probably spend more time inquiring into the nominee's judicial philosophy and the analytical approach that he or she might use in deciding issues and cases. We will, of course, also inquire in some detail about current constitutional controversies. I have some questions myself in that area in this round, and I know that you will attempt to be candid but circumspect, and respectfully and necessarily guarded in your responses. I am positive of one thing with you, as surely as anything, the lodestar, that you will not give our citizens mumbo-jumbo, legal mumbo-jumbo. You will give them justice. That I know. And that is the pleasing part of the whole process for me with my personal knowledge of you. Now, let me ask you, I know that Senator Hatch and Senator Thurmond have talked about the New Life Baptist Church v. East Longmeadow, and I will not go into the details of that case. But until recently, the U.S. Supreme Court, not the Congress or the executive branch, has decided the standard to be used to determine whether the Government's actions have impermissibly burdened a person's ability to exercise his or her religious beliefs. Over time, the Supreme Court developed these several standards for various types of free exercise claims. For most cases, the Court 153 determines whether the State's interest is compelling and whether a less restrictive means to accomplish that interest is available. In Sherbert v. Werner and Yoder—cases brought by prisoners against prison administrators—the Court standard was whether the restrictions on a prisoner's free exercise of religion are reasonably related to legitimate penological objectives. But then came the Supreme Court in the Employment Division v. Smith. Two employees were convicted of smoking peyote, and they were fired from their jobs. They claimed that their peyote smoking was pursuant to their religion. The Court held that no balancing test between the State's interest and the individual's interest was necessary when a criminal law applied to all activities, religious or secular, and was not intended to target religious activities. So last year, we enacted the Religious Freedom Restoration Act, as previously mentioned by Senator Hatch and Senator Thurmond, which overturned the Court's 1990 case standard. And, of course, that went rolling through here in high fashion. I was very disturbed by it, especially with regard to what it will do in prisons as we see people selecting what religion they may concoct in order to drive the prison administrators goofy. But that is my view—I think that will cause us great pain. The Religious Freedom Restoration Act mandated that all free exercise claims be considered under one standard; the compelling State interest and the least restrictive means. My question: To what extent is it constitutionally permissible for Congress to provide the courts with a substantive standard for a free exercise of religion claim? Or to what extent is it constitutionally permissible for Congress to overrule the Supreme Court's own substantive standards for review of free exercise of religion claims?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason that I smiled, Senator, was because you have articulated the question exactly that I would imagine is likely to be before the Supreme Court. And if I am confirmed and you decide to confirm me, then I would be a member of that Court. Therefore, I have to exercise caution on that particular question. That is going to be right there. It is going to be right there.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It will be right there, and it will come through this law.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, it will.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And another one that will be right there and you need not talk about is the issue of the restriction of freedom of expression, freedom of speech with regard to demonstrations around abortion clinics. The law has a lot of ramifications that go far, far beyond freedom of speech. I happen to be pro-choice, and I supported the provision. But I can see right now the use of that law in ways which those who promoted it will blanch and shrivel when that begins to take shape. I can see some of those beginning to form, and I was part of it. But that is the interesting part of sitting on a Judiciary Committee as you work your craft. Well, those are things that are of concern, but with regard to the New Life Baptist Church v. East Longmeadow, I would just ask several specific questions which I believe were not entirely covered in your answers to Senator Hatch and Senator Thurmond. I also 154 have had some which you have answered and which I will not ask you to repeat. You were asked to determine whether the town school committee could apply the State's standards to determine the adequacy of the secular education that a religious school provides to its students. The school said that that mandatory process violated the first amendment, free exercise rights, since it believed it to be a sin to submit—and that was the word, "submit"—its educational enterprise to a secular authority for approval. So in place of the school committee's mandatory approval requirements, the school offered up a less restrictive alternative. They said they would voluntarily give its students standardized tests to determine the adequacy of the secular education, then the school would voluntarily submit the results to the education board for evaluation. You concluded that while the State's mandatory review requirements do burden the school's free exercise of its religious activities, such a burden was permissible. You have given some remarkable comments about the duty of Government to see that education is given to all children, and I agree. You based your decision on your finding that the school committee has a sufficiently compelling interest in seeing that the children are educated, that there is no less restrictive means available. Not even the school's suggested voluntary standardized-test approach that you felt would both accomplish the State's interest and be less of a burden on the exercise of religion. You questioned whether or not the standardized test would be an adequate measure for the process of teaching, and, of course—and there was a quote: Can it be certain that good results reflect good teaching, the teaching of intellectual skills, discipline, complete subject matter, rather than simply teaching the answers to the questions the teachers believe will appear on tests? But all those kinds of tests are routinely used to measure progress in education, standardized tests. SAT, LSAT, MCAT, GRE, are all indicators of the likelihood of eventual success. I have received considerable mail from my State on the nomination on the most part from constituents writing who are parents who have their children in private, church-operated schools or parents who provide home schooling for their children, and this opinion concerns them. Some feel your decision implies that you believe it is constitutional for States to totally ban home schooling. One wrote: Not only is this position unconstitutional, but it is also nonsensical, as he would give unlimited powers to an already failing public school system to regulate private and home schools, which statistically are turning out well-educated students. I am interested in your reasoning, if you could explain for me why the school standardized tests would not be an acceptable, less restrictive means to demonstrate adequacy of its secular program, whether your decision "gives unlimited powers to an already failing public school system to regulate," but principally how you feel about home-based education and your response to that, sir?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Three general points, Senator, and then a more specific point. The three general points are: I do not think there is a word in that opinion that suggests, you know, the kind of thing that you mentioned in that latter, that this 155 powerful State can do what it wants to end the ability of parents to pass on their religion to their children. The second general point is that everything I have learned about the first amendment—and, interestingly enough, speech has something to do with it, too—is that that really grew out of the religious wars of the 17th century, and that really reflects a great compromise that runs through modern life in a lot of countries, but particularly in the United States. And, that is, people have strongly held religious beliefs, and there are synagogues and there are churches and there are mosques and there are dozens of different religious groups. And, that is, that every one of those groups will have the right to practice their own religion and to pass that religion on to their children. That is right at the heart of it. The third general point is that the test that I was applying constitutionally in that case was before the recent Smith case. The recent Smith case said all you do is look to see if there is a secular purpose. I take it if that had been the law at the time, it would not have even been close. And what you have tried to do is go back to restore the type of balancing test that I used in that opinion. Now, the specific thing in that balancing test really grew out of the particular facts of the case. Some States have laws which say the way that the State should go in and measure whether the home school is doing a good job or the religious school is doing a good job is give people tests. If the State has that, fine and good. Our State in that case did not have that. And so it became a question of whether the Constitution forced the school board to do it that way rather than do it a different way. Among the special facts in the case were there were a lot of indications through letters and so forth that the visit to the school by the school board to look and see what was happening could be worked out without infringing that religious group's basic concern that the State was not in charge, that they did not recognize State authority. And that could be worked out because the State was willing to say: Don't recognize our authority. Just let us look at the school like anyone else might off the street, or whatever. Do you mind? And they said, well, we do not mind that much. The concern in that case, what the school board had, is: How can you really say that tests are less restraining or more restraining? Some parents might believe tests are more of an interference. After all, you are worried about submitting yourself to the authority of the State while I have to bring my child and sit them in a special room and make them take a State test. Some parents might have felt that way. Other parents might have believed that that was a better solution and that the visit was a worse solution. It is very hard to say, and the school board had to administer some system. So, ultimately, it turned on the fact that we thought that is a reasonable system. And it does not really infringe, in general, the right of the parents any more than would have the opposite system.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Let me ask you a question. You may not be able to answer it, but it is just right there. Do you have a bias against home schooling or religious schooling?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely not.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Never have had? 156
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I never have had.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I think that that is the key and, with your explanation, it will be one that will be helpful for the public to understand. Of course, the Religious Freedom Restoration Act would change a lot of things, as you say, outcomes or reviews on that legislation, and it will be laid at your door, Justice. You will see it there one morning waif-like, writhing, all yours. Now, the confirmation process—I see that the light is still green
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU are doing fine, but if you want to stop, it is OK. [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I thought you guys were going to go all day.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. GO right ahead, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I am going to save one for tomorrow. I am going to ask the nominee to hone his processes, because here is one coming—immigration law. That got a little rise.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. An audible groan.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. YOU see, nobody will touch it. It is too ghastly to play with. But there are a couple of bills which amend the 14th amendment, which says: Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens, and so on. There are statutory proposals to say that a person born in the United States is not a citizen of the United States, because they are not "subject to the jurisdiction thereof." The children are born to an illegal person and become legal citizens at the moment of birth. Some are saying that, by statute, we could amend this constitutional provision statutorily because they are not being born to a legal citizen of the United States, and therefore are not "subject to the jurisdiction thereof." It is going to be a rather knotty one for us to handle. I am going to come back to that in my second round and just ask you some thoughts, because it is a very difficult issue. Right now we have a situation where two-thirds of the live births in a certain area of California are to illegal undocumented mothers who are giving birth to a U.S. citizen. That U.S. citizen child, when 21 years old, may petition for the mother, the father, the siblings and through the preference system—an interesting issue, one that again is something we must pursue. It is not something that I have proposed. It is being proposed by several persons of both parties on this issue, and I will come back to that. I thank the Chairman for your courtesy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Judge, it may be an appropriate time to take a 5-minute break here, and then we will return. Really, let us make it 5 minutes, and we will return with Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, is there anything to the rumor that the reason they are going to me next is that the TV cameras had so adjusted their lights for Senator Simpson's head, they want to be consistent? [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Why don't you tell them the story about what
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NO, no, I'm not going to do that.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Then I will. Let me tell you. Mr. Chairman, you will recall that during
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU go right ahead. I never talk about hair or lack thereof. [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. During a hearing in this committee, a courier came to the door
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU don't have to tell this, Alan.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I think I will. You have told it enough times. It is very short. It is like war stories, you have to get them out of the way. This courier came and said to the person at the door, "I have a message here for somebody." He said, "Who is it?" He said, "I don't know. He's tall, bald, homely, and wears glasses." And this guy looked in and said, "There's two of them." [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We are recessed for 5 minutes. [Recess.] The CHAIRMAN. The committee will come to order. Welcome back, Judge. We will do another hour and a half. We will do Senators Leahy, Heflin, and Grassley, and we will reconvene tomorrow at 10 o'clock, at which time, if all goes as planned, I believe the next person will be Senator Specter, I think. I am not sure. The name plates are not up, but I think that is correct. Senator Leahy, the floor is yours.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. Judge, I was thinking, as I was listening to you, I have had the opportunity in the years I have been in the Senate, now with your nomination, which I fully expect will go through the Senate, I will have had an opportunity to vote on all nine members of the Supreme Court. I also will have been in the hearings on eight of them. That is counting Chief Justice Rehnquist in his capacity as Chief Justice. I have an opening statement that I was going to include in the record as though read, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be included.
Senator Patrick Leahy (VT)
Senator
(D)
[The prepared statement of Senator Leahy follows:] PREPARED STATEMENT OF SENATOR LEAHY When you visit the Supreme court, and walk into the courtroom chamber, you cannot help but be struck by a special authority that exists there. I remember being affected this way when I was first there as a law student, and I remember feeling the same way when I was there just a few weeks ago. The courtroom itself is more cramped than you might expect. It essentially consists of a broad wooden bench, behind which sit the nine justices in their highbacked chairs. Before the bench is a lectern and tables for counsel arguing cases, as well as tables for clerks and other court personnel. The rest of the chamber is devoted to rows of chairs for public seating. Yet the importance of this room is enormous—one cannot enter that room without having a feeling about what happens in it. This is where our most precious rights 158 and freedoms are protected through the decisions of the justices of the Supreme Court—the right to free speech, the right to practice one's faith, the right to a jury of one's peers and to due process, the right to vote. Nowhere on the face of the globe or in the history of mankind has a nation guaranteed such liberties. It is no wonder that this place evokes such powerful feelings, and it is no wonder that the American people place so much importance on the naming of a person to take a seat behind the bench in this courtroom. You have been nominated to be one of the nine persons who will question and debate and judge in this room as one of the final arbiters of the meaning and application of the Constitution of the United States and the basic freedoms of us all. You follow in the path of names like John Marshall, Oliver Wendell Homes, Jr., Louis D. Brandeis, Hugo L. Black and Thurgood Marshall. Very large shoes to fill, to be sure. But we must hold such expectations of you. As a justice of the Supreme Court, if you shirk from protecting these freedoms, we have nowhere else to turn. I call upon you, if confirmed, to be a beacon of freedom and common sense. Like other members of the Committee, I have reviewed your record extensively over these past weeks. I have been struck by its breadth and distinction. You are one of our nation's most distinguished circuit judges. You are an accomplished legal scholar. You are without question a person with the legal acumen necessary to sit on the Supreme Court. But you are more than that, and your nomination means more than that. An essential, but sometimes overlooked, attribute of any judge is that he or she be fair. Justice requires that all litigants, regardless of their cause, can present their case and have it decided on the basis of the facts and the law, not on any predisposition of a particular judge hearing the case. My sense from reviewing your record is that you are fair—you take each case individually and decide it on its merits under the law. You do not prejudge the outcome on the basis of an existing notion or narrow political goal. If you are confirmed, I will have participated in confirmations for each of the nine justices serving on the High Court. During the last 20 years we have had different sorts of presidents and different sorts of nominations to the Supreme Court. Some presidents have used Supreme Court nominees as a wedge to divide the American people—to promote an "us" versus "them" politics. Often these types of nominations nave resulted in divisive battles, political pontificating, and intensely personal attacks during the confirmation process. President Clinton has taken a different course. He has sought a nominee who can bring people of diverse views together and who has been near universally praised as an excellent candidate. President Clinton has chosen someone who people of all stripes—conservatives, liberals, whatever—know will provide them a fair hearing and a fair reading of the law. The President should be commended for selecting a person who can help forge our way into a new century and a new age through consensus based in commonly-shared constitutional values. Finally, I was struck by some of your comments in the days that your nomination was first announced. You said that the law has to make practical sense to ordinary people—it has to accord with real life. I could not agree with you more. I commend you for writing opinions in a style and manner that is accessible generally rather than restricted to lawyers or legal scholars. I also commend you for the commitment you made in your opening statement in these hearings to do your utmost to see that our decisions reflect both the letter and the spirit of law that is meant to help people and to remember the effect your decision will have upon the lives of Americans. As a justice, you are charged with making decisions that, quite literally in some cases, are of life and death significance. The Court is not a place for academic musings. I hope you will be the kind of justice who focuses on the effect your decisions have on real people—people who may not be powerful or well-connected. I want you to be the kind of justice who could take the case of Barbara Johns—a young girl who had to attend a segregated school where classes were held in tarpaper shacks—and turn it into the unanimous opinion that was Brown v. Board of Education. I want you to be the kind of justice who would take up Clarence Gideon's habeas petition, scrawled by hand on plain paper, and affirm the right of every citizen to due process of the law. It is a weighty responsibility. I have appreciated hearing your views in these proceedings. Your family is justifiably proud of you and you of them. I hope this has not been a matter of torment for any of you but an occasion in which you can enjoy participating in a constitutional exercise involving all three branches of our federal government in a most important function. Senator LEAHY. I would like to just mention a couple of things I say at the end of that statement. When your nomination was first 159 announced, you said during that period that the law has to make practical sense to ordinary people, it has to accord with real life. I could not agree with you more, and I commend you, incidentally, for writing opinions that are in a style and a manner that is accessible generally, rather than just restricted to lawyers or legal scholars. I commend you for the commitment you made also in your opening statement today to do your mtmost to see that your decisions reflect both the letter and the spirit of the law that is meant to help people, also to remember the effect your decisions are going to have on the lives of Americans. As a Justice, you are going to be charged with making decisions that quite literally, in some cases, are of life and death significance. And the court in that regard goes way beyond being a place for some kind of academic music. So I hope you will be the kind of Justice who focuses on the effect that your decisions would have on real people, people who are not very powerful or well-connected. I want you to be the kind of Justice who could take the case of Barbara Jones, a young girl who had to attend segregated schools where classes were held in tar-paper shacks, a young girl who had her case go all the way to the Supreme Court, where it became the unanimous opinion of Brown v. Board of Education, the kind of Justice who would take up the handwritten, poorly drafted petition of Clarence Gideon, which indeed was so well-written that Gideon's trumpet was heard and affirmed the right of every citizen due process of the law. And that is a weighty responsibility. So I am glad to have heard your views in these proceedings. Your family has had to sit through all of this. They perhaps heard you express these views before on more than one occasion. It is interesting, because of television and the media covering this, that the American people probably have a better view of who you are than they would have otherwise. In that regard, I might ask, when they do see a judge or a Justice at these kinds of hearings, sometimes it is the only time they ever really get to see them. They read a little bit about the Supreme Court and arguments. We hear that some judges are very good in their questioning, and some tend to pontificate, some go to the point, some appear to do legal games with the lawyers, and so on. But nobody really knows, unless you are actually sitting there. What do you think about having television in the Supreme Court for arguments? Would you be in favor of that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would say this, Senator: The issue came up in the Judicial Conference of the United States, of which I was a member. They have representatives of all the circuits and also the district courts. And I voted in favor of that. We voted to have television, the question was the court of appeals and the district courts, and we would run an experimental program. It has been going on now in the district courts and also in the courts of appeals. I volunteered our first circuit, with the concurrence of the other judges, for the program, but we were not accepted as the experimental circuit. So I have expressed a view that that is appropriate in that way in the Judicial Conference. Now, I should add that before making any decision in the Supreme Court of the United States, if that 160 issue arose. Obviously, I would listen to other members of the court and try to understand their points of view and what they were thinking, too.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I understand, but I applaud you for the feeling you have, because I think that the court, like every part of the government, should be as accessible as possible, and that is one way of making it accessible. Nobody asked that these cameras be in in camera discussion or in chamber discussions where you might be determining how you are going to vote, but certainly in the arguments. Judge, I grew up in a family where the idea of the first amendment was greatly respected, both parts of it. My parents had a printing business and a weekly newspaper and also held their religion very deeply. So let me go first to that part of the first amendment dealing with speech. Do you think there is a core political speech that is entitled to greater constitutional protection than other forms of speech?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There is a core of political speech, but it is not the only thing at the core. It seems to me that there are a cluster of things that are at the core of the first amendment, including expression of a person as he talks, as he creates, and also including what I think of as a dialogue in a civilized society. What do I mean by that? Actually, it is Michael, my son, who really gave me a good compliment once that sat me thinking about this. I don't always get compliments from him. What he said was, well, we did used to argue a lot at the dinner table, I mean discuss, and he said, "You know," he said, "I always felt you were listening to me." That, of course, doesn't always mean we agree. But, you see, there is something in that idea of listening that promotes the dignity of the person who is listened to. I have noticed in court sometimes, if there are two people arguing, I will listen and then I try to repeat the argument in my own words to the other side. As you go back and forth, it promotes a good feeling, because people feel they have been listened to, even if you disagreed with them. You took in what they were saying. Now, that kind of conversation that has to do with dignity and the way that the democracy functions, the expressive vale of speech, the political value of free speech, all of those things are a cluster of things. Then, as you move out sort of from that center in different ways, you can discover that some of those things are mixed with more conduct or some of those things are mixed with activity that could cause a lot of harm. That was Holmes' point, you can't yell fire in a crowded theater. You could find it in some areas that the expressive value and the political value is totally gone and there is nothing. Think of child pornography. But I mean at that core there are several things.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But do you protect nonpolitical speech like, say, a scientific debate?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And art and literature?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me go into another area, then, as we follow this a little bit. I have been both a prosecutor and a defense attor- 161 ney. You are brought up to believe you try your cases in the court room. But it seems to me—and we have had of recent days even more of an example of this, where you have witnesses in a high-profile criminal case that are going to be out selling their story to tabloids or television or whatever else before they even go in to testify. They are obviously telling their story not under oath, but they have sold it for a great deal of money, and then they are expected to come in under oath, and certainly it is going to be awkward for them to contradict what they have just sold it for, and sometimes, as we have discovered, those buying it want to make sure that it is as spectacular as possible. A suggestion has been made that sometimes stories are changed to accommodate that. I wonder if this kind of checkbook journalism undercuts the pursuit of justice or witnesses' credibility, or what it does to the tension between the first amendment rights and the rights of the public and the defendant to a fair trial. What would you think of the constitutionality of a statute that would prohibit persons identified as witnesses at a preliminary hearing or a trial from selling their stories prior to the time they testify? Could you write such a statute?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am not going to be or am I in Congress. I understand the difficulty that your question is getting at. I have two reactions. Obviously, I cannot discuss the legality of that particular thing, because that could come up. But underlying your question, it seems to me that there are two important points. The first is what you hone in specifically is likely to be a problem over the next 20 years, 30 years, maybe indefinitely, where you have two important sets of rights that all Americans value. All Americans value free speech. All Americans value the important right to a trial that is fair, so that an innocent person is not convicted. Sometimes those rights can clash, and then you are in a difficult area of how you are going to reconcile. Now, that is fairly well known, I suppose. The other point that I would like to emphasize—and this is a little self-serving, as a judge—is also, as you recognize, not every clash of this sort need be resolved in a court. That is, I have always thought that the press, too, is sensitive to the problems of fair trial. I have always thought that lawyers, too, are sensitive to the problems of free press. And sometimes that kind of communication— this is things I have said in speeches, I am not saying anything new that I have not said before—sometimes that communication among groups outside of courts, before creating a legal issue out of everything, can help. Those are the only two general comments which may be fairly obvious.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me pursue that in a different way. I am not going to ask you to write a statute for us on this, assuming that one is needed, and then pass on its constitutionality. I also understand what you are saying is the bar and the press could spend some time and talk with each other, but I must suggest that there has not been evidence of overwhelming restraint on either side. As we end up with more and more television networks and more and more newspapers trying for the next headline, I think the kind of 162 restraint we may talk about may be discussed at prestigious panels of either press associations or bar associations, and the discussion will be forgotten the first time there is competition for a story. Let me use a corollary of a case that you have been involved in, In re Globe Newspapers in the first circuit in 1990. As I recall, in that one, there was a question of whether the press would be accorded access to the names and addresses of trial jurors. Judge Campbell had noted the clash and constitutionally protected interests, the press' first amendment right to access to a criminal trial, a defendant's right to a fair trial, but also the jurors' interests in having their privacy protected, all major interests.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What kind of thinking went on? What kind of issues went on in your mind and the others, as you were discussing how to rule on that case? Or what do you see as the important issues in ruling on that case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Eventually, the case I think turned on a rule of court, and it was how to interpret that particular rule, and I think the Globe got the names because of the rule, if I am remembering it correctly. But the considerations there are those that you identified. You certainly do not want to close the courts off to the press. The courts belong to the public. It is a public forum. It is a public arena. The court is their court, the public's court. It is not the judges' court and it is not the lawyers' court. And that openness creates a confidence in the public that I think is necessary to maintain the institution. At the same time, as you have just pointed out, remember that a juror, my goodness, what a public service a juror performs. And you see jurors and they are proud of being jurors. They do not get paid anything significant.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU also see jurors in some criminal cases terrified to be jurors, too.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, it is an amazing thing, if you think about it, that the public will give willingly that time and commitment to this kind of important public matter. And what might they sacrifice? A lot—money, perhaps privacy, perhaps a great deal of time, perhaps a long absence from work. And it can even happen that they are absent for a long time from their families, and they may— it depends on the case—it could even happen they have to be locked up in a hotel room for a very long time, which can be very isolating. That is an amazing public service, and I think, as well, that has to be recognized. So that is in the mind of the judges who are trying to interpret this rule, and that is why Judge Campbell said that. Eventually, you have to balance those things. Eventually, it is a question of recognizing the juror's right, recognizing the need to run the trial fairly, recognizing the importance of having the proceeding public and maintaining the confidence of the general public. Those are certainly the considerations, and working them out is a matter of judgment, what the rule says, how these different factors play out in the context of a particular case. That is simply to say it is difficult.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. It is also saying there are no absolutes either. 163
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There are not. There are not.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If the Government is giving out Federal funds for whatever—art, libraries, so on—can they require recipients of Federal funds to express only those views that the Government finds acceptable?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. If you put it like that, it does not sound likely. I mean it does not sound that they could.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me give you a couple of examples. Could the Government—and I have asked this of other nominees—to further a policy of protecting the public from sexually explicit material, prohibit a library receiving Federal funds from making books like Alice Walker's "The Color Purple" or J.D. Salinger's "Catcher in the Rye" available?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, and, you see, then you get into very—you get into more difficult questions. Of course, one is against censorship, and you can start with very easy cases. Could they say no books? We are paying for statues for Party A, Democrats, but not for Republicans; or Party B, Republicans, not for Democrats. Could you discriminate in that way? And the answer, I think 99.99 percent of all people would say certainly not. And then you get into more difficult areas, and you have on the one hand the ability of the Government to structure its own programs. After all, if you are going to have statues and that is your program, you do not have to pay for paintings because it is a statue program not a painting program. And then you get into all kinds of middle cases
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, that is easy. That is easy when you say it only applies to statues or only applies to paintings.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But within the statues, shall we say we can only have statues of political figures that are acceptable?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; where, of course, I am tending to agree with you
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And if we are going to give books, can we start saying: However, we will give you a list of books that you are not allowed to buy?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In principle, in principle, censorship is undesirable. It is undesirable. And when actual cases of censorship come up, typically it is going to be some issue which is a borderline issue. And on this borderline issue, you typically decide it in reading the briefs, reading the arguments, thinking about the particular case and what the particular thing is. And the reason that I answer it in this way is I think that cases will come up like this, and I will have to think about it, and
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Could I suggest that you may want to think— this is just the view of one Vermonter, that the further you move away from the first amendment being an absolute, the more of those cases you are going to have?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, that is right. That is right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Suppose the Government wants to protect the integrity of the Internet or new computer superhighway? Can they prevent computer users from sending each other a copy of "The Shipping News" by Annie Proux? I only mention that because another Vermonter did. 164
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU see, what is at the bottom of it, it does seem to me—and people forget that, that it is there to protect speech and writing that we do not agree with. And how often people say, oh, it is not there to protect that. That is too bad, that is—but that is what it is there for. And that principle, I think, is exhibited in lots and lots of different ways. And I think that is a fairly absolute principle.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I have been impressed by the current Court's adherence to free speech issues, and somewhat surprised, I might say. But I would also suggest that the first amendment gives us the guarantees of diversity that makes us such a strong democracy. And it is having to put up now and then with speech, or art, or whatever you or I might find offensive, which guarantees that that diversity stays there, and the same diversity that protects you and me. Let's speak of the Lemon test. Correct me if I am wrong, but from your earlier questions, I would assume that you do not feel we should be out there applying the Lemon test, that there may be a better test. Am I correct in that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not know if there is a test—I mean, usually in court cases there are so often two different problems. One is the problem of what is this line you try to work out what the correct result is. And then the next question, which is tied into the first, is: How do you communicate the result? How do you communicate it to lots of other judges and lawyers and people who have to live with the rules? One way of communicating it is creating a lot of sub-rules, but there are other ways to communicate the idea. One of the best ways of all in this area I call a metaphor, the town meeting. As soon as you say an opinion, it is a New England town meeting. There are rules. Everyone knows you can have some rules. Everyone knows the town meeting runs with rules of procedure, but not rules that choke off points of view. That metaphor is an awfully good way of communicating things. And so when I read a Supreme Court opinion, I wonder if they have an absolute, you know, sort of sounding test. Maybe what is meant is that these are indicia that normally work. You can use a lot of ways of communicating.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, for example, would you use the same test if you had education regulations, for example, which might affect parochial schools? Would you apply the same rule to that as you would rules of speech that might cover religious topics? Would you not see the possibility that you may be applying a different test in those cases?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The difficult is, of course, you start in this area with the basic idea that the State is neutral. No one wants to see the Government favoring a different religion. And as long as you do not want to see the Government favoring a different religion, that means the Government cannot favor your religion either. Then no one says that it is absolute. No one believes that the ordinary services—fire department, police, many, many such services—are not available to religious institutions as well. Of course they are. 165 And then the question is: Where do you draw the line? How much can the Government do without treading—without crossing that barrier and creating the kind of favoritism that the establishment clause was designed to prevent? That is where I start in the way I think about it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I listened to your answers to the questions that Senator Hatch asked, which were very valid and good questions. I have always read the first amendment, the establishment clause, as saying that it does set up the way the State must remain neutral between one religion and another and that it guarantees us our right to practice our religion. But I also read it as saying it guarantees our right not to practice a religion, if we want.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU said that the State should not side with one religion over another.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Or a religion
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would you also agree the State should not side with those who practice religion over those who are nonadherents to any religion?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that is basic. The Supreme Court has, I think, been very clear about that. Very clear.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We have the Kiryas Joel Village School District that tried different ways to provide special education programs to the handicapped children of a religious community. They tried special education classes in an annex to the religious school. That was stopped in reaction to a 1985 Supreme Court decision. They tried busing. They tried a special school district, finally, and the Supreme Court said this violated the establishment clause. Do we need a clearer direction from the Court about what governmental accommodation of religion is constitutionally permissible, or is Kiryas Joel as clear as we need?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I start and we do start with the basic accepted principle that the Supreme Court makes clear the basic about favoritism, as you point out, not favoring one religion over another, not favoring religion over nonreligion. At the same time, you begin with the idea as well that certainly religious schools and religious churches and synagogues are certainly entitled to basic State protection. And then you are infinitely going to find all these different cases, have they pushed it too far? Have they pushed it too far? And I wish I had a magic formula that would answer that, and I do not have it. I do not have it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I have a feeling
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think it will
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I have a feeling you are going to be grappling with it for years to come. There are some who want a very literal, narrow aspect of the establishment clause simply saying that you can do anything you want as long as you do not actually set up a State religion, the Government religion, or simply set it there to prevent Government—well, at the time it was written, from favoring one Christian sect over another. Would you say that it goes further than simply prohibiting the coercion of a State religion?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that is well established. Well established. 166
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. On the constitutional right to privacy, do you recognize such?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that is well recognized. I think that is well established in the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Where are the unenumerated rights such as the right of privacy? Are those in the 9th amendment, 4th amendment, 14th amendment?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is a very good question, and I have thought about it some. I do not think it is in the ninth amendment, but it is true that Justice Goldberg wrote an opinion about the ninth amendment.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That is why I ask.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; and he said in that opinion that what the ninth amendment does is this—it is interesting, I think, if I can take a minute. Do you want me to
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Sure; I would love to—I did not ask the question just as an academic exercise. It is something that is a real issue to me.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It says, 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Now, what does that mean? Well, what he wrote in that was that it is meant to prevent a certain kind of argument. This is the argument. You go back. Actually, I had read at Senator Hatch's suggestion an article that was quite interesting on this point. Go back to the Framers. They thought that they had delegated limited powers to the central Government. Therefore, that is all you needed. You see, the central Government could not trample people's free speech or religion because they did not have the power to do it. But others said do not trust that. You better have a Bill of Rights, and in that Bill of Rights you better say specifically that the central Government cannot do that, cannot trample people's free speech or religion. The first group then said, wait a minute, you better be careful. Once you write that Bill of Rights, people are going to get up and argue that everything that you did not put in there, they could run out and do. No, no. Here is what we will do, they all decided. We will put in the ninth amendment, and the ninth amendment will make very clear to everybody that just because we have not said— just because we have that Bill of Rights and we have said certain things—speech, religion, press—do not take our statement there as meaning nothing else is important. Do not take our statement there as meaning nothing else exists. So there was a view in the Supreme Court for a while, really associated with Justice Black, that the only rights that were protected against the States' infringing them were those specifically listed in the first eight amendments and the word "liberty" in the 14th meant only those listed in the first eight, all of them and no others. But, said Justice Goldberg, your argument is doing just what the ninth amendment told you not to do. So do not argue that way. And once you do not argue that way, then you look at that word "liberty" in the 14th amendment, and you say it is designed to protect fundamental rights. 167 People have described those fundamental rights in many different ways. There are a variety of approaches to figuring out what they are. Almost every Supreme Court Justice since then has accepted the existence of some, and what they are and how you find them is a big question.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In the meantime, there was the incorporation doctrine.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would like to have my opening statement inserted into the record. [The prepared statement of Senator Grassley follows:] PREPARED STATEMENT OF SENATOR GRASSLEY Congratulations on your nomination to the Supreme Court, Judge Breyer. It is readily apparent that your nomination developed from the reputation you have established over many years as a law professor and judge. Your writings and legal opinions appear to reflect an understanding of the proper place of the Supreme Court, and courts generally, in our society. I find your approach to deciding cases to remind me of Justice Frankfurter. Time and again, when asked to find statutes unconstitutional, you have examined the language and legislative intent, and resolved all legitimate questions in favor of constitutionality. This deference to the legislature is a hallmark of judicial restraint. In recent decades, too many judges have permitted political considerations of desired policy results to affect their legal conclusions. These decisions are based on the view that the Constitution, rather than guaranteeing specific rights, broadly protects judicially-defined liberty and dignity. More recently, the Court has focused more on legal principles, rather than personal preference. There are those who may hope that their policy goals, unattainable through the political process, can be obtained through your vote on the Supreme Court. Your record as a judge thus far gives little support to such hopes. Nonetheless, as a Supreme Court Justice, you will not be constrained to follow precedent to the same extent as a Federal judge. The legitimacy of judicial review derives from the power to enforce the Constitution as supreme law. When judges impose their own personal views, they necessarily do not apply the law. The basis for judicial review evaporates in these circumstances, and our limited government of laws becomes a government of people. I hope to explore with you during your testimony issues relating to the role of judges and important principles of constitutional and statutory decisionmaking. I am not looking for campaign promises, but I do hope to determine your judicial philosophy. Judge Breyer, your objectivity, adherence to the Constitution, and your awareness of the limited power of judges and the appropriate role of the branches elected to decide policy questions are important. I look forward to addressing these issues with you during these hearings. Senator GRASSLEY. Judge Breyer, I am glad to hear you say in your previous discussion with Senator Leahy that child pornography is not protected speech. You dealt with child pornography when you served on the Sentencing Commission, and you were making guidelines for violation of the child pornography statutes. There was a January 1987 meeting when one of the Commissioners, Judge MacKinnon, suggested adding an aggravating factor to the crime of transporting, receiving, or trafficking in child pornography. He proposed increasing the sentence when the large sums of money often correlated with organized crime involvement in child pornography were present. And he made a motion to raise 168 the base sentence by four levels, where the retail value of the exploitative material exceeded $25,000. It passed by a 5-to-l vote. The one vote against the motion was yours. I am sure you had very good reasons. Could you give me the reasons why you were the sole dissenter in a decision to impose tough sentences on the very worst child pornography producers and peddlers?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU have to understand, Senator—well, let me think about it for a second. I am thinking of the best way to explain what I am guessing now I was doing then. It is unlikely that you can find merit in child pornography. Writing those sentencing guidelines was tough. It was very tough. The reason it was tough, in part, was because the seven Commissioners had very different views about which was the best or the worst or the medium or the best behavior or what the sentences should be for very different kinds of crimes. So in order to create an approach, what I tried to do was this: I tried to say, with others' agreement, here is what we will do, and this gets rid of our subjective approach. Let's not try to get the right order of what is worse with what. If we do that, we will be disagreeing all the time. Let's do this. Let's get, with the help of 10,000 presentence reports analyzed in depth and 25,000 others analyzed in less depth, let's get a picture of how the sentencing system really has worked up until this point in 1987. And then what we will try to do is we will try to create sentences that mirror typical past practice, and we will try our best not to stray from that typical past practice. Sometimes we will modify, but we will have to have a very good reason. Now, that was a principle that allowed us to write the guidelines. And as a person, as a person who pushed that principle, who felt it was an important principle, I had to live up to it myself, irrespective of how I might feel about the particular crime. So if, in fact, that typical past practice showed that whatever the sentence there was, I would resist people putting add-ons or subtractions or whatever they were, no matter how I felt about the underlying crime, because I was trying to maintain a principle. And, of course, if I deviate from that principle myself, everybody else will start to deviate, and, gosh, it is sort of difficult to know where it is going to end up. So I tended in those guideline meetings to resist what I would call ad hoc changes, even though that ad hoc change might have been something that, from a policy point of view, would have been very good. And that is what I think you see reflected there.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU saw Judge MacKinnon's motion to be extraordinary, then.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would say probably it reflected a view that this is a very, very bad crime. And I would have shared that view. It is a very, very bad crime.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I want to now talk with you about precedent on the Supreme Court. You have different considerations, obviously, than you will as an appellate judge, where you have been for 14 years. I want to relate it to a public policy issue that we deal with here in Congress and will be dealing with more in the future. And if you will bear with me, let's talk about one line of Supreme Court cases as it relates to these policy issues. 169 During the 1960's and 1970's, the Supreme Court issued a series of opinions striking down statutes that treated differently children born to married parents as opposed to children born out of wedlock. The Court also rejected differing treatments based on whether the out-of-wedlock child had been acknowledged through a subsequent marriage of the parents. These decisions, as you will recall, rejected differentiations in welfare benefits between the two situations. The Court did not find that the State's interest in preserving and strengthening family life or protecting families from dissolution or discouraging bringing children into the world out of wedlock was sufficiently legitimate to justify these distinctions that the States had set up. Instead, the Court found that only moral prejudice could justify differential treatment, particularly since children could not affect their status. Such statutes were called in the Weber case illogical and unjust. Instead, the Court focused on the needs of children for these benefits, and it found no rational basis for believing that illegitimacy would increase if some of these statutes were struck down. So the Court did strike them down. We now know, 20 to 30 years later, that the Court was a very poor forecaster of future social environment. As you probably know, the Court said that it was—and this is again from the Weber case— powerless to prevent the social opprobrium suffered by these hapless children. And, of course, as we look back now, at least from my perspective, the Court was just plain wrong on what they saw to be the results of these decisions. Today there is hardly any stigma in any place. In many places, there is no stigma in having out-of-wedlock births. A major reason for this is that societal disapproval of the practice can no longer be expressed through law, thanks to these cases that are involved. To some extent, the Court reflected as well as affected social opinion. But the fact is that the Court, through these decisions, has played a role in bringing about far-reaching negative changes toward society. For instance, in 1970, the percentage of out-of-wedlock births was 10 percent; now it is 30 percent. Young people from single-parent families are two to three times more likely to have emotional or behavioral problems than those from intact families. They also face higher risk of child abuse and neglect, poor performance in school, having children on their own as teenagers, what is called kids having kids, you know, having their own marriages end in divorce, and a six times greater risk of being poor. The absence of parents frequently leads to both illegitimacy and welfare dependency for a series of generations. Males born out of wedlock are much more likely to engage in criminal activity than their counterparts born to married parents, particularly if they live in neighborhoods that have a high concentration of single-parent families. So, finally, Judge Breyer, State legislatures and Congress are trying to respond to this, very much in a bipartisan fashion now. It kind of makes you wonder how you could get so much unanimity all at one time. These legislatures, and even we in Congress, have decided that action is quickly needed to reduce illegitimacy and its attendant negative social consequences. 170 In seeking to address the problem, these legislatures and the Congress do run the risk that if the Supreme Court follows its current jurisprudence, many possible reforms could still be unconstitutional. Now, one of the reasons the Supreme Court has given for overruling decisions in the past—and I am speaking generally about decisions, not just about this line of cases—is that facts have so changed or come to be seen so differently as to have robbed the old rule of significant application or justification. If a case were before you raising whether certain of the Court's decisions involving illegitimacy should be overturned, would the societal changes that have developed over the last 30 years be relevant to your decision? Now, I am not asking you how you would rule in a certain specific case. I am just trying to get a feel from you whether you would consider these changed facts in reaching your decision.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. They are relevant. I think they are relevant. I think that in applying the Constitution in general, one looks, of course, to the conditions of society. I think the Constitution is a set of incredibly important, incredible valuable principles, statements in simple language that have enabled the country to exist for 200 years, and I hope and we believe many hundreds of years more. That Constitution could not have done that if, in fact, it was not able to have words that drew their meaning in part from the conditions of the society that they govern. And, of course, the conditions and changed conditions are relevant to deciding what is and what is not rational in terms of the Constitution, as in the terms of a statute or in any other rule of law.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I think I am reading you that you would have an open mind.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I would.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes; and I think that is pretty important because the President who nominated you, President Clinton, liberals in Congress, conservatives in Congress, are looking for solutions to the problem of the breakup of the family and strengthening the family. We see these trends of the last several years as very, very bad, and you may have some cases sometime that would cause you to look at these records and these facts that precede this now. I appreciate very much that you would see having an open mind on that issue. I would like to go now to the use of legislative history. You and I, I think, share a similar view on the use of legislative history in the interpretation of statutes, unlike, for instance, the way I view Justice Scalia not wanting to look at legislative history. You have written Law Review articles about it, and from a reading of your cases, I can also see that you are willing to rely on legislative history. I want to discuss one of your cases as an example, U.S. v. Maravilla. I think it is a good example of your use of legislative history. I want to discuss it and then explore with you whether there are limits to the use of legislative history. In Maravilla, you examined whether civil rights law applied to a temporary visitor to the United States. That was a case where two U.S. Customs officers had kidnapped a money launderer from the Dominican Republic. They stole his money and killed him. They 171 were charged with a variety of crimes, although there was not a Federal murder statute applicable. Included in the charges was a violation of the civil rights law that covered inhabitants of the United States. You made a very thorough analysis of the statute, including reviewing the legislative history of the law, and concluded that the courier did not fall within the law's protection. Briefly, what role did legislative history play in your analysis, and would this be an example of how you might use legislative history on the Supreme Court?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, yes is the answer. Briefly, it is a word. The word was inhabitant. It does not, obviously, in any obvious way, describe a person who comes to the United States for a few hours. Yet the civil rights laws are supposed to offer broad protection, and it is not absolutely out of the question. So how do you know what the people who passed that law really had in mind. The only way is to understand the context in which the statute arose and what the human being who wrote that word into the statute was thinking about. And if that was a staff person, which it would not have been at that time, but if it was now the staff person as acting with the knowledge of what the Senator believes is important and what those views are, and, therefore, what one is trying to get at is what does the Senator think about this. Now, of course, sometimes that is all very controversial, and sometimes what has happened in some cases is what Judge Leventhal used to describe. He said, oh, it is like going to a cocktail party and looking over the crowd and picking out your friends. What he is describing is a misuse of legislative history. Very often, by going into those debates, you can get a pretty good idea of what they had in mind, the Senators who passed that, and I think that is what—and I hope it is a good use of it. I hope you find it a good use of it. But that is the kind of thing I would tend to do. That is the kind of thing I do.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. This term the Supreme Court decided Langrafv. USI Film. It was an 8-to-l decision. In that decision, the Court reviewed the 1991 Civil Rights Act and found that it was not retroactive.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The case involved a woman who claimed she was a victim of sexual harassment. She quit her job after her harasser was disciplined, and then she sued the company. The Court found the harassment did not justify her resignation, and she was not entitled to any relief under title VII. While her appeal was pending, Congress enacted the 1991 Civil Rights Act, which allows for recovery of damages for pain and suffering. Langraf argued the law was retroactive and that she should recover damages for pain and suffering, and, of course, the Supreme Court, 8 to 1, disagreed. First, the Court found the statute did not contain a clear expression of retroactivity. Second, the Court reviewed legislative history, and that is the point I want to bring up here, finding it to be inconclusive and even conflicting on the issue of retroactivity. The Court relied upon the canons of statutory construction, which included a presumption against retroactivity. So if I could follow up with you on a discussion that you had with Senator Biden this morning, what happens when a judge has to look at conflicting statements by Members of Congress, all of whom say that they are supporting the law? It probably makes your job very difficult, right?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; that is the art. That is the art, and you cannot always get it right, either. And where it is conflicting, sometimes it is absolutely inconclusive. But it helps. It helps to try through reading the documents, recognizing that this is a world in which you do not come here with a quill pen and your briefcase. A labor union does not operate just with one person, nor does a business. And there are many people involved in the legislative process that ultimately the policy decisions are yours. And what the Court is trying to do in reading legislative history is, through reading this entire record, hearings if necessary, back to finding out where the words originated, looking at the floor debates, is to do its best—which will not always be right, but to do its best to identify the human purposes. And usually there are two or three several different ones that identify the basic purposes that are driving you. And often, but not always, that gives a key to the correct interpretation of the statute.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. What does it say about Congress' willingness to kind of punt to the judiciary what might be a tough legislative decision?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Sometimes Congress will.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. It probably says we are shirking our responsibility.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, normally, you know, I think it is pretty common, and if you punt to a regulatory agency, the executive branch filling in the interstices is pretty common. If you want, I mean, I think it is risky.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. SO you would say that there is a limit to the Court's reliance upon legislative history.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course there is a limit. There are some problems it just does not solve. But I think it is helpful, I think it is helpful, and obviously, from what I
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Congress cannot hide behind a statute by giving it to the courts to make a tough decision instead of our doing it during the drafting process.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. In fact, in Langraf, the Court said it would not permit uncertainty in litigation if Congress has not specified whether a statute is to apply retroactively. Many of my colleagues on this committee, and I as well, have worked over the last number of years to get Congress to be clear in drafting by stating whether or not the law was intended to be retroactive, whether or not we were trying to apply a private right of action, whether or not we preempted State laws. Quite frankly, we have not been very successful in getting our colleagues to do that. But now the Langraf decision achieves some of what I think we have been trying to do. The Supreme Court stated that it will hold Congress to a clear statement rule of statutory construction. If Congress clearly states in the text of the law that it is to apply retroactively, then and only then will the Court enforce it retroactively. If Congress is ambigu- 173 ous, then the Court will apply a default rule that the statute would apply only prospectively. What do you think of the Supreme Court's adoption of the clear statement rules?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, I do not know about that particular case or not, or others that might come up. I think it is preferable, as I have written, that Congress just directly deal with the issue rather than the Supreme Court having various clear-statement rules, because those become all these different canons. And what I said as a kind of joke at one point, I said, well, you know, you can have canons to the left of them, canons to the right of them. I mean, it is very hard for people to draft and to understand what legislation is really going to turn out to be in practice if you have all these canons and there are dozens of ones and they used to conflict. That makes it— in a way, canons can make it more difficult for you, it seems to me, rather than less. It would depend what they were.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If the Senator would yield, retroactive canons are particularly difficult.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, you know, as a former staff member of this committee, you surely had to deal with some of these problems as well.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. And don't you think it is really better for the Court to say that if you want us to apply something retroactively, say so? Isn't that the position Congress should be in, encouraged to draft as particular a statute as they can?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That particular one—that is why I am hesitant to comment on a particular one. Maybe that would work. I am not sure. I have not thought it out. What you have when you have like a clear-statement doctrine, then you have to go in and say what is a clear statement? And then you will find a case where nobody said anything, but it seems obvious that it ought to be retroactive. You discover all kinds of problems with canons, all kinds of problems, and ultimately we have a system where—you see, as a staff person, I always felt that what I am supposed to do in these areas is identify for the Senator what the policy problems and issues are and then transmit that to other members of the staff and, through them, to other Senators. And that process works fairly well. Not perfectly, but it leads all the people who are affected by legislation and have representatives or try to get their voices through to you, they begin to know what to expect. That system does not work perfectly, but it is not terrible. And I have expressed a degree of concern about moving to some totally different system which I think would end up with your voice being less direct and having less effect and making it harder to understand the human purposes that move you.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Some people might try to make the case that it might be the present Supreme Court trying to be a conservative activist Court, when, in fact, what the Supreme Court maybe is really trying to do is to say to Congress, do what you were elected to do, and that is make some tough choices. I think it shows in Langraf that clear statement rules are not a conservative judicial activism. Because here is a case where Justice Stevens wrote an 174 opinion setting forth a rule, denying retroactivity to a statue, overturning decisions that Stevens previously had dissented in.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Your basic point, I
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Getting back to legislative history, there is another limit. Wouldn't you agree that it is inappropriate for a judge to use legislative history to reach a result not mandated by statute? I think you spoke about some inappropriateness.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Sure. Ultimately, you are there with the language of the statute, and the language of the statute is what governs. You know, history comes in where it is hard to figure out how it applies and what it really means, and so forth. But it is not the statute that is explaining the history. It is the history that is explaining the statute.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. By the way, in that 8-to-l Langraf case, do you think that you would have been in the majority?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I have not read it with enough thoroughness to know.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The reason I was asking is that Justice Blackmun was the one who dissented in that case. You have written a lot about legislative veto. I have had a longstanding interest in that. You find the Chadha decision very sound. I am not sure that I agree with that, but that does not keep me from looking to see what can be done. I think you have offered some very good suggestions for Congress to maintain its check on agency power. If I could draw your attention to the current controversy over some proposed agency regulations. I use these just as an example, because eventually these might even get to the Court, and they are something we have recently dealt with in this committee. The EEOC has issued regulations on religious harassment. Many of us believe that the EEOC has overstepped its boundaries. The regulations could make any religious expression in the workplace almost prohibited. But we have no real check on the EEOC's power to issue regulations, other than our public relations perspective. From your writings, it seems to me that you believe it is within Congress* power to be a firm check on agency power. Would the EEOC's actions be an illustration of agency power which we here in the Congress, if we wanted to, could appropriately check?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That would be for you to judge. That would be for you to judge. My question would be whether there is some way of—I mean you have a lot of ways of controlling the agencies, obviously through the appropriations process, through legislation, through hearings, through letters, through suggestions, through discussion. There are many, many, many ways in which Congress has power over the agencies. The legislative veto was one way that became popular, that the agency passed a legislation, if one House vetoed it, that is the end of it. Then Congress said that was unconstitutional. So I tried in the article that you were speaking of, to think is there some other way you could get to the same result, and I think I thought of one that was not quite the same result, but close. But it is a little complicated.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. That is this confirmatory clause? 175
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, it was a bit gimmicky, that what you do is it would take effect only if you passed a law confirming it, but you would have a rule that it went right on a fast track, not debatable, and if one House
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU wrote about that 11 years ago. Do you think you would still feel the same way today in that Georgetown Law Review article?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is a suggestion and it would be a suggestion that I felt was a little gimmicky, and if people in Congress wanted to do it, it was explained and then it would be entirely be up to you.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, if Congress could use a provision like that, it seems to me like it would effectively give Congress some control over the regulations of an agency like the EEOC. If you still feel the same way about that now as you did 10 years ago, that helps me to understand where you are coming from. Do you feel like you did?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think it is a possibility.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I assume, though, when you say it is a possibility, that if you wrote in the Georgetown Law Review about a possible process of what you call confirmatory law, you had given considerable thought that it was possibly as an appropriate constitutional congressional response to Chadha?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would stick by what I said.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I would like to point out for the record, Judge, that Senator Grassley, with each successive hearing, is losing his credibility in the following sense: He always makes the case that he is a nonlawyer. He brags about that at home. He knows a heck of a lot of law, for a nonlawyer, pretty impressive. Soon, no longer are you going to be able to make the claim, Senator, that you are a nonlawyer. You are beginning to sound like a lawyer. I would also note, before I yield to Senator DeConcini, that I find it somewhat fascinating—and I would like you to keep this in mind for tomorrow—that the very Justices that have been before this committee and are now on the Court who have argued the doctrine of original intent when interpreting the Constitution are the very Justices who are the new textualists who argue, when it comes to a statute, that they do not have to go beyond the words of the statute to seek intent. I have always found that fascinating, how, when looking at the Constitution, they have concluded that we must go look at the original intent of the drafters and stick to that, but when looking at the statute, they look only at the text of the statute and not the legislative history, which they pore through in order to find constitutional rights, whether they exist or not, but do not pore through when it comes to looking at the text, which leads me to the conclusion that all Justices, liberal and conservative, are resultoriented, whether they know it or not. But that is my prejudice. I will yield to Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, thank you. 176 Judge thank you for your understanding this process so well. If you want to take a break, I am more than happy to wait around, if necessary. I welcome you here, Judge Breyer, as so many of us do, because we know you well. I believe your experience crosses so many different areas of government, that it is particularly encouraging to see you nominated by President Clinton for Associate Justice. You have had experience here, you have had experience in the private sector, you have had experience in academia. You have been with the executive branch, you understand accommodation and compromise. You understand the legislative history, because you wrote much of it when you were here. You have been in a policy-making role in the executive branch, which is encouraging, I think. You served on the court, and you have had an opportunity to develop a philosophy that I think demonstrates judicial restraint during your time on the bench, which I think is very important to this Senator and many others, as you know. You have a well-rounded background, and I think that is probably why the President chose you, as well as being so handsome and articulate and intellectual, et cetera. I am pleased to have chaired the hearings in 1980 when you were up for confirmation to the first circuit, and you did very well at that time. Judge Breyer, since I have been on this committee, this is the eighth Supreme Court Justice that I will have had an opportunity to have voted on. You will be the eighth one, the first one being the nomination of Sandra O'Connor of Arizona, the first woman to serve on the Supreme Court, as you well know. I believe that nominee was unparalleled in ability and dedication to the Constitution and real understanding, she also was a judge. This will be my last nomination. I am sorry I did not get a full house, I did not get all nine vacancies to vote on, but I am pleased that I am going to be able to support you. Having said that, there are some questions that I would like to ask primarily for the record, Judge. First of all, I want to turn to the question of the Boston Courthouse. I do not think we can ignore that beautiful edifice, and indeed it is beautiful. For the record, all I want is confirmation, if you remember these facts, Judge. The total funding for that building is approximately $220 million, and that was appropriated over a 3-year period, $184 million in 1991, $23 million in 1993, and another $18.6 million in 1994. Is that your recollection?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Just for the record, Mr. Chairman, the vote in 1991 was 93 to 6 on the floor of the Senate appropriating, with all but six members, including both Senators from Arizona, casting votes in favor of that appropriation. Some may wonder why that was raised. Well, it passed by such a unanimous vote or nearly unanimous vote, and this action was taken based on a report of a building project survey prepared by the General Services Administration, during President Bush's term, which was submitted to the Congress on January 22, 1990. If you do not remember that date, I am sure this refreshes your memory, Judge. 177 There was some discussion at that time of approximately 400,000 occupiable square feet of a building at a cost of $163 million. That was signed off by then Acting Administrator, Mr. Austin, who was later confirmed as the Bush appointee. Subsequently, there were additional designs to add 100,000 square feet, and I think you had something to do with that. That 100,000 square feet, was it not primarily to accommodate the U.S. Attorney, and not for additional court rooms or facilities for the judiciary?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. It was for the executive branch, in essence. Research shows us that the Senate Environment and Public Works Committee did authorize the site and design for the project of $51 million in 1990. In fact, Senator Burdick, then chairman of that committee, gave me approval to proceed without full authorization on this courthouse. He was the chairman of the committee, and said that we could proceed, which we did. Of course, there was also a vote on that as well. The fiscal year 1994 budget prepared by the Bush administration requested an additional $19 million, and that was appropriated at $18.6 million. Do you recall that, Judge Breyer?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, sir.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And what is that status of that courthouse now?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think, Senator, it is just going out for bid. I think it is just going out for bid now.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And are you aware that it averages approximately $5 less than the average courthouse for construction purposes?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that is right, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. I think for the record it is important, Judge Breyer, that we understand what these buildings are. Courthouses are built for long duration, not for the normal life of a commercial building, is that not correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. This building would have a lifetime of well over 50 years or perhaps 100 years.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I hope a lot longer.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And it can accommodate substantial growth, within your judgment of that court.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge Breyer, turning to the equal protection clause, I have always had great interest in this subject matter and have had an opportunity to question a number of nominees. The equal protection clause and the related cases have played an integral role in the development of the advancement of women's equality. I have repeatedly asked nominees about their views on gender discrimination under this amendment, and I believe that a nominee must be committed to the principle of gender equality. I think I know the answer, but I am going to ask you anyway, Judge. Although the 14th amendment states that no State shall deny to any person within its jurisdiction the equal protection of the laws, it is generally believed that the authors of the 14th amendment were concerned with racial discrimination and did not specifically have women or gender discrimination in mind. 178 In regard to cases based upon gender, the standard of review is one of intermediate or heightened scrutiny. Under this standard, a classification must serve an important governmental objective and be substantially related to that objective. This standard was developed over time and has been effective in protecting against gender discrimination. Judge, do you believe that this standard is the proper one for reviewing gender related cases, or do you believe any expansion is necessary at this time?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am hesitating because of the fact that this is likely to be before the Court. But I would like to say something, which is this: It seems to me that it is absolutely established that gender discrimination falls within the scope of the 14th amendment. That is clearly and totally accepted, I think, across the spectrum. As I think of the 14th amendment, to speak generally, the 14th amendment perfected a Constitution that before it lacked something very important, and that something was a promise of basic fairness. That promise of basic fairness was not carried out, even though it was in the Constitution, for many, many years. And ever since Brown, the country in all of its branches of government has been trying to make real that promise of fairness. It applies to women, too, and to many others. The test that you are talking about, having a sense of substantive part, and they have a communications part. The substantive part I might describe as this: Imagine saying to a minority person there is a rule of law here that harms you through a discrimination. Wouldn't you, as soon as you say that, think but what possible justification could there be? And that I think is what the substance is, when the Supreme Court makes its tough test. Now think of Chloe or Nell or their equivalents all over the country going into the workplace, and think of some kind of rule that makes their life worse because they are women. Wouldn't you say but what kind of justification for that could there be? Now, that it seems to me to be the kind of substance that is pretty widely accepted and going on. Now, the exact way in which that is communicated through the vast administrative network which is called the court system through judges to lawyers, to employers, to others, that I think is a matter of words and those words may be the subject of litigation. So it seems to me I have to stop with the statement of general principle.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me ask you this: In the recent case of J.E.B. v. Alabama, the Supreme Court used the equal protection clause to find that gender-based preemptory challenges were unconstitutional. I realize that you cannot comment on that case, and I am not suggesting that you should. But it appears very clear to me that the Court seems to be moving closer to applying a strict scrutiny standard in cases of gender discrimination. Do not worry, I am not going to ask you how you would rule on that case or any pending cases. But do you believe in the general sense that the intermediate scrutiny for gender discrimination, do you believe it will always be sufficient to meet potentially hypothetical cases regarding gender discrimination? 179
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It may not be, and that will be up for litigation, and I will read the briefs with care and I will listen to the arguments
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU are not stuck in the intermediate by any means.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Certainly not. I think those will be argued.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU will approach it from each case.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Those matters will be argued. They do not seem to me, as I read the cases, to be closed, and there is a communications problem and there is the substantive problem, and I think of Chloe and I think of Nell, and that is more or less the
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Breyer. Let me turn to another subject. In a recent Supreme Court case, Liteky v. United States, the Supreme Court held that if the source of a prejudicial remark is a judicial proceeding or ruling, then disqualification is only necessary if the judge displays a deep-seated favoritism or antagonism that would make fair judgment impossible. I was very disturbed by that ruling, just parenthetically. As you know, current law provides that a judge shall disqualify himself or herself in any proceedings in which his or her impartiality might reasonably be questioned. In Liteky, the Court seems to throw out the plain meaning of the statute and creates a very high standard for litigants to meet, if they want to raise concerns about a sitting judge. This concerns me, Judge Breyer, because the integrity of our entire judicial system rests on the impartiality of our judges, and I believe that judges must do all they can to win the confidence of the American people that our system of justice created and protected by the Constitution is being fairly and objectively administered. In the United States v. Quesada-Bonilla, you did not believe that the judge's prejudicial remarks constituted reversible error. What do you believe is the appropriate standard in reviewing potential prejudicial comments from the bench? Did you have a standard in mind, when you made that decision? How did you approach that, without prejudicing any case that you may have to do? I am interested in knowing, quite frankly, what a judge thinks. And I have asked some other judges that same question. They were not under oath and before this committee, obviously.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In abstract, you think you do not
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I will accept it as that.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Abstractly, you do not want something that looks to the public as if it is prejudiced. That is very important. That is on the one side of it. Now, in actually carrying out the case, think of the trial judge. The trial judge may have a preliminary proceeding. He may, for example, have to decide probable cause. Well, he will learn something about the case, and he might make some statement in respect to, well, there is a lot of cause here, or whatever. Now, to administer the system, that same person has to be expected maybe to preside over the trial. Once again, that person learns a lot about it, and he may make various remarks. Then there might be a retrial or a sentence, and he will be there again. So what you are thinking of in trying to decide that case—that is 180 why I find it hard to find a general principle. It awfully much grows out of the situation. You have to understand the practicalities of administering a judicial system, what is it really like to be a trial judge and a lawyer in that, and then you have to see.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me give you a hypothetical. What if a judge clearly, undisputably makes an arguable prejudicial statement during the course of a trial? Is it sufficient, in your mind, to instruct the jury to disregard that statement and still sit for the case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The truthful answer is it depends on the statement and it depends on the trial.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, given the fact that there is just no question that this was a
Stephen G. Breyer
Nominee
(D)
Judge BREYER. If it really prejudiced the trial, out. That is the end; new trial. If it prejudiced the trial and it is an improper statement
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO an instruction would not suffice, in your judgment, in such a hypothetical?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason I am being hesitant is that I think these things are very fact-specific, and sometimes an instruction will cure it and sometimes it won't, and so what you do so often on appeal is you look at that case and you look and see—this is where the judgment comes in and it is tough, often, but you look and see, okay, what was the remark; what was the context; to what extent could it be cured; to what extent, in fact, is a curative instruction impossible. I have seen cases where it could be cured, I have seen cases where it couldn't be cured. I have seen cases, I think, in the middle where I really find it awfully tough. They come in many shapes and sizes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. The problem I have with the Liteky case is that it appears that the Court says, unless there is a deep-seated favoritism or antagonism that makes a fair judgment impossible, you can't disqualify the judge. So, given my hypothetical, just an arguably prejudicial statement, clearly, without any dispute that it was that—unless it became a deep-seated favoritism or antagonism—an instruction would suffice to the jury and would not be grounds for disqualifying the judge. I don't expect an answer, but that decision, I think, greatly undermines if, in fact, it is strictly enforced, and is, no question about it, an intimidating factor on members of the bar to raise concerns over a judge's statements during a trial that might be extremely prejudicial, but fail to demonstrate a deep-seated favoritism or antagonism. Judge, turning to judicial temperament, how do you, with all the experience you have, manage to keep an even keel after you are on the Court, given the successes you have had, the fact that everyone calls you Your Honor and will do just about anything you ask them to do within the confines of your office? What do you do to attempt to keep a balance as an individual so you don't feel that you are somebody other than Steve Breyer, who worked hard and earned his way to the career he has had? Do you ever think about that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I do. I do think about it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What do you do? 181
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I find help, of course, from my family in that respect because I wouldn't dare think anything, that I was somehow preferable with this particular family, and they are helpful. But the other thing, and Joanna actually tells me this sometimes, is remember you are sitting there and people up in front of you are arguing; think of the advantage that you have over them, be careful. When they make an argument—a person makes an argument you don't think is too sound, so what? He is being—he is helping a litigant, he is helping a litigant. That is his job; listen. And if people are being flattering or whatever, beware, beware, and that is where the robe helps because every time—if somebody is being flattering, you can think to yourself, they are not flattering me, they don't care what I think. It is this robe, it is this robe, and you try pretty hard to keep your own personality out of things and you just do your best to remain connected with the world, to understand that there are men and women and children whom your decisions will affect, to remember who those people are. You think about it. You try to get out of your office, you try to find other contexts. You have your family; you do your best. But I couldn't agree with you more that it is an incredibly important thing to remember.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, if you don't want to answer this, it is OK. It is not that important, but have you ever just taken a phone call from a citizen since you have been on the bench? Somebody just calls in that is not related to a case and says, I just want to talk to the presiding judge.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Have you?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, of course, because—I mean, you started with the courthouse. I would guess in respect to that courthouse that somewhere between 50 and 100 meetings of the sort that you are so familiar with—you go to a citizen's group, you listen.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU went yourself?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely, and it was so wonderful for me.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And you took the criticism that I am sure there was as with any public building?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; I mean, you worry about
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU didn't wear your robe?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I don't think it would have made a difference to anyone in any of those groups if I had worn five robes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I am sure that is true.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And that is a good thing. I will tell you day and night it is a very, very good thing.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge. Judge, let me turn to the Sentencing Commission. You are indeed an expert. You have been a very influential voice in the area of criminal law through your service on the U.S. Sentencing Commission which developed the Federal sentencing guidelines. These guidelines have been the subject of some criticism, however. They also have their proponents, you being one of them. In 1989, you wrote in the American Criminal Law Review that it was too soon after the implementation of the guidelines to evaluate them and determine if they had achieved their goal. You have repeatedly stated that the goals behind these guidelines were to 182 perpetuate honesty in sentencing and to reduce the unjustifiably wide disparity in sentencing. Now, 5 years have passed since the 1989 article and you can evaluate the guidelines, I think, far more effectively. In your judgment, have they achieved the two stated goals?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The first, yes; honesty in sentencing is there.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU think it is there?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is there; that is, the sentence given is the sentence served, and I think that that has helped in the Federal system; that is, I think people who understand the differences between the Federal and the State systems have begun to understand that the sentence that is given is the sentence that will be served, with very few—15-percent leeway. That has helped. The second has also moved in the right direction, but there are many, many rocks on that road. It is bumpy, and I think that it was a very great experiment that the Congress asked to have created. I think there is no one who will say it is perfect. There is no one who will say it has been 100 percent achieved. There is no one in this whole area of criminal sentencing or the criminal law that agrees about everything. I mean, there is lots of disagreement, but I think, in general, if I think about it, it is an experiment that is still worth running.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you think it has been more positive than negative?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course, I was part of it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I understand.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. But I do think that, still; I do think that, on balance, yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. It has improved the system?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. On balance, yes, and more to come, more to come.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. One of the criticisms of the guidelines, as you know, is that they remove flexibility and require the court to follow a rigid formula in determining sentencing. I know that you disagree with this argument and, in fact, I found your holding in U.S. v. Rivera to be particularly illustrative of the court's ability to depart from the guidelines when justifiable. I assume that Rivera supports the assumption that you believe that flexibility must be maintained in regard to any sentencing formula or guidelines that are implemented. Is that correct? Is that what that is all about?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, I am a firm believer that the courts should be vested with a certain amount of discretion, particularly in regard to sentencing. Despite your holding in Rivera, one of the criticisms of the sentencing guidelines is that they give too much authority to the prosecutor. When you were on that Sentencing Commission, how did you wrestle with how much authority to give the prosecutor, and, in your opinion, does the prosecutor have too much authority under these sentencing guidelines that are in place today?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. This has been an awfully big argument. In my own personal opinion, the increased authority of the prosecutor has come primarily because of the existence not of the guidelines, but of mandatory minimum sentences in statutes because that gives 183 the prosecutor weapons that the prosecutors did not have before. I think that that is the primary source of the contention. I am not positive about that because there are people who disagree with that, but in my personal opinion, that is what it primary is.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. IS that good for the system, or do you think that should be continually reviewed?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, what I have written on this—and, remember, you are dealing with a person who spent a lot of times on the guidelines, and Judge Wilkins, who was the chairman of the Sentencing Commission, and I and most of the other Commissioners would like to see Congress delegate the authority on sentencing to the Commission so that the Commission can create guidelines which judges can depart from in unusual circumstances. So it isn't surprising that the Commissioners tend to believe that they would prefer not to have that rigid, absolute mandatory in the statute, but that Congress would say to the Commission, please, we gave you this authority, now carry it out, and we will give you the flexibility necessary to do it; you have tough sentences, your sentences are usually followed; there is a little bit of flexibility in the joints through the power to depart and that is the way we would like you to go. Now, as a former Commissioner, I guess that is the view I have.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, knowing your criticism of mandatory minimums, would it be softened at all by inclusion of a so-called safety valve which would allow a judge to prevent nonviolent first offenders from serving the full sentence?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you think it should be expanded to anything further than nonviolent first offenders from your standpoint?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. These are basically decisions for Congress, and you are taking me out of my role as a judge and you would have to understand that in anything I do as a judge I follow, and would follow and intend to follow and have followed the decisions that are made by Congress in these areas which are embodied in statutes. But putting me back in my role as a former Sentencing Commissioner—and what I have written on this is that the sentencing guidelines are pretty tough, fairly—you know, they are significant sentences. No one has criticized them for being too lenient.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That is correct.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yet, they do have a bit of flexibility in the joints, and if you look at that flexibility and you say how often is it used, it isn't used that often; it is used sometimes. The Sentencing Commission did a study of mandatory minimums and found there was really more departure, more, whether there should have been or not, and so all those arguments—the Sentencing Commission has written it a lot better than I have, so I would say they have reports on this and I would probably sign on to those reports.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. A safety valve would be beneficial, in your judgment, for nonviolent offenders?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Thank you, Judge Breyer.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, I couldn't help but think, listening to Senator DeConcini's first area of questions on prejudicial 85-74 2 -95- 1 184 statements, I had for years back when I was practicing law a wonderful New Yorker cartoon which you probably have all seen at one time or another. Twelve members of the jury are sitting there, their hair standing straight on end, the judge blithely saying, the jury will disregard that last remark.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, I would like my full opening statement regarding the Judge put in the record.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be done.
Senator Dennis DeConcini (AZ)
Senator
(D)
[The prepared statement of Senator DeConcini follows:] PREPARED STATEMENT OF SENATOR DECONCINI Judge Breyer, I would like to join my colleagues in welcoming you before the Senate Judiciary Committee. While throughout my Senate career I have always afforded great deference to each President's judicial nominations. I was elated when President Clinton chose to nominate you with your keen intellect and vast experience with the law. I believe that your experience in all three branches of Government provides you with a unique insight into the respective roles of the administration, Congress and the judiciary. Your understanding of these separate and distinct functions of our government—that often overlap and occasionally conflict—provide you with a valuable perspective on the separation of powers that are so essential to our system of democratic government. Hopefully, your firsthand knowledge of the workings of Congress, particularly this committee, has given you an appreciation for the complexities of the legislative process. As you know, legislation cannot always be drafted to accommodate every potential fact pattern or every possible ambiguity. Therefore, the legislative history of a provision cannot be overlooked. It must be explored to give additional clarity to the drafters' intent. Your Justice Department experience has given you insight into the policy making role of the executive branch of Government which has hopefully enhanced your understanding of when deference to an agency decision is deserved and when it is not. Your considerable experience as a judge on the Court of Appeals for the First Circuit has provided you with the opportunity to develop a judicial philosophy that has served you well in your decisions. You have demonstrated judicial restraint during your time on the bench that assures this Senator that you are not coming before us today with a hidden agenda that you intend to bring to the Supreme Court. As a result of your well-rounded judicial background and your numerous professional accomplishments, you come before us today to be confirmed to the highest court in this Nation. Throughout your life you have repeatedly exhibited the intellect, desire and commitment to excel in each and every endeavor you have undertaken. It is these characteristics which have brought you here today, and it is these characteristics which will enhance your role as Associate Justice of the Supreme Court of the United States—a role that will require you to make difficult decisions that will affect not only the way the Government operates, but more importantly, will profoundly affect the fundamental rights and liberties of individuals. I have followed your career closely over the years. In fact, I had the opportunity to chair your confirmation hearing before this committee when President Carter appointed you to the First Circuit Court of Appeals. Just as in 1980, these hearings will explore your judicial philosophy, and as required by the advice and consent clause of the Constitution, the Senate will determine whether or not you should be entrusted with this considerable honor and daunting responsibility. Judge Breyer, at the end of this Congress I will have had the opportunity to participate in the confirmation of eight Supreme Court Justices beginning with the nomination of Sandra Day O'Connor, an Arizonan and the first woman on the Supreme Court. Just as I was honored to participate in the O'Connor hearing because of the nominee's unparalleled abilities and dedication to the Constitution, I take great satisfaction in knowing that your nomination, which may be the last Supreme Court nomination of my Senate career, also exemplifies exceptional legal scholarship. I believe you will be an outstanding addition to the Supreme Court. I look forward to your views on a wide range of topics, and just as in 1980, I know your responses will be thoughtful and informative. The CHAIRMAN. Judge, before we let you go, let me ask you, is there a correlation between delegating to the Commission and the need to have nonjudges on the Commission? 185
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I haven't thought about that, I haven't thought about that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, at some point, unrelated to this hearing, when you are confirmed—because I am sure you will still take phone calls—when you are confirmed, I would like to talk to you about that because that is an area of some discussion right now. Well, Judge, thank you, and I thank your family for your cooperation this first day. We have a number of patient and very knowledgeable members of this committee, like Senator MoseleyBraun, who have been here the whole time and will be, because of our seniority system, down the line some time tomorrow. If we convene at 10 tomorrow and each Senator takes his or her half hour, which I assume and hope they will, to explore areas of their concern, that is 4Vfc hours to finish one round. I imagine there may be additional questions. I will confer with you and with the ranking member tomorrow, mid-afternoon, to determine whether or not we attempt to finish up your public testimony tomorrow or go into the next day. As you have observed, there is no desire to rush this. There is no desire to keep people here late. There is no urgency to get it done. We are talking about a matter of 24 hours one way or another, finishing this. But if we could finish your testimony, if that is the will of the committee, and it means you stay another hour or so, I would like you to begin to think tonight whether you would rather do that than come back.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, gentlemen.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, there is a vote tomorrow at 10. We will meet after that vote?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. There is a vote at 10?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I believe so.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I was unaware of that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I believe it is a cloture vote.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I was under the impression that that might be vitiated.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. OK.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I will be here by 10:10 to start the hearings if the vote is at 10. We will vote at the front end and we will begin then. I understand from Senator Metzenbaum in the discussion I had with him today that it is another cloture vote. There is a possibility that that vote may not take place, so let us keep it at 10 and if there is a vote at 10 we will start as shortly after that vote as we can, no later than 10:15. Yes, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, by a previous unanimous consent agreement, I am going to be managing a bill on the floor starting tomorrow.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Unfortunately, this was done before we knew about this. I just would like the Chairman to know that there are some followup questions, especially on a couple of the answers in my earlier questions. I will want a second round. I will try to keep it as short as possible. 186
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes; I am confident that other members will, and I know you have the Foreign Operations
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yes, Foreign Operations, so I will not be here during part of this, but I will come back at an appropriate time to ask those questions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO I am confident we can accommodate everyone, but we want to accommodate your physical constitution as well, and I just want you to begin to think about if it is possible—I am not pressing to do that tomorrow—if it is possible to finish up tomorrow night. When I said that, your whole family went like this behind you, except for your wife. She likes seeing you on the hot seat, I think, here. All kidding aside, we will make that judgment tomorrow afternoon. We will reconvene at 10 unless there is a cloture vote. If that is the case, it will be as close to 10 as we can make it. Thank you for your cooperation. We are adjourned until tomorrow at 10.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Mr. Chairman. [Whereupon, at 6:23 p.m., the committee was adjourned.]
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Chairman. It should be noted that there is not a whole lot I can do in your absence.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I will not say anything.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Or in your presence, for that matter. [Laughter.] Senator SPECTER [presiding]. But it is a powerful feeling, Judge Breyer, to be the entire Senate Judiciary Committee. For those who may wonder why I am the only one present, it is because a vote was scheduled at 10 o'clock, and I was there at the start of the vote to vote early and be able to proceed, because there are a great many Senators who are waiting to question. Judge Breyer, in my opinion, the Senate has no more important responsibility than the confirmation of a Supreme Court nominee under its advise and consent constitutional duty. The Court, with its 5-to-4 decisions, has made a practical reality of great power for that fifth vote, touching the lives of virtually all Americans in many important cases and sometimes people around the world. And the nominees, unlike the Presidents who serve for 4 or 8 years, once they are confirmed sit for decades and have a very profound impact on the life of Americans. The concern which many of us feel turns on the expanding role of the Court in taking on decisions of public policy which really move across the line, I think, very frequently into legislative rules—really a superlegislature. And that is why I think it is very important to find out as much about a nominee as we can, and the experience which I have seen in the 14 years I have been in the Senate—and this is the ninth confirmation hearing since 1981—the experience has been the nominees answer about as many questions as they feel they have to to win confirmation. That is a practical fact of life on the so-called tension between Senators and nominees. I am sorry my colleagues are not here to hear just a little bit of criticism. We do that to one another occasionally, publicly and privately. I think it is unfortunate that Senators commit themselves in advance, because I think that makes confirmation a virtual certainty, and it has been expressed by many of my colleagues, even in the course of these hearings and more frequently in the media, and I think that is unfortunate, because I think that Senators, like Justices and judges, ought to reserve judgment until they hear all the witnesses. And there will be some witnesses—there always are—who will testify in opposition to the nomination. I do not want to take too much time on a preliminary statement. I want to get right down to the issues, and I want to start with the issue of the relative responsibilities of a judge versus the legislators. And I want to start with the case of Rust v. Sullivan, which I personally consider to be a matter of judicial legislation. When the provisions on Planned Parenthood were passed in 1970, there was a regulation issue which gave the counselors latitude to counsel women on the abortion option. And that was changed by regulation 17 years later, although Congress had really, by implication, given its imprimatur of approval to that interpretation. And in a 5-to-4 decision written by Chief Justice 189 Rehnquist, one of his reasons was a "shift in attitude against the elimination of unborn children by abortion." I am at a loss to understand what bearing a shift in attitude has on the subject, but here we have legislation, a regulation, stands for 17 years; Congress could have changed it if Congress disagreed with it. And then along comes the Court and says the new regulation stands; there cannot be any more counseling of women on the abortion option, in part because of a shift in attitude. My question to you, Judge Breyer: Isn't that really a legislative determination by the Supreme Court? TESTIMONY OF STEPHEN G. BREYER, TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, as you probably know—I do not know if you know or not, but my circuit had a case that was very, very similar to that case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Same case. Similar case. I know.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And our circuit decided—and I joined the opinion—that came out the other way.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But your circuit also said that the absence of congressional action did not determine the case. You had about the same view. You did not write the opinion.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, I did not.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. AS you say, you joined in the opinion. But the first circuit said that it really was not determinative, that Congress had let this regulation stand for 17 years.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And we did not go into that in any depth. We did not go into that in depth and
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, you mentioned it. It is there.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true. But what you are asking me to do and why it is difficult is, of course, a judge from a lower court that decides a case one way is always tempted to think, my goodness, how right I was. And then the higher court that reverses the lower court, one is tempted to think that the judges on that court were wrong. Now, in fact, we wrote the case, I joined it, and the Supreme Court had a different view. On the particular issue you are talking about, which is a complicated issue, I would have to say that the way in which the case was argued in our court did not flag that issue in the way that you have put it. And so I am hesitant to talk about that only for the reason that it is not something I have thought through in that context. I know the issue in a general context, but I really have not thought it through in the context of that specific case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Breyer, there are a couple of cases which I may come to in a later round where you rendered a judgment outside of the scope of the arguments. And I compliment you on your background and your capabilities. It does not really have to be presented head on for you to grasp the import of it. The question I have to you is really one of probing your consideration of this in a future issue. Isn't there not only enormous weight but a virtual conclusion that, if a matter is a longstanding interpretation, Congress has an opportunity to change it, Congress does not change it—and there are many cases, and I hope to come to some 190 of them later—that that ought to be it? That the Court ought not to say there is a shift in opinion on the abortion issue and turn the law around? Isn't that judicial legislation?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is—I mean, you have raised a complicated and rather difficult general issue, and I am tempted to say yes, in general, but then I have a reservation. The question that you raise in the most general terms is: Suppose Congress delegates to an agency, any agency in the Federal Government, suppose it delegates to the agency the power to have a regulation or the power to interpret the statute? And what I think about that is, Congress having done that and the agency having interpreted the statute through a regulation, the Court will later pay a lot of attention to what the agency says. And there are really two different reasons. One reason, which you are focusing on, is because the Court knows that the agency, having been involved in the legislative process, probably through testimony and maybe exchange of staff or being more expert about it, is likely to know, perhaps better than the Court, what Congress had in mind. And that kind of reason, the longer that regulation is in effect, the more exactly what you are saying is true. There can be—and this is my reservation—a different kind of case where Congress quite clearly delegates to the agency the power both to interpret and to change its mind. Now, if you found in the statute that that was the situation, of course, the agency could change its mind because Congress would have said that it could. So I am quite tempted to agree with a lot of what you say, but I am worried because I have not thought it through in the context of that particular case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, would you do this? Because I want to move on to another line. Think about it, and we will come back to it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Because I would be interested in your reflected views. There were a couple of questions asked yesterday on the death penalty, but I want to pursue that subject in some detail, because this is an area where the Court is moving, perhaps, to eliminate the death penalty in America. At the outset, I would disclose my own position being in favor of the death penalty, having experience as a district attorney, and I think it is a deterrent. And I am working to try to preserve it both in the State and in the Federal system. And this is an area where I think we see a marked erosion of legislative authority by what the Supreme Court has done. I want to get your views, not as to how you are going to decide some future case, but to see your thinking on this subject, both as it illustrates your approach as a prospective Supreme Court Justice and also as it would give us some insights into your views on the death penalty. This really illustrates the standards which the Supreme Court has said and articulated which moves really not close to but I think beyond the legislative line. Justice Marshall, in his dissent in Furman, outlines some of the standards for evolving Supreme Court conclusions, and he says 191 this, articulating the law as he see it. And it is just not a dissenting opinion. There is a lot of background in the Court decisions for what Justice Marshall has said, and I refer to him with the greatest respect. In Furman, he says: The cruel and unusual language must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Thus, a penalty that was permissible at one time in our Nation's history is not necessarily permissible today. And then in another point in his opinion, he says: Time works changes and brings into existence new conditions and purposes. In the application of the Constitution, our contemplation cannot be only of what has been, but of what may be. Now, you can see from this kind of language that there is a demarcation away from the text and the precedents and an evolving consideration of public policy which goes really very, very close to what a legislature does, if not really into the legislative area. Justice Brennan, also in Furman, comes to the conclusion that the death penalty is not a deterrent. And he also comes to the conclusion that the death penalty, "Its rejection by contemporary society is virtually total." That is his conclusion in coming to the judgment that the death penalty is barred in all cases—all cases—by the eighth amendment prohibition against cruel and unusual punishment. Justice Marshall goes back and says that, "Cruel and capital punishment is morally unacceptable to the people of the U.S." Now, the comments by Justice Marshall and Justice Brennan that, as Justice Brennan puts it, "Its rejection by contemporary society is virtually total," and Justice Marshal, "The death penalty is morally unacceptable to the people of the U.S.," flies in the face of not only public opinion polls but that fact that 37 States reenacted the death penalty after it was struck down in Furman and that more than 70 Senators consistently vote for the death penalty in the U.S. Senate and about the same on the House. Then Justice Marshall, dissenting in Gregg v. Georgia, says, referring to an observation from his in Furman, that, "The American people are largely unaware of the information critical to a judgment on the morality of the death penalty," and concluded that if they were better informed, they would consider it shocking, unjust, and unacceptable. Beyond Justice Marshall and Justice Brennan, Justice Blackmun made an opinion, rendered an opinion, saying that, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." And he said in a dissent on a cert case, in Callins v. Collins, that he would no longer uphold the death penalty. And Justice Powell has recently been quoted as saying that he would be against the death penalty were he still sitting there. Now, my question to you is: Given what you have already testified that there ought not to be a subjective determination by a Justice, what standing does—take the elements of its being morally unacceptable to the American people. How proper is that as a basis which Justice Marshall and Justice Brennan articulate in the face of the reenactment of the death penalty and in the face of the congressional votes 70-percent-plus strong in reenacting it? 192
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I want to reveal to you my thinking without actually predicting or expressing a view on a particular case that might come up. And that, as you have said very well, is a question of drawing the line. And you will correct me, I hope, if you feel I am not drawing it properly. I want to reveal to you as much as I can without making that—without crossing the line to decide a particular case. For reasons of fairness later on and making people understand, I will
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I respect that, Judge Breyer. I know you cannot comment on how you will decide a pending case. But what this question looks to is: Is it appropriate given the text of the Bill of Rights, which refers to the death penalty, and the longstanding use to rule out the death penalty in all cases on the judgments of individual Justices that it is not a deterrent and that the American people have rejected it? Which I think is factually not so.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. First, I think it is fair that I certainly agree—and I think the vast majority of people would agree—that judges should not legislate. That is your job. It is not the job of a judge. Second, looking at the death penalty, I have said—and I think this is the case—that it is settled law that applying the death penalty in some circumstances does not violate the cruel and unusual punishment clause. Third
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. May I just interrupt you for one quick point?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Do I understand you to say that in some circumstances you think the death penalty can be constitutionally imposed?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I think that is settled law.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. SO that you would reject the Marshall and Brennan view that it is, on its face, violative of the eighth amendment?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What I have said: in my opinion that is settled law.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That settled law is surrounded by what I think of as a cluster of less firmly settled matters, such as how old the person has to be, though there is case law on it; such as the procedures; such as the types of crimes, the exact details. And in those areas of detail, it seems to me that I cannot properly go because it seems to me those are coming up again and again. The question, the deep question that you raise, the deep question that you raise is the question, you would say or as I hear you saying, Fine, everyone is against judges legislating. How do you, Judge, know whether what you are doing is improperly legislating, improperly putting in your own subjective views, or quite properly trying to interpret the law in an area where the question is broad, open, and important? That is difficult. And in my own mind, I cannot say the text is what answers the question, because in these difficult questions often it does not, though it certainly is a starting place. I cannot say that precedent always answers the question, but it is terribly important to refer to the precedent, and the opinion grows out of prior precedent. That is normal. 193 The history is important as well, both because it reflects an intent of the framers and because it shows how, over the course of 200 years, that intent has been interpreted by others. The present and the past traditions of our people are important because they can show how past language reflecting past values, which values are permanent, apply in present circumstances. And some idea of what an opinion either way will mean for the lives of the people whose lives must reflect those values, both in the past, in the present, and in the future, is important. And that is what judges like Harlan, the second Harlan, Frankfurter, who were not viewed as legislators, would put within the phrase like "concept of ordered liberty" or "those values that the traditions of our people review as fundamental." Now, you
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, there is always—I want to ask you one related question and then move to another subject, because there is not a great deal of time. That is a line which is hard to draw.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, it is.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. One of the current major concerns in Congress and the conference committee on the crime bill is the issue of whether there will be the application of a quota system on the death penalty, where my own view expressed on the floor of the Senate is that the essence of American jurisprudence is individual justice. What is the nature of the offense, and what is the nature of the offender?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. AS opposed to having the death penalty invalidated on a statistical analysis as to how many other like people of a given group have been subjected to the death penalty. Now, the Supreme Court decided this matter, as you know, 5 to 4 in the McCleskey v. Kemp, and now it is back in Congress. And the Senate rejected in substantial numbers, and the House passed it narrowly, and it is now on the front burner of legislation. And it seems to me that this is a matter which is properly the determination of public policy, belongs in the Congress, and we ought to decide it. Do you have a settled view on that question? Is McCleskey determinative of that issue?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that matters of policy—and this sounds like a matter of policy for Congress. This came up yesterday, and I think no judge, I do not think at all, would say statistics are never relevant. But you have to be careful with statistics and you have to be careful because they have to really show what they are supposed to show. And it is so easy for them to show, appear to show what they do not show.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But that is a question of reliability of statistics. This is a different issue. This is an issue of whether statistics are relevant on what happens to others in a given group contrasted to a determination of the nature of the offense and the nature of the offender. I know this was mentioned briefly yesterday, but I just wanted to understand your position that you consider the matter resolved as a constitutional issue by the McCleskey v. Kemp decision and, 194 appropriately, in the legislative range where we are now wrestling with it in the crime conference committee.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. McCleskey is precedent for the particular—you know, the kind of statistics that were presented there are not making the case, and that was decided and that is a precedent.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. It can always be revisited.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, yes, but you have to be careful revisiting precedents. Your question is
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Oh, my next question?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, I was not thinking that. I was thinking that there are—what you are concerned about, there are a couple of checks, I think, on this subjective view of the judge.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Breyer, in the few minutes I have remaining, I would like to pick up a question which has received a lot of attention, and that is your ruling on the case of U.S. v. Ottati and Goss. It raises the issue where you had been so careful, as I understand the facts—and I would like you to confirm them—that you had not handled any cases involving Lloyd's of London and you had not been involved in any cases involving asbestos liability; but that the case of U.S. v. Ottati and Goss did potentially touch one of the syndicates, Merritt 418, which involved the underwriting of toxic waste cleanup. I would like your comment on the underlying facts and your observation. And I have no question at all about your integrity, but I think it is a matter that has to be put on the public record. Also, we need to learn from it as to what judges who have investments can do to find out more about what their investments reach to on matters which come before them.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; I, of course, disclosed all my investments, including my investment in Lloyd's. And I have three screening systems, now four, to make certain that I never sit on a case in which any firm in which I have an investment, including Lloyd's, including that syndicate, including any part of Lloyd's, is a party in that case. The clerk checks everything, all the names that he can find on those briefs, against the names on my disclosure form. My secretary has the same list and sees if anything slips through that sieve. I have the list, and I have been putting it up in my clerk's office, too, my personal clerks. In that case, and in no other case that I am aware of, did anything slip through that sieve. So, to my knowledge, Lloyd's did not have any direct interest in Ottati and Goss. A different issue, I think, was raised about Ottati and Goss, and the seven or eight pollution cases that I sat on. The different issue is that sometimes, of course, if you have an investment in company A, even though company A has nothing to do with this case, maybe the holding in the case, even though it is quite a different case, could affect your investment in company A. And there the standard is: Is it a real effect, a direct effect. "A substantial effect" is the word of the statute. And the reason that those words are used is that if you are in—if you have many different stocks, virtually any case could have some theoretical connection to something. 195 So what I do is bells go off in my mind if I am sitting on a case and I begin to think that the holding in that case, even though no investment is a party, but the holding in that case could affect my own pocketbook, no such holding went off—no such bell went off in my mind in respect to Ottati and Goss, nor any of the other seven pollution cases that I sat on. That is to say, the label is the same. There is a label called pollution case, and it is true that Lloyd's and these syndicates and any insurance company can be involved in any insurance anywhere, and there always can be similarity of label. But I saw no direct, proximate connection, let alone a substantial connection, between the holding in that case and my own pocketbook. And that, I think, in recent days has been confirmed by lots of people who have read those cases with care, who are experts in the area, and who have looked to see if my initial judgment—and I cannot tell you my initial judgment is always correct. I can tell you it is something that I am very, very sensitive to and that I will remain sensitive to. And my reasons are personal because what I really have, after my own family, is my integrity. And my reasons are institutional, because it is terribly important that the public understand and respect the integrity of the judicial system. And, therefore, the way I proceed is full disclosure, three to four screening systems, and then what I hope is extreme sensitivity to the possibility that a holding in one case could somehow, through some set of interconnections, really affect my pocketbook. And there I will say I made that judgment call. I thought it would not directly affect my pocketbook in any direct, proximate, substantial way. And I will say that others in the last few days, ethics experts, various kinds of experts looking at this, agree—though I must add that reasonable people could disagree, and there are some who do. And I respect that, and I think it is important to raise such a question. And it is important, though I do not want to be repetitive, it is important for the very reason you raise it. It is very important that people understand the integrity of the judicial system.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Breyer, I accept your conclusion, and I fully appreciate the importance of integrity to you personally and institutionally for the Court. The last question I have on it is the factual matter, and I understand that there was no reason to see the connection. But was there a hidden problem that, in fact, the investments in Merritt 418, which did have liability underwriting in toxic waste cleanup which touched Superfund could factually have been involved in your ruling in Ottati and Goss, even though, as I agree with your statement, you had no reason to know it at the time?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU mean that they had somehow insured that very toxic waste dump?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, or the precedent from your decision in Superfund would have had an impact on the liability of a company in which you had an investment. Factually, did it get there, even though you had no reason to know about it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. AS to the first part, were they factually involved in that very toxic waste dump, I believe the answer is no. As of this moment, I have no reason to think that answer is any different. As to the second question—that is, could my holding in that case have 196 had a direct impact on my pocketbook, that is, that syndicate?— I believe the answer is no, though that is judgmental. And what that means is you have to look at the particular case. And I did look at that case, and I have thought about it, and I have looked at it really again and again in the last few days, believe me. And I still think that there is no direct, proximate money in my pocket through 418 because of what was or might have been held in that case. That is my belief. That is judgmental. I think many, many others who have looked at it agree with me. And I recognize that reasonable people could differ on the point.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Specter.
Senator Howell Heflin (AL)
Senator
(D)
Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Judge Breyer, we are delighted to see you back with the Judiciary Committee. It was a pleasure to serve with you when you were the staff director and the chief counsel. From that association, which involved many thorny issues, we developed certain evaluations relative to your personality, your intellect, and your integrity. And I think they were the highest. We had many nonharmonious issues that were raised during that time, and you were a great consensus builder. However, you failed in regards to a consensus builder when it came to the codification of the Criminal Code. I think that is such a thorny issue which was tried twice to try to do it. You and Ken Feinberg and others worked on that to get a consensus of that. But from our association, we developed a friendship. We developed the highest regard for your integrity, the highest regard for your abilities, and for your ability to inform everyone. We were pleased when we learned that you and a great other lawyer who was representing the other side, Emory Sneeden, would meet for breakfast every morning, and you all would do these things. But sometimes, you know, as we think about these friendships and things, we do not want to let that prevent us from asking some hard questions. And I think we have that function here. To follow up on Senator Specter about Lloyd's, you have mentioned your mechanical approach, your technical approach to trying to determine whether or not there could be an interest of Lloyd's of London in any case that you had. When did you start that procedure by which you had three check mechanisms that you would follow relative to that when you went on the bench?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is when I started, Senator.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. When you started. All right.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; I cannot tell you every year, but, I mean, I would say very close to when I started, probably when I started.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NOW, when you practiced law, I supposed you tried cases in which there were insurance companies involved but not named. That happens frequently. And the jury is qualified either by the attorneys or the judge relative to whether or not there might be a member of the jury venire who has an interest in or 197 is a shareholder in a certain insurance company, and that appears in the record. Did you in part of your mechanism endeavor to try to look at transcripts to determine whether or not Lloyd's of London might have some interest in any case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would look through the briefs. That is, if I came—I read the briefs in every case, and if, in fact, it appeared from the brief, if, in fact, it appeared in the record, or if, in fact, I learned it from a brief, then I take myself out of the case. And that was basically—and that would be true of any investment. You know, it was not special with Lloyd's. It is that if you learn as a judge that a firm in which you have an investment has a direct interest in the case, you take yourself out. It is simple. Everyone understands that. Everyone understands that, and the only risk in such a thing is that something slips through the net. And you try to cast the net what I would call reasonably wide.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, now, under the Federal Rules of Appellate Procedure, in many instances you do not have the full transcript. You have designated portions of it, what you could do. But I think it is wise to sort of look back relative to the transcript and the jury venire questioning to determine whether or not there could be. That is something you might consider adding. I think your mechanisms that you have listed are good, but that is a method by which generally it will show up, because lawyers are very diligent and want juries asked the question: Do you have stock? That is the only way some lawyers get into the jury's mind that there is insurance in a case relative to that. Now, I have read various letters that have been presented to us, and one is from Geoffrey Hazard, who was the Sterling Professor of Law at Yale and then I believe is now at the University of Pennsylvania, and who I have a great regard for and is probably one of the leading authorities on judicial ethics and legal ethics. He was the chief draftsman of the Code of Judicial Ethics when it was drafted in 1972, and I happened to be on the court at the time and worked with him. My State was one of the first to adopt the American Bar Association models of judicial ethics. I have read his letter, and I think his letter goes to the point and is excellent, and I want to just point out that he says that, "I am advised that Judge Breyer as judge participated in a number of cases" involving CERCLA, which is Superfund. None of these cases involved Lloyd's as a party or by name in any respect. None appear to have involved issues that would have material or predictable impact on general legal obligations under the Superfund legislation. And then he says: In my opinion, Judge Breyer's participation in the foregoing cases did not entail a violation of judicial ethics. None of the cases involved Lloyd's as a party or as having an interest disclosed in the litigation. None could have had a material effect on Judge Breyer's financial interests. None had a connection direct enough with Judge Breyer as to create a basis on which his impartiality might reasonably be questioned * * * Then he goes on and says that, "There is a close analogy between the kind of investment as a Name"—and, of course, "Name" is meaning that it is under Lloyd's. That is the way a person participates. 198 There is a close analogy between the kind of investment as a Name and an investment in a mutual fund. A mutual fund is an investment that holds the securities of operating business enterprises. Ownership in a mutual fund is specifically excluded as a basis for imputed bias under [the code] and the Code of Judicial Ethics. This exclusion was provided deliberately, in order to permit judges to have investments that could avoid the inflation risk inherent in owning Government bonds and other fixed income securities but without entailing direct ownership in business enterprises. Now, Chief Justice Roger Traynor of the Supreme Court of California, who worked on the Code of Judicial Ethics, went on to say that the idea of a common fund or a similarity to a mutual fund is because of the impossibility of keeping track of the portfolio of such a fund. But if a mutual fund had only insurance companies, that might raise a flag of caution. Now, when you consider Lloyd's, Lloyd's is known nationwide as insuring anything. They say, all right, if you want—insurance companies will not insure this, but you can get it under Lloyd's of London. So the idea of having an investment in Lloyd's of London raises some sort of an issue pertaining to this as to whether or not, after going on the bench, you ought to divest yourself of any interest in Lloyd's. Now, what is your feeling relative to that? Did that enter your mind, the fact that Lloyd's of London is such a widely known and the fact that you—of course, you filed disclosures all during the time that you were there, so it was publicly known. But there is that issue of whether or not that raises a red flag.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. AS I understood it, it was like a mutual fund. I would go over and visit my mother-in-law and family over there, Joanna's family, in the summer. And what it consisted of, my investment, is you would go and spend an hour's lunch with this person who was the agent, who would tell you we have various—we are proceeding for the next year, and anything in the world can be insured. And when you read about losses, remember, losses in some areas have gains in another. You will never know. You will never know how the insurance all works out. You will never know what is insured. You will never know whether there is a gain or a loss. What can be a gain for one company can be a loss for another. If there are a lot of losses, that can be good because then more people want to buy insurance. So in a sense, it was a good investment like a mutual fund because it is all over the place and there is no way to predict whether any case would help you or hurt you if you tried. On the other hand, that word "insurance," as I have learned in the last few weeks, that word "insurance" does ring bells. And basically what I decided—it takes a long time to get out of Lloyd's. You have to resign, and then it takes 3 years. So when I first became a judge, I put it down. I knew it would take 3 years, and I did not immediately resign. By 1988, I had reached a conclusion such as you suggest, and I resigned. That is partly why I did. That is partly what I wrote. I think the thing to do now is—given the issue that has come up, I am not interested in having an investment in an insurance company. It does not affect—I mean, that is why I said yesterday I would like to simply get rid of it. 199
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, now, there are other experts in the field of judicial ethics and legal ethics. Professor Stephen A. Gillers at New York University Law School comes out and says: I see no evidence that the decisions in Judge Breyer's case would have had a direct or substantial effect on his interest as a syndicate that has insured against risk of liability for environmental pollution. He supports you. John Frank, who worked on these issues when they were being formulated and worked as a consultant, and others, have written letters, and I think they ought to be introduced into the record, all of these—I believe they were addressed to Mr. Lloyd Cutler—pertaining to these matters; I think they ought to be in the record. But Professor Hazard does say this: In my view, it was possibly imprudent for a person who is a judge to have such an investment because of the potential of possible conflict of interest and because of the possible appearance of impropriety. Now, what do you say to that statement by Professor Hazard?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would say at the time that I entered into this investment in the 1970's, and my keeping it through the mid1980's, I thought basically it is like being in the Dreyfus Fund, or it is like being in a big stock fund, although it is a fund of insurance risks. And I did not think beyond that. So it seemed the diversity was OK and probably a good thing for a judge, because you have a tiny little bit of risk everywhere, and therefore it is not going to affect you directly in any way, unless they are involved in the case. Having listened to what you have said, and having become acquainted with Professor Hazard's view, I accept that view, and I think if there are a substantial number of people who believe it is imprudent, that that is an added reason why I should be out of this investment, and I will be out of it as absolutely soon as I possibly can. That is what I will do.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Let me go to another subject that have briefly been asked about you, and that is sentencing guidelines; and they are controversial. I have to admit that I was not that enthusiastic about them; I thought there were other ways of handling disparity of sentences other than the sentencing guidelines. I think Senator Mac Mathias and I were the only ones who raised questions about this. I think that some of the States have come up with better systems, rather than the system that we adopted at the Federal level. But there are a lot of them today—here is a statement that Professor Albert Alschuler of the University of Chicago Law School points out: "You scratch the guidelines anywhere, and you get a horror story. Judge Stephen Breyer is as responsible for the mess as anybody else." Now, of course, he is looking at it from his viewpoint that they are all a mess. There are others who feel like the guidelines are working, but the question of the mandatory minimum sentences—in a recent article that you wrote, you made this statement: All right. Let us not call them mandatory statutory sentences. We can call them bananas, and we will say we have got to get rid of these bananas because they are very rotten bananas, and they tend to infect the criminal justice system. I think, frankly, it is a kind of mess, and from the point of view of people who are interested 200 in an effective system and also a rule of law that people will be able to enforce, it seems fairly obvious to me that we ought to get rid of them. Now, I do not think this is going to be necessarily a judicial question. Do you have any advice that you would give Congress pertaining to this issue as Congress proceeds and as it is proceeding today on the crime bill, in which there are more and more mandatory minimum sentences, that are being formulated in the crime bill?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, the rather colorful statement that you read was not made in a judicial context. The view that I was expressing and said yesterday that I thought perhaps it would be understandable that I would have this view because after all, Judge Wilkins and I and others on the Commission were sentencing commissioners, and we naturally thought that it was an advisable thing for Congress to give to the Sentencing Commission the power to write guidelines which are fairly tough guidelines, but which have a little oil in the joints for unusual cases, where, if there is an unusual case, the judge can depart, though the Court of Appeals will review that for reasonableness. Now, being a commissioner—a former commissioner—it is not surprising that I would hope that Congress would continue to delegate authority to that Commission, see how they exercise it, and if you feel they are exercising it badly, then change that authority. But that seemed to me to be consistent with your general hope to remove some of this from the political arena and to try to make it consistent and coherent. So for that reason, I have expressed the view, sometimes colorfully, sometimes not, that to have a somewhat random or different assortment of mandatory minimum sentences is not consistent with that and would not work well. That was the view that I expressed, and it is not surprising that I have that view. I think it does not work well from the point of view of criminal law enforcement. That was the view that I have publicly expressed; that is true. It is a legislative question, and however it is decided in Congress, the courts will enforce the determination that Congress makes.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, I am not asking you to judge on this; I am asking your view relative to giving advice to Congress. You are still of the opinion that there ought to be a very few mandatory sentences; I assume that is your position?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That was the view of the Sentencing Commission. They prepared a study, and what the studied showed was when they write guidelines, the departure rate is low; it is about 7 percent, 8 percent downward and a couple of percent upward.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Let me ask you another tough question. Supposedly—this has been brought out by David Garrow's book, "Law and Sexuality," and he suggests that you wrote the first draft of Justice Goldberg's concurrence in Griswold v. Connecticut. Will you give us information pertaining to your participation in that opinion?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. If you had worked for Justice Goldberg as I did, you would be fully aware that Justice Goldberg's drafts are Justice Goldberg's drafts. It was Justice Goldberg who absolutely had the thought, that his clerks implemented, and both my coclerk Stephen Goldstein and I did—there were two at that time—and we worked 201 on that draft. I might have worked on it a little more than he. But it is Justice Goldberg's draft.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, as a clerk, you generally follow the directions of your judge
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN [continuing]. Or you cease to be a clerk.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct, that is correct.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Much has been said about your ability to be a consensus builder, and the collegiality of the Court. Do you think that the collegial atmosphere of the John Marshall Supreme Court is preferable to the more—or at least it appearing—to the appearing contentious atmosphere of the Court today; and what do you think are the advantages of collegiality and consensus, and what role do you think you can play to help bring this about?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is a very big question. John Marshall's Supreme Court played a major role in building the United States of America. It made real the constitutional promise that there would be one Nation. It did that through the decisions that we all know. I think the consensus was critical there to the fact that we have a United States with limited government, with great freedom, that allows us to live together. It is a remarkable thing, that Court. No court could live up to that Court—maybe the Brown Court—but really tough to do. Consensus is important. Consensus is important for a number of reasons. One is the effort to obtain consensus tends to downplay the individual ego of the individual judge, and that makes it more likely that there will not be subjectivity, and there will not be personal views, and everyone will put his mind or her mind to the more important task of determining the law. Consensus is important because law is not theoretical; law is a set of opinions and rules that lawyers have to understand; judges have to understand them; lower court judges have to understand them. And eventually, the labor union, the business, small business, everyone else in the country has to understand how they are supposed to act or not act according to law. And consensus helps produce the simplicity that will enable the law to be effective. Now, how do you achieve that consensus? That is hard. It is not a question of bargaining—I will give you that, or I will give you that—believe me, it is not that kind of a question. It is a question of trying to listen to other people. It is a question on our Court of each judge listening to the other. And I bet you found that on yours as well. And you think it is so much more important to another person. You listen to the argument, and even if you say, "In the opinion, it might be argued that, but we reject that," the other judge is much happier. The point of view is taken into account, and that tends to draw people together. And then, when the different judges understand that their own ego is less at stake, you do not stick on every little minor thing; try, and try to get a view in the opinion that is straight, that is clear, that pays attention to the different arguments and that treats them fairly, then I think consensus comes along. It is pretty general, but I think it is important.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Charles Evans Hughes once wrote that dissents are vital to a living Constitution because they appeal "to the brooding spirit of the law, to the intelligence of a future day, when a 202 later decision may possibly correct the error into which the dissenting judge believes the Court to have been betrayed." You, however, have commented favorably on the fact that your circuit produces very few dissenting opinions. Don't we make bad decisions worse by discouraging dissenting opinions? Should Justice Harlan have been encouraged not to write his now famous dissent in Plessy v. Ferguson? So now I am asking you—a consensus builder, when and in what circumstances do you feel that dissents ought to come from the members of the Court?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In my own court, and I am sure in yours, Senator, there is no problem—there was no problem—if people felt strongly, they dissented. The thing that you would like to have the judges feel, and that is why I feel we were quite lucky in the first circuit, is look, this is not a matter of your own ego, this is not a matter of being picky that it does not say exactly what you want on minor things. Use common sense about this. Remember that you are writing for lawyers and judges and others who are going to have to apply this opinion and live under it. Remember all that. Now, if you think that this majority opinion is wrong on a significant point, you file a dissent. That happens. That happens in our court. It is the right thing.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Before joining the Supreme Court, Justice Ginsburg said that she felt the Supreme Court judges wrote too many memorandums and held too few discussions. Do you agree with her assessment, and in encouraging consensus in the first circuit, did you find it easier to encourage consensus by speaking as opposed to writing to each other?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is interesting. I agree with her about quite a lot, but not on that. It actually helps to put it in memoranda. It is interesting, you know, in our court, Judge Torruella is in San Juan, Puerto Rico; Judge Cyr is in Maine; Judge Bownes and Judge Stahl now are up in New Hampshire; Judge Campbell and I and now Judge Boudin were in Massachusetts; Judge Selya is down in Rhode Island. That is where we are most of the time, and we most of the time communicate through memoranda; and actually, the memoranda help, because you start talking about a complicated case in a discussion, and then people get—"I cannot remember exactly; was it this point, or was it that point, and what did I actually think about it?"—and before you know it, the discussion gets a little confused. But if you get into the habit of do not worry about your English, do not worry about it being perfectly phrased—if you have an idea, put it on a piece of paper, sit there, write it out, send it around. And you get into the habit of reading each other's views and realizing nobody is wedded, but this is what he is thinking at the moment, and we will change that. That actually helps. So I am more on the side of written, actually, than oral; I have learned that.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, does that give you more of a wedding, though, sometimes, rather than discussing it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; you can discuss it
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. There are a lot of Justices with a prima donna approach, and there are a lot of prima donnas on the bench who 203 have an idea that they have a pride of authorship and a pride of language that is difficult to make them change.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Oh, yes, but you have to get the habit that this is really tentative. You know, another interesting thing is people get into the habit, they have an idea, and the other person incorporates it into the opinion; so you have helped the other person write the opinion. Interesting. That can
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I see my time is up.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. IS that spoken as a former chief justice or as a Senator?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, maybe more as a former justice; I would say that they are not wedded as much around here because it is generally written by staff. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Brown.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you, Mr. Chairman. Judge Breyer, we all admire not only your outstanding record, but your perseverance in surviving this deliberation. We trust that you will be kinder to the people who appear before you at Court than we are to you. I have been particularly intrigued with the opportunity to read some of your writings—I have not read all of them, but I have read some—and to listen to your responses. You strike me as an individual who is not only a legal scholar but as someone who combines it with a scientific approach to examining facts. I sense in you a willingness to go beyond a doctrinaire political philosophy and look at facts in making up your mind. Is that a fair judgment?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Goodness, I hope so. I am a little biased, but I hope so. Thank you.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I think the judge indicated he does not like flattery.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Well, I think we can take care of that, too. But I find it intriguing and refreshing that someone would have that orientation. That scientific, nonideological approach to judging is much needed in our judicial system. You spoke earlier today about the courthouse in Boston. Senator DeConcini addressed the expenditures and walked through some of the factors with you. There were several items that were not covered, and I just wanted to clear those up. First, it would be helpful if you would outline the responsibilities you, as the chief judge of the First U.S. Circuit Court of Appeals, had with regard to that courthouse. What was your responsibility? What did you control and not control?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. We came in—I say "we," because Judge Woodlock of the district court and I were basically the judges' representatives—and we worked with primarily the people in the General Services Administration. And where we entered in the process, the demand for the courthouse—the need for it had been there for many years before I became chief judge, and eventually, through a normal governmental administrative process, the demand led to a GSA study, which led to show the need for the court, which led to funding, all of which goes according to rules, and I think all of 204 the funding was provided according to rules. The amount of the funding is set according to rules, and all that I think was applied right across the board in normal way. Where we really entered was that what Judge Woodlock wanted to do and what I wanted to do was to use with this what I think a perfectly straightforward appropriation for a courthouse that has a straightforward need; could that money be spent in a way that would be of benefit to more than judges and more than litigants and more than lawyers. We had a very attractive site. We spent a long time trying to choose the right architect. We narrowed it to seven. Certainly, I think those seven, most of them would be on anyone's list of the best architects in the United States. Eventually, we chose an architect, Harry Cobb, and I will tell you what he did to us that is so interesting to me. He showed us a picture of a courthouse in Virginia, a courthouse that was built I think in the 17th or early 18th century. And what you saw in that courthouse was not expense. It was made of inexpensive material. It had one room, and it had a portico in front. And in that portico, you could see it was the center of the town. Not just lawyers and not just judges, but everyone in that town would gather there, because that building, as so many courthouses in the 18th century and in the 19th century in this country, in the North, the South, the East and the West, they were symbols, and they were used as symbols; they were used in reality as centers of places. Government is part of the community in many ways, and
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. My question was really more focused on whether you, as chief judge, were the one who made the decision on which architect was hired? Were you the one who made decisions on the plan? What I wanted to pin down was specifically what your responsibilities were in that process.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. We had a committee, and the committee was GSA, and GSA has the legal authority, and the legal authority was always with GSA. But GSA was extremely cooperative, and GSA worked with us and brought the architects in, and we worked together, and we would meet every, single week, and we worked with community groups, we worked with all the groups in the city that had an interest in this. I would call it in practice a cooperative process; in law, it was a legal process under the control of GSA.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. So they looked to you for advice, but for example, you were not the one who set the budget for the courthouse?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; that is correct.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. The newspaper reports indicate a cost of $285 a square foot cost for the building and estimate that it is triple the average courthouse. Are those two assessments correct as far as you know—the $285 a square foot figure, and that it is three times the average of a normal courthouse?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The number—I do not know how they calculated it—but the number that I usually think, which is a GSA calculation, was somewhere around $212, $214, somewhere in that range, and that it was right in the middle of the price of Federal courthouses; that is, there were quite a few more expensive, and there were quite a few less expensive. It is right in the middle range. That is my impression. You could check directly with GSA. They have all the numbers.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. The Washington Post and another one of the Washington papers indicated that the courthouse included a $450,000 appropriation for a boat dock associated with the courthouse.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Does that mean the judges lost their moorings? [Laughter.]
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Well, I think it is probably in the interest of the Senate not to talk about people who have lost moorings. I am wondering first of all if the boat dock was in your recommendations and if it is something you approved of?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. We have no choice. That is to say, it is built on a piece of land that had a boat dock there already, and I think, under the rules and regulations of GSA, that that boat dock must remain suitable for water transport. It was going to be used for public water transport in the city. The hope, I think, of GSA there is that this could be used for public water transport of all different sorts; the Park Service might use it. But the requirement that it be restored and retained was there under normal rules and regulations. We had no choice about that.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. And $789,000 for original art work?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In every public building under the rules and regulations of GSA, I think under the Senate and congressional law, one-half of 1 percent, I believe it is, of the construction budget must be set aside for works of art, and this was done according to that rule, regulation and law, and I think it helps that.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. $1V^ million for a floating marina?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That must be the same as the first.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. In combination with the dock.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There is only one dock there. There is only one dock, and that is a restoration of the dock that was there already.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you. Let me draw your attention for a moment to an interesting area of law. With your broad experience, you ought to have some interesting comments for us. We have been fortunate enough to pick up some of the tenets of common law as we develop our own law. One of the more interesting common law concepts that Blackstone recited in his works is the idea that the sovereign can do no wrong, or the king can do no wrong. It has been modified over the years. The British have found areas where they make exceptions to it. The Framers of the Constitution found something in this concept to model on, and they created areas of congressional immunity. The Constitution, in the speech and debate clause, seems to grant Congress some immunities. We have also exempted ourselves from a variety of statutes, whether it is civil rights, or OSHA, or fair labor standards, and a variety of others. Over the years, I have seen disclosure requirements simply ignored when Members of Congress did not comply. We have made some progress in the last few years in changing this. The U.S. Supreme Court said in U.S. v. Lee in 1982 that no man is so high in this country that he is above the law. I want you to reflect for a moment on what you consider to be the constitutional basis for legislative immunity from the law. 206
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The most obvious place is the speech and debate clause. Let me see if I can find it readily. But the speech and debate clause does basically mean that you, during your speeches and debates in the floor of the Senate or in the House of Representatives, have an immunity, and that immunity, for hundreds of years, has been seen in the law not just as a protection of you, but as a protection of your constituents, those who vote for you, to make certain you are completely free to say what you want on the floor of this House. That is protecting them, and I think that you are protected in order to protect them.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. DO you see exemptions other than relating to speech and debate that would exempt us from criminal prosecution or civil legal action if the underlying action is not related to speech and debate and not related to a specific exemption in law?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In the Constitution itself, I cannot—nothing immediately comes to mind. There may be a range that I am missing, that just is not coming into my mind, but that I
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I appreciate that sometimes we are hitting you cold with these things, and you need time to reflect.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. What basis you find in the Constitution for judicial immunity.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There is a judicial immunity. It is well established that there is a judicial immunity from suit. Whether that is a constitutional basis, many of these—what I do not know in answering your question, since that is such a well established thing, and how interesting you ask me a question, something I know, basically, that that is well established, and you are saying does it rest on the Constitution, or does it just rest on this long tradition that was a common law tradition and then picked up in the Federal system—that is a good question, and I do not know the answer to that. I do not know the answer to that.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Obviously, our practices are somewhat mixed, because they rest not only on the Constitution and the common law, but specific statutes as well. In Nixon v. Fitzgerald, the Court considered Presidential immunity. The Court decided that the President has absolute immunity from civil damage liability arising from his official acts, in the absence of explicit congressional action indicating the contrary. What do you consider the constitutional basis for Presidential immunity.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not know how article I and article II really interact with what this long tradition has been. There is a famous statement by Learned Hand—and now, having referred to it, I am sure I will get it wrong—but basically, he talks
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. He is not here to contradict you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER [continuing]. That is true—but he talks about this tradition of immunity and explains it very well how many officials do have immunity, and the reason—a policeman, for example, in certain areas, or prosecutors in certain areas, or judges—the reason is basically to permit a public official to act so that Government can function without thousands and thousands of lawsuits; then, what is the nature of the immunity, and under what circumstances, and is it qualified, and where is it absolute. Those are 207 the subjects of dozens of cases, dozens and dozens—indeed, we have had an awful lot in our circuit arising—a lot of them have arisen in Puerto Rico, actually.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. DO you see an immunity for the President that extends beyond his official acts?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That, I do not know.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. DO you see a basis in the Constitution for the President to order a Federal judge to dismiss a private suit filed against him if that suit is not related to his official acts?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Those are the kinds of questions that have never come before me. If they ever came, I would read the briefs, consider the arguments and think about them, and try to get the correct decision.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I can appreciate that as a proper approach and one we would hope you would take. My question is, Do you know of a provision of the Constitution that would grant the President the power to order the dismissal of a suit against the President if it did not relate to official acts?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There are the cases that I know and the cases that I do not know. The cases that I do know—as you began, I suddenly realized that while I am quite familiar with a lot of law involving immunity, I have never had to face the question, or never thought through, or it has never arisen, what the constitutional, common law, or statutory source is for the fundamental immunity. And then the area I do not know really at all, because it has never come up, is this question involving the President.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you. Let me refer you now to the field of property rights. You have talked with several members of the committee about property rights. One of the intriguing things in this area has been the phenomenon of the classification of some rights as being property rights and some rights being personal rights and, in our discussion of them, separating them into different categories. My own perspective has been that it is very difficult to separate the two; it is an artificial distinction. Someone's ability to own property is a personal right in that someone's person is affected by what happens to their property. Whether you would agree with me that that is an artificial distinction or not, I want to direct your thinking to the different ways we treat specifically enumerated rights and other rights that are unenumerated, or implied by the Constitution. The fifth amendment is an enumerated right that prohibits private property from being taken for public use without just compensation; or article I, section 10, "No State shall pass any law impairing the obligation of contracts." Those are rights spelled out specifically in the Constitution. They tend to relate to property rights. Then there is another set of rights that are implied by the Constitution, under the due process clause for example. We apply different tests to these rights. Specifically enumerated property rights in substance get a lower test or lower protection than some of the unenumerated rights which are not even mentioned in the Constitution. In the Dolan case, the current Court had an interesting phrase; I will read it to you: 208 We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to the status of poor relation in these comparable circumstances. What are your thoughts on the sentiments that quote expresses?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not think I see these things in tiers. I think I see, or at least I start out by seeing—and I might learn more later—but I start out by seeing the individual words of the Constitution that start talking about rights as trying to identify certain basic values or clusters of values, and those values are obviously different, and they lend themselves to different kinds of potential regulation or State interference, depending on what they are. But you, I thought, said which is there is a sense in which a person's own personality can be mixed with a material thing—think of your old sofa, or mine, or our house; we live in it for a while, and think of how it becomes part of us. And there is something in also being able to earn a living that is terribly important to everyone. And those kinds of things—what the Court said in Roth—it is the purpose of the ancient institution of property to protect people in those rights which they rely upon in their ordinary lives. You see, it is driving at something that is important under that term property—a different thing than under free speech and so forth, but still something that is important to people. How that interacts with the needs of the rest of society to function will be different, because it is a different kind of thing. That is why the Constitution does not enact some particular theory of the economy. That is why the Constitution recognizes, and Holmes, again, recognized, you know, the need, that it is perfectly necessary for the Government to say to a coal mine operator: Coal mine operator, you must leave columns of coal in the mine so it does not collapse. That is called regulation. Balancing what is at the heart of the matter in the case of property and the need for society to function through regulation is different in that area than in some other area, but that is because different things are involved, and because, quite clearly, as we said yesterday, no particular theory of the economy is written into the Constitution.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, would you yield on that point?
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I would be glad to yield.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We do not balance in the same way whether or not a black man or woman can move into a neighborhood.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; absolutely not.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Explain the distinction, please.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There is a basic promise of fairness written right into the Constitution in the 14th amendment.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO there is a tier—the Senator's point is correct, though—there is a tier.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Seen that way, there is a tier. Seen that way, there is a tier. Seeing—you start talking about taking away a toothbrush—I am saying there can be something basic, but there is a tier, of course.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And you do see that tier?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; I do.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK. Thank you. I thank you for the interruption. 209
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I wanted to go back to an aspect of this, but you have intrigued me with your response. As I understand it, you have talked with leaders of other countries who are in the process of drafting constitutions. You observed that not only was the Constitution important, but the customs and traits and accepted practices were perhaps equally as important. Do you look to those in helping to determine what the Constitution means when you interpret it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The way in which people live and how they live— yes. The basic values in the Constitution are supposed to apply in this society.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Perhaps there is no alternative. Perhaps that has to be part of it. I am wondering how is it that some specifically enumerated rights have received a lower level of protection than a number of unenumerated rights have received. How do you justify it in your own mind if you look at the Constitution?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, if you are thinking of—I think the answer I gave yesterday is an easier way for me to make the point. What I had said—when you say that, when I see directly what you are thinking about, it seems to me what you are thinking about is the protection accorded property as compared, say, to the protection accorded free speech. And I think what people learned over the course of time was that when the Supreme Court in the early part of this century began to say these are exactly the same thing, they ran into a wall. And the wall that they ran into was it will not work. And the reason that it will not work is that when you start down that track, you see that what you are reading into that word property is a specific kind of economic theory, the very kind of theory that Holmes said the Constitution did not enact. And therefore the Constitution being a practical document has of necessity given the Government greater authority to regulate in the area of property than it has given the Government to regulate in the area of free speech. That I think is the simplest way to look at it. That is how I look at it.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. And that is a line of reasoning that you are not uncomfortable with.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; I think that is well-established. I think it would be—I mean, I do not know that everyone accepts it—but it seems to me a rather traditional—that does not mean there is no protection for property, as you point out. There are specific parts of the Constitution that deal with it.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. YOU have talked with several Senators about religious rights. I am intrigued that the effect of our rulings has been not simply to protect people's right of religious freedom, but seems in some cases to have gone to the point of protecting people from religion—that is, restricting an ability to give a prayer at commencement and so on. In effect, we have almost elevated the cause of an agnostic or an atheist to a status above someone who has a religious belief. How do you view the rights of agnostics or atheists to impact a public ceremony where a prayer is at issue?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. These cases have to rise under the establishment clause. I will stay away from any specific case. I think it is fairly well established as case law that the establishment clause means 210 at bottom that the Government of the United States is not to favor one religion over another, nor religion over nonreligion, so that people's area of personal belief is their area. They can practice it themselves, and they should, and it is terribly important, and they certainly can pass it on to their children, and that is terribly important. But persons who are agnostic, persons who are Jewish, persons who are Catholic, persons who are Presbyterians, all religions, all religions and nonreligion, too, is on an equal footing as far as the Government is concerned. That is the basic principle. How you apply that, how you apply that is often complicated, because everyone believes, everyone believes, I, and I think I am not alone, that religion itself, a church receives some assistance from the State. No one is going ^o allow the church to burn down, without sending the fire department. And there is a whole range of assistance that churches can receive, and properly so. Then when does that cross the line to become too much, to become a kind of government establishment? That is what the cases in the Supreme Court try to address.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. When the Court rules that you cannot offer a prayer at graduation, doesn't the Court find itself in a position where it is choosing between religious beliefs and an atheistic belief? Doesn't the Court find itself favoring one over the other, once it makes decisions in that area?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, certainly people have written and talked about the very kind of problem that you raise. As I see that kind of problem, it is not a problem of aiding a religious institution. Really, it is a problem of a secular institution and the extent to which you can inject religion into that secular institution, at one point, is it de minimis or really why not, and so forth. I think as the Court has approached that, it has approached it with a recognition that the great religious wars of 300 years ago were fought over not just the religious principle for an individual, but also the right of an individual and his family to pass on his own principles to the next generation, that is over teaching. And so it is not surprising to me that the rules become stricter and stricter, the more the education of children is involved. And that is how I see what has happened in the Court, and I understand that there are difficult line-drawing problems.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Let me follow up just briefly on that. One of the fun things that I do during the regular school year is teach a class at Georgetown, to graduate students. It is a fascinating time. They are very, very bright young people. I learn a lot from them. But one thing I find is their sense of history, their sense of background, frankly, is not up to their abilities in other areas. I suspect that because some want to avoid any potential problems with an establishment of religion question, that society's response has been to simply ban or restrict or prohibit or not teach anything relating to religion. In other words, out of fear of someone accusing them of fostering, or pushing, or assisting a particular religion, we have almost banned the discussion of religion, religious backgrounds, and religious history from our curriculums in school. 211 Is this what you think is necessary to prevent the establishment of religion?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Teaching history of religion, teaching history, history which involves religion, I do not know of any opinion that says you cannot teach history. The question suggests to me what I very much believe, which is the importance of clarity, the importance of the Court making clear and separating what can be done from what cannot be done, and understanding that a Court opinion is going to be read by lawyers, other judges, school administrators, and those who have to live under it. And what your question to me suggests is a concern that people take an opinion that says don't do X, and then they incorrectly interpret it to say we can't do Y. I think that that shows need for the kind of clarity that will allow people to do what they are permitted to do.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I think you have hit the nail on the head. You have described exactly what has happened. There are many who are concerned that the way the Court has interpreted the establishment clause in this country has led to a government establishment of secularism. That is not my interpretation of what the Constitution means.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, you have hit the time over the head— we are over a few minutes.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you, Mr. Chairman. I will wind up with that. If the judge has any comments on that particular observation, I would appreciate it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, what we will do, we have gone now for a little over an hour and a half, we will break until 12. Before we do, let me explain what we will do after that. The schedule, after consulting with my colleagues, is that we will then come back and go from 12 until 1, with Senators Simon and Cohen, and then from 1 until 2 we will break for lunch, and we will come back. If Senator Pressler is able to be here, we will start with him. If not, we will then go to Senators Kohl, Feinstein and Moseley-Braun, last, but not least, and then make a judgment of how we will proceed from there. So we will now recess for 6 or 7 minutes until noon, and we will come back with Senator Simon. [Recess.] The CHAIRMAN. The hearing will come to order. Welcome back, Judge.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I now yield to Senator Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. I might mention I speak with some prejudice, because back in 1972 I lost a race for Governor in Illinois, and in the spring semester of 1973,1 was a guest lecturer at Harvard and met a young law professor and his wife and, as I recall, two of the three members of his family sitting here. I was very impressed then and have been impressed through the years. 212 I would like to enter into the record the letter from John Frank on the whole question of ethical conduct. John Frank has testified before us on several occasions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think on every occasion we have ever had a nominee.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. That is just about right. It makes very clear that Judge Breyer's conduct has been within ethical bounds.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be placed in the record. [The letter referred to follows:]
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. There is one question that has not been clarified completely in connection with Lloyd's of London. You have talked about the dates, and in 1988 you started to close those ties, and in the 1970's purchased your interest. What is not part of the record, and I think should be clarified by you for the record, is that you were not on the court when you purchased your initial interest. Is that correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct, and when I became a judge in 1980,1 disclosed it to the committee. That is correct.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. But the purchase was not at that point. It is interesting that next to the first amendment, the amendment that has come up for questioning and referred to more often than any other is the ninth amendment. One former appellate court judge has called it an ink blot on the Constitution. You referred to the history yesterday. James Madison originally had 12 amendments he wanted on the Bill of Rights, but in sending them around, he sent them, among other people, to Alexander Hamilton, and Alexander Hamilton said if you spell these rights out, people say these are the only rights people have. And so the ninth amendment was added, which I think is an extremely important amendment. We had a nominee before us a few years ago who said the ninth amendment says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. And he said that when they say "retained by the people," that the Framers probably meant retained by the States. That is a very different meaning. And as you look at the following amendment, the 10th amendment, it differentiates between States and the people. What is your construction? When the Constitution says "retained by the people," what does it mean?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Retained by the people, that is what I think it means.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. Right. Then when it talks about unenumerated rights, how do you, as a Supreme Court Justice, how do you determine what those unenumerated rights are?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. A very good question. It says that there are others. It says don't construe the Constitution in such a way to deny the existence of others. The word that protects the others is the word "liberty" in the 14th amendment. What is the content of that word "liberty"? The general description given by Justices like Frankfurter or Harlan and others, those rights that through tradition our people view as fundamental. That is a phrase used. Concepts of ordered liberty, that is another. Over time, the precedents have achieved a virtual consensus that almost all the rights listed in the first eight amendments are part of that word "liberty." And almost every Justice has said that there are others, sometimes described as rights of privacy, and in various other ways. Where does it come from? In deciding how to interpret that word liberty, I think a person starts with the text, for, after all, there are many phrases in the text of the Constitution, as in the fourth amendment, that suggest that privacy is important. 223 One goes back to history and the values that the Framers enunciated. One looks to history and tradition, and one looks to the precedents that have emerged over time. One looks, as well, to what life is like at the present, as well as in the past. And one tries to use a bit of understanding as to what a holding one way or the other will mean for the future. Text, history, tradition, precedent, the conditions of life in the past, the present, and a little bit of projection into the future, that is what I think the Court has done and virtually every Justice. That is not meant to unleash subjective opinion. Those are meant to be objective, though general ways of trying to find the content of that word.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. But the subjective enters into this, and there is what Learned Hand called the spirit of liberty that has to pervade things.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. I do not mean to be putting words in your mouth, but yesterday you talked about borderline cases, and that is what you will be deciding to a great extent, will be borderline cases. When we get to borderline cases in this area of liberty, it seems to me if we are to err, it should be on the side of freedom. You are nodding your head, but that cannot get into the record here.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU do not want to err, but you have to understand—I do have to understand, and I think everyone understands that the Constitution was written to protect basic freedoms, which are basic values, which are related to the dignity of the human being. That dignity of the human being is not something that changes over time. The conditions that create the dignity may change. The needs of the country for whatever conditions that will permit the dignity may change, but the dignity is what stays the same. And how to interpret the Constitution, that is the challenge. That is the challenge.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. YOU have answered in response to several members on questions of religious liberty. It has been about 5 years since you have had to make a decision in this arena.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. YOU have relied on the Lemon criteria, the Lemon case, which the majority of the Court has relied on for some time, and I believe are basically sound criteria. But there are two members of the Court who differ with that conclusion. Obviously, you cannot indicate how you might rule on anything, but since you have used the Lemon criteria, you are familiar with it. Do you find the Lemon criteria basically sound criteria in line with the spirit of the first amendment?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What I have always thought is that perhaps the disagreement is a disagreement more about communication than it is about substance. The Lemon criteria say look to see if the Government has as its purpose aiding religion. Look to see if the effect of the statute will have a substantial aid to religion. Look to see if the courts or the government becomes too entangled with religion. Those seem to me to be three helps, three things people might want to look to, and that, I would suspect, is widely, widely shared. 224 I suspect the argument comes in when the people want to say, well, those are the only possible things. Are they always determinative? Should it be communicated in the form of an absolute test? Should it be communicated in the form of, well, these things help you identify? That is where I think the area of disagreement likely lies.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. But the basic no excessive entanglement, that there is a secular purpose, and it does not have the primary effect of advancing or inhibiting religion, those criteria are not offensive to you, if I can put it that way?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, no; they seem important criteria, and it seems to me that what will happen—I am guessing here, but I suspect their exact shape, how absolute they are, how helpful the test is, that perhaps is an area of disagreement; but that those are important factors. I suspect—I am suspecting now, because I am not certain—that there is widespread agreement that those are helpful ways of identifying constitutional problems. And there may be other ways, and those ways may not always apply. But that is what I think is the area 01 disagreement. That tney are helpful, I suspect there is a lot of agreement about it. I am not positive.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Jeff Rosen wrote in an article in the New Republic, commenting on Justice Blackmun's departure more than on your ascendancy, but obviously including that, said that for the first time since the 1920's the Court will not have someone who is consistently speaking out for the least fortunate in our society. And I quote him, "Ever since Brandeis, at least one Justice has felt instinctive sympathy for people on the fringe of the political process." If Steve Breyer is approved, which I am confident you will be, will there be someone who will speak for those who are least fortunate in our society?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I hope so. I hope so. I am not—normally, when I write an opinion—and it may be different on the Supreme Court, if I am there. Judge Wisdom gave me some good advice. He said: If you feel you want to write a purple passage because you feel so strongly, write it, and do not use it. Because people want your result, they are not necessarily interested in your feelings. It does make me unhappy when I see an individual who is getting a very bad deal. That does make me unhappy. I think it makes everyone in this room unhappy. And as a judge, mostly what you have as an appellate judge to give to that person is your time and your effort. So if you think that is happening in an opinion or in a case, you can read through the record with pretty detailed care. And if it confirms that is what happened, what I will try to do is set out the facts as dispassionately as possible, for the facts will speak for themselves. And that can have an impact, too. That is how I have approached it.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. In that connection, in the process of writing an opinion, you said earlier today Arthur Goldberg's opinions were Arthur Goldberg's opinions.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, that is true.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Judges are a little bit like Senators. A staff person can write a speech, and we can go over and deliver a speech on the floor of the Senate, and it may be very little of the Senator. A judge can have a clerk, for all practical purposes, write the opinion. 225 I am interested in knowing how you go about writing an opinion. Are the opinions that bear your name, are they Steve Breyer's product? If you can comment just on the process because—and you mentioned one other thing that is important, and perhaps because of my background in journalism, every once in a while I read a court decision that is so lacking in clarity, it is baffling to people who read it. I would be interested in the process you go through in writing an opinion.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. For better or for worse, my opinions are mine. I do sit at the word processor. I do spend most of the day at the word processors. I have learned the life of a Senator is different, and I have learned some of the pressures that you are under. That is not the life of a judge. Both the job itself—when I write an opinion, I have my law clerks read the briefs before oral argument. I read the briefs before oral argument. We sit down and we discuss the case. I send them off to get any material I think will be relevant, like a statute that I want underlined because I want to be able to read it if it is key to the parties at oral argument. At the oral argument, you listen to both sides. And, interestingly enough, most judges will tell you that the oral argument matters. The law clerks often think it does not. But it does to the judge, because the attorneys know their case a lot better than I do, and you learn what is important to them. Afterwards, when the opinion is assigned, I will send my clerks out to do a long memo, and I tell them we both can do research and we both can think. But in a pinch, I will do the thinking, you see. Their job is to get that research done. And they get it done. And they come back in whatever form they want, a draft, a memo, whatever. I take that. I read the briefs. I do not want them to follow what they think I think. I want them to give me extra input. Then I take their input, I take the briefs, I take the record. I sit down at the word processor, and I write a draft. That draft is then given back to the clerk, and we go back and forth like an editing process. And, eventually—I would say it is rare that it is less than 3 drafts; on occasion, it has reached maybe 25. But, eventually, we reach an opinion, a draft, which is basically my draft, edited, reedited, reedited back and forth maybe four, five, or six times. That is the process. And I have to be completely comfortable with every word in my opinion before it goes out for circulation to the other judges.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And that strikes me as a very good process. Do you intend to follow that process if you are approved by the Senate?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do; yes, I do.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. We face a problem occasionally, a question on whom does the Constitution and the law protect. One of the worst decisions in the history of U.S. Supreme Court was the Korematsu decision which in large part dealt with Japanese-Americans, but also dealt with those who were in this country legally but not American citizens. We tend to face these problems in times of national passion. When our hostages were held in Iran, President Carter issued a di- 226 rective that Judge Green said was contrary to the law, that the Constitution protects those who are here as guests of our country legally, as well as American citizens. The appellate court—and, again, a little bit like the Korematsu decision—in a time of passion ruled 2 to 1 against Judge Green. I happened to think it was the wrong decision. But you have a decision in the case of U.S. v. Maravilla that touches on this a little. I am interested in your perspective. Does the Constitution, do our laws protect not just citizens of the United States, but those who are not citizens who are here legally?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The issue in that case, if I am remembering it correctly, dealt with the word "inhabitant" in a statute. And I think that the reason—am I remembering the right case? Was that the
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I do not remember whether that
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; I think it was.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. It was the case of a courier, someone who was
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The courier, that is it.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. The courier who was in the United States just for a day.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right. That is right, exactly. The question in the case was—so the answer to your question is yes, because the problem with the case arose out of the fact that most of the civil rights statutes use the word "person." And I think it was conceded that if they had used in Congress, when they enacted that, that word, there would have been protection for the courier who came in in this case. The problem was that in a particular provision they used the word "inhabitant," and so could you say—and that was the legal issue. Could you say that a person who is only here for 2 or 3 hours, who is coming in as a courier and just leaving, was an inhabitant? And that was what created all the agony and the difficulty in the case. But I think it was conceded by everyone that if Congress had used the word "person"—and Congress does normally use the word person—there would have been protection.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And as far as you are concerned—first of all, I would be interested in your reflections on the Korematsu case, if I may.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course, I think when there are pressures of that sort, that is the time for a judge to stand up. I know it is difficult. That is what I always admired about Holmes. Holmes believed lots of deference is due the legislature. Pay a lot of attention to the legislature. Let's have a lot of restraint on the judge's part. But then when the right of free speech was infringed, suddenly Holmes said, That is it, stop. And he stood up, even though it was in dissent. So I think that is important in the case of a judge. The irony about Korematsu, of course, I have always thought— and I have rather always admired Justice Murphy's opinion. I think it was Murphy. Because the majority was obviously worried in the case because it was a time of invasion or people were afraid there would be an invasion from Japan. And so the Court was saying, but could we as a Court really stand up to the public with the 227 military and people worried about invasion? And that led them to interpret the law a certain way. And what Murphy said was, wait a minute, I think this is 1944. That is not 1941. Nobody thinks we are going to be invaded now. So what is going on here and now. And if you want to say the law might have been different then, say it. But what is going on right now? Now, I may not remember that correctly, but I have always thought that that was an important view because it says do what you can. Even if somebody did something wrong before, that is no need to follow it. He was in dissent, unfortunately.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Your recollection is correct, and one of the ironies, as you look back on this history, one of the people who said that we should not issue that directive of February 1942 was J. Edgar Hoover.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. One of the persons you would least expect to do that.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. But your point that a judge should be willing to do what is unpopular, just as Senators should be willing to do what is unpopular, tell me something in the background of Judge Breyer that indicates a willingness to stand up to do what is unpopular.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Nothing that I could compare with those really dramatic figures of the past. But many of the things I was engaged in here—well, you listened to the discussion about sentencing guidelines, or listened to some of the discussion about the airline deregulation, or listened to the discussion about the book, and you would not think I was moved by popularity in order to get into that. But some of instances in the Commission or some of the instances that occurred here are ones where I think people who knew me at the time would say you can push me to a point, but not beyond. Not beyond. And once you get to that point, well, that is what it is. That is what it is.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And if we get to the point where the popular passion is on the one side and the Constitution is on the other
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is the Constitution.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. There is no question in your mind where Steve Breyer
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There is no question. That is what judges are there for. That is why they are independent. That is why they are there.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mandatory minimums has been talked about a little bit here. Senator Heflin and Senator Kennedy, and I believe Senator Brown also asked about them. You are correct. This is a legislative responsibility, but it is also true that sometimes we need judges to stand up and tell us to do what maybe we even instinctively know is the right thing to do, but we get caught up in this desire to do what may get us a few votes in the next election rather than what is desirable. I just read yesterday a statement by Norman Carlson, you may remember, former Director of the Bureau of Prisons under Democratic and Republican administrations. 228
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I do.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Highly respected. He says—this is in testimony before the House: I believe that most individuals who seriously examine the Federal criminal justice system would conclude that minimum mandatory sentences have produced results which have not served the public interest and are costing the taxpayers a tremendous amount of money. I happen to concur with that. Chief Justice Rehnquist has spoken out on this. You are in a situation today, these 3 days, where you do not want to offend any of us, and I understand that. I hope the time will come when you may think it appropriate, if you feel a situation is one that is deteriorating, where you will feel free at some judicial conference or on some occasion to speak out on this issue. I just pass that along because I think this is an area where we need the judiciary to speak to us.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. If the Senator would yield, I believe Justice Scalia is doing that on a frequent basis.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And I welcome that, even though in the case of Justice Scalia, I differ with just about everything he has to say. But I do think that you should not be—if you see a need, you should feel free to speak out on it without entering into partisan politics. You mentioned also in your opening statement—I thought it was an excellent opening statement—that it is important for a judge to be connected to the outside world, to understand the real world. That is not easy for an appellate court justice. It is even more difficult for a Supreme Court Justice. Have you thought about how, as a member of the Court, you can maintain contact with the real world? I mean the world that suffers.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Indirectly, of course, Joanna works with these people all the time at Dana Farber, in the cancer hospital. Directly, people have real problems, real problems. Justice Blackmun tried to work out ways of doing that. On my part, the will is there, and I have worked out some ways of doing that where I am in my present job. In the new job, if I am confirmed, the will being there, I would look for the possibilities, and I would have to try to work out what I can do and what not. I would try to do my best to get out a little bit of what I call the cloistered chamber. I have been fairly imaginative, I think, at finding ways. So I suspect I will find them.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And I really think that is important, and meaning no disrespect to those cancer patients, I think it means more than that. I think it means reaching out to people who are unemployed, who are hurting in our society. And somehow, because of our system of campaign contributions and everything else, we are not responding to them as effectively as we should. This is not something you are going to have to decide in a court, but since your present jurisdiction includes Puerto Rico—and you are testifying before us—my observation has been that on the legislative side and on the executive side, Puerto Rico gets the short end of the stick, for obvious reasons. There are not two U.S. Senators representing 3.7 million people. And so when we go through 229 everything from minimum wage to health care legislation, to you name it, it becomes very easy to ignore that side of things. And in terms of appointments to the executive branch, again, Puerto Rico gets the short end of the stick. And this is true in any administration. I am not faulting this administration. We have a system that we call a commonwealth, but it is a colonial system, and one of these days Puerto Rico either is going to become a State or is going to become an independent nation. But you have a chance to observe the judicial side, and my impression is that the deficiencies we have on the executive and legislative side, as far as Puerto Rico is concerned, are not there to the same extent on the judicial side. Is that accurate? Or any observations you have in terms of how we are serving 3.7 million Americans in Puerto Rico in the judiciary, I would be interested in hearing them.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It has been an enormous privilege for me to have had Puerto Rico in the first circuit. You have no idea what a pleasure, a privilege, it is. Puerto Rico is part of our circuit, and after 14 years, I feel part of Puerto Rico. That is the sort of place it is. I mean, you are part of it. It is wonderful. And I think that the need, the obligation, to pay attention to the people there is an important one. Their judicial system is an independent system. It is a fine system. It is a system that rests on the civil code, as does Louisiana, rather than the common law. We have a special obligation in the courts to become familiar with that code so that in diversity cases, we can get the law right, as the Supreme Court of Puerto Rico would decide it, and we try to fulfill that obligation. I think on the judicial side, as well as on the executive side and the legislative side, I feel both emotionally and logically and in every other way that it is very important to pay attention to the people of Puerto Rico. They are part of us; we are part of them.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Let me just follow up very briefly. But in terms of our service to them on the judicial side, are we providing the same service to the people of Puerto Rico that we would to the people of Massachusetts or Illinois?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The Federal district court there I think is. It is a fine Federal district court. There are seven judges. I think that it is an excellent court, and the facilities are supposed to be in every way—and as far as I know, they are—comparable. There is also a different—an independent commonwealth system of courts, which we as a Federal court interact with, because we get to know the judges, and we understand their work, and there are cases that go back and forth. But that seems a fine independent system. But our Federal court system in Puerto Rico with its seven judges in the District of Puerto Rico is a fine system. The present chief judge, a woman, Carmen Cerezo, is an excellent chief judge, and there are some vacancies down there now which I think are in the process of being filled.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I thank you. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is always a source of debate among Puerto Ricans, who are American citizens, as to whether or not the Federal courts are sensitive enough to their Spanish culture. As you 230 well know, one of the issues in every plebiscite that has been discussed is whether or not the courts should be Spanish speaking. Federal courts are not; State courts are. It is a big deal, it is a big issue. So the Federal courts do not in the eyes of most Puerto Ricans meet the needs of Puerto Rico in the sense that they do not take into consideration the Spanish culture, which the rest of the Government of Puerto Rico and the rest of the court system does. And it is always used as one of the red herrings in the debate that takes place on statehood. And it is nice to hear that you have joined the Republican Party, because only the Republican Party has suggested statehood for Puerto Rico. The Democratic Party has not. I happen to think you are probably right. But it is a very convoluted and controversial and emotional debate, and the plebiscite last time was perilously close, depending on how you view it. But the Federal courts are a main source of contention in terms of whether or not they are Spanish speaking. They would be the only Spanish-speaking courts in the Federal system were they allowed to be, and as you know, they are not. I yield to my friend from Maine.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. On that note, perhaps I should begin by saying, Como esta usted, Mr. Chairman. [Laughter.] Yesterday you indicated that you were leery of flattery, so I will dispense with allowing any to flow from this side of the bench, but I might say that I found you to be enormously forthcoming, in stark contrast to some of the nominees who have come before this committee in the past. On my first day of law school, at the conclusion of the day, my law professor said that any connection between law and justice is purely coincidental. I thought he was engaging in some sort of professorial cleverness at the time, until I went out to practice law, and I found, as I started to lose all my cases, that I had justice on my side, and my opponents had the law on their side. I raise this in connection with Judge Hand, of whom you are a great fan. I was looking through his book, "The Spirit of Liberty," and he was talking about his relationship with Holmes, whom you are also a great devotee of, in terms of his writings and decisions. And Holmes used to frequently say, "I hate justice." Of course, Hand would go on to say he really did not mean that, but he tried to make the point that on one occasion when they were driving in an automobile past the Supreme Court, when Holmes was going to a weekly conference, Hand tried to pique him a little bit, and he said, "Well, sir, goodbye. Do justice." Holmes turned around and snapped at him and said, "That is not my job. My job is to play the game according to the rules." I listened to your opening statement about the need for the Justices, the court system, to strike some sort of a harmonious balance in the lives of such a diverse population, to preserve liberty for as many as possible, all if possible. At no time did you say that you intended to do justice. I take it that your reluctance to do that was the same for Holmes as well, of not seeking to do justice in the 231 sense of intervening into an area that was properly before that of the Congress or the State legislature. Is that how you would interpret Holmes' statement that, "My job is not to do justice, but to play the game according to the rules'?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In part, yes, but I think that Holmes means more than that. I think Holmes—and it is another reason I do admire him—I think that he sees the rules from the time he wrote the common law up through his Supreme Court career, I think he sees all this vast set of rules as interrelated. And I suspect, although I am not positive, that he sees ultimately the vast object of this vast interrelated set of rules including rules that say whose job is what as working out for society in a way that is better for people rather than worse. I suppose when you say "Do justice," or you say, "No, no; I am just following the rules," what you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of other cases. That is why I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules, removed from human problems, and it will not help. If you do not have a head, there is the risk that in trying to decide a particular person's problem in a case that may look fine for that person, you cause trouble for a lot of other people, making their lives yet worse. So it is a question of balance, and I would say both.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Judge, yesterday, you indicated that the black robe had great symbolic significance, that when you placed that robe around your shoulders, you were no longer speaking as an individual, and that you would convey to the litigants that the decisions that were reached or rendered were done so irrespective of personality, the personality of the judge. And then I think you quoted Hand's speech about Cardozo in describing a judge as a runner who is stripped for the race. I was interested in that, because Hand himself has written, in this wonderful biography of Gerald Gunthers—he says, "A man does not get to be a Justice of the Supreme Court chiefly because he can detach himself from the convictions and prejudices of his class or his time." Furthermore, Justice Cardozo, in his wonderful book, "The Nature of the Judicial Process," also said, "In the long run, there is no guarantee of justice except for the personality of the judge." So both Hand and Cardozo would seem to contradict the notion that once you put on the black robe, you in fact are one of these blind oracles that simply dispassionately rule upon the law. I mention this in connection with who you are as a person. I think that one of the goals of this type of hearing is to try to gauge you as a person. In that connection, again I would turn to Hand, because you have turned to him so many times during the course of these proceedings. Hand said, I venture to believe that it is as important to a judge called upon to pass upon a question of constitutional law to have at least a bowing acquaintance with Acton and Maitland, with Thucydides and Gibbon and Carlyle and Homer and Dante, Shakespeare, Milton, Machiavelli, Montaigne, Rabelais, Plato, Bacon, Hume, Kant, as with the books that have been so specifically written on the subject, for and the key words 232 in such matters, everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. I think that is a terribly important statement that Hand made, and I have listened to the introductions that were given yesterday on your behalf, and I know that you are a learned individual who has studied Spanish and is fluent in French and apparently reads about architecture in his spare time and quotes from John Donne. If I went into your library and asked you to point at the 10 most important books that you have there, what would you point to?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Oh, my goodness.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. By the way, Holmes had 14,000 books in his library at the time he died.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. My goodness. My reading—people may exaggerate this a little bit in respect to me—my reading is not like the list you just read.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. But the point that I make
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Where do you start? I mean, tell me your favorite books—where do people start? They start with Shakespeare. They say, "Why Shakespeare?" This is what I tell students. A lot of them come from some different school, and they will come from someplace, and they ask, "What is in Shakespeare for me?" You say, well, if you are willing to put in the time, it is a little bit archaic, the language, but if you put in the time, what you see there is you see every different person, you see every different kind of person, you see every situation there is in the world. You see people saying things that they would say if only they had that ability to say them, and you see the whole thing in poetry. That is why people turn to that, and they turn to that a little bit in literature to get some of the things that Senator Simon was talking about, I think, which is what is in the heart of that person who is leading that different kind of life. And sometimes you can find some of that in literature. I like Conrad very much. Why? I think because I am moved often by the way in which he talks about the need for people—all of us— to learn from the past and then to give something to the future, whether that is through our families or whether that is through our careers. We do learn from our parents. We do learn from the past. We do try to transmit things of value. And I think he finds value in human communities. I think he finds human communities to be, ultimately, the source of obligations and values toward each other. I read something that moved me a lot not very long ago. I was reading something by Chesterton, and he was talking about one of the Brontes, Emily Bronte, I think, or "Jane Eyre" that she wrote. He said if you want to know what that is like, you go and you look out at the city, he said—I think he was looking at London—and he said, you know, you see all those houses now, even at the end of the 19th century, and they look all as if they are the same. And you think all of those people are out there, going to work, and they are all the same. But, he says, what Emily Bronte tells you is they are not the same. Each one of those persons and each one of those houses and each one of those families is different, and they each have a story to tell. Each of those stories involves something about 233 human passion. Each of those stories involves a man, a woman, children, families, work, lives. And you get that sense out of the book. So sometimes, I have found literature very helpful as a way out of the tower.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Judge, the reason I have taken the time to at least touch on this however briefly is that I think that the people who serve on the Supreme Court should be more than those who are simply adept at a sort of mechanistic application of formulas and rules, but who bring to that Bench a breadth of not only experience but of intellect and scope and depth, so that when they render those decisions, they will carry that much more in the way of impact and consequence. I would like to now turn to something more specific in terms of issues that have been raised with you. You indicated before that the death penalty, under certain circumstances, is not cruel or unusual. The Court has ruled that, and you accept that as settled law.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. The question I wanted to ask you, however, is whether you believe the death penalty to be cruel under any circumstances, or only under some.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Oh, I would say it is equally settled that there are some circumstances where it is cruel and unusual; for exampie
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. No, no, that is not what I am asking.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU want my personal view.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I want your personal view, not whether it is settled or not, but what you believe.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason that I hesitate to say what I think as a person as opposed to a judge is because down that road are a whole host of subjective beliefs, many of which I would try to abstract from, because as you have had and I have had from Learned Hand and other great judges, there are some to both sides of this. I was pointing out those things where he says try to be dispassionate. And you must remember that the law that you are trying to find as a judge in your own mind, think that what you have found, you must be satisfied that other people would find the same—not every other person, but lots of other people. Where the subjective belief may come in, and that happens sometimes where it is either relevant to the law, or it is not. If it is relevant to the law, decide it as a matter of law. If you know it is not relevant to the law, then the only time at which it enters is if you think the law is one way, and you think your own subjective belief is the other way, and you feel that you cannot follow what you believe the law to be because of your subjective belief, then do not try; then do not try. You can remove yourself from the case.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Well, the other option, however, is to overturn the prior decision.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, but you see
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I am going to come to this in a moment. We will talk about stare decisis, and I will quote from Holmes about rules that are laid down at the time of Henry IV, and that we ought to have something more substantive than the fact that it was laid 234 down years in the past, so that you do not have the dead hand of the past controlling, and that type of line of argument. But I would like to know your personal view, because that becomes important. You may find yourself somewhere down the line in which this kind of an issue may come up. And the question is are you going to subordinate your personal views in terms of what you believe, what you in your heart—you talked about the mind and the heart—believe to be the right thing to do under the circumstances, whether it amounts to cruel punishment under any circumstances. The fact is you have a choice. You can either, if you feel so passionately about it, remove yourself from the case, or say I think the Court that decided such-and-such a case was wrong, and I am now voting to overturn that. That is another option you can pursue, and a lot will depend upon how you view stare decisis, whether it is a decision that was reached 50 years ago, or 5 years ago, or 5 days ago. But I think that you cannot simply say that, well, I would always apply the rule as established by the Court in 1850, or 1950.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, that is right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. So I think your personal view is relevant in this case, and I do not think you have stated it yet.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true, and I think that the law itself provides ways of departing from past law. There are circumstances in which it is appropriate according to the law to depart from the prior decision. Those have been listed by the Supreme Court recently. You look to the earlier decision and you ask how wrong was that decision. You look to see the ways and the extent to which the law has changed in other related ways. You look to see the extent to which facts have changed. You look to see how much difficulty and trouble that old rule of law that seems badly reasoned has created as the courts have tried to apply it. And then, going the other way, you look to see the extent to which there has been reliance on that old past law. The reason I say this is because I think the law has ways of overcoming prior decisions, and those ways, too, permit a judge to abstract from a belief that he would think is highly personal and not relevant. Sometimes, of course, the belief is totally relevant. After all, if you think there is some terrible injustice, maybe there is. And that is not just an abstract belief of yours. That is not just something subjective. Maybe there is. And if you see there is, that suggests there is something odd about this law that requires thought.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me turn in that vein to McCleskey v. Kemp. You are familiar with that decision.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I want to just ask you to tell us whether or not you agree with the rationale of the five-member majority, or the dissent, characterized by Justice Stevens. Let me just summarize the finding of the majority, that the study that was submitted by the plaintiffs in this particular case at most indicated a discrepancy that appeared to correlate with race, not a constitutionally significant risk of racial bias affecting Georgia's capital sentencing process, and thus did not violate the eighth amendment. So the study 235 in that particular case was given rather short shrift by the majority. In the dissent, Justice Stevens said: The studies demonstrate a strong probability that McCleskey's sentencing jury, which expressed the community's outrage, had sensed that the individual had lost his moral entitlement to live, was influenced by the fact that McCleskey is black, his victim was white, and that this same outrage would not have been generated had he killed a member of his own race. This sort of disparity is constitutionally intolerable. It flagrantly violates the Court's prior insistence that capital punishment be imposed fairly and with reasonable consistency, or not at all. So I would like your opinion as to whether you agree with the reasoning of Justice Stevens or that of the majority.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The case was decided. It is the opinion of the Court. I have not read it with enough care and thinking it out thoroughly to know the rights and wrongs of if I were deciding it afresh, but it would not be afresh, and to be—I know this is a big issue in Congress. I know that you are considering legislation
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Before we get to Congress, I do not want to talk about Congress. I want to talk about the use of statistical information before the Court. For example, in Massachusetts Association of Afro-American Police, Inc. v. Boston Police Department—I believe that was a case you decided in 1985
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN [continuing]. You allowed an affirmative action program to stand because the plaintiff had shown a consistent pattern of discrimination within the department. So there, you found a statistical analysis to be substantive, persuasive, and therefore allowed the affirmative action program to stand.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Now, in that case, Congress is not involved.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. So what I am asking you is if you have the same sort of statistical analysis prepared in a case involving racial disparity in capital cases, does it need an act of Congress, in your judgment, to set the law?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The question of statistics, as I have said, is their danger is that they are not really good statistics and do not prove what they say. That means when you have good statistics, they can be used to prove what they say.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I know you said there are statistics, and there are statistics.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Exactly.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me turn instead to Holmes who, instead of that, said that the history of the law is not logic, but experience; or a page of history is worth more than a volume of logic. Is there no doubt in your mind that there is a deep-seated racism that has existed in this country for many, many years; that there has been great disparity in terms of the capital punishment that has been inflicted upon those who are in the minority versus those in the majority? Has that not been the experience of this country, historically?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Historically, in the simplest way, the Constitution was written; the Constitution provided a limited central government that was meant to secure liberty, and a Bill of Rights was added to guarantee liberty. And one thing was missing. What was 236 missing was what the 14th amendment added, which was a promise of fairness. And what had existed before could not have been more unfair. After that promise was made in the 14th amendment, decades went by before people tried to keep the promise. With Brown—and it is a legal reason, as well as a moral, practical and every other reason—the country decided we will try to keep our promise. It is hardly surprising to me, given the prior situation and given the years of neglect, that it will be decades, decades before that promise is eventually kept. But we are trying, and the trying is absolutely correct.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I come back to the point with the use of statistical information combined with the history of the practice in this country. Do you feel that the Court, in McCleskey v. Kemp, reached the right result?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; and I think you are absolutely fair to ask the question, and I think it is so closely tied up with the particular legislation and the particular political debate, and so forth, that I am uncomfortable with
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me ask you a different way, then. In the event that the anticrime bill passes with the Racial Justice Act intact, which is a big question, does that settle the issue? In other words, is the Court then precluded from examining the statistical viability or accuracy of the information at that point?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There I am stuck, because I don't know. I don't know what the bill says. I am not being coy at this point. It is that I don't really know.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. But you said yesterday that the Congress will decide it and the Court will accept it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The Court then will go and accept what Congress does, and unless there is some constitutional problem—and I don't know, I mean at this stage maybe somebody will come along and say there is one, I don't know what it is—sure, it is up to Congress. I reserve a lot on that, because I don't know what the argument is.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me turn quickly to habeas corpus. This also is a matter of considerable debate here in the Congress. Back in 1988, the Judicial Conference was then headed by Chief Justice Rehnquist, and he commissioned the conference to make a study that was chaired by Justice Powell. Justice Powell concluded that habeas corpus was being used frivolously as a tactic to postpone the imposition of death penalty, rather than review the constitutionality of the trial. There is considerable debate here in the Senate and the House on trying to strike the balance between finality and fairness of the process and between the two issues that frequently come up, namely, retroactivity and full and fair hearing. I would like your view on whether or not you feel the habeas corpus process has been abused to frivolously appeal convictions and delay decisions and sentences. And I know you come from a circuit that does not have many cases which are capital cases.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In our circuit, I have never sat on a capital case. I think the only State that has the .death penalty is New Hampshire, and it has not applied it, at least not in any cases, so I have never had any experience with this in the death penalty context. 237 In the other context, the normal nondeath penalty context, I have no reason to think there is a particular problem. It seems to work OK. It seems to work OK.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. One of the suggestions that has been made is that perhaps if defendants had competent counsel in the first instance, then there would be fewer reasons to have these habeas corpus petitions. I frankly take issue with that. I think a person could have the best counsel possible, and whenever someone is convicted, the first thing they are going to do is file a petition for habeas corpus, alleging incompetent counsel. That was my experience when I was practicing law, and I think it will be the experience from now into the future. But do you have any views about whether having a cadre of professional litigants, defense counsel, would do anything to reduce the flow of petitions for habeas corpus in capital cases?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I really don't, because of my lack of experience in that area. I think that you correctly identified what I think are the two basic considerations.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me turn quickly—I keep saying quickly, as the lunch hour is approaching and past—to the fourth amendment. I am not sure who earlier touched upon the notion of losing perspective on what is going on. But we know that ours has become an increasingly more violent society and, as a result of that violence, we are taking and perhaps compromising some of the rights that we cherish most. Recently—and I will yield to my colleague from Illinois in a moment—to cite as an example: all Chicago public housing leases contain a clause that grants law enforcement officials the right to search an apartment. Interestingly enough, some of the residents who are directly affected favor it most. But I would like to read again from a letter that Holmes wrote to his friend Polly. He said: The tendency seems to be toward underrating or forgetting the safeguards and Bills of Rights that had to be fought for in their day and they are still worth fighting for. I have had to deal with cases that made my blood boil, and yet seemed to create no feeling in the public or even most of my brethren. We have been accountable for so long, that we are apt to take it for granted that everything will be all right, without taking any trouble. Then he went on to note "all of which is but a paraphrase that eternal vigilance is the price of freedom." I mention this, because there is again concern that we are moving into a more repressive area, that because of the violence in our society, the pervasive fear that is generated, we may tend to allow the Government in the form of the police, the FBI, or any other law enforcement agencies to perhaps do things that in the past we would say, hold it, that violates our right of privacy. I mention this in connection with—is it Irizzary, the case that you decided, I-r-i-z-z-a-r-y? Anyway, you will be familiar with it. It was U.S. v. Irizzary in 1982. It involved an individual who was in a motel room.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I remember that.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. YOU remember that case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes. 238
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In that case, the majority held that the police, who conducted a warrantless search, had violated the defendant's fourth amendment rights. You dissented in that case, believing that the defendant had no such right of privacy, or he had a diminished right of privacy by virtue of being, first, in a motel room, and, second, by the fact that he had punched a hole in the ceiling to hide some illegal substance, and, therefore, his right of privacy was not as expansive as it ought to be. I mention all of this in conjunction with what is taking place today, because I think that we are losing sight of the fact of what is happening to our fundamental rights. The case I really want to talk about is the case, if I can pronounce it correctly, California v. Sarola, in which the police were hovering above in a helicopter, as I recall, being able to detect the growing of marijuana at a person's residence, in a fenced-in yard. The court ruled that he did not have a legitimate expectation of privacy under those circumstances, because it was visible from an aerial viewpoint. It raised a question in my mind, as we and Senator Biden and others who have served on the Intelligence Committee have come to appreciate the tremendous technology that is available to us. We can from distant space spot a soccer ball on a field. We can read a license plate from outer space, practically. The impact of technology upon fundamental rights is in danger of being eroded, unless we insist that technology cannot intrude in that area. That is why I was concerned about the rationale in the California v. Sarola case, that the expectation of privacy was unreasonable, because something was observable from an aerial viewpoint. With satellites we can pick out almost anything from outer space now. I was wondering what your views are in terms of this so-called zone of privacy. The First Lady has complained that she had expected some de minimis zone of privacy that might be allowed her, as First Lady, and she found that that was a false expectation. But there is quite a difference between a public person and a private citizen in terms of what is a reasonable expectation of privacy and an era in which technology is proceeding in such a pace that we will approach the Orwellian nightmare that literature provides for us.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Insofar as you are suggesting that you have to remember that privacy is what Brandeis said is the most civil and the most important right of civilized people, and so forth, is a right that really is protected by the fourth amendment against unreasonable searches, unreasonable seizures. Insofar as you are suggesting beware of fixed rules interpreting that, because if you just follow fixed rules, you will discover that technology outdates the rules, and remember to protect the basic value which might be threatened by some kind of technology that we have not heard of, or that we have heard of but we didn't know could get that far. I agree with that.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Could you explain the case, if you can recall
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I do remember. I thought that the case, as I recall it—I might not be recalling it correctly—I think what I was not in disagreement about was the nature of the right. I think I 239 was in disagreement about the circumstance. I think what happened was that there were some police staking out a hotel or a motel, and they looked through the window and they see these people in there with guns that are pointed out. You know, these were some drug guys. I think it was a drug bust. And they were pointing the guns out the windows, so the police said we had better be careful about this. The man was sitting—I think there was one man and he was inside, and they burst in and they found him sitting on the bed and they handcuffed him to the bed, and they looked for the gun and they didn't see it. But the knew the gun was there, because they had seen it through the window. Indeed, in the bathroom, I think up above the toilet there was a hole, and what the police had done is one of them went into the bathroom and reached up and there, sure enough, was the gun. Basically, we were in agreement about the rule of law that the police had a right, even without a warrant, to go look for that gun, if they reasonably thought they were in danger. And the majority thought, no, no, they are not in danger, because, after all, this guy is handcuffed to the bed. I thought, well, a handcuff, you know, a lot can happen. I mean they might say, "I want to go to the bathroom," and they unlock it, he knows the gun is up there, they do not, I don't know how strong the bed is, and so in my mind is that the police were reasonable in thinking that there was a danger, and they knew there was a gun there and so they ought to look for it. In a factual matter, the others came out the other way.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I have exhausted my time, Mr. Chairman. I have other questions in the second round, and I will defer them. Thank you. Thank you very much, Judge.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. With regard to schedule, we have necessarily gone over—Senator Cohen has not gone over, but because of the timing, we did not finish this round at 1. We will come back at 2:15, unless you all want it to be longer. We will come back at 2:30. Second, I would like to ask staff present here if they would survey their bosses to find out whether those who have already had a first round, and four or five have not, whether they have an interest in asking a second round of questions, and, if so, how long. Because I would like, if it is reasonably possible, to finish with the witness tonight, since tomorrow we will go into what I initiated in the last hearing. It is now standard operating procedure that there is a closed session that every nominee who will come before this committee will participate in, where we go over, under rule 26 of the Senate, those matters that we are not able to discuss in public, that is, the FBI report. And we are going to, in every Supreme Court nomination that I chair, go into that hearing, whether we need it or not, so that is the forum in which we will be able to discuss openly, without fear of inadvertently violating the law, the contents of FBI reports. What is in an FBI report, for those of you who are new covering this or listening, every nominee is required to have an FBI report done, and so we are going to discuss that tomorrow morning, which will require the presence of the nominee. But I would hope that we 240 would finish the public testimony tonight. Obviously, there is no need to rush it. If people have second rounds and they wish to go, we will have to go tomorrow afternoon in finishing. So I would ask the staff to check with their principals, if they have a second round. We will adjourn now, Judge, until 2:30, at which time we will come back and begin with Senator Kohl. He has to be downtown at a meeting, but either Senator Kohl or Senator Feinstein.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. [Whereupon, at 1:22 p.m., the committee was in recess, to reconvene at 2:30 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. Welcome back, Judge. I realize it was a short lunch break, but I hope you at least got something to eat. Our next questioner is Senator Pressler.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. NO, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me. Let me make sure I am correct.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. I think my colleague over there
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I beg your pardon. Senator Kohl. I am sorry.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Thank you very much, Mr. Chairman. Judge Breyer, as you know, John Adams once said that we are a government of laws and not men. But this is, at most, a half truth, for ultimately it is men and women who give meaning to the law. And so it follows that character matters, and matters a great deal. Character is not only to be found in the lines of your very impressive resume, Judge Breyer; it is also to be appreciated in the exchange of ideas and values and viewpoints that began yesterday and which we are continuing today. I have first a few open-ended questions that I would like to throw at you. Judge Breyer, yesterday you said that your mother did not want you to spend too much time with your books, and because of her urgings, you said that your ideas about people do not come from libraries. So I want to ask you something about people, the American people, and the problems that we face today as a Nation. And I hope that you will very much take this opportunity to speak openly and frankly, and perhaps not as a nominee for the Supreme Court but as an American citizen who is intelligent and thoughtful and who has, I know, thought long and hard about the problems that we face as a country. Judge Breyer, what do you think are the major challenges that we face today as an American society, our problems, whether it be racism, poverty, crime, or drugs, the growing disparity between the rich and the poor in our country? What are some of our major problems? And as we look ahead, how do you think we are going to face and resolve one or two of these major problems as a society? 241
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think, Senator, this document, which is a kind of miracle, the Constitution, has enabled so many different people in this country to produce a government that is reasonably effective, that is democratic in its origin, that permits them individual liberty, and that moves in the direction of fairness. You know and I know that over the course of the 19th century and the 20th century, our country has become ever more diverse in terms of the groups of people who are here. And the problem at one level is what it has always been: How do these very, very different groups of people manage to live together in a spirit of tolerance, understanding, freedom, fairness, and cooperation that will permit them to build better lives for each other? That requires a degree of trust in government, because government is the people working together to solve their problems. It requires not too much delegation of authority to government, lest that government turn on them and deprive them of liberty. It requires people working together to produce an economy that can feed them all and give them decent standards of living, while at the same time they share the fruits of that economy so no one is left out. What tremendous problems, when there are so many people who are left out. What tremendous problems, when, in fact, we are in a world where we have to work so very hard to have that economy working, producing. What tremendous problems, when, in fact, we are so far from the ideal of fairness that the Constitution prescribes. The ne"ed for trust, the need to compete in this technical, scientific world where it is so hard to produce a productive economy, the need to share around the results so that people are not left out. And to do all that while maintaining the basic liberty that this document promises. Those are all the basic problems that I see underneath your words, the words of crime in the cities, lack of education, groups of people that do not enjoy prosperity, the need to keep jobs so that people are at work. All those are symptoms of what I see as those four or five basic problems. That is a challenge for everyone in government, in your branch as well as in the judicial system. And it is a challenge for everyone who is not in government because every single American—I say "us." We are all in this together. We are all in this together. That is how I respond, briefly, to what you put.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, perhaps you can say a few more words. I appreciate your willingness to talk openly and frankly about this. I think those of us that are listening and watching wonder, other than what I believe what you said is that we must look to the Constitution and try to figure out ways together as a people—and maybe that is what you are saying. Let's talk about the growing inequality between the rich and the poor. That is a statistical measure. It is not an opinion. How do you see us as a society responding to that problem, if you see it as a problem? Again, this is not as a Supreme Court nominee. This is more as a person who may well sit on the Court and may have to confront these questions in a larger way. So maybe as a nominee, but it certainly is as a thoughtful American and as 242 a person who we are all interested in, what are your thoughts in addition to constitutional issues?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not claim any special thought or any deeper thought or any special privilege for thought in this area any more than any other American in this country. Every American is trying to earn a living. They are trying to raise a family. They look out and see a lot of crime in the streets. They see a lot of people who are really badly off. They see promises of fairness that are not fulfilled. They are concerned about their Government. They have to write the check for the car and they have to write the check for the rent, and they have to get their children educated. Life is not necessarily easy for many, many people. And the problem of the country, I do not know, more than that, that is what you would get out of reading a newspaper and out of opening your eyes and looking around. I think that the challenge for us is to try to make that a little bit better.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, there are some people who would look at the statistical difference in terms of wealth between those who are extremely well off and most everybody else in our society and resolve this growing disparity as something that is just a fact of life and that these things come and go. There are some who would look at it and say this is not a positive trend in our country. How would you look at it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is not a positive trend. I have known—some people are better off than other people. I understand that. And those who are better off, in my view, including me, frankly, have an obligation with every additional penny to give back something to other people, because it is there in a kind of trust. And the only reason we have a society of differences between rich and poor at all is because, in principle, that is supposed to work out, so that even those who are worse off are better off than they would be in some other society. And that is why I spoke rather strongly about antitrust because then you are getting back into my area of law, and why I felt so strongly about it, because unless you have a policeman like that, then those who are better off are just going to be better off and that is the end of it. But you cannot have that. You have to have a society in which those who are better off understand their obligations towards those who are worse off. And that is what I think.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Well, we will get to antitrust a little later. Judge Breyer, I would like to ask you this: In your opinion, what do you think are the three most important Supreme Court cases of the 20th century? And why?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, the first is easy. I mean, the first is Brown v. Board. And why that is so easy is because, to me, it was clear. I mean, you know, here is the promise in this document, and the promise is the country will be fair. And they wrote it sometime in the middle, last part of the 18th—you know, in the 19th century, and then it was not done. How shocking. How shocking to write a promise like that into the Constitution and it is not done. And it seems to me that Brown was a decision of courage, in a sense, but the courage was do what the law says. Read it. That is what it says. We are going to do it. I think the judges and everyone else involved in that, good, they were behaving like judges and they were following the law. Now, a second one, I will tell you, is a little bit, perhaps not as— but I have always felt this is awfully important, and I said this, actually, to the group of Russians: Cooper v. Aaron. Why do I say Cooper v. Aaron? It is interesting. Cooper v. Aaron, which you may or may not remember, was the case in Arkansas where paratroopers were sent to enforce school desegregation. Every judge on the Supreme Court signed his own name to that opinion. What that said is we mean it. But, of course, they are only nine human beings. Nine human beings cannot stand up against a mob of people, particularly if they are led by armed people who do not want them to do it. So what it required was that the President of the United States, representing the entire country, said they said it and it will be done. And the paratroopers were sent down to see that it was done. And the reason that I think that is so important is because that means that, as a Nation, these words on paper are not words on paper. They are real. And that was a definite, firm commitment to that principle. And I think that is a very important decision, the way that was carried out, for that reason. Then if you want to go to third, I tend to think of Holmes and Brandeis, as you know, and the dissents in the first amendment area, though they are not decisions, they are dissents. But those dissents played an enormously important role in making certain that freedom, freedom of speech was real. So those are the things that come into my mind.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I think those are three very good choices. Judge Breyer, I would like to turn to questions on a few specific topics. There are many judges and lawyers today who believe that the sole purpose of the civil justice system is to settle disputes between private parties. Others, including your colleague, Judge Mikva, say that because the courts are public institutions, they must also consider and look out for the public interest, to the extent that it is affected by civil litigation. You yourself alluded to this yesterday when you told Senator Leahy, and I quote, that "the courts belong to the public." Where do you come down on this question, Judge Breyer? Is our civil justice system simply about private disputes, or is there more to it than that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. More to it than that. I mean, that is my short answer. The object is dispute resolution. Dispute resolution is important. There are other methods of dispute resolution. But dispute resolution on what terms? Dispute resolution on terms of what is fair. Then you get back into the court system. You have to be careful of saying it is just resolving disputes, because you might be resolving disputes on terms that are not fair. You do not want the stronger party always to win. That solves it, but it is not fair.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK; I am glad we share that belief, because courts cannot afford to ignore the public interest in civil litigation, and we agree on that. 244 My concern, however, Judge Breyer, is that courts are not striking the right balance today between the public and the private interest. Consider, for example, the troubling use of protective orders and confidentiality orders by courts today. In some cases, these orders shield the public and regulators from crucial information about dangerous and defective products that are discovered in the course of litigation. Court secrecy has prevented the public and regulators from learning about many dangerous products, for example, silicone breast implants, defective heart valves, automobiles, and playground equipment. Now, obviously, courts need to balance the need for privacy against the need for openness and disclosure, but in many cases today's balance seems less a balance than a knee-jerk preference for privacy and private parties and against the public interest and disclosure. And so, Judge Breyer, I would like to ask you whether or not you share my view that some judges today are too quick to sanction confidentiality without looking carefully enough at the public interest in disclosure of information regarding dangerous products. Shouldn't the courts at the very least be required to consider public health and safety before allowing for secrecy in civil litigation?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What you are focusing on specifically is not when a Government agency or a State agency tries to obtain information about public health and safety, for, obviously, there are broad discovery powers as there should be in the hands of any governmental agency. Really you are focusing upon two private individuals who are in a private dispute, and sometimes, in the course of that dispute, something will turn up, and the question is: When should it be made public even though one of the parties where it came from does not want it made public? Now, that kind of answer to that kind of question obviously requires weighing the very important interests that you talked about against the interests of privacy. I do not guarantee it is always done properly. It would be amazing if it were always done properly. It would be the only aware that I am aware of—I mean, always, always, there can be mistakes in that area. But I really think it is up to you in Congress to review this kind of thing systematically. And if you think the line is now not being drawn properly as a general matter, then you can change that line.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. If I may just ask the question again and answer if you want—I said, Don't you believe that courts should be required—required—to consider the public health and safety before allowing for secrecy in civil litigation? Consider, if courts should be required to consider public health and safety.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason I was putting it in terms of line-drawing is perhaps it seems obvious to me that in terms of some level of health and safety, of course, of course, no court can or should stand silent when they see an immediate, serious risk to some third party's health or safety. No lawyer can remain silent. No doctor can remain silent.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. But as you know, there have been several, if not numerous, cases where two parties in a court dispute before a judge will make a secret court settlement involving a product being 245 used widely but having affected just that one person. It has happened many times—heart valves, automobiles, silicone breast implants—where a court allowed a settlement to be made between two parties in court, full well knowing that that settlement meant that tens of thousands, if not millions of people who were similarly involved with the defective product would, therefore, not know of the defective product. You are, of course, I am sure, fully familiar with this. And what I am saying is: Don't you believe that a judge should be required to consider public health and safety before that judge allows a secret court settlement of this sort to occur in his court or her court? That is somewhat of a departure from what you know is the present norm.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, and why I am being hesitant is really because I suspect it is a question of changing a legislative standard in general. And I worry that this is somehow going to be coming in front of the Court in terms of an appropriate court rule or in terms of balancing privacy interests. And so I am hesitant to go beyond the general statement. Do you see why I am hesitant to go beyond that? Because it is not something I know enough about to be confident that I am not expressing a view there on something that is likely to come up. That is my hesitancy. So I sort of feel the general principle, that, of course, when you are a judge, as any other person, of course when you are a judge and you see a real threat to health and safety, of course you have to tell people about it. You cannot let—I mean, that seems to me absolutely clear. And then going beyond that, as to just in what cases and how you draw that line and so forth, that is something I have to hesitate. I have to hesitate.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, I think I hear you saying you agree, but. But you agree.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I agree, but.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. And I understand that. I understand what you are saying. All right. I would like to ask a couple questions or thoughts about first amendment and TV violence, Judge Breyer. As you may know, Congress and the American people, including myself and Senator Simon and others, have been looking at the effects of media violence on children. Clearly, media violence, whether it is on our TV screens or in our contemporary music or in video games that we purchase for our children, clearly media violence contributes to violence in our society. While other things are also factors, like the breakdowns in our society with respect to crime and drugs and families, the fact that these conditions are present does not excuse the excesses of those in the media who peddle violence to our children. And when I talk to people, they agree, and they ask me why Congress or Government is not doing something about it. It is not always easy to explain the problems associated with the effort to regulate media violence without threatening free speech. However, freedom of speech is not absolute, for, after all, you cannot yell "Fire" in a crowded theater. 246 Judge Breyer, we all know that it is sometimes appropriate and necessary to enact and uphold reasonable restrictions on speech, and I am sure that you agree. Suppose that Congress passed a law to ban or restrict the broadcast of TV violence during non-news programs or to set time limits on when violent programs could be shown. If you were called upon to review such a statute or a regulation, what kinds of issues would you consider in your analysis, and what methodology would you use?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is apparent you understand I am concerned with the problem of TV violence. What you are asking is how do I approach this kind of problem in the first amendment area. That is a fair question. And the way I approach it is that I think at the core of the first amendment are what I have described as a kind of cluster of things. There is political speech. There is also at that core the need to communicate and talk to each other and have conversations where we listen, like around the dinner table, which I described yesterday, which is critical to intelligent discussion and democracy, and there are concerns of expression, expressing—expressing a personality, expressing through art, or through science. There are all those things at the core. Then you move out from the core. That core is very important and virtually inviolable. As you move out from the core, what you discover in different directions is that sometimes we are concerned with something that seems almost like conduct, and the closer it is to conduct, well, the further it is from the core. We are concerned with instances where a particular kind of speech might have an immediate harmful impact to society that is tangible and real. That is your example—fire in a crowded theater—or, you cannot solicit a person to commit a crime although you do so in words. Then you discover there are areas where in fact we are talking about the impact on younger people. Imagine the control that society exercises in a grammar school or in a high school. And then, in another direction yet, you run into instances where the expressive value is totally gone; it is not really communication at all, though it in fact has a negative societal impact. I talked about child pornography. So as you move out from that core, you look at how far away, you look at whether there are simply rules of procedure—time, manner and circumstance. A town meeting can be run by that. But if you are beyond that, you look to society's needs, and you look as well to the spillover problem, that is to say, have you got a statute that is really narrowly tailored to those needs and will not intrude into the core, or there is a risk that you will chill what is closer to the core. Those are a few of the things, and the metaphor in my mind is a kind of core of several different things, and the further away you get in a number of different directions, the more you pay attention to society's demands to come in and impose rules and regulations.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. TO what extent would it make a difference if the evidence demonstrated that TV violence caused specific and longterm harm to children? Would that make a difference in your concern? 247
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Certainly, as I said, I do not like to discuss it in the context—I am nervous about discussing it in that particular context, for the very reason that it is possibly the subject of litigation; it is possibly the subject of the statute, and my goodness, if I am confirmed, that would come right before us. But I think as a general matter, your point is a fair point, that the more serious real, tangible harm, the further from the core, the more it is possible to devise or try to devise an appropriate
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Are you imagining—and this is just an imagination, I recognize that—but is it conceivable to you, Judge Breyer, that restrictions on media violence could ever pass constitutional muster?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That, I think I must stay away from, because I imagine that should legislation pass, one of the arguments that will be made will be the negative of that, and the other side will argue the affirmative of that; and it seems to me very, very important that one approach that concrete problem, if I am on the Supreme Court, with a very, very open mind.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK; and finally in this area, Judge Breyer, does government's ability to protect children from explicit material vary according to the medium, whether print, movie, video game, or information highway, in which it is presented?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Media, different media, have in the case law sometimes been treated differently. But I know also there are arguments in particular contexts that they should not be. So it is hard for me to answer that, other than in that unsatisfactory general way.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Breyer, yesterday you said that televising Supreme Court oral arguments might be a good idea. I have been a supporter of more radio and TV coverage in the Federal courts. I believe that if we had C-SPAN, a channel for the Supreme Court, that it would help Americans better appreciate their legal system. So, Judge Breyer, on this area, did you watch any of the O.J. Simpson hearing on TV, and if you did, what are your thoughts on whether televising a hearing of this sort will have a negative effect on the defendant's right to an impartial jury?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Let me not talk about the particular case, and let me think about things that were in my mind a year ago or 2 years ago, well before that particular matter arose. At that time, I voted in favor in the Judicial Conference of experimenting with television in the courtroom. That has been carried out. The results are being evaluated. In Massachusetts, television is in the courtroom. The Massachusetts judges I have spoken to seem generally satisfied. The results of that are being evaluated in the Federal system. My particular appeals court was not part of the experiment, but not for want of willingness; it was because they could only have a small number. That is the circumstance in which I think my vote in favor of the experiment is right as of this moment, abstracting from this particular case and putting myself back in the frame of mind I was 2 or 3 months ago in respect to this. That is basically my view. It has not changed. 85-742 - 95 - 9 248
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. And I appreciate that comment. But are you saying you do not want to answer the question on televising a hearing—do you think that televising a hearing might conceivably have a negative impact on a defendant's right to a fair jury trial?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The question, of course, that you are raising there, which is an important question, is the publicity and the publicity on the difficulty of selecting jurors.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. That is correct.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is a problem, and how that is balanced is not something I have looked into. That is not something I have looked into. It is something that I have read enough and heard enough about to know it is a problem. And that is where you start from, and that is where I start from, too. You are worried about the fairness of the trial. You are worried about the maintenance of a free press. And somehow, the balancing of those things is terribly important—and is not necessarily just for judges.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK; finally, I would like to get back to antitrust for a minute, Judge Breyer. Senator Metzenbaum covered some of the antitrust matters with you, and your answers were very good, but I do have a few followups and some general questions to ask. Recently, we celebrated the centennial of the Sherman Act. For over 100 years, this landmark measure has protected the principles that we hold most dear—competition, fairness, and equality. I believe that the people who wrote the Sherman Act were driven by a variety of beliefs. They wanted to encourage economic efficiency. They wanted to help the little guy, the small businessman, by preventing large concentrations of corporate power. And ultimately, they wanted to help consumers. The antitrust laws are important because they ensure that competition among businesses of any size will be fair and that consumers will pay lower prices for their goods. And these laws are nonpartisan; they have been vigorously enforced by both Republican and Democratic Presidents. Judge Breyer, I am concerned that some judges would disregard the legislative intent of the antitrust laws and substitute their own ideological agenda. Let me read you two statements about the Sherman Act. The first is by Judge Posner of my own seventh circuit, and I quote: If the legislature enacts into statutory law a common law concept as Congress did in the Sherman Act, that is a clue that the courts are to interpret the statute with the freedom with which they interpret a common law principle, in which event the values of the Framers may not be controlling at all. The second quote is by Justice Souter, speaking before this committee: When we are dealing with antitrust laws, we are dealing with one of the most spectacular examples of delegation to the judiciary that our legal system knows. Certainly, a respect for legislative intent has got to be our anchor for interpretation. Judge Breyer, which statement reflects the better view in your opinion? Should the courts ever interpret the Sherman and the Clayton Acts without exploring the legislative intent of its authors?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I discussed that, actually, in a debate that I had with Judge Bork where we took opposite sides to a degree on that question, and I think I publicly there side with the second view. 249
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. OK; I would like to talk for a minute about pricefixing because it is of particular concern to me. Since the Dr. Miles case in 1911, we have had in this country a rule that prohibits manufacturers from setting the retail price of their products by independent retailers. But some people have begun to argue that we should treat vertical price-fixing differently from horizontal price-fixing. As Robert Bork wrote in "The Antitrust Paradox," it should be completely lawful for a manufacturer to fix retail prices. Do you agree with this sentiment?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I can say the debate was quite interesting. This was in the same debate. And basically, Judge Bork—in my recollection of the debate, we were talking about the Robinson-Patman Act, and he was arguing about that, and in that context I think I made fairly clear that if Congress had the intent of doing something that one might think was not necessarily according to price theory principles, well, then, it did, and it is our job to carry it out. In that same debate, we discussed retail price maintenance, and it was my own view, that I believe I expressed fairly clearly, that the laws against resale price maintenance were good, sound antitrust law. I think the example that I used was that years and years ago when I was a student, there were economist professors—somebody, I think, at the University of London, a Professor Yamey, had written a book and had said here are the pros, and here are the cons; what it boils down to is laws against retail price maintenance help the consumer. They bring about lower prices. And what I asked Judge Bork is what has changed; what has changed. Now, I understand people have different views on that issue, but I think I have expressed my own fairly clearly, quite some time ago.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I thank you. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Larry Pressler (SD)
Senator
(R)
Senator Pressler.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Thank you very much, Mr. Chairman. Judge Breyer, I am particularly happy to welcome you here. Having once been your student in law school, I take particular delight in seeing you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. And I very much appreciated your remarks during yesterday's hearing when you said that when you deal with cases, you listen to the party, and then try to repeat back the argument in your own words to the other side. I frequently do that in dealing with constituents—repeat back their position. I think it is a wonderful way to proceed. We have in my State of South Dakota and throughout America, a subject that has not been brought up yet here today in this hearing. Many other subjects have been covered, but I do not believe we have talked about fee-owned land in Indian country. I know that Indian jurisdictional questions are very complex, and a lot of these matters come to the Supreme Court; in fact, someone 250 told me that there are more cases involving Indian tribes, jurisdiction, and water rights than any other subject category that comes to the Supreme Court. Putting it in layman's language, as you said, you put yourself in each person's shoes. I recently was at the Standing Rock Indian Reservation and the Cheyenne Indian Reservation in South Dakota. You can talk to a white rancher, and he will tell you that his grandfather bought this land after the U.S. Government advertised it, and he bought it from the U.S. Government, and maybe it has been resold since, but the chain of title traces back, and it is very legal and logical. You can talk to the Indian citizen, and he will say that his great-grandfather was given this land by the U.S. Government, and he feels that it has been illegally taken, and he seeks compensation. In fact, I have tried to settle a lot of this, or I thought I was making a contribution, back when I was in the House of Representatives in the mid-1970's, and I was quoted by the Supreme Court— only in a footnote—because I had sponsored legislation to open up the question to waive res judicata. And in 1980, the Court made a ruling in U.S. v. Sioux Nation of Indians, in which it gave a substantial amount of compensation to the Sioux Nation, which they have not accepted because they do not feel it is adequate. But in any event, I have a long question here about fee-owned land in Indian country where the white ranchers or the white businessmen who have been there are essentially regulated by the laws of the reservation, and they are sometimes taxed by the reservation, and they feel that this is a violation of what they had agreed to or what the agreement is, and they come to me with that problem. If you put yourself in both shoes, you can find many legal arguments and many emotional feelings depending upon whose shoes you are in. I know at Harvard Law School there have been a number of professors—I think a couple right now are helping one of the tribes out there with a water rights case where they are seeking hunting and fishing rights, but in addition to that they are also seeking payment for hydropower. And it is not just in South Dakota; in California, for example, the Indian tribes have asserted a claim on 25 percent of all the hydropower that has been generated, and back payments. These types of issues are coming into the courts. May I ask you, first of all, what is your perception of all of this? Have you worked on some of these cases? Have you a perception of this issue?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Let me divide it into two parts—more basic and more recent. The more basic, which I have mentioned—and I hope you would be the expert on this—is that I do remember, of course, when you were a student, and I do not know if you remember in the course that Charlie Nessen and I developed, we spent about 20 percent of that course tracing the history of the Cherokee Indians in Georgia. And as you may remember, the Indians in the 1930's and 1940's were given by treaty—they were given by treaty—a section of that State, and when gold was discovered, the Georgians basically ignored them and said goodbye. And the Indians did an unusual thing—they hired a lawyer who was called William Wirt, something like that, I think. And they said we will bring a law 251 case; the treaty protects us. And they went to the Supreme Court, and they were first thrown out on what I would think of as a technicality. And then somebody from Massachusetts went down and was put in jail and forced the issue to be raised. They went back to the Supreme Court in a case called Wister v. Georgia, and the Supreme Court said Indian tribe is right; they are right under the law. And though it may be apocryphal, I think that was the case in which Andrew Jackson said, well, John Marshall has made his law; now let him enforce it. And it really was not enforced. And that I call former, not recent, because I think luckily, recent law is that the Indian tribes and others can go into the court, and the courts respect their claims, and the Government enforces them. Now, what I have seen in this area, which is only a peripheral connection, is that a number of different difficult issues tend to arise. Sometimes, there is a treaty. Of course, Congress has the legal authority to abrogate a treaty, like any treaty. But sometimes there are cases because the Indian tribe says we had a treaty, and Congress did not really abrogate it. And then you have a difficult question, looking into the history about what Congress intended, but basically, the rule is that the Indians have their treaty, and where that treaty is there, the courts will assume that it is not abrogated unless they are very strongly convinced to the contrary. Then, another kind of case arises which you begin to talk about, which is terribly difficult, and that, of course, is a case where there was tribal land, and then some of that land has passed through a history and story of different connections into people who are not members of the tribe. And then the issue is what land of authority does the tribe exert. And it is particularly difficult where that could include, say, some kind of criminal prosecution, where then the person who was not a member of the tribe would say: What about my basic rights guaranteed under the Constitution? Those are the kinds of issues that arise, and on the one hand, you have to respect very much the sovereignty of the tribe; and on the other hand, you have to recognize the claim to say basic rights of protection. And I am very glad to hear you say that indeed, you often look to other ways than solely court ways of resolving these things, because I do think, for example, that sometimes, say, the tribal authorities and the other authorities might decide to have tribal powers that are the same in terms of protection as other powers. If that is so, that would be a matter worked out through Congress or worked out through your good offices, or worked out through meetings; it would not necessarily be worked out in the courts.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. One issue that will probably wind its way to the Supreme Court in future years involves fee-owned land in Indian country. I will just state this question because I think it summarizes much of the conflict. Under the General Allotment Act of 1987, known as the Dawes Act, Congress began to allot to individual Indians tracts of land on the reservations. Title to the land was to be held in trust for 25 years, after which the land would be conveyed to the Indian allottee by means of a patent. Originally, Indian individuals had to apply for these allotments, but later the law was changed to allow the Secretary of the Interior to issue fee patents to Indians regard- 252 less of whether they had applied for an allotment. These were known as forced fee patents. Over the years, many of these Indian allotments were then sold to non-Indians, advertised by the Federal Government in some cases; maybe they were trying to raise revenue—I do not know— but they sold them to white settlers. Furthermore, various acts of Congress, such as the Cheyenne River Act of 1908, opened the reservations to non-Indian settlers, which actually was a reversal of what Congress had originally done. We now have the situation where there are many acres of nonIndian fee-owned land lying within the borders of the Indian reservations. This has created a checkerboard ownership pattern with non-Indians owning some land, Indians owning other parcels, and other land held in trust by the Federal Government for the tribes. This situation has prompted many court cases, which often must resolve the question of whether the State or the tribe has jurisdiction over non-Indians or non-Indian lands. Now, some tribes assert a complete right to regulate the lives of all people living within the boundaries of their reservation, even when the reservation encompasses all this checkerboard land and regardless of whether they are Indian or non-Indian. Last year, the Supreme Court decided in South Dakota v. Bourland that the Cheyenne River Sioux Tribe could not regulate the hunting and fishing rights of non-Indians on Federal lands previously owned by the tribe. And I think some of your colleagues at Harvard Law School were on one side of that brief; I cannot remember for sure. Now, Indian tribes do not allow non-Indians to participate in their elections, to serve in tribal office, or to serve on tribal juries. So you have this situation of non-Indians living and owning property within a reservation subject to the jurisdiction of the tribal courts and the tribal police and so forth, but they cannot vote in the tribal elections. So they come to me, and they will come to you in the courts, seeking some kind of relief. Nonetheless, tribes in my State have imposed licensing fees on liquor stores owned by non-Indians on fee-owned land located within the boundaries of the Indian reservation. Well, anyway, that is the complete bundle of the problem, and I have struggled with this as a Congressman and as a Senator from South Dakota over the years, and later, I am going to ask you about one piece of legislation that we have tried, but I guess my question—if I have one, because you could answer so many different aspects of it—is given the fact that non-Indians have no right to participate in tribal governments, do you see any constitutional problem when a tribe taxes a business owned by a non-Indian located on fee-owned land but within the boundaries of the reservation? Or, stated another way, is it constitutional for tribes to tax and regulate those who have no ability to influence how their taxes will be acquired and spent?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that is an aspect of the broader problem that you state. And I think that could well be a matter in litigation, and it is not a matter that I am really expert on. It seems to me the most difficult part of what you say is where, on the one 253 hand, the tribe has sovereignty, and that sovereignty must be respected. On the other hand, those people who now perhaps unwillingly are subject to the tribe sovereignty feel they lack a basic right that they would have, if that sovereignty were not there. And there it sounds to me as if what you are trying to do is to encourage people to get together to the point where, at least from the point of view of the person who is there, he gets the rights either way. Of course, that is the best situation. If whether the Indian tribe has the sovereignty or whether the State has the sovereignty, that person is basically just as well off. I don't know if you can bring that about. That is really a political matter and a matter of negotiating and learning and meetings of all kinds that aren't necessarily judicial meetings. I understand that that is what you try to do, and I can just say, from the point of view of the judicial aspect of the problem, it sounds very difficult, with important interests on both sides.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. NOW, the Indian tribes have found a great source of revenue in gambling, and reservation gambling is provided for by the U.S. Congress. Several States have tried to find a way to tax or get a portion of gaming proceeds, and several tribes have gotten very wealthy. There is a sort of irony in all of this. Indeed, some of the smaller tribes on the east coast have become very wealthy. The point is that the States in which these gambling casinos are located cannot tax tribal gaming proceeds. Do you have any feeling about that subject?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I know that is the subject of a congressional statute, and I know the statute tries to create a situation where certain defined tribes—and there is a definition, and I know there are sometimes arguments about where tribes and which tribes and under what circumstances tribes—but where you pass that problem, I think the statute requires a negotiation, and then the negotiation between the State and the tribe over the details of the gambling that the statute permits is designed to work that out in part. That is my guess and understanding. I also understand that issues can arise about whether or not negotiation is in good faith, the extent to which the court gets involved in supervising the negotiation. In other words, I see the issues and I understand the importance of it, and I am not certain legally really how they actually work out. That would depend upon a particular case.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. In Santa Clara Pueblo v. Martinez, a 1979 U.S. Supreme Court case, the Court held that suits against a tribe for violation of the Indian Civil Rights Act may not be brought in Federal court, that is they have to be brought in the tribal courts. As a result, individual tribal members, although citizens of the United States, are limited to relief, if any, in their respective tribal court system. Many tribal governments do not provide for a court system independent of the executive, creating the possibility of intimidation by the executive leadership. Several years ago, I cosponsored legislation, which was not successful, with my friend Senator Hatch, who is not here now, and others, I believe in the early 1980's, which would have permitted 254 individuals who had exhausted their remedies in tribal courts for violations of the Indian Civil Rights Act to bring an action in Federal court. Now, that measure did not become law, so today people exhaust their rights under the Indian Civil Rights Act in tribal courts. Now, do you believe the Federal courts should be immediately open to anyone who alleges an Indian tribe has deprived him or her of a Federal constitutional right? And should Native Americans be entitled to the same constitutional protection afforded to all Americans in our Federal courts? On this question of jurisdiction, may an Indian tribe require non-Indians living on a reservation to exhaust their remedies in the tribal court system, before appealing in Federal court, even though non-Indians do not enjoy the constitutional protection in tribal courts? Wouldn't such a requirement deprive non-Indians of their due process rights? To throw all those questions together, should litigants in Indian Country be able to appeal to the Federal district court at the end of their journey through the tribal courts? There is a case I think that will come up to the Supreme Court again on that, or it will try to come up. Do you have any feeling on that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, my substantive instinct is, of course, that if the procedures and protections in the tribal court can be brought to match those in the Federal court, the problem will tend to go away, because then, of course, you would have the same protection in both places. And that is not a judicial question. That is a question of people meeting and understanding and talking to each other and trying to work out appropriate procedures. When you turn to the legal question, which is premised on that not having been done, as you point out, that might come up to the Supreme Court, and I am on that Court, I would have to decide that question and, therefore, I couldn't really express as view about it. I think that your instinct that if it comes out the way that you think is not appropriate, the solution would be legislative. I think that is a correct instinct.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. That concludes my questions on Indian jurisdiction. But as I read your statement again, your statement yesterday, saying that you try to repeat the argument back in your own words to the other side, I thought that was very much what we have to do with the Indian/white problems, to work for reconciliation. And, indeed, as you do change shoes, you can find arguments just about as strong on each side, and you will have to deal with a lot of those. Back in that class you taught me a long time ago, your mentioning Andrew Jackson and the Cherokee Indians march to Oklahoma leads me to this question. When was the last time the President of the United States refused to back up the Supreme Court in a matter that the Supreme Court ordered? I mean our whole constitutional system could have broken down.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. The second part of the question is do you feel that the executive and legislative branches back up the court system today? I mean that is almost unheard of. Our whole system 255 would not work, if we did what Andrew Jackson did in that instance, is that not correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely; that is why I said in response to Senator Kohl that I thought Cooper v. Aaron was such an important decision, because it is the absolute verification of what you said, that the executive and legislative branches would stand behind the decisions of the Federal courts.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. I think one of the concerns that some of us have in the antitrust area and the deregulation area can be summarized this way: In inner cities and in small cities and rural areas, a lot of big companies don't want to provide service. They would rather provide it in the wealthy suburbs. For example, telecommunications is something I work on a great deal, and we find that the new information highway is going to be abundantly available in wealthy suburbs and larger cities, but not necessarily in inner cities or in small cities or rural areas. The same is true of air service. The same is true of railroad service. I know you have done a lot of work on deregulation. But I have found myself representing a small city rural State constantly struggling to preserve air service or train service or trucking services, or indeed long-distance telephone rates that are reasonable. Now we are on the verge of fiber optics cable and broad-band and providing computerized information in the home. If somebody is not on this informational superhighway by the time they are 15, they are never going to be on it, if they are not into putting information into the computer and getting information back out. You will be making a lot of rulings on antitrust and responsibilities of companies. Of course, we do not have the 1934 act any more that said if you take some rich routes, you have to take some poor routes, and so forth. But, in general, how do you see the Humboldt, South Dakotas, and indeed every State, upstate New York and Massachusetts, smaller cities and towns, not so much on the east coast, because you have so many people, but, indeed, parts of California—Fresno and those small towns that stretch from there to Bakersfield—getting serviced by companies not eager to provide as much air service or as much fiber optic cable or all the miraculous developments in telecommunications. My basic concern is your philosophy of deregulation is going to leave a lot of people out of the superhighway of information and knowledge and all the good things that are coming. What are your thoughts on that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think you are addressing really my thoughts as a matter of policy, rather than my thoughts as a judge. Of course, as a judge, one tries to follow the law as it is written. When I was involved in airline deregulation, this problem arose. It is true that the general thrust of airline deregulation was that prices would go down for the vast majority of Americans. At the same time, I believe when that statute that was written, your point was a valid point, that in terms of infrastructure, it is important that the entire Nation be seen as a single nation and people not be left out. Therefore, written into that statute was a subsidy that Congress at the time believed would be adequate to maintain service at smaller rural airports, the idea being that no rural community cur- 256 rently at that time having scheduled service would lose all its service. There would be some lifeline there. Now, whether that subsidy was adequate, whether it worked out in practice, that is a matter for history and possibly criticism. But the intent of the movement was not totally to sacrifice the needs of those who are not in the populous communities. It was to recognize those needs and to try to provide for them, especially so that there would be interconnections everywhere. That is basically the principle, though one could criticize from that point of view the execution.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Let me ask a question on the exclusionary rule. I know you covered this to some extent. There was a crime bill written here in the Senate that would have made more evidence admissible to the jury. One perhaps good thing coming out of the O.J. Simpson publicity is that a lot more people across the country are thinking about the exclusionary rule, and I think it is going to become an issue in future political debates, and maybe that's where it should be. If legislatures were to pass a law saying that more evidence that police pick up at the scene of a crime without a search warrant can be given to the jury or the fruits of the search can be given to the judge or the jury, it is said this would be found unconstitutional, because the fourth amendment provides quite a bit of protection. Yet, our citizens are getting angry at hearing stories, when you do have a search warrant and you find something else or the fruits of the search are not related to the search warrant, then it is thrown out, it cannot be brought before the jury. Or if policemen upon the scene of a crime go into other rooms or pick up evidence, the argument is it should not be admitted, because the policemen could have gotten a telephonic search warrant or something like that. In other words, a lot of evidence never gets to the jury or the judge, in the feeling of the public, and I think this is going to be a very big issue in future campaigns in this country. I think we are going to focus on the exclusionary rule. But it is said that even if a statute enacted by Congress broadening what the police can pick up and present, it would be declared unconstitutional. What is your view of that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. My guess is it would depend upon the statute. You have to look into the detail.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. DO you have any feelings about what the exclusionary rule should be? Do you think it is about where it should be, or do you think it is too restrictive?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I cannot say as a matter of policy, because that is so much a judgment for others. That is, the basic idea, of course, is that it is very puzzling to people, very puzzling, what Cardozo said. He said, "Well, why should the criminal go free, because the constable has blundered?" And the answer to that is, over the course of time and a long period of time, people learned that the protection in the fourth amendment, totally innocent people wouldn't be broken into in the middle of the night, that confessions wouldn't be extracted through violence, that the only way to make those meaningful in practice was to have this exclusionary rule. And it has become I think fairly widely accepted. 257 The exact contours of it and the shape and size and on the border how it should look, and so forth, I recognize, but that is a matter of considerable controversy and debate, and Congress or others might well criticize or want to do it this way or that way or the other way.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. On the issue of habeas corpus, the average citizen looking at this system sees appeal after appeal sometimes. Would you be satisfied with one thorough appeal that a judge took a look at and said that was a thorough complete appeal? Would that be satisfactory to you?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. When you say satisfactory to me, the great debate, as you recognize in this area, particularly with the death penalty, is involved, is habeas corpus tells us we don't want to have this or any person have a penalty particularly of this sort, if the trial was fundamentally unfair. Of course, people keep coming on again and again and they say, well, it was fundamentally unfair, and then the courts say no, it was OK, and then they have a new reason and a new reason, and so the problem is this problem of delay. At the same time, people might sometimes come up with reasons that they for good cause couldn't present before. So I understand how you are trying to balance those two things, the need for fundamental fairness and the need to avoid unreasonable delay. How it works out in the statute again is going to be up to Congress. My guess is you will get one final procedure and some cases will come along where something was discovered later, and you will say, well, the procedure couldn't have taken that into account. So I think you will improve the situation. I am sure there are all kinds of ways of improving it. This is such a fundamental tension, that I doubt it will ever be perfectly solved.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. My final question involves tort reform. Again we hear much argument. We are told that our revolutions in this country have been in the courtroom and not in the streets with guns. Through suing, a small person or a poor person can get at a large corporation that has wronged them. On the other hand, we have so many lawsuits, we are told that the cost of our products has risen substantially. If you could implement tort reform for the United States tomorrow, what would you do?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am glad sometimes that I am not in the Congress of the United States, and this is not a matter on which I am expert and I am really very pleased to leave that for you to decide.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. It may well be that the Supreme Court will have to decide some of it, especially on punitive damages and issues of that kind. You are not going to give us any glimpse of
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. DO you want to go back to being chief counsel of the committee? [Laughter.]
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It was a wonderful job.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Thank you very much, and congratulations.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I might point out for the record what my recollection is, and this is not correcting you or anyone else, that, on habeas corpus, in 40 percent or thereabouts of the petitions filed 258 in capital cases, the courts feel they have merit, so they are not all frivolous. At any rate, there is a vote on, Judge. We have about I guess 7 minutes in which to vote. Rather than take the break after the next questioner, who will be Senator Feinstein, why don't we break now for 10 minutes and then resume about 10 minutes of.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Perfect.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. We will recess to vote. [Recess.] The CHAIRMAN. Judge, welcome back.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I have not had a chance to speak with your people about this, but we can speak about this scheduling in the open here. One of the things is that I do not think we are going to be able to finish tonight. I do not think there are a lot more questions, but most members have several more questions. It would push us well into the late evening, and then I am not sure we could finish. So what I would propose—and this is tentative until I have a chance to check with Senator Hatch, but I think this will be agreeable to him—is we will go until about 6 p.m. tonight, which means that Senators Feinstein and Moseley-Braun will ask their first round. I will ask a second round, probably not a full round but a second round of questions. Senator Hatch may or may not wish to go tonight and ask a second round, in which case we will start tomorrow with what, as I indicated earlier, is a pro forma closed session. There are probably going to be a series of votes stacked around 11:30 tomorrow, by which time we will probably be finished with the closed session anyway. We will do the votes and convene the open hearing again tomorrow at 1 o'clock. I fully expect we will be able to finish in early evening, late afternoon, with your testimony. Based on the witness list and the way things appear to be going—and you and I have been doing this long enough, and you are familiar enough with this to know, no one ever knows anything for certain—but I expect we would have no problem going through the entire witness list, giving the witnesses their full opportunity to make their cases on Friday, and the hearing would close down at a reasonable hour on Friday. It would be my intention, with the cooperation of my colleagues, to have an executive session early in the week. As my grandfather Finnegan used to say, "with the grace of God and the good will of the neighbors," by the end of next week the nomination, if all continues as it is, would be on the floor. If that is generally agreeable with you, that would be my judgment as to the most orderly way in which to proceed. But I will discuss that in more detail with my colleagues, and in the meantime, I will yield to my distinguished colleague from California, whose patience is exceeded only by her equally distinguished colleague from Illinois, Senator Moseley-Braun, who have both been waiting patiently here. I yield the floor now to Senator Feinstein. 259
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you, Mr. Chairman. We are known as what is the caboose on this train. We kind of bring up the rear.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, you know those trolley cars where the engine is sometimes in the back and sometimes in the front. I think the committee has learned that you may be the caboose, but you are the engine.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. That is very generous of you. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is also true. When you decide something is important—I remember saying to you, no, we cannot possibly pass the assault weapons ban. If you can talk Henry Hyde into it, good luck. And, Lord, if you did not go over and talk Henry Hyde into it. So you are an engine, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Well, thank you. Thank you very much. That is very nice.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The floor is yours.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you, Mr. Chairman. Mr. Breyer, I just want to make a comment on the proceedings so far. I really want to compliment you. First of all, I believe wholly in your credibility and your integrity. But what came through today I think to me was your ability as a teacher, because you did what so many people, particularly around here, do not do. You reduce things to their basic, elemental, simple truth. And when you talked about the coal columns as an example of appropriate regulation, I think you showed all America exactly what it is. Many times I have found things get so mired down in cases here, and no one really knows what we are talking about. So I really appreciate this, and I think you have made a lot of things clear. I think you have done extraordinarily well, and I just wanted to say that before I begin. I notice, too, that there has not even been a yawn from your family. So on all scores, it is doing well.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you very much.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. I want to talk to you about two things, and hopefully talk to you rather than really question you. The first is individual versus societal rights under the Constitution. Let me begin by reading a quick statement from someone I have admired from what is called the other House here. His name is Sam Ervin, and he said this in 1973. The twin evils of criminal and political violence stand as a threat to our liberty in two ways. Liberty cannot survive an anarchy, but neither can it survive if our Nation's leaders and people come to feel that the only path to security lies in suspending constitutional freedoms for the duration. And, in a sense, that is the delicate balance with which I would think a jurist must grapple. What are the rights of the few when they come in conflict with the rights of the many? In a sense, today I want to talk to you about the rights of the few versus the rights of the many. Last week, in California, I spent a lot of time in the communities, and I have in other cities as well. And I think violence in this Nation has reached such a state of epidemic proportions and concern for everybody. Regardless of race, creed, color, social or economic status, people are looking over their shoulder, regardless of whether they live in the suburbs or the big cities. 260 One school, I will give you an example, fourth-grade class, Hollywood, CA, had written to me because of their fear of violence. So I went to the school, and I talked to a fourth-grade class, I guess about 40 youngsters. In the course of the conversation, I asked the question: How many of you hear gunshots at night? And how many of you wake up to them in the morning? Every hand in the class went up. I asked the question: How many of you have seen people getting beaten up? And 70 percent of the class, their hands went up. How many of you are afraid to go to school? About the same number of the class went up. Now, you could ask any class that in your hometown and my hometown. One of our newspapers just did a study. Twenty-two percent of the youngsters admit to bringing guns to schools. Big problem in our society. My question is this: I know that the Bill of Rights of our Constitution was designed to protect Americans against the enormous powers of the Government, also provided by the Constitution, in effect to protect the few from the many. And this is, I think, true in special circumstances: free speech, the free exercise of religion, protection from discrimination, regulation. But it is clear to me that in matters of public safety and perhaps other fundamental areas, we really need to protect the fabric of our society for the majority from the few among us who have the power to destroy it. I read an article in the paper of one Governor imposing a curfew, again, to protect the rights of the many. Also, I suppose, it limits the rights of the few. If you could talk just as a teacher, as a scholar, for a few moments before I got into something direct, about where you see this coming down, how you would see this as a jurist?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not have special insight. As a human being, when I hear that one real child is killed every hour through violence, of course, I react like every human being reacts to that in this country. I mean, absolutely intolerable. Then when you say as a jurist, I think of the Preamble to the Constitution, as a jurist. Why the Preamble? Well, because it has always seemed to me that the Preamble has stated there what the goals are, simply, so any person can understand it. And the rest of the Constitution is a few understandable instructions for reaching those goals. And I see right in that Preamble, it says, Establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and assure the blessings of liberty to ourselves and our posterity. It says both assure domestic tranquility and provide the blessings of liberty. Then the rest of the Constitution, being a set of instructions to reach those goals, must be interpreted in a way so that both can be reached. And then you pose the terribly difficult question: How do you choose among them? I have no magic answer to that question. Sometimes I have done the following in a case where, in fact, say there is a question of the fourth amendment interpretation and the right not to be seized il- 261 legally, the right not to be searched illegally, and what does that amount to, and is it this or is it that? Sometimes I go back and try in my own mind to remember that those rights are there to protect innocent people. And we protect guilty people because that is absolutely necessary if we are going to protect innocent people. And so I ask myself: What would an innocent person think about what is going on? The case that came up, you see, was a case about whether a policeman could say to a person at the airport, who was acting very suspiciously: Excuse me, do you mind if I ask a few questions? And the man said yes. Now, did that violate the fourth amendment? Though the question was a close one, I thought no. And my reason for thinking no was because I thought most innocent people do not mind answering questions when posed by the police where they are not put in custody, where they are not subject to restraint, but they are politely asked, Do you mind answering a question? So that notion of what do innocent people actually fear is an unreasonable restraint on their liberty, I have found sometimes helps reconcile those two things in the context of a real case. I do not know if that is helpful. I see the need to pursue both.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Let me give you an example. Some of us, I think, on the Elementary and Secondary Education Act that will be coming up, will put an amendment or try to place an amendment that will say that any school that accepts Federal money must have a zero tolerance for guns in schools; that if a youngster brings a gun to school, that youngster is expelled for 1 year. Otherwise, I go home, and all people are talking about are metal detectors in schools. Metal detectors should not have to be in schools.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I agree with you.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. And I think we reach that point where we really need to protect the general welfare. Now, let me go to where it gets tricky. The second amendment, 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. Arms is in a capital, State begins with a capital, and Militia begins with a capital. I think it is probably true to say that the Framers of the Constitution provided no guidance as to whether the amendment was intended to secure the rights of individuals to own guns, to provide exclusively for a well-regulated militia, like the National Guard, or both. Proponents of gun control argue that, although challenged, restrictions on the sale and ownership of guns have never been struck down by the courts on the basis of the second amendment. Indeed, in the United States v. Miller, the U.S. Court of Appeals for the Ninth Circuit expressly rejected a second amendment argument in upholding California's 1989 assault weapons ban. The National Rifle Association, which had challenged the ban, elected not to appeal the ninth circuit's ruling to the U.S. Supreme Court. Former Chief Justice Warren Burger, not, I think, considered a political liberal, accused the NRA of perpetrating the greatest constitutional fraud in history for its repeated reference to the second amendment as a bar to gun control legislation. Now, as the chairman of the committee said, I have just authored legislation on assault weapons. I have seen them become the gun of choice of youngsters, of grievance killers, and it appeared to me that the public well-being is served by not having what is crafted as a military weapon, first and foremost, available on the streets, homes, and workplaces of our cities and our counties and our Nation. Whether that will be challenged or not, I do not know. I almost hope it would be so that we could settle, much like the coal mine, what is an appropriate role for government regulation. I cannot forget the faces of the youngsters who raised their hands, every one in a class, that I go to sleep every night to the sound of gunfire. And to me, it is the rights of the many to feel safe that come into conflict with the rights of the few to possess and bear weapons. I would appreciate any comment that you might care to give as to the Miller case, as to the second amendment, and how you might see it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. AS you recognize, Senator, the second amendment is in the Constitution. It provides a protection. As you also have recognized, the Supreme Court law on the subject is very, very few cases. This really has not been gone into in any depth by the Supreme Court at all. Like you, I have never heard anyone even argue that there is some kind of constitutional right to have guns in a school. And I know that every day—not every day, I do not want to exaggerate, but every week or every month for the last 14 years, I have sat on case after case in which Congress has legislated rules, regulations, restrictions of all kinds on weapons; that is to say, there are many, many circumstances in which carrying weapons of all kinds is punishable by very, very, very severe penalties. And Congress, often by overwhelming majorities, has passed legislation imposing very severe additional penalties on people who commit all kinds of crimes with guns, even various people just possessing guns under certain circumstances. In all those 14 years, I have never heard anyone seriously argue that any of those was unconstitutional in a serious way. I should not say never because I do not remember every case in 14 years. So, obviously, it is fairly well conceded across the whole range of society, whatever their views about gun control legislatively and so forth, that there is a very, very large area for government to act. At the same time, as you concede, and others, there is some kind of protection given in the second amendment. Now, that is, it seems to me, where I have to stop, and the reason that I have to stop is we are in a void in terms of what the Supreme Court has said. There is legislation likely to pass or has recently passed that will be challenged. And I, therefore, if I am on that Court, have to listen with an open mind to the arguments that are made in the particular context.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Well, would you hold that the 1939 decision is good law?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I have not heard it argued that it is not, but I have not reviewed the case, and I do not know the argument that would really come up. I know that it has been fairly limited, what 263 the Supreme Court has said, and I know that it has been fairly narrow. I also know that other people make an argument for a somewhat more expanded view. But nobody that I have heard makes the argument going into these areas where there is quite a lot of regulation already. I should not really underline no one, because you can find, you know, people who make different arguments. But it seems there is a pretty board consensus there.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Would you attach any significance to the Framers of the second amendment where it puts certain things in capital letters?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am sure when you interpret this, you do go back from the text to the history and try to get an idea of what they had in mind. And if there is a capital letter there, you ask, Why is there this capital letter there? Somebody had an idea, and you read and try to figure out what the importance of that was viewed at the time and if that has changed over time.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator Moseley-Braun.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Thank you very much. Senator Feinstein is the caboose. I guess that makes me the flag. When you are No. 18 on a panel like this, you learn a lot, Judge Breyer, and I have certainly learned a lot listening to my colleagues and their questions and certainly to your very clear responses. And I have been, frankly, very much impressed by the clarity of your thinking, the preciseness and succinctness of your answers to the question, and they have been difficult questions. They have ranged just about the gamut. So I am kind of bringing up the rear here on the first round, but I did have an area that I wanted to discuss with you a little bit today that, in my years, certainly in law school but later in practice, that was very near and dear to my heart and that is no doubt near and dear to yours insofar as you have written in the area of administrative law quite a bit. And I, frankly, feel that these cases and these issues in administrative law are so important because, the big-picture issues notwithstanding, the administrative process is often where the rubber meets the road insofar as the rights of the little guy are concerned.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I agree.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. The cases that come out of the agency decisionmaking very often impact on real people in their day-to-day lives in a more direct fashion than many of the other more esoteric and philosophical issues. And so while I would like to get to the esoteric and at some point, if I get a chance, I would like to start by asking you about your philosophical decisions and your decisionmaking in terms of administrative law. It is particularly true since the time of the New Deal that Federal administrative agencies have played a major role in the development of policies that regulate the personal lives of American citizens and the commercial life of this Nation. And in reviewing some 264 of your cases, in fact, at least three cases which you have written— one had to do with a death claim for asbestosis by a pipefitter in a shipyard, and another a bead-stringer, whether or not the 17 years as a dollmaker qualified that person for employment disability, and whether or not a highway bypass could be constructed. And, of course, the Supreme Court recently ruled in a case involving my home, Chicago, with regard to the treatment of municipal waste. And so we have got this line of cases, and the central issue really comes down to the role of the courts in regulating the regulators, and whether or not the judicial review of agency decisionmaking actually forms an adequate check on the power of the agency visa-vis the individual. The Supreme Court had acknowledged the oversight function in Abbott Laboratories v. Gardner, and as you know, that was a case that involved a challenge by pharmaceutical companies to a regulation issued by the FDA. In deciding whether or not there was authority for judicial review of the agency decisionmaking, the Court held that judicial review would be improper only upon a showing of clear and convincing evidence that Congress intended to preclude judicial involvement. Lately, however, the Court seems to have lowered that standard, backing away from that standard, and making it less likely that agency decisions will be subject to judicial scrutiny. In a case decided last term, Thunder Basin Coal v. Wright, the Court appeared to replace the Abbott clear and convincing standard with a standard that would prevent judicial review of an agency action in any case in which the intent on the part of Congress is—"fairly discernible in the statutory scheme." While the Court in Thunder Basin attempted to distinguish itself from the opinion in Abbott Labs, I am not quite sure that the distinction is as clear as they said it was in Thunder Basin, and I fear that the Thunder Basin decision might signal a willingness of the Court to remove itself from—to retrench from the review of decisions of administrative agencies. So I would pose the question to you: Do you agree that there has been a trend away from judicial review of administrative decisionmaking, and therefore do you agree that it holds the troubling prospect that the rights of the individual little people vis-a-vis these agencies which have so much power over their lives, that those rights might be less protected in the future than previously?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think I would say three or four things. I think first, if there is such a trend, it is troubling. Second, the reason that I think it is troubling is I understand all these constitutional rights are very important—believe me, we all think they are incredibly important—but one thing also that is very important is just the area that you are talking about. And the reason that I think that to myself is because if you are dealing with whether a man or a woman is getting a Social Security disability check, you do not just think to yourself: That check is as important to that man or woman as a whole business is to its owner. You think it is more important, because that man or woman has nothing else. And I think, too—when I was walking about 4 months ago with Judge Woodlock somewhere in Boston, and he pointed out a build- 265 ing, and in that building, they had worked out a series of part-time people, lawyers, who give a little bit of their time for a very low price—I believe this is how it works—so that people who have little complaints—little complaints—that just means a complaint that maybe, compared to some other complaint, is little; it is not little to the person—and they have a way of coming in and getting some kind of proceeding to see that they have been treated fairly in respect to a sidewalk, or snow removal, or a parking ticket, or whatever—that is terribly important. Why is it so important? That is really my third point. The reason it is so important is it is important to that individual, and it is really quite a wonderful, marvelous thing to have a society that treats those complaints properly. And my fourth point is I guess when I was with these judges in Russia which, as you can tell—I will slow down a little, because I am feeling strongly about it
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I am glad.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. We were talking about it, and I said do not forget—you see, we have a meeting of the administrative law people and the American Bar Association—we sometimes say we are administrative law buffs—we believe it is important, too, and how many, and so forth. Well, I said to the Russian people there: Please do not forget this part of the law, because one wonderful thing that happened in that part of the law was that one time, it was decided that we would write everything down. That does not seem that important, but it is so important. It was something as a result of a Supreme Court case where somebody could not find the regulation, and after that, Congress said if that regulation is not written down, if you do not have that in the Code of Federal Regulations, if there is not a place where a person can go without a lawyer, if necessary, to find out what he is supposed to do, then it is not a rule, and it is not a regulation. I thought to the Russians that, too, is an enormous protection against arbitrary behavior, against people who are in the Government saying, "Well, this is what you have to do, and tomorrow, we will tell you why you have to do it." So all of those are reasons why I agree with you, I think this is a very important area of law.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I think we share the same view, and you have made the point very well, I think, Judge, that this really does serve as a check and balance in the system that frankly, the Framers of the Constitution almost did not have to think about; but following the explosion of the administrative agencies, the farreaching consequences of that decisionmaking, clearly, the rights of the individual vis-a-vis that kind of array of power can only be protected if the courts are vigilant in regulating the regulators and providing that backdrop of protection of personal rights and individual liberty versus the agency decisionmaking in cases in which it may be arbitrary—which raises a second set of concerns, namely the ability in present time of the courts to exercise that function adequately. We have seen, with the explosion of litigation and with the overburdening of the courts—everybody reads articles about how overworked the courts are and how they are cutting back on activity, and in fact, in my State of Illinois just a month ago, the Supreme 266 Court promulgated a rule that limited the number of opinions that the appellate courts could issue every year on the grounds that the courts were overburdened and that there could only be a finite number of opinions, a finite number of written decisions. Well, these two factors coming together may well mean that we are confronted with a limitation or a retrenchment or a retraction of the capacity of the courts to look out for the rights of that beadstringer or that pipe fitter or that individual who many have a claim for medical services, and someone has decided that they cannot have it. How would you address the challenge that the court overload or the allocation of judicial resources poses for us now? How do we get around having the courts retrench in this very important area? Can you shed any guidance or light on how you would suggest going forward?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I have said a couple of things which may help a little but not a lot. One is a positive thing, and one is a negative thing. The positive thing is that probably, it is worth, when Congress passes laws, when State legislatures pass laws, when agencies have rules and regulations, a human being thinking about the process of translating that statute, rule, law, regulation into reality. And that means think through when and whether court process, administrative process, mediation process, or some combination thereof will be the most effective way of making that right in the statute real. I do not know how you would come out, but I am reasonably convinced it is worth trying to give someone the job of thinking through that problem every time some statute that affects people is or is not going to be passed or modified. The negative thing is this. Beware of door-closing in the courts. Beware of it in the following sense. Remember that the Social Security case to the person who needs the Social Security really is as important as any other case involving a lot more money. No one will say that the court procedure as it is now set up is the perfect procedure. It may be, as some have suggested, that some cases of different kinds should go to mediation or so forth. But if that is to happen, the people involved must be convinced that that is a better process, and an escape route must be maintained so that there still remains the possibility of some access. Now, that has happened sometimes, like where Congress has set up special courts like veterans' courts, so that both you have a specialty which will process the case more quickly, but an escape route is maintained so it is possible for a person who is hurt by that process to get back into Federal court. In other words, tailoring of different kinds I think is possible. I am sure it is worth thinking about, and I am sure that it cannot send a message that some people's cases are worth less than others.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Well, I am just so delighted to hear you say that, because quite frankly, in the context of, again, scarce judicial resources, the movement toward limiting judicial oversight, the values that you express here today really stand in danger of being lost, and if those values are lost, then those doors will be closed, and those individuals will not have the kind of protection 267 against the power of the agencies across the board that I believe, and I am delighted to hear that you believe, they ought to have. Talking about how one looks at administrative law, statutory law, you have written in your writings regarding the use of legislative history, and there has been some discussion of this already, but you cited different circumstances in which the history behind a statute can help to reach the proper result. And I must say I was delighted again that it is a very pragmatic standard; it is a standard that suggests that people look at avoiding an absurd result, for example, and to correct an error, to take into full account any specialized meaning that the statutory word may have, to identify reasonable purpose, or to choose among reasonable interpretations of a politically controversial statute. That is actually also encouraging because, again, getting back to Thunder Basin, in that case Justices Scalia and Thomas objected to the majority reliance on legislative history as an indication of congressional intent. Justice Scalia wrote there, and I quote: "I find this discussion unnecessary to the decision. It serves to maintain the illusion"—he calls it an illusion—"that legislative history is an important factor in this Court's deciding of cases." Just for a moment, if you would share with us whether you believe that it is an illusion, that legislative history is an illusion, or if in fact legislative history is something that is important, and should be looked at by the Court.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The answer is I do not think it is an illusion. I think it is very important to look at. I once debated Justice Scalia in the Hall of Justice on this point, and we debated about whose view was the illusion. They were opposite views, and I doubt that we convinced each other. But nonetheless I did think and do think that legislative history is very, very important.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I agree with you there, also. I would now like to ask you to focus in on the role that you think that real life history, real history, should play in a court's decision, if any, and specifically, to explore your thoughts on some of the recent Supreme Court cases in the area of voting rights. We have had a couple of cases—Presley v. Atoka County, not to mention Shaw v. Reno—cases in which the history surrounding the enactment of the Voting Rights Act might have led—I am not prejudging whether it would have—but might have led to a different conclusion. So I would like your view in general on to what extent should real life history, whether it is the civil rights history in this country or the history of women in this country or the history of workers in this country, that history, to what extent do you see history as a guide to decisionmaking?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. At a general level, at a statement of generality, of course, I think the more realism, the better. I do think that laws are supposed to, when fitted together, work according to their purposes. I do not think a court can know whether an interpretation is correct until it understands both the purpose and how the interpretation is likely in light of that purpose to work out in the world, in the actual world. And history and real fact is important, often, to make a sensible judgment. So at a general level, I think it is important. 268
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Specifically with regard to the Voting Rights Act cases, and there are several—and in fact, I was delighted, Judge Breyer, in a decision that you wrote in Latino Political Action Committee, where you referenced a case that I tried, or at least was one of the group, the Rybicki case that came out of Illinois; I was involved with that redistricting case—without going into the facts or the circumstances around Rybicki specifically, I would like to ask you a question in general, that under the 13th and 14th and 15th amendments, which have been referenced here, the interests of minorities in this society stand to be—the Court has an obligation to eliminate forms of racial discrimination and talk the step forward whether or not the specific words of the language of the statute suggest that result.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Such is very often likely to be the purpose of the civil rights statute, and one normally interprets language in light of its purpose. I am hesitant to go into the details of voting rights, because if there is one case that is bound to come back to the Supreme Court, and if I am on it, I would have to get involved, is Shaw v. Reno. That is my problem in that.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I think that the Voting Rights Act area, you are right, is a contentious and controversial one, but I think it is important, again, to have a sense of how you would approach these issues. Yesterday, when we were talking, you said—and I am going to quote a little bit, or at least paraphrase—you said the need for dignity does not change, but the conditions that impact on dignity do. And I would like to explore with you for a moment questions pertaining to the whole notion of dignity and the rights of privacy and to explore for a moment the constitutional basis that you see the right of privacy as coming out of. The different Justices that have written about privacy, frankly, have seen it as coming out of different parts of the Constitution. In the Griswold v. Connecticut case, the right to privacy was seen by Justice Goldberg, your mentor, as emanating from the ninth amendment's limitations. In Roe v. Wade, Justice Blackmun saw it as coming out of the 14th amendment's concept of liberty. Justice Brandeis has suggested that a right to privacy comes out of the fourth amendment. From where do you see the right of privacy emerging? I believe you have said previously that you believe a right to privacy exists in the Constitution. In your constitutional analysis, how do you see that the right of privacy emerges?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Basically, I think that word "liberty" in the 14th amendment has been recognized by most—almost all—modern judges on the Supreme Court, and is pretty widely accepted, that that word "liberty" includes a number of basic, important things that are not those only listed in the first eight amendments to the Constitution. And the ninth amendment helps make that very clear, because it says do not use that fact of the first eight to reason to the conclusion that there are no others. So it is not surprising to me that there is widespread recognition that that word "liberty" does encompass something on the order of privacy. People have described those basic rights not mentioned in 269 words like "concept of ordered liberty," that which the traditions of our people realize or recognize as fundamental, and in looking to try to decide what is the content of that, I think judges have started with text, and after all, in amendments to the Constitution, there are words that suggest that in different contexts, privacy was important. They go back to the history; they look at what the Framers intended; they look at traditions over time; they look at how those traditions have worked out as history has changed, and they are careful, they are careful, because eventually, 20 or 30 years from now, other people will look back at the interpretations that this generation writes if they are judges, and they will say: Were they right to say that that ought permanently to have been the law? If the answer to that question is yes, then the judges of today were right in finding that that was a basic value that the Framers of the Constitution intended to have enshrined. That is a kind of test of objectivity. But the source I think is the 14th amendment and that word "liberty."
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. The notion of liberty arises, obviously, in a number of different areas, and I think there has been some examination here on this committee, but I just would like for my own edification to really get a specific response from you. This goes to the issue of a woman's right to choose. Justice Ginsburg a year ago said that she believed that a woman's right was part of the essential dignity of the individual; and of course, the notion of privacy has also been referred to as the right to be left alone. And I guess my specific question is whether you would believe that a woman's right to be left alone means the right to be left alone with regard to as intimate a decision as whether or not to be pregnant.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is the determination of Roe v. Wade. Roe v. Wade is the law of this country, at least for more than 20 years, that there is some kind of basic right of the nature that you describe. Recently, the Supreme Court has reaffirmed that right in Casey v. Planned Parenthood. So, in my opinion, that is settled law.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Good. OK. I want to move along to talk about privacy because, again, this is such an important area. Judge, you joined in a decision in the case of Daury v. Smith, which purported to recognize that individuals have a right to informational privacy. It has been touched on here in this committee previously because in this information age, with all the technologies that put more and more of our personal information "on-line," the individual's interest in avoiding disclosure of personal matters is and will be a more and more important issue. So, briefly, do you believe that there is, in fact, a constitutional right to informational privacy, privacy about one's person? And how do you see that right emerging? Do you see that as coming out of the 14th amendment or otherwise? Do you see it as a fundamental right, the right not to distribute personal information about oneself, whether it is to credit bureaus or, E-mail readers or others?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There I cannot talk about settled law because that is not settled. And I am quite certain that the scope of the 270 right to privacy that is within that word liberty, I am quite certain that that will be a matter that is going to be litigated. That there is a privacy interest of the sort that you suggest I think is clear. How that interplays with other rights and how that ends up being decided in a particular court case is something I think I have to leave to the briefs and the arguments and thinking about the particular case as it might come up.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. YOU are right, this is an emerging area.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, it is.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. And it is a very important one.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is important.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. But, specifically, we run into with regard—Congress has legislated in this area on kind of an ad hoc basis. There has not been any comprehensive protection to informational privacy. We are moving to create an information superhighway. We have not yet put up any stop signs. The question is whether or not—and this is a hypothetical I would like to explore with you—whether or not you believe that the protections, the privacy protections in the Constitution, would extend to private action with regard to, again, informational privacy, with regard to one's capacity to control specific information about oneself?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Control it in respect to State efforts to uncover it and so forth?
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Well, that is the other side of it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. DO you mean with respect to other private
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Well, let's start with—no, I think you started on the right tack. Let's talk first about control with regard to State action, which obviously is the Orwellian kind of specter that people are, frankly, probably more attuned to and on guard about than with regard to private action. But both, obviously, can be of vital importance, particularly in a time when the private action will in all probability outpace anything that the Government might do in this area.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I cannot give you a really good answer. The reason is that normally what would happen—and I think it is what I hear reflected in your question—is the first thing that happens is that many, many people across the country recognize problems in this area. Then having recognized the problems, they turn to you or your part of the recognition, and you say, look, there are these different interests involved. There are interests in spreading information around rapidly. There are interests in protecting something very important to people, which is their own basic information and that which makes them an individual. And these things might conflict in the face of new technology. We are not quite certain how they will conflict. So you listen to the technology people, you identify the interests, and then you pass laws. Then normally what happens to the judiciary is we decide whether there is a constitutional protection, but only in the context of the particular law. And it is because that latter decision would arise in a particular context that I find it difficult to go further. 271
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Mr. Chairman, I understand my time is up, but I would just like to ask a quick Matthew question, if that is all right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Sure.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. It would end up this line. My son is 16 and he plays with his computer, and he came in about a month ago complaining that he was in one of these bulletin boards. I have not gotten there yet. I just use it for word processing. But he was playing in one of the rooms on one of these electronic bulletin boards, and he came back and said: "Somebody changed my message. Somebody changed my"—he was really upset and aggravated. "Somebody changed my message." Then he proceeded to describe for me that there is a policy that you cannot use obscenity and the like. And he says, you know, they will censor, whoever they are, somebody out there in the electronic miasma somewhere. They will bleep out obscenity and things for which they have already given their subscribers notice that these things cannot go over the wires—well, they are not even wires, but over this, whatever it is, the circuits. And he said that is one thing, he said, and I understand that and that makes sense. But nobody has a right to change my message on the bulletin board and I am going to write them. And we discussed it for a moment, and it became clear that there was no way, first, to know who had done the changing. Someone who is involved with regulating what goes on the bulletin boards in these rooms, these electronic places, makes these decisions. And talking about informational privacy and all the kinds of new issues that come up in this area, I was, frankly, appalled that this could happen. Then I raised the question, well, what protection does the individual user have against this sort of thing happening? We do not really have a lot of answers. How would you look at that situation? Would you react as vociferously as Matthew did about someone changing his message in this electronic room on the bulletin board or whatever?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Michael and I have been communicating by Email back and forth from Stanford. I have been trying to learn it a little bit, and I think I would be rather upset—and I know he would be—if somebody were distorting his message. My message is distorted enough without some other person. So I do see it is a problem, and it does seem to me that I would react by trying to ask the questions that you are trying to ask, and then trying to find out how this all works and how you protect people's interest. And as I say, my guess is it would end up in legislation of some kind.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. DO you see the courts as having a role in providing that protection?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would have to say it would depend on how it got in. It is an area of such lack of knowledge to me as to the technical part that I begin with, my goodness, why would somebody be monkeying with my message. Then I would have to see how it arose to know whether the courts would have a role or not. It is reflecting ignorance on my part, but I see the importance of the problem. 272
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I do not think so. I think we are all kind of flailing around in this area. Again, I just want to thank you very much for your responses, and I thank the chairman for his graciousness in allowing me to go past the red light. When you are last, I guess you can—you get so anxious to ask your questions. Thank you again, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Judge, one of the most interesting little treatises I ever read was Patterson's 'The Forgotten Ninth Amendment." I am not going to quiz you on it. I just was curious whether you had ever read "The Forgotten Ninth Amendment," the rights retained by the people. It's a skinny little book in every law library.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It rings a bell. It rings a bell. If I did, it was quite a while ago.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, you know, I am going to sound a little bit like Paul Simon, who it is not bad sounding like, by making a suggestion that you can totally disregard. I would recommend it to you for your edification. It is not very cumbersome, and it gives a perspective that I think all Supreme Court Justices need. I think it accurately reflects the fear and trepidation that they all have—and the self-restraint they all have exercised in looking at the ninth amendment and its applicability to the notion of unenumerated rights. But I just cite it. You may find it at least interesting. Let me pick up where I left off yesterday, and not merely because a professor at my alma mater who has been helping me out, Bill Banks, sitting behind me, spent a lot of time helping me put this together. You know, you are always intimidated by your professors from your law school. Only Bill is younger than I am, so I am not intimidated by him. But I would like to follow up on a couple things that we started on yesterday. We were discussing—and I do not expect you to remember this, you have had so many questioners. But to refresh your recollection, we were discussing statutes where the Congress delegates to an agency, one of the alphabet agencies, the decision of how best to regulate. We very often, as you know from your days here, will say we would like to clean up the environment and we would like it to be cleaned up to a certain extent, but we are not scientists so we are going to give that responsibility to the Environmental Protection Agency, which has a battery of scientists and experts, to tell us when it has been cleaned up sufficiently to guarantee the public health and safety or whatever. We do that all the time. We do that not just in environmental legislation but in areas like, for example, this area you were discussing with the distinguished Senator from Illinois. There are a few of us, very few, who are experts on the computer age and the information highway, and we will delegate certain responsibilities to the Federal Trade Commission. We will delegate certain responsibilities to the Federal Communications Commission, in part because if we did not, we would be hamstrung here. We would spend the entirety of our time, 365 days a year, dealing with the minutiae, scientific, and quasi-scientific information that we are not equipped to deal with, notwithstanding our competent staffs. And so I would like to talk with you about this notion of delegation and where courts come in and where they can interject their own views. 273 More specifically, we were talking about whether it is appropriate for a judge to second-guess the agency's regulators, the agency's regulations as promulgated, because the judge thinks that the cost of the regulation outweighs the benefits. Now, in discussing the case overturning EPA's ban on asbestos, you said, and I quote, "It is not a very good idea for courts to get involved in making that decision." And I subscribe to that view. But in United States v. Ottati and Goss, you upheld a lower court's decision rejecting the Environmental Protection Agency's judgment as to what level of cleanliness was appropriate as it related to how much of the hazardous waste on a particular site had to be cleaned up or to what degree the site had to be cleaned of hazardous waste. More specifically, the site in question was contaminated with PCB's, and the area was zoned for—although the homes were not built—single-family homes. The EPA wanted a high level of cleanup to, in their view, adequately protect children who might live and play on that site in the future. And the cleanup—I know you know all this, but for the record, the cleanup EPA believed was necessary cost $9 million above what the developer felt was necessary to sufficiently clean up the site. The lower court judge said that the additional $9 million to ratchet up the cleanliness of the site was too much. And as I read the case and read your opinion, that was based on the lower court judge's own view of the cost and benefits. Now, you approved the lower court decision, which was appealed up to you in the first circuit, saying that from the record in the case—"one might conclude that this amounts to a very high cost for a very little extra safety." Now, why do you think that the question of how much it cost to clean up a site was a decision for the court instead of the EPA in this case? It seems to contradict your earlier statement.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The case was rather special in that respect, very special. As the beginning of the case points out, to put it in its simplest terms, when I wrote it, as far as the standard of review is concerned, what courts should do when an agency decides something is to respect the view of the agency and to overturn the agency only if it is arbitrary or capricious. Then I listed three ways in the statute that in a normal case the agency would make that determination. The agency has lots of procedures. They go in three different ways through those procedures. And they end up with something called an order. And the court may enforce the order, and when it does, the issue is: Was the agency right or not? And you play the agency's game. That is to say, you overturn it only if it is arbitrary, capricious, abuse of discretion. In that particular case, the agency did something that was very unusual, I thought. I do not know. I cannot tell you by actual experience how unusual, but I have never seen another one in our court. Instead of playing what I would call the agency's game where they went through their own procedure, they never finished their own procedure. Instead, 10 years earlier, they had come into court and asked the court to weigh the evidence and to issue an injunction according to court procedure. And basically what that 274 decision says is well, of course, if you or anyone else conies in and plays the court's game in setting the facts, you follow the court's rules. I do not think that interferes with your ability to do something because you have loads of authority to go make the decision over in the agency.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me make sure I understand this, and I think I do. The agency has two routes to go.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; four, actually.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. At least two that you have mentioned.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The first route was to issue an order based on its findings and tell the developer, whomever, clean up the site, spend the extra $9 million. Then if he refuses to do that, the agency can go to court and say, "Enforce our order", or the builder can go to court and say, This order is capricious, or whatever argument they wish to make, do not make me do it.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The second route, in this case, is for the agency to come along and say we have assembled—and I think it was about 40
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Oh, enormous.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. 40,000 pages of documentation to sustain why we think the court should make the owner clean up this site and spend an extra $9 million. But the agency did not issue an order. Is that correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. They made a request to the court, "You tell them to do it, you issue the order."
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK; now, I in no way mean to nor do I suggest you should have belittled the difference in the process there. So as I understand what you are saying to me, the EPA, notwithstanding they had these 40,000 pages of documents making their case why they thought the extra $9 million was necessary to be spent, did not issue an order, technically, and said, "You tell them, Judge. You look at it, you tell them we are right, you issue the order." What would have happened had the agency issued the order? A procedural difference. They have issued the order, and either the property owner, the builder, or developer says, "I will not do it" and starts to build, and they seek the court to shut him down. Or the builder came in and said, "they are trying to make me pay an extra $9 million to be able to begin to build. I do not want to do it." What would have come into play, if anything, that did not in terms of the way the case did proceed?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I believe, as I have written the case, that under those circumstances the court would not have reviewed the record afresh. It would have reviewed what was in back of that order under the ordinary deferential agency standard. And it would have said it is up to the agency, unless it is arbitrary, capricious, abuse of discretion
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO they would have looked at, theoretically, the 40,000 pages or thereabouts of the documentation that the EPA presented, and unless they found some reason other than it seemed awfully high, they would, in your view—or you would have as an 275 appeals court judge, had they come back and used the same language, it just seems to high, you would have been more inclined to overrule the agency. Is that correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right. The court.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The court, I meant to say. I meant to say the court.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, when the Congress wants to require that hazardous wastesites be cleaned up—and as you know better than I do, from your experience you are well aware of it, it is an area we are going to be confronted with. Every Army base we shut down, I mean, we are finding these cleanup costs are by anybody's standards staggering, even no matter what level we are talking about cleaning up. If the Congress wants to require the hazardous wastesites be cleaned up to a level that EPA thinks is safe, must it explicitly tell the court, "Do not substitute your own judgment?" Or does the arbitrary and capricious standard in your view still prevail?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is the normal rule. The normal rule, the Administrative Procedures Act.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK; the reason I asked is because, as you know, some of your colleagues, who, I might add, have an incredible amount of respect for you, your colleagues in academia, have written—and I mentioned two of them yesterday, Eskridge and Frickey. Both, I think you would agree, are well-respected, wellknown legal scholars.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. They are of the school that there is an emerging school of thought within the Supreme Court as presently constituted that is looking for—I think their phrase is—I am not positive of this exact phrase—I think it is "super-clear rules of construction." So that they think, at least if I have accurately read two of their publications, one by Eskridge on "The New Textualism" and the other one by Eskridge and Frickey entitled "Statutory Interpretation as Practical Reasoning." They and others are making the argument that the Court is, in fact, injecting the notion of law and economics as an appropriate measure for lower courts to take into consideration, not just merely where the agency was arbitrary and capricious. Let me give you a concrete example. As you well know—and you have expressed, I think, very well here today and yesterday—by quoting Holmes and others, "the life of the law is not merely logic." It is a reflection of societal values. Those values do not always lend themselves to, what we used to say 30 years ago, slide rule computations. Today we would say computer computations. The law is life and life ain't precise, and we up here legislate and attempt to reflect societal values, which don't always lend themselves to easy weighing and computation. We are about to begin, at least I think we will in the next couple of months, a major debate about health care in America. Many of us have become much more aware of the nature and the present functioning of the present health system. I was surprised to learn— 276 although intuitively I guess I knew it—that 25 percent, one-quarter of all the health care costs in the United States of America are spent on the last 3 months of a person's life. Your wife knows this probably better than either one of us do, or any of us in this room. It is a societal value we have made a judgment about. Rather than take a quarter of those almost trillion dollars we spend and spend somewhere between $150 billion and $250 billion on the young and immunization, which might very well, if you were looking at it purely from a utilitarian standpoint, provide for the greater good for a greater number and the collective better health of all America, we as a society have decided we do not have the view that has been expressed in some early cultures where, when you get old enough, your requirement is to crawl off into the bushes and die, so you don't impact on the tribe, on the society. We have consciously made a decision, no, we are willing to do the economically imprudent thing, spend one-quarter of all our resources on the last 3 months of a life, the average life expectancy of men and women roughly 70 years of age. Now, when and if we continue to make that decision—there was an interesting article in my hometown paper on Sunday, unrelated to your confirmation hearing. There was a big article about these difficult choices. Dr. Frederick Plum, who is probably the finest neurologist in all of America, probably the best known, has written about this, as well. There was a man who was asked by a reporter, well, how do you feel about spending an incredible amount on your grandmother, who is very old, who lived only an additional short period of time. And the man answered, it was worth it all to see the look on her face when she got to see her great-grandchild. Now, it sounds corny, but they are the kinds of judgments we are making as a society. What does Congress have to do to make sure that when we make those kinds of decisions, if we do, that we do not raise the bar on the societal judgments made by Congress and signed by the President on Government actions by putting into effect a new rule of construction, a canon of construction, like one of our witnesses who will testify on Friday has written about, and that is the presumption that is argued by some very bright people that the Court should presume, if the Congress does not specifically mention do not weigh the cost, that this effectively requires the Congress to anticipate that the courts should presume that they, the Congress, wanted the courts to do this balancing test on the economy. How do you respond to that whole school of thought? I am not asking you to respond to any specific case. Discuss that with me a little bit.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is foreign to me. I mean, it is foreign to me. What I have written about it is that that is the kind of decision— my goodness, it is health, it is safety. There is no economics that tells you the right result in that kind of area. There is no economics that tells you or me or all of us how much we are prepared to spend or should spend on the life of another person. There is nothing that tells us the answer to that in some kind of economics book that I am aware of. 277 And also, that is so much a decision that people will make through their elected representatives. It is a democratically made decision. Judges are not democratically elected. I mean, it is exactly the kind of reason, in my own view, that it is very important for courts—and I have written this, I have written this—it is so important for courts, which are not good institutions to make those kinds of technical choices because judges are cut off from information that would be relevant, among many other reasons, and they do not have the time, among many other reasons, and they do not have the contact with the people, among many other reasons, and there are just dozens of reasons which I have spelled out why they are not good institutions to make those kinds of decisions. So that reinforces what I have tended to write, that it is important for courts to go back to try to understand the human purposes that are moving those in Congress who write these statutes when they interpret them.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I appreciate the answer, and I have read your Law Review article where you essentially say that, and you have cleared up for me—just as I frankly thought you would—the apparent—apparent—inconsistency in the Ottati and Goss case, where that was based upon the manner in which the agency brought the matter before the Court. Now, my staff is urging me to go to the end, because my time is running out, and speak about another area, but since I am chairman and have such a wonderful cochairman here, I am sure he will let me run over a little bit, and I will ask both my questions.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure; go ahead, Joe.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It comes with being here 22 years. All kidding aside, let me quickly try to touch these last two areas, and I do not think I will have any more questions for you. I mentioned, again, my concern about raising the bar, and we talked a little bit about that today. Senator Brown raised issues that related to this, and balancing tests, and stages, and I interjected and asked about the distinction between the test of whether or not as a black person, I can live in a neighborhood, and whether or not I can build a 20-story building in the neighborhood. They are very different things, and you explained that you in fact did see gradations and requirements as a judge to look at them slightly differently. But one of the ways to raise the bar, to use the expression I have been using again, is by the Court requiring Congress to speak in a super-plain, super-clear way when they interpret the statutes we write and signed by the President. And it is argued by the textualists—and these phrases change all the time, but I am in your territory here, and I need not explain any of this to you—that you look only at the literal language—not you, but some, like Justice Scalia, very articulately argue you just look at the literal language, ignoring the context and history. And Senator MoseleyBraun asked you about context and history as well. I mentioned yesterday the Patterson case as an example of a case where the Court looked at a statute, a statute passed by the Congress after the Civil War, over 100 years ago, to guarantee citizens of all races equal rights. The Court held that the statute's language, which gave all citizens the same right to "make and enforce 278 contracts," did not protect the black employee from racial discrimination after she was hired. The irony is she could be demeaned after she was hired, but she could not be demeaned during the job interview process while she was being considered. And I think the average person would think that is not a very common sense reading. The Court read the literal language of the statute very narrowly and supported doing so by looking outside the statute to another law passed 100 years later. It said that, well, in 1964, the Congress passed the Civil Rights Act, which really is the area where this case should be brought. So therefore, we are going to assume, by reading the literal language of this post Civil War statute, that they did not mean to cover this because 100 years later, Congress came along and explicitly covered it. But they did not look at the legislative history of the action in the 1960's, which specifically said in the legislative history we do not mean in any way to overrule or affect or change the statute passed in the 1870's. Now, if you will, how would you have approached the Patterson case had you been on the Court?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not want to discuss the particular case, but I can say from what I have said and what I have written, it is a fair assumption that I would have looked at the legislative history, because I think when you read statutes, and you are trying to understand what is the human purpose that you and Congress have in mind, a very good way to do it is you look at the legislative history. That does not always give you the answer, but very often, it helps.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, let me skip, then, quickly to Dellmuth v. Muth, where it seems to me the Court, in the name of doing the same thing, reached an exact opposite conclusion interpreting another statute. That statute, as you well know, was passed through the work—and I do not want to get them in trouble—but through the work of Senators Kennedy, Hatch, Dole, and others. We passed a law relating to—we all voted for it—passed a law relating to the handicapped. And we said that if a handicapped person's rights are being denied, as written under this legislation, by a State—we did not say it explicitly, but at least we implied—that the individual whose rights were not being guaranteed under the legislation could sue the State in Federal court for money damages. I think Patterson and Dellmuth were decided the same day; I think they were handed down the exact same day. I remember in Patterson, they said we are going to look at the literal language, and we are going to read into the language that they must have meant look 100 years hence and see if that statute that passed in any way affects the reading of this statute. In Dellmuth, they looked at the statute and said, you know, there is a presumption that has existed in the law, a canon if you will, in legislative interpretation, against allowing individual citizens to sue States in Federal court. They looked at the 11th amendment and other areas to conclude that. And they said notwithstanding the fact—in my words; I am paraphrasing—notwithstanding the fact that a common sense reading of Dellmuth might lead you to believe that a citizen had a right to sue the State in Federal court, we are going to presume that the Congress meant 279 to do something other than that, because they must have known that there is an existing presumption against that, and because they did not explicitly say in the statute you are able to sue notwithstanding previous presumptions in the law, we are going to rule that that person cannot sue the State of New York in Federal court. The end result was the same. In one case, a black woman's equity rights were diminished. In the other case, a handicapped person's rights were denied in terms of suing. You did not write either case, and I am not asking you how you would have decided it, but how do you reconcile those two cases in terms of statutory interpretation?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What I have said that is, I think, relevant in writing, what I have said which I think is relevant to the question that you posed, are really two things—that, one, if you are not certain about what the statute means—in all of these open, big, important cases, in any court, language rarely resolves it; otherwise, why is it in court—but go look at the legislative history. The dissents in both cases did look at the legislative history. The dissents felt that the legislative history showed that the interpretation of the majority was incorrect. So on the basis of what I have written there, I have said, well, sometimes legislative history helps, and I guess my instinct would have been to go look at it. The other thing, which is—I understand that other people may disagree, and all of this is very debatable—but I have said beware of these canons. Why do I say beware? Well, the clear statement canons have a very respectable pedigree. In countries that do not have written constitutions, very important countries, they have served as protection of human liberty, because judges have sometimes said in those countries: We are not going to interpret a statute to infringe on a basic human liberty unless the legislature is very clear. And that has served in those countries sometimes as a substitute for a written constitution. We do not find that here as often because we have a written Constitution. But the danger with the clear statement rule which I saw and wrote about is you can proliferate these rules, and as you proliferate them, as you get into something called "y°u have to state the matter clearly if Congress wants to legislate a departure from traditional equity powers," I begin to think: What is this; who will know it; how will people understand it; how will drafters know what to draft; how will ordinary lawyers and those who must take their advice know to interpret the statute? It becomes also very complicated.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Or, as Brennan said in dissent in Patterson, that Congress would need "a particularly effective crystal ball."
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, I have argued that it is easier, simpler, more accessible; despite the fact that use of legislative history can be abused and should not be, it is still simpler to go and look to that in many cases where it is helpful. Now, other people present very strong arguments for the other point of view, and they cannot be just dismissed, those arguments. But that is basically
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO; I am not just dismissing them 280
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; I know you are not.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. But then again, they are not before us, and they are not asking to go on the Court. Others who share the opposite view than I do are already on the Court. I just wish I had been smarter then and known what was coming and understood just how strongly Mr. Justice Scalia felt about some of these things. I think he is one of the finest men I know, but it is the vote I most regret ever having cast out of over 10,000 I have cast—not because of his character, but we have such a difference of views— and I have told him that. I mean, we joke about it. I told you he found out I was teaching constitutional law at Widener Law School, and he said, "Oh, my God, I had better come to protect those students." So he shares the same view about me. At any rate, let me close with two short questions on one last subject. That is this notion of unconstitutional conditions. I would like to return to the first case I asked you about, Dolan v. Tigert— and I hope I am pronouncing "Tigert" correctly—the takings clause case. But I would like to look at a slightly different question. The majority in Dolan rejected the town's measure because it imposed what they referred to as an unconstitutional condition when it said that the business owner could only get a permit to expand her store if she agreed to give up the use of part of her land. An unconstitutional condition, as you know, occurs, to oversimplify it, when the Government forces us to give up a right voluntarily in exchange for getting something we badly need or want or are otherwise entitled to. Now, you considered the question of unconstitutional conditions in the case of HHS v. Massachusetts. A Federal regulation forced doctors in family planning clinics to agree not to give certain medical advice as a condition to accepting Federal funds. You joined an opinion ruling that this was an unconstitutional condition on free expression, the first amendment—basically, that doctors were not allowed to give advice about alternatives to women. The Supreme Court, when up on appeal, disagreed; one of the few cases in which you were in the majority on the first circuit that I am aware of that the Supreme Court disagreed with. In the case testing the same regulation, Rust v. Sullivan, the Supreme Court found no violation of the first amendment. And I think, quite frankly, the Court, from my perspective—it will come as a great shock to you, I know—I think the Court got both Rust and Dolan wrong. In one case, it gave a businesswoman's economic interest more protection than it gave a doctor's freedom of expression stated in the first amendment. Now, what do you make of these results? Can you reconcile the cases? You were not in either one of them. I am not asking you how you would vote had you been there. But can you reconcile finding an unconstitutional condition as it related to a property owner's right relative to a bicycle path and not finding an unconstitutional condition where the first amendment was at least in question.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU obviously, Senator, find them difficult to reconcile
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I do.
Stephen G. Breyer
Nominee
(D)
Judge BREYER [continuing]. And of course, I wrote one of the opinions the other way, and if you went to a district judge on my 281 court that had an opinion that was reversed by a panel that I was on, and you asked, do you think that that condition is consistent with some others, he would say absolutely not. So I am sort of in a sense a party in interest, so I do not think I will go beyond
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, no; I think it is fair to ask you, not what your view—obviously, I know what your view is relative to Rust. You thought the first amendment was implicated, and it was an unconstitutional condition. What I am trying to ask you is not whether you think the other should have been decided, but how are they different, how are they the same? I mean, has something changed? Is there something in the Supreme Court right now that is able to find an unconstitutional condition relative to a property right affecting essentially a zoning regulation, and not find an unconstitutional condition in the first among our amendments? Play professor with me for a moment.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I try to resist that temptation, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Oh, go ahead. Let yourself go. It is OK.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am not certain you are asking me to guess what other people would say.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO; I am just trying to—how would you explain it to a class?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am not sure—you would say in one case, you are talking about a Government program; in the other case, you are talking about regulation of property. In the regulation case, the Court feels it went too far. It was like those pillars of coal, and the Court felt it went too far, and they did not show enough justification, and they felt that was important because of the underlying interest that they thought was a very important interest, and you have shown more since there was some land of possession of physical property. In the other case, they would say, well, I guess, that the impact on this, on whatever right is involved, is not as significant or is changed because of the funding nature of the program, because it was a program the Government did not have to create in the first place. Those are the lines of reasoning that it is trying to take.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me end—I have trespassed on everyone's time too much—let me just end with this. In an age where, rightly or wrongly, citizens depend on government to provide many needed services—wealthy citizens as well as indigent citizens—doesn't Rust show that the Court can significantly limit our personal rights through indirect and more subtle means?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It just seems to me that I probably, if I am confirmed, will have to deal with a lot of cases that try to go into this. And they are difficult cases, and the Court disagrees about a lot of issues that come up, and you have to try to work them out and try to figure them out in light of the briefs and the arguments
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I will let you go on it, but I want to make it clear this is not about choice, this is not about abortion. This is about the notion which has been raised here on every matter that the Government is involved. There are those among us, left and right, in the Senate who are going to say because Government money is involved, we want to attach a condition. I predict to you 282 that you will be faced with a myriad of cases in your long tenure on the Court where you are going to have to come up with, if you will, various rules of construction to make a judgment about where it is appropriate and inappropriate. You are going to have liberal Senators who are extremely well respected, like Senator Simon and others, considering whether or not we condition the ability to get a license for broadcasting on whether or not they show violence on television. I doubt whether he will do that, but others will raise that question. You will find that conservatives suggest that in order to get money for the arts, there must be a certain standard that is met. This has been raised. I put Rust in that context. I think the problem we have—and I will end with this—is we become—we, on this side of the bench—are somewhat myopic. We look at the subject matter that is being debated rather than the substance of what is being debated. Rust does not concern me because it relates to the ability of a doctor to talk about the availability of something other than birth. It concerns me because it seems to set a precedent that suggests that a condition can be placed on a fundamental constitutional right—freedom of expression, freedom of movement—it can be anything. So I, like all of us, am going to end up having to take a chance on what we think your instincts and methodology are. I am prepared to take that chance, and I am confident you will think a lot about this, and I am also confident—not because I said it, but because it is a'coming, Judge, in a big way in this Congress and succeeding Congresses, and it is something no one is writing very much about now, but I predict to you it will be written about; it will fill volumes before this decade is over.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Will the chairman yield just for a moment, just for a hot moment, because I know everyone is anxious to go, and Judge Breyer has been more than patient.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I yield the floor.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. My question in that regard is would you see the possibility of unconstitutional conditions coming in areas other than first amendment—because the first amendment is such a slippery slope, and that gets us into all of these kinds of questions the chairman has just raised on arts and violence on television—but other than the first amendment, would you see the possibility of an unconstitutional condition arising in other areas?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. My guess is—and it is a guess—that there could arise conditions that people would argue violate a host of different amendments—fair trial—I do not know—there are lots of different parts. I think the answer is yes, but it is a guess.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I cannot think of a single amendment that would not qualify except the ninth, and that is only because the folks who are applying these unconstitutional conditions do not believe there is a ninth amendment. But that is another question.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. But Mr. Chairman, again, the reason I raise the question—I think it came up—I do not know who it was—Senator Cohen may have raised it earlier today—the issue of the leases in public housing in my own State comes immediately to mind. Again, I think this is an area where, right, there has not 283 been a lot done in this area, but it certainly is one that will no doubt in Judge Breyer's long tenure on the court come up before the Court. Again, I apologize for interrupting, and I thank the chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, and I thank Senator Hatch for letting me go over. I will have no more questions for the remainder of this hearing. I will yield to Senator Hatch, and we will close with Senator Hatch's questioning. Would you like a break?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; I am fine.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Then we will finish with Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Judge, after hearing Senator Biden's predictions of how tough it is going to be on the Court, maybe you want to withdraw.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, thanks.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Actually, when you are talking about the Rust case, you are talking about a funded speech case instead of a free speech case. Basically, it should be pointed out that the case
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is the whole point.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. You made the point; I thought you did make it rather well—that the case involved regulations governing Federal funding of title X family planning programs. And those regulations did not bar any speech; they simply prevented the use of Federal Government dollars to fund pro-abortion counseling and referrals. Now, it was a perfect illustration of how the Court ruled one way and the Congress of the United States overruled the Court in an appropriate way, according to the majority. I happen to disagree with that, but it was the way the democratic system should work. So I would submit it is a funded speech case instead of a free speech case. Nothing would have prevented the doctor from speaking as freely as the doctor wanted to. He just could not use Federal dollars to do it under the Court's ruling. I would feel very badly if I did not say a few words about Justice Scalia, because I think there are some misinterpretations here that conservative jurists like Justice Scalia are inconsistent in their approaches to statutory and constitutional interpretations. Some are arguing that. But let me quote from a Law Review article that is critical of Justice Scalia's method of statutory interpretation, but an article which is also critical of many of his critics as well. It says: Many of Justice Scalia's critics point to an apparent inconsistency in his approach to constitutional provisions as opposed to statutes. While he takes a "textualist" approach to statutes and criticizes the use of legislative history to establish legislative intent, they argue, he takes a sharply originalist turn in constitutional adjudication, basing his arguments on the intentions of the Framers. Justice Scalia does indeed consider himself an originalist in constitutional adjudication, but his brand of originalism does not rest on the intent of the Framers as revealed in the proceedings of the Philadelphia Convention. Instead, he relies upon the original understanding of constitutional terms, based on arguments similar to those he uses in interpreting statutes. These include arguments from text, context, purpose, contemporaneous usage of language, and the structure of the constitutional scheme, including separation of powers and federalism. I think that is a more accurate description of Justice Scalia. In other words, Justice Scalia's statutory interpretation and constitu- 284 tional jurisprudence of original meaning are really consistent. And you have pointed that out. Now, you would go farther, and perhaps I would also, in looking at what the Senators and Congresspeople have said from the standpoint of statutory construction and also legislative history and examine that. I see nothing wrong with that, either. But you, having been upon Capitol Hill and realizing that this sausage that we call legislation, how it is made sometimes, you have to very carefully—and I think this is what Scalia is saying— look behind, really, what the words are to really find what was really meant, because as you know, sometimes they just throw whole statements into the record that nobody debates at all. All they have got to do is sign it and put it in the record, and they can skew any legislative history any way they want to. So I think you would agree, would you not, that you have to be very careful when you look at legislative history, that you just do not buy all the words that are put there by Members of Congress or members of State legislatures or Federal bureaucrats or the President; right?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; you use it; you do not abuse it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right, and I think you have made that pretty clear, and I want to compliment you for doing that as well. I have some differences with Senator Biden on the takings issue also, and I have to say I also differ with Chairman Biden on Patterson v. McLean. In that case, in my view, the Supreme Court resisted legislating from the Bench to reach a feel-good result. The Court respected the differing roles of the judiciary and the legislature and properly left to the Congress the role of revising the statute in question, rather than injecting the Court's own policy preferences in the matter. In Patterson, the primary issue was whether section 1 of the Civil Rights Act of 1966, also known as section 1981, prohibited racial harassment on the job. And frankly, we have to note that it is not an employment discrimination statute. It reads in pertinent part: All persons within the jurisdiction of the United States shall have the same right, in every State and Territory, to make and enforce contracts. Now, the Court said that the statute does not reach conduct occurring after the contract has been made. The statute does not cover the "terms, conditions, or privileges of employment," as title VII of the 1964 Civil Rights Act does. Indeed, the absence of such a broad statute was one reason that title VII became necessary in the first place. So the Court ruled maybe too narrowly, certainly in the eyes of the Congress, which later in a sense overruled that, but nevertheless ruled properly because that was the language of the statute; it was the meaning at the time. And we were able to correct that, and I participated in doing so, as a statutory result. Isn't that a correct
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Not discussing the merits of the case; that is, I did think that probably my instinct would have been to look at the legislative history, but I have not looked at it and do not know what I would have found.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, that is right. And I think sometimes we get too caught up in this Scalia debate on whether or not he means anything with regard to looking at original meaning and what 285 those original words meant and what the context of those original words actually meant, when actually, he means a lot more than just trying to interpret the law on a very narrow basis. And I think you know that; right?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I have attended lectures that he has given; they are very interesting, and I think it is more. I agree with you. He has a theory
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I wish I could be in some of those meetings, listening to you and Scalia, because I believe that you and Scalia are going to become very good friends. I am going to encourage him. [Laughter.] And I believe you will be very good for each other. You are two brilliant intellects, and both of you are excellent lawyers, and both of you are, in my opinion, very, very fine people. So I suspect you are going to really like each other, although you will differ from time to time. And we will just have to see what happens. I will be carefully reading and watching, however. Now, let me just return briefly to the subject of the establishment clause—and I do not want to keep you too late; I know this is very tiring, and I know that you have had a long day, but these are really important issues, and I apologize for keeping you a little longer. But in your testimony yesterday, you stated that "when I think of the establishment clause, I think of Jefferson, and I think of a wall." Now, I was a little bit surprised by your use of the wall metaphor, because it seems to me in tension with your fine concurrence in the case called Members of Jamestown School Community v. Schmidt, back in 1983, in your circuit. As you will recall, in that case, the first circuit largely upheld a Rhode Island statute providing bus transportation for nonpublic school children, including children attending religious schools. And in your concurrence, you found that the majority opinion was too hostile to neutral State programs that provide proportionate benefits to students who attend religious schools. In particular, as I read the case, you stated that you "believe the establishment clause calls for a more practical approach to this type of problem than the comparatively theoretical approach taken by the majority." Now, it seems to me that the wall metaphor—which, incidentally, is not derived from the Constitution itself, or from ratification debates, but rather from a private letter written by Thomas Jefferson years later—reflects the very type of impractical theoretical approach that you criticized in your concurrence in that case. It certainly is not a metaphor that assists analysis, in my opinion. And moreover, it is most often used by those who are hostile to governmental accommodation to religion. So I think it is an overused metaphor, between you and me, and I think you pretty well stated that in your concurring opinion in that case. And as you know, Supreme Court opinions clearly appear to uphold the constitutionality of a school voucher system that enables students to choose among various schools, including religious schools. Now, some people think that introducing competition into our school system would—and I personally believe that—promote a much needed improvement in quality. So I was encouraged by your 286 Jamestown concurrence to believe that you would also support such a voucher system against establishment clause challenge. Now, without asking your views on a voucher system, I might just mention maybe in predicate to that, vouchers, it seems to me, would eliminate many of the thorny issues that arise because many students as a practical matter are compelled to attend public schools. And a lot of these issues you have been grappling with, both as a judge and in these hearings, it seems to me might be eliminated if a voucher system were used. But without asking your views on a voucher system, I would like to know whether you adhere to the views that you gave in your Jamestown concurrence.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I thought you would. And do you think I have misstated it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; I think that the point of the practical approach is you have instances in which the question under the establishment clause is has the Government injected religion too far into a secular institution. That is not what you are talking about now.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU are talking about the other issue, which is to what extent can the Government aid a religious institution. And there, I have said several times, and I certainly think that the answer is zero. Everybody understands that the fire department will go put out the fire in the church. Everyone understands that the church will benefit in many ways from all kinds of public services. Everyone understands that the church school will. But the question becomes—and this is what I think is a practical question—when does it go too far and suddenly become what looks like the State support of one religion against another, or religion against nonreligion. If the State would support my synagogue, I might think: Fine. If they are going to support somebody else's church, I might think: Hmm. And each church might think: The other, no, but mine, yes. But we live in a society of so many different groups that it is important that those groups do not see the State as supporting the religion of another, or religion versus—I mean, that is the basic theory, and I think these are practical questions about when the age when the church is
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO you have an open mind with regard to these establishment questions.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I would hope so. I would hope so.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I believe you do. But let me just introduce an institutional question of how a Justice should decide a constitutional question where the relevant constitutional clause is unclear. It has been suggested by one of my colleagues on the other side of the aisle that a Justice should err on the side of freedom. Putting aside the fact that virtually every case involves competing freedoms, it seems to me that just as the Constitution does not enshrine an economic theory of unbridled free enterprise, it also does not enshrine a political theory of radical libertarianism, either. Now, you agreed with me yesterday that a judge's legitimacy derives solely from the fact that the judge is applying the law. Where the Constitution is unclear on an issue; what authority then does a Justice have to override the result reached by the political 287 branches whose members, it must not be forgotten, are also sworn to uphold the Constitution? Stated differently, if the meaning or application of a relevant constitutional clause in a particular case is at bottom unclear, how can that unclear clause provide a Justice the mandate needed to strike down a law as being in conflict with it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Where a clause is unclear, there is no escaping the requirement to find its meaning. The meaning, once found, might be consistent with the legislative enactment, or it might not. Obviously, in finding its meaning, a Court is also guided by the Constitution's own division of authority into three separate branches, and its understanding that legislation is given to the legislature to enact, that is, Congress. But one does have to find the meaning; otherwise, there is no way to know how to decide the case. To find the meaning, you begin with the text, but as you say, the text is very unclear in the example you are thinking of. You go back into history, and you look at what the Framers are likely to have intended. And often—or sometimes, anyway—that will not answer the question, because they may have intended the meaning to encapsulate certain important values, which values may stay the same, but the conditions in which they are applied may have changed. So you look to precedent, and you look to tradition, and you look to history if the case is really difficult. And you have to have some understanding of the practical facts of how people live. And all those are meant to be not unleashing the subjective opinion of the judge, but rather, as factors that inevitably in these tough cases, judges have to look to.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would you look to just making a guess?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, you cannot just make a guess.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Why should that become constitutional law?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU cannot; you cannot just make a guess, and there are certain chains, there are certain safeguards. I always think an intellectual safeguard is the safeguard of the judge thinking to himself: Remember, the decision you make has to be one that you believe other judges would also make if they understand the law and do not have your personality. And remember, too, that the decision that you make, if you are interpreting the Constitution of the United States, is a decision that Congress cannot change. So be careful of trying to remake the boat while it is in the middle of the ocean. Be careful.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And remember, too, that 20 or 30 years from now, you had better be thinking to yourself right now that people who study this with care—and those are not necessarily scholars; that can be any man, woman, child in the United States—people who look back at this with care will think, yes, that decision interpreted the Constitution in a way that ought permanently to be the law. Those are intellectual checks that try to make the factors that I mentioned factors that do not unchain the personality of the judge, that hold the judge back from legislating, but permit the Constitution to adapt to changing circumstances in a way that I believe the Framers intended. 288
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me move to just a couple of cases. You are familiar with Washington v. Davis, which is of course an equal protection clause case.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me just say this. In Washington v. Davis, the Supreme Court held that in order to trigger the strict scrutiny standard of review under the equal protection clause, a plaintiff must establish that a Government practice or policy with a disparate impact upon minorities was instituted with a discriminatory intent. That is basically what Washington v. Davis said. Only if such intent is shown must the Government have a compelling interest in order to justify its policy. Now, in the absence of any showing of discriminatory intent under Washington v. Davis, a challenged practice is subject to the rational basis standard of review. Do you believe that Washington v. Davis is settled law; and second, do you believe it was correctly decided?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I know that in most of these areas—I think what you are saying—the part that I am uncertain of—I know that when you look at the equal protection clause pure and simple, without a statute, I believe that that discriminatory intent test is the one that has been applied. I think most of these areas by Congress have been turned into statutory areas, and once you get into statutes like title VII and a number of other areas, you discover the tests, as you have tried to implement the equal protection clause, expand into disparate impact analysis as well. So I suspect that most of these cases arise in the statutory context rather than—at least racial discrimination, and much gender discrimination, too, in the area of employment practices and so forth. So I am more familiar with the statutory test. When you go back to the equal protection clause, I think there were the three tier analyses we were talking about, and that middle tier is up in the air, and I tried to answer that question yesterday.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me take the Croson case and the constitutionality of set-asides. Do you agree with the Supreme Court's holding in Croson v. City of Richmond that all racial discrimination by government, including discrimination against whites as well as discrimination against racial minorities, is to be judged by the same standard of strict scrutiny under the equal protection clause?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. They said strict scrutiny, and that is a very, very difficult area, because that, very straightforward, if the area called affirmative action, and that affirmative action area is an area where the Court in a variety of ways has said affirmative action is appropriate, but you had better be certain you are remedying a real past wrong. That is necessary, in light of the real wrongs that were committed. Then when you look at that program, if you are righting a real past wrong, remember that affirmative action programs also have the ability to adversely affect people who themselves did nothing wrong, so please be certain that it is tailored carefully. Then I know the courts made distinctions between taking something away from the person who did nothing wrong, like losing a job, which they have tended to frown upon, indeed, and not giving a person something that he never had, like a promotion, and work- 289 ing out what constitutes a proper tailoring in light of the possibility of hurting an innocent person, but in light of the need to correct past wrongs. That has all been considered in a group of cases which is complicated and difficult, as you can see the broad outlines, and Croson is one of those cases in which the Court has tried to decide what standard or how do we know if this is really to correct a past wrong. And in Croson they decided that they didn't think it was shown really this is necessary to carry a past wrong. That is my understanding of how it is working.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think your emphasis of people who did no wrong is very appropriate, because we are talking about reverse discrimination against people who really did not participate in the discrimination.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It is a very serious matter and should only be used in only the most stringent of cases, which you have also pointed out, and some believe shouldn't be used at all, because there is no reason for somebody to lose because of something in the past that may have been wrong, but they didn't participate in it. So I appreciated that distinction. Just two last areas, and they are both important. Judge Breyer, let me return to the subject of the ninth amendment. Senator Biden has raised that a number of times. Advocates of judicial activism often cite the ninth amendment as though it were a font of unenumerated and undefined constitutional rights to be spelled out at the whim of Federal judges. In fact, the natural meaning of the ninth amendment and the historical evidence lead to a very different conclusion, in my opinion. As the law review article that I called to your attention and that you were so kind to read discusses, the Framers understood that the Constitution protects individual rights in two very different ways. First, and most importantly, it delegates only certain powers to the Federal Government. Matters beyond the powers of the Federal Government are thereby residually protected as a matter of right. Second, the Constitution specifically enumerates certain other rights. As the historical evidence makes clear, the ninth amendment was adopted in response to the fear that the enumeration of certain rights in the first eight amendments of the Bill of Rights would be misconstrued to suggest that the Federal Government had general and unlimited powers. In other words, many thought that the inclusion of the Bill of Rights was not only unnecessary, but positively dangerous. Under this reasoning, the first amendment guarantee of free speech, for example, was not necessary, since, if the Constitution were properly construed, the Federal Government had no enumerated power that enabled it to restrict speech. So that was their reasoning. The unnecessary listing of rights was dangerous, because it would invite the erroneous conclusion that the Constitution otherwise vested general powers in the Federal Government. The ninth amendment was, therefore, adopted to make clear that the people retained other rights by virtue of their nondelegation of infringing powers to the Federal Government. Now, are you open to the historical evidence that supports the view that the ninth 290 amendment is not itself a source of affirmative rights against the Federal Government, but is, instead, a reminder that the people retain rights residually protected by virtue of the fact that the Federal Government is limited to the enumerated powers spelled out elsewhere in the Constitution?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I am open to that, because I think that in Justice Goldberg's concurrence, what Justice Goldberg said is that the ninth amendment is not itself a source of rights. Rather, it suggests that you shouldn't make a certain kind of argument, you shouldn't make the argument, just as you said, that the very fact that there is a Bill of Rights here with amendments listed means there aren't any others. You can't make that argument, and since you can't make the argument, I think he was addressing himself to Justice Black. Since you can't make that argument, now let's go on to see if there are others, and he found the others not really in the 9th amendment at all, but found them in the 14th and the word "liberty."
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Second, do you agree that the ninth amendment does not itself apply against the States? Do you not also agree that the 9th amendment is not incorporated against the States through of the due process clause of the 14th amendment?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, it seems to me that the ninth amendment is like a rule of construction, so I don't know what it would mean to be incorporated. I don't know how that could take place. I have never thought of how that could be. It doesn't sound as if it is the kind of thing. It sounds like it is a rule of construction, basically, since I have not heard the argument to the contrary.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, let me go further. While I disagree with the methodology adopted by Justice Goldberg in Griswold, that methodology in no way supports the view that such things as abortion and homosexual conduct are constitutionally protected.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It said look to the 14th amendment, and the case involved the right of marital privacy.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right. Justice Goldberg's reasoning was carefully confined to the marital relation and the marital home.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS I recall, he expressly stated that his opinion did not call into question State laws regarding homosexual conduct.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. He didn't say that expressly, I don't think, those words, but I think that is a fair interpretation.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Moreover, as I view it, his reasoning, which looks to whether a right is so rooted in the traditions and conscience of our people, would plainly not have extended to abortion, which has been prohibited in most instances for much of our history. Now, I am not asking you for an opinion on that. I am just making that comment. I think it has been a stretch by some to try and use Griswold to justify that particular opinion. Let me just ask one final question, and these are constitutional questions that I think are of considerable import. In doing this, I am asking them so that they will be out on the table, so they will have been asked, so that nobody can say that you haven't discussed them with the committee. So I apologize for keeping you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is all right, Senator. 291
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me just ask a few questions about the principle of stare decisis, the common law or prudential doctrine of adherence to precedence. Some have argued that a vastly different rule of stare decisis should operate for precedent that creates a new constitutional right, on the one hand, versus precedent that declines to create a new constitutional right, on the other. Specifically, some have expressed the view that precedent, no matter how incorrect, that creates a new right should rarely, if ever, be overturned, while precedent that declines to create a new right should be freely overturned. Some have argued for this. Now, under this view, for example, many liberals will argue that cases like Roe v. Wade and Miranda are sacrosanct precedent, but precedents like Bowers v. Hardwick, which held that there is no constitutional right to engage in homosexual sodomy, and cases upholding the death penalty should be overturned. Now, what is your view of the theory of stare decisis?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. My view is that stare decisis is very important to the law. Obviously, you can't have a legal system that doesn't operate with a lot of weight given to stare decisis, because people build their lives, they build their lives on what they believe to be the law. And insofar as you begin to start overturning things, you upset the lives of men, women, children, people all over the country. So be careful, because people can adjust, and even when something is wrong, they can adjust to it. And once they have adjusted, be careful of fooling with their expectation. Now, that is the most general forum. . When I become a little bit more specific, it seems to me that there are identifiable factors that are pretty well established. If you, as a judge, are thinking of overturning or voting to overturn a preexisting case, what you do is ask a number of fairly specific questions. How wrong do you think that prior precedent really was as a matter of law, that is, how badly reasoned was it? You ask yourself how the law has changed since, all the adjacent laws, all the adjacent rules and regulations, does it no longer fit. You ask yourself how have the facts changed, has the world changed in very important ways. You ask yourself, insofar, irrespective of how wrong that prior decision was as a matter of reasoning, how has it worked out in practice, has it proved impossible or very difficult to administer, has it really confused matters. Finally, you look to the degree of reliance that people have had in their ordinary lives on that previous precedent. Those are the kinds of questions you ask. I think you ask those questions in relation to statutes. I think you ask those questions in relation to the Constitution. The real difference between the two areas is that Congress can correct a constitutional court, if it is a statutory question, but it can't make a correction, if it is a constitutional matter. So be pretty careful.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Unless they pass a constitutional amendment to do that.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, that's true. It is very hard to do.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me just ask one last question. Does stare decisis operate differently with respect to constitutional and statutory rights? 292
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In principle, I think the questions are the same, questions that one would ask. I think that one would recognize the difference that you just mentioned and I did about the comparative difficulties of correcting a mistake.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am very concerned that giving substantial deference to prior erroneous rulings on a broad range of constitutional issues, in effect, just permits the Supreme Court to amend the Constitution, without complying with the amendment procedures spelled out in article V. I am concerned about that. There may well be certain rulings that are so long standing and that are so imbedded in the way that governmental institutions have developed that they are entitled to deference. But this category should be a narrow exception, or else the Supreme Court is able to usurp power through erroneous rulings. So I am concerned about that. Judge, this has been a long day. These 2 days have been long days, but I personally believe that you have acquitted yourself quite well.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. We have appreciated the way that you have handled these matters, and I certainly want to compliment your family for enduring this. Please feel free to get up and walk around or leave any time you want to. We know how difficult this is from time to time. But it is a very important constitutional process.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, it is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And I want to compliment my colleagues for the questions that they have asked during this process. I think you have seen a lot of sincerity, a lot of dedication, a lot of desire to try and explore some of these areas with you. But I, for one, feel very good about most everything that you have answered here.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I hope you can go have a nice evening and get a good night's rest. What we are going to do is we are going to resume tomorrow morning at 9:30 a.m., and we will immediately thereafter go into closed session, as Chairman Biden previously announced. With that, we will recess the hearings until 9:30 in the morning. [Whereupon, at 6:19 p.m., the committee was in recess, to reconvene on Thursday, July 14, 1994, at 9:30 a.m.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Under the Senate rules, we are required to meet in open session to seek consent to go into closed session to accommodate the change in the committee procedure on Supreme Court nominees that we initiated last time around. So I ask unanimous consent that, pursuant to rule XXVI, the committee proceed to vote to go into closed session to review the FBI report in the committee's investigation of Judge Stephen Breyer, a nominee to be Associate Justice of the U.S. Supreme Court. I move that the committee proceed to closed session.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I second the motion.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. There is no need for a rollcall vote, unless someone wishes to have one. If there is no wish to have one, all those in favor of going into closed session, signify by saying "aye". [A chorus of ayes.] The CHAIRMAN. All those opposed? [No response.] The CHAIRMAN. The ayes have it. We will proceed to the conference room behind us here. The committee will go into closed session. We will reconvene the committee at 1 p.m. in open session. Now, we have a little bit of a scheduling problem. There is another very important issue that is percolating in the Senate; that is, the health care legislation, and Senators Kennedy, Metzenbaum, and Simon are all required to be at a meeting that is supposed to end by 1 p.m. but may run a little beyond that. So I would say to my friend from Utah, I don't know who is next on the list to ask questions
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It would be Kennedy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, we could proceed with Senator Thurmond, if he wishes to, at 1 p.m., if that is appropriate. -293 294
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Very briefly, yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Then, by that time, if you aren't back, we will just recess for a moment or move to someone else.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, are we still following the half-hour rule?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We are still following the half-hour rule.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And if any of us wish to go beyond that, there would be a third round?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes; we will not cut off anyone as long as there is any reasonable—and I am sure it would be in your case, Senator—reason to continue the questioning. So I have no intention of cutting anyone off.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. You shouldn't laugh when you say that. I am sure that we will be reasonable here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is true. I shouldn't. It would be reasonable, and I know that there is much to worry about when, in an op ed piece in the Wall Street Journal, the most glowing report about any Senator I have read in years is one about Senator Metzenbaum. The Wall Street Journal actually put his picture in the paper, an etching, and it was all favorable. So I know the world is changing. I don't know what is going to come next. At any rate, with that, we will go into closed session. [The committee retired to closed session, to reconvene in open session at 1 p.m. this same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. While we are waiting for the nominee, and he has just been told to come in, I want to share with the press and others covering this what our schedule is. In a moment, we will officially come out of our closed session, which is now a routine part of the process. I expect we will finish with Judge Breyer today—welcome, Judge—I do not anticipate having any public witnesses today. It will be my intention to start tomorrow, in the morning, and finish, I anticipate, based on the number of witnesses, and close the hearing sometime, hopefully at a reasonable hour, tomorrow. Second, in the next order of questioning, Senator Kennedy was to question, but Senator Kennedy is involved in a matter on the floor, although he is on his way. What I will do to keep this moving along and accommodate everyone's schedules is in a moment yield to the distinguished Senator from South Carolina who has some additional second-round questions. The Senator from South Carolina, Senator Thurmond.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Judge Breyer, we are back with you again. TESTIMONY OF STEPHEN G. BREYER, TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, Senator.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, in the recent Weiss v. United States decision, the Supreme Court stated: 295 In determining what process is due, courts must give particular deference to the determination of Congress made under its authority to regulate the land and naval forces. What is your view of the appropriate role of the judiciary in reviewing the terms and conditions of military service?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In the law, the military has always had a somewhat special role, because courts have recognized the importance of its running its own affairs, and they have recognized the importance that running their own affairs has to the well-being and the defense of the Nation. That is well-established in law; it is widely recognized, and I accept that widely recognized view.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, as a general matter, if two companies believe it is in the best interest of their business to combine their organizations through a merger, do you think that they should be allowed to do so unless the Government has good reason to prevent them from merging?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, the good reason is typically—or not always, but quite often—a question of whether the antitrust law is violated, because the antitrust law prevents some mergers, though it permits others. So I believe any such merger should be scrutinized carefully under the antitrust laws and applicable laws, and if it passes that test, it would be permitted.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, as you may know, the Supreme Court held in 1922 that professional baseball was not in interstate commerce, and therefore was not covered by the Federal antitrust laws. When the applicability of the antitrust laws to professional baseball was again considered in 1953 and 1972, the Supreme Court held that baseball is in interstate commerce, but refused to apply the antitrust laws, stating that the decision to eliminate the antitrust immunity should be left to the Congress. Do you believe that it was necessary or appropriate for the Supreme Court to defer to the Congress rather than take judicial action in circumstances of this type?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, if I can depart directly, from a nonlegal point of view, I have always thought that baseball was special, ever since my grandfather used to take me to Seals stadium, where we would pay 50 cents for the bleachers or $2.50 for a box seat. It seems to me that the Supreme Court
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. NOW you pay about $20.
Stephen G. Breyer
Nominee
(D)
Judge BREYER [continuing]. Well, they pay more, yes, that is true—from a legal point of view, from a legal point of view, I know there are those cases that have said in an antitrust context that baseball is special. I know that is now being considered by Congress, and I think that the courts will follow whatever Congress decides in that matter.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, could you please discuss your views on the proper scope of the extraterritorial application of our antitrust laws—very briefly.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, I am glad you said "briefly," Senator, because briefly, I know it is an enormously complex matter. There used to be a case called Timberlane. There were conferences that were set up with the Justice Department. They would negotiate a variety of things. I can promise that in any case that raised that issue before a court that I was on, I would examine it carefully, I 296 would keep an open mind, and I would look into the complexity and understand it as best I could.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I might say we are working with the Justice Department now on some legislation. Judge Breyer, do you believe that U.S. antitrust laws should apply equally to U.S. and foreign business, or should they seek to favor U.S. companies compared to foreign business?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The normal rule is when firms behave similarly, they are treated similarly; and where firms have an adverse impact on this country, they are treated similarly in terms of what they intend to do and what the effect is. I would start from that assumption that the law applies to both alike, but there might be special circumstances.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Breyer, I am aware that in the past, you have lectured on the use of legislative history and touched on it during the hearing. Could you please summarize your current views on the proper use of legislative history in statutory construction?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In summary form, I have thought that there are many instances, indeed most, where an open question in a statute is best understood through the use of legislative history. By using that history carefully and not abusing it, I think a court can better understand what the human purposes are that led Congress to enact a particular statute, and once one understands those purposes, technical matters often fall into place; you understand them better, too. There are instances where courts have used legislative history to reject absurd interpretations of statutes, to find out whether there are technical meanings, to discover whether there was some kind of drafting error, to decide whether there are special meanings of a statute that the parties and Senators wanted to use, to understand better what the purposes were. All those are instances where I think it is very appropriate. I recognize sometimes it can be abused, and it should not be.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, those are all the questions I have. I think you are an able man and a fair man, and I hope you enjoy your career on the Supreme Court.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you very much, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kennedy is next to question. He is on the telephone, I am told, right now; if staff would check to see if he is ready to go. [Pause.] Thank you. We are just not accustomed to someone not using his whole time.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman, and I appreciate your accommodating some of those on this committee who are also on the Labor and Human Resources Committee, who have been meeting with the leader on some of the health issues. But I welcome the opportunity just to ask Judge Breyer a few questions on your work of areas of interest to many Americans, including the rights of persons with disabilities, and housing discrimination. These have been areas that this committee has been particularly interested in; the Americans with Disabilities Act is something that the Committee on Labo"r and Human Resources is very much interested in; and also the questions of crime. 297 We talked earlier about your role on the Sentencing Commission and the importance that that truth-in-sentencing really means to Americans and also to the integrity of the whole criminal justice system. There is another area that I wanted to hear your views on, and that is the area of bail and bail reform. You had a chance, as I mentioned earlier, to talk about your role in the Sentencing Reform Act of 1984. At the same time we passed that law, we also passed the Bail Reform Act of 1984 in an effort to improve different aspects of the criminal justice system. The Bail Act, of which I was the prime sponsor, permits judges to consider whether the defendant is dangerous in deciding whether he or she will be released or kept in custody before the trial and to deny bail to suspects who are likely to pose a danger in the community. It also created a presumption that defendants charged with the most serious, violent crimes, and drug crimes, are at risk of fleeing before the trial. You have had several opportunities to interpret that law as a judge, including one, the Jessup case, in which you upheld the constitutionality of the law's presumption that major drug offenders pose a danger to the community. So in your experience as a judge, has the Bail Reform Act helped judges, been useful in deciding which defendants need to be detained before the trial?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In looking over the act and applying it over the years, Senator, I recognize that the act is an effort to balance two separate things. One is the ordinary right of the person accused of a crime to have bail before he is actually convicted. The other is the problem that there are some defendants who might run away, and they really might; they will never be seen again. And there are others who might be particularly dangerous, and if they are out on bail, they will commit crimes. So I know that Congress tried to balance those two things in the act that you sponsored. I know it created special circumstances for dangerousness and likelihood to flee, where the person could be kept in jail without bail. We have a set of presumptions. We interpreted them in the first circuit as other circuits did, and in seeing cases come up thereafter, it seems to me that they are working reasonably well—that is, it seems to me the cases where you see the person put in prison or jail before, without bail, before trial, looking through a record, they look like people who really might run away, or they look like people who really are dangerous and would engage in other crimes, drug crimes. And I have not really seen successful appeals, or many of them, from that. So it seems to be working reasonably well on that basis.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. We tried to provide some additional flexibility for the judges also, on the ability of those who might be accused, and where there was at least some understanding and awareness that they would be present, taking into consideration their ability to make bail. There were a number of circumstances where people did not have the wherewithal, even though there was not the presumption that they were dangerous or that they would flee, and they were being held I think in a way which was an injustice, versus those who were going to flee, particularly those involved in 298 drug crimes, as well as who had a repeated record of convictions for violence against individuals. It was primarily targeted to deal with the individuals who had a very strong and continuing record of violence and who, on the basis of that record, presented a real danger to the community. In the second area of disability, in the Wynne v. Tufts University case, you dissented from an en bane opinion holding that a trial was required to resolve a medical student's Rehabilitation Act claim that Tufts University Medical School was required to alter its testing methods to accommodate the student's learning disability. The medical student had failed eight of the first-year courses; two of the eight, for a second time, and one for a third time. The district court granted summary judgment to the medical school because the student was not otherwise qualified under the Rehabilitation Act, since his inability to pass the multiple choice test indicated that he would not be qualified to analyze complex written materials as a physician. The court majority reversed, stating that there was insufficient evidence that the medical school had considered alternative means of evaluating the medical student's performance. You dissented, because you believed that an affidavit from the dean of the medical school demonstrated that satisfactory performance on the multiple choice exam was the only way to assure that the medical students would be able to analyze complex written material that is necessary for the safe and responsible practice of modern medicine. If the rights of persons with disabilities to have reasonable accommodations made to enable them to participate in all aspects of our society is to be meaningful, then those who are subject to the law must make a serious inquiry to determine whether procedures that hurt persons with disabilities can be replaced with less burdensome procedures. My question is, Will you construe the laws forbidding discrimination on the basis of disability in a manner that protects the rights of persons with disabilities to obtain the reasonable accommodation of their disabilities?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The first part of my answer is that particular case was, in my mind, an extremely close question as to the amount of evidence. It went back, and summary judgment was granted again; and it came back again. I do not know on those close questions; they are very difficult. The answer to your second question, the second half of your answer, is yes; I understand in that act, and also in more recently legislation, that Congress has passed important laws that recognize the importance of persons with disabilities being treated both fairly and properly, and of people making an effort to those people who do have disabilities. I understand that purpose, and I will interpret those laws with that in mind.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I think we have had a good deal of talk about the Boston courthouse, but I know just from visiting with many of the disability groups up there who visited with you, that your sensitivity on the issues of access, availability in all parts of that courthouse was something that was enormously impressive, certainly to all of the people who worked with you on that. 299 There was one other case, Doe v. Anrig, that related to the reimbursement of tuition for private school education. As I understand, you ruled that what was then called the Education for All Handicapped Children Act, which required parents be reimbursed for the cost of educating their child in private school while their lawsuit was pending, to force the State to provide him with an appropriate education. Writing for the court in 1984, you upheld their right to obtain the reimbursement, so that the act's broad purpose of assuring that all children with disabilities receive an appropriate education be preserved. I think that was certainly an important decision. In many respects, housing discrimination is one of the most insidious forms of bigotry, since racial separation fosters the ignorance that perpetuates racism. I know you are familiar with the 1968 Housing Act which we passed, which was not effective, did not have adequate remedies. We came back after the election of 1980, and in that session, we tried to pass a Fair Housing Act, and we failed to get cloture on it by I believe it was three votes; and then, in 1987, we passed a Fair Housing Act which prohibited discrimination not only on the basis of race, but also disability, as well as with children. There was increasing evidence of discrimination against families in those areas. But now, on the issue of discrimination on the basis of race, in NAACP v. HUD, you authored a 1987 opinion for the first circuit, ruling that HUD has a statutory duty to enforce the Fair Housing Act and to ensure that localities participating in Federal housing programs eliminate discrimination. You ruled that persons aggrieved by HUD's failure to do so could sue the Department under the Administrative Procedures Act to force the Department to enforce the law. My question is would you describe for us how you reached the conclusion that persons aggrieved by HUD's failure to enforce the Fair Housing Act could go to court to obtain relief. This was prior to the time that we took Federal action, so it was an enormously significant and important decision, which I think in an important way really made an important difference in terms of the need for congressional action in this area, which subsequently followed.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is a decision, Senator, that really gave me enormous satisfaction as a person and as a judge. And the reason I felt it important both was is that you only have to look around in this country, and you see terrible social problems of poverty and discrimination, and no housing and no reading, and violence, and so forth. Everyone knows the long list of terrible problems. Then Congress does address those matters in statutes, and in this case, the statute had a very important purpose which I would describe as social justice. Then a case arose in the court of appeals, and the district court had thought that a series of very complicated technical doctrines prevented the district court from carrying out that purpose in this instance. So it was a case where I felt knowledge of the technical part of the law helped the court and helped me analyze those technical doctrines fairly, with an idea of what they had in mind, and enabled us, I think, to cut through the technical doctrines, to show to the district court that they were not the obstacle that the district 300 court had thought and that the technical doctrines permitted the district court to get to the heart of the matter, which was discrimination in housing, and to create appropriate relief. So I felt that it was an instance where knowing the technical doctrine, using it, understanding it, allowed the possibility of removing it as an obstacle to the social justice that the basic statute passed by Congress aimed at.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, it was a recognition, it seems, in any fair reading of that case, that it really was not the kind of remedy, and you came up with what was a very creative, legitimate remedy for action, which resulted in eliminating the kinds of discriminatory procedures that were being followed at the time. And Congress in the year afterward followed that precedent, and that was enormously important. That really completes my questions. I would just like to add, Mr. Chairman, that I think that this has been, over the period of the past 2 days, an enormously important hearing on the qualifications of the nominee. I think all of us on this committee, as has been stated before, have benefited from the personal association with the nominee for the most part—there have been new members added, obviously—and many of us I think on this committee, and hopefully the American people, have been finding out what those of us who have observed Judge Breyer as the chief judge of the first circuit—the keen intellect, the broad understanding of constitutional issues, the kind of thoughtful judicial temperament which I think is so important in reaching these decisions and a real awareness and understanding of the importance of applying constitutional principles to real life situations that affect our fellow citizens' everyday lives. I think that will be a distinguishing mark, among others, of this nominee's service on the Supreme Court. Judge Breyer, I look forward to voting for you, both in this committee and on the floor of the Senate, at an early time.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. One thing on which there is no disagreement—and I do not disagree with a single thing the Senator said—as I kidded you in the closed session, thoughtful you are. I indicated, and I will say this publicly, that I thought you were the judicial version of Paul Sarbanes.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is very complimentary.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The only thing that Paul does, though, is he spends time going like this, rubbing his face, and you just sort of give a studied pause. In both cases, you communicate what is in fact true; both of you are very thoughtful. I turn to my thoughtful colleague from Maine, the poet laureate of the Senate, Senator Cohen.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Judge Breyer, would you explain to us the difference between affirmative action and quotas?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, because I am trying to decide in the—generally speaking, I think affirmative action means you make an enormous effort, you make a really serious effort. A quota is an absolute number that you have to meet. Affirmative action means you take this seriously and you really look. That is the general accepted version I think in a lay person's terms. 301
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In other words, if there is no numerical figure that is either set in law or policy, then it really is not a quota, but an affirmative action program?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Then you are on the edge. I mean as I understand it—and I am not saying how you would measure a person's real effort—internally, internally, when a person makes an affirmative action effort, it means what it says. It means you really look, you really understand the situation. You understand that a lot of people haven't had the opportunities that other people have had. You think to yourself, why aren't there the persons of this race or whatever, why. Remember why. Remember the history. And then taking all that into account, remembering the history, remembering the discrimination that may exist, remembering that some people have a lot less opportunity than others, then you go out and look and say I'm going to find these people who may not have thought of coming, and you really try very, very hard, and that is subjective. It might fail, but if it does fail, you better be able to tell yourself that you really looked very, very hard. A lot of that is subjective, but that is the subjective difference that I think of in my own mind.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. If you have a situation such as the congressionally established policy of affirmative action programs in the absence of a change in that policy, is there any merit to a contention on the part of an individual that he or she is equally qualified to be admitted to a medical school, a law school, a position, and is denied that opportunity based upon his or her race? Is there a constitutionally protected argument here that that is a denial of equal protection of the law?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What has happened I think, Senator, in the affirmative action cases legally in the Supreme Court is that the Supreme Court basically has recognized two things. The first thing that it has recognized is that there are injustices that need remedying, and those injustices stem from that long history, and the long history before the 14th amendment and the long history after the 14th amendment, where the injustice was perpetuated. So they begin with the first point, which is we have to see a need rooted in that history of past discrimination. And the second point is, once the first point is there, once we see that need, then the program has to be carefully tailored. Why carefully tailored? Because it is quite clear that an affirmative action program seeking to remedy past injustice can in fact adversely affect other people who themselves did not discriminate. Of course, those people are upset and, therefore, you can absolutely understand that. Now, looking into the way in which those two problems are to be balanced, it seems to me that the Supreme Court has looked at a number of individual factors and they have distinguished, for example, in terms of that other third person, between taking away from that person what he or she already have, like a job, or not giving to that person something he or she did not ever have, like a promotion. And while there is a problem in both cases, the second is a little bit less harmful than the first. And they have looked at how long the program will last, and they have looked at how tai- 302 lored it is to the problem, and they have looked at is it going to expire, is it coming along well. It seems to me there are a number of factors they have looked at, as they have tried both to remedy and to balance, in order not to work too much harm to others.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. The question I have is, if Congress were to change the policy itself, so that there is no longer an affirmative action policy, and yet either companies or institutions were to pursue such a policy on their own or its own, is there a constitutional argument to be made on the part of an individual who maintains that he or she has been discriminated against based upon either sex, gender, race, or some other factor?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. If you go beyond
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In the absence of a congressional policy is what I am asking.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. If you go beyond those cases you know where the Supreme Court has spelled out what is permissible in terms of these two sets of factors, and you were to pass a law doing something like a quota, is that what you are thinking of?
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I am saying that you simply do not have an affirmative action program mandated by Congress.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU don't have one.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Assuming it is taken off the books.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Assuming it is taken off the books, then there are still cases like Weber, for example, where the Supreme Court will permit employers to adopt these programs to remedy past discrimination. There are cases like Bakke, where the Supreme Court has said, you know, that universities can do it. So there are circumstances, and indeed courts can as part of a remedy.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. IS there ever a statute of limitations in terms of past injustices, or is that something the court makes a determination on as to whether the past injustices have been either rectified, if that can be the case, or that this no longer should be a policy to be pursued privately or by public institutions? Who determines when the past injustice has been remedied?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, if it is a court case, I suppose that there are now standards, which I am not totally familiar with, frankly, which the Supreme Court has tried to promulgate in a number of cases, saying, well, it is time and the problem is over in the school area, for example. I haven't looked at those, but if it arises in the court case, in the court circumstance, I suppose the court, when faced with a challenge, would look to see if this is still really necessary or not. Suppose it has been complied with. Suppose it has been met. I suppose that is a judgment that a court would make, but it has to be careful.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. IS that policymaking?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It isn't, if it is following the legal standard. But one has to be careful.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I know you have talked quite a bit about legislative history. I just want to go back over it for a few moments. In your article on the uses of legislative history in interpreting statutes, you say that critics maintain that it is constitutionally improper to look beyond the statute's language or that searching for congressional intent is a semimystical exercise like hunting the 303 snark. Of course, Justice Scalia has been perhaps the biggest critic of legislative intent, and you have debated him on this subject and you are familiar with what his written statements are on the matter. But he has called legislative history an omnipresent make-weight for decisions arrived at on other grounds, and referred to its use as "the Conan Doyle approach to statutory construction." In his view, the Court's task is not to enter the minds of the Members of Congress who need have nothing in mind in order for their votes to be lawful and effective. I might point out he often thinks that we have nothing in mind, without the qualifier about being lawful and effective, but, rather, to give fair and reasonable meaning to the text of the United States Code. You point out that the problem is not with the use of legislative history, but its abuse—care must be taken. The question I have is that the Supreme Court recently, I believe, has ruled in cases where legislative history has been discounted. I must say that I have questions in my own mind as to what extent any court should take into account what we say and how we say it. For example, the managers of a bill bring a measure to the floor. We debate it openly and toward the conclusion of that debate, after everyone has long since departed, the managers will insert colloquies which are not read to the other members, but are simply inserted in the record so that many members have virtually no idea what the colloquy is until long after the measure has been passed. I took this into account, because on a certain piece of legislation I stood on the floor with some colleagues and I read the colloquies into the record, so at least to put everyone on notice that this is the interpretation that we were giving to this legislation. But in the absence of an open declaration or reading of it, I would dare say that most members have little idea of the colloquies that are inserted in the record as a matter of course. So I think there is some merit to the question of challenging what Congress intended, when something is not as clear as it ought to be on the face of it, in the statutory language. I would like to ask you your opinion. Would it make a difference—perhaps on a constitutional basis—but would it make a difference from your interpretive analysis as to whether or not this had been widely discussed in an open forum, or simply inserted in the record where members are not aware of it? Does it make a difference, or is it sufficient if I simply put a colloquy in the record?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The answer in my mind is, of course, it is different, but that is a difference that courts should take into account, and it doesn't make it useless. Suppose, for example, you, after the Senators are all thinking about a bankruptcy law, it is easiest with a law that isn't too controversial, and you all get together and all the Senators who are working on this bill work out a set of words that is going to distinguish which kind of cases can be brought by consent before the bankruptcy judge and which cases there is a right to bring before the bankruptcy judge even without consent. That is awfully technical, and the words that describe that are pretty technical, too, and they can refer to another case in the Supreme Court which is filled with technicality. Well, might or you might read that statute and read those technical words that everybody really agrees to as a matter of policy, because you have thought about it as a matter of policy. Yet, one might still scratch his head and be puzzled. And if you have decided to help by putting a statement in the record, even though it came after the debate was over, that is something a court might look to and lawyers might look to for enlightenment, because it might be apparent that there is no policy disagreement among you or your colleagues about what you are trying to do. But it is important to explain what you are trying to do. That is why I say it depends. If there is a huge disagreement, beware of that later admitted statement. If it is simply a kind of explanation, it can help guide.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. The only point I would make is that many times members are unaware of these declarations of intent, and for the court to rely upon those declarations of intent which are not shared by a majority of the members and, in fact, are unknown until after the bill is passed, I think would be a misreading of the legislative intent. In that connection, you wrote an article in 1992 in Southern California Law Review on legislative history and interpreting statutes, and you point out if the history is vague or seriously conflicting, don't use it. That was your advice. I mention this, because about 9 years earlier you decided a case, Wald v. Regan, if you are familiar with that.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. YOU struck down a Treasury Department regulation—I will not go into the details of it—but, in any event, you relied upon legislative history in striking down that particular regulation, because it didn't comply with the International Emergency Economics Powers Act. The Supreme Court reversed you in a 5-to4 decision. They looked to the legislative history and came to a completely different conclusion.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. They did.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. What is interesting about it is that the dissent pointed out that the majority was confused about the legislative history. So, I was wondering if the legislative history has been thrown out by both the majority and yourself under those circumstances?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I don't think so, actually. I understand that legislative history can point in different directions and I understand it can be complicated and confused, but I think it is worth trying. I think it is like you do your best, you do your best. You look at it, you try to draw information from it, you try to help understand the human purpose. People can still disagree about it and it isn't always done properly, but I think it is worth trying.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I would like to turn quickly to the subject of hate crimes. We have had in 1992 more than 7,000 hate crimes reported in this country, most of which were motivated by racial bias. In 1992, the Supreme Court struck down a Minneapolis law which imposed punishment for the display of inflammatory symbols. I think it was RAV v. City of St. Paul. Are you familiar with that case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes. 305
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. The defendant had burned a cross inside the fenced yard of a black family, and the Court held that because the State had not criminalized all fighting words, the law isolated certain words based on their content or viewpoint and, therefore, violated the first amendment. I am not exactly clear how the Court came to that conclusion by burning a cross inside of a black family's fenced-in yard amounts to protected expression. Nonetheless, in 1993, the Court then had another case, Wisconsin v. Mitchell, in which it upheld the constitutionality of a Wisconsin statute that enhanced the maximum penalty for crimes that were committed by those who intentionally selected the victim because of that victim's race, religion, color, disability, sexual orientation, national origin, or ancestry. I was wondering, from your perspective, because of your work on the Sentencing Commission, do you see any difficulties in the lack of any universally accepted definition of a hate crime or problems in trying to determine an offender's motivation?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What I have said on this publicly really are two things. One is in response to your question directly. Of course, it is difficult in instances, but there are instances where it isn't difficult. And like many matters of law in tough areas, you can say, all right, I understand that there are difficult borderline calls, but that doesn't mean stay away from the main thing which isn't so difficult. So there will be some that are difficult and some that are not. The not is not. In other words, there are many cases where it isn't too hard to figure out. The other thing which you point out is, of course, from a first amendment point of view, it is easier, if you are enhancing the penalty of conduct, it is already illegal, than if you do get right into an area where there isn't such conduct and only expression. That thought doesn't decide cases, but, nonetheless, the actual decisions I am sure will come up again and again. I know that RAV is a very controversial case.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Yesterday, you talked about the Boston courthouse. Let me come back to it for a moment. I see that Senator Kennedy is not here, but I am sure that he is aware of the controversy and has touched upon it himself. You have mentioned that, in looking through your architecture books and perhaps through your own empirical research, you came across one town, I can't recall what it was now, that had the century or two-century old structure which really became the town meeting place. I assume from that that you were implying that you wanted this new courthouse to also have that kind of attraction to the community.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. It struck me that Boston doesn't really need that kind of an attraction to be a meeting place. If you look at the tremendous development that has taken place in the city of Boston, there are many, many places that one can go in that city, a beautiful city, to attend a variety of functions. For me, somehow, the courthouse has always remained very much a singular symbol in our society. I would say, for example, if you were talking about designing a courthouse for the Supreme Court, you would not look to see whether or not you could make it compatible or attractive to a vari- 306 ety of either enterprises or other types of activities that could take place there. It is the place for the dispensing of justice. So I was curious about the impact of the past upon your thinking for the future as far as that courthouse was concerned. And I raise it in conjunction with matters that were brought up before the Governmental Affairs Committee, in which I and other members also serve. What we found is that there seems to be a disparity, or at least the GAO has found that the Federal judiciary has overestimated its space needs over a 10-year period by more than 3 million square-feet, which means that the Government may be building 1.1 billion of unneeded court space. That is what the GAO has determined. They have also determined that there seems to be a great disparity between the construction costs of Federal courthouses versus those of State courthouses, almost double the amount. So it raised questions in our minds in terms of whether we were building edifices that were either unneeded, that the goal could have been achieved in a much less expensive way, still comporting with the needs of having a structure that would stand the test of time and stand for future generations, as well, and that these costs were very excessive, compared to State courts. I suppose you can make a case that Federal courts are more important and need to be more lasting than State courts, but I suggest that State justices and judges might take great issue with that. By the way, I might point out that the GSA, the Administrative Office of the U.S. Courts, and the Congress all share responsibility in this. You have to come before us, we have to give the authorizations and appropriate the dollars, so it is not just picking out the judiciary and trying to point fingers and blame. But it does raise questions as to why Federal courthouses cost much more than State or local facilities. Are you aware of any activities surrounding the selection site for the Boston courthouse that could be considered in any way either improper, extravagant, or unnecessary?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, I think we followed all the rules.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. As you know, a lot has been made of the fact that you have got 63 private bathrooms, 37 separate law libraries, 33 private kitchens, spiral staircases, and so forth. In your judgment, those were necessary or would you consider them to be extravagant?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The bathrooms, it is a general rule that a judge does have a bathroom in his chambers, and there are a lot of people working there and
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. How many judges in that building?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think there is room for somewhere close to 30, and there is the U.S. attorney, and there are a number of others. Whatever the normal rules were, we followed them. In respect to the law libraries, I feel that it is very important that each judge has a library, and that library should be close. A law book is to a judge what a scalpel is to a surgeon, and you don't want the judge very far from the book, because maybe the judge won't look into the book, and nobody wants that. So it is normal that books are near judges, and I think that is proper. 307 The kitchens consist of a small area where a judge, at his own expense, not government expense, can go and buy a small refrigerator and bring in a little microwave, which he would purchase, in order to have lunch, say, with his clerks or the other people in the chambers.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. What was the total cost you recall of this facility, $220 million?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think Senator DeConcini gave the cost yesterday. I think it is 750,000 square-feet. It is a big building, and I think the cost, with land purchase and everything, was around $218 million or somewhere around there.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I might point out that we are familiar with the cost of expensive buildings. You are in one right now. As a matter of fact, when it was first built, it was I believe the most expensive building in the city of Washington at that time, the Hart Building. As a matter of fact, most Senators were reluctant to move into this building, and by congressional fiat, the Senate leadership ordered the younger members to vacate the premises that they were then occupying and move in here, because the senior members were unwilling to take the public reaction to the costs of this Taj Mahal.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I want the record to show that my office is not in this building. [Laughter.]
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. YOU were then a senior member at the time. Just a couple of more questions, Judge. I want to go back to the book that you wrote that Senator Biden had on his desk yesterday, called "Breaking the Vicious Cycle." In the books, you talked about the vicious cycle of public demand and said that the excessive regulatory response is the product of several factors that work in tandem. At the root is an ill-informed public, with skewed perceptions of the risk, fed by unsystematic media reports, a distrust of experts, and low levels of mathematical understanding. I believe I have summarized your basic analysis of this vicious cycle that you have talked about. You point out that Congress is susceptible to public concerns; it contributes to the distortions of priorities. The public fears are picked up and translated into policy by a Congress that does not have the institutional resources to resist draconian legislation establishing rigid objectives with little room for adjusting priorities within limited budgets or balancing costs against benefits. Then you go from Congress to the regulators, who compound the problem, as bureaucrats respond with overly conservative assumptions in order to forestall charges of inattention or neglect, and the regulators also aim their rules narrowly to deal with one problem while worsening another. For example, proposed rules concerning disposal of sewage sludge designed to save one statistical life every 5 years would encourage waste incineration likely to cause two statistical cancer deaths annually. What you recommend, as I recall, in this particular book is to create a small, centralized administrative unit within the executive branch, with a mandate to rationalize risk policies across agencies. Critics have pointed to that and suggested that it is unrealistic in the United States of America to establish a sort of platonic administrative group of wise men, circle of wise men, who would in fact 308 be an elite, top-down policy coordination group, that would be unthinkable in a society that prizes open debate, diversity of opinion, and easy access to Government. In other words, they suggest, this is a proposal that might work well in Singapore, but not a Seattle, or indeed, a Washington, DC. How do you respond to that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Senator. The response is three. The first is you put in half, I think, when you say too far; and the other half is too little. The problem that the book is aimed at is spending a lot of money over here to save a statistical life that may not even exist, at the same time that there are women with breast cancer who would live, but who do not because they cannot afford or find the place for the mammograms; and there are children who do not have the vaccines that will save them from death for a lot of diseases. And I think there are two pages in that book that summarize, one sentence after another, all those things that might be done but that are not done. So the book is a plea—though it is put in technical terms—it is put in a plea not to cut back by 1 penny this Nation's commitment to health, safety, and the environment. But please, let us think about the possibility of reorganizing that commitment so that there are fewer women and children who are dying of things they really will die of because the money was not there, when there are moneys being spent on the statistical life that might not exist. That is the first point. The second point is there is a plan there for reorganization. The point about the reorganization is not really to create a new bureaucracy that will take power from the people. Rather, the people have delegated already to the bureaucracy power to do particular things. And there, it seems to me wise, or at least I suggest it, that the people who are already there—in, let us say, parts of the Office of Management and Budget—not be trained solely as cost-cutters, not be trained solely as people who do policy analysis, but perhaps take on a career where they learn what really goes on at EPA for part of their career; where they come over to Congress and work for a while and learn something about that; where they go out into the field and maybe learn what people are really thinking, and then come back and have, with that experience, more ability to transfer resources from one program to another that a pure costcutter might lack. And the third problem, which is a real problem for democracy and is a tremendous problem for you and a tremendous problem for me, is I think I have a guess of what people want in that area, and may guess is that what they want is more life saved. And my guess is that is what you want, too. So a lot of what I have written about in that book is should statutes try to do that, or should they go into such detail as dioxinFO20 to the 14th degree in three molecules, et cetera. That is the problem of delegation. That is the question of what level of specificity do you delegate. I absolutely think that people want more safety, and that is the basic power that should be delegated. I think it becomes very, very, very difficult to expect people to become experts on risk analysis, or how many molecules there ought to be in what kind of sub- 309 stance. And that is the kind of concern that I am worried about that leads me to think there are ways of organizing the bureaucracy better to save more human life, with the same commitment of resource that we now have.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. But you say the root of it is an ill-informed public with skewed perceptions of risk
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN [continuing]. Fed by systematic media reports and a distrust of the experts.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. HOW do you propose to break that—and compounded by Congress, which is also contributing to the distortions of priorities—how do you break that cycle by having the small group of experts in the field, or in OMB or some of the other agencies, who will then do what—better inform the public? Better inform Congress?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And this, you might say is Utopian, I know. But you realize what it is I think the public is informed about. I do not think they are not informed about what they want. I do not think they are not informed about there being a problem. I think they do know what they want, and I think the public does know that there is a problem. And I think they are right. What is very hard to get public consensus about is the right number of molecules, or the right chemical substance exactly where. That is the problem of information. And what is perhaps a little Utopian, I would call the biggest problem that I find from a policy point of view—the problem of building trust in the Government. And my suggestion there has been a little bit like this: Suppose the President of the United States—this is what I have said before—had somewhat broader authority to take money or resources from one program and to move it to another, and that he was under a mandate to meet the following condition—come back and prove to us that in doing so, you have saved more human life. And suppose that began to be done. Then, you might gradually— you might gradually—build public trust in that kind of circulating career path where people come to Congress and EPA and OMB and create this institution, and people in the country begin to understand that more life is being saved, a little at a time. You might gradually build some confidence in that institution, hard though it is to break into a mode of public trust. And if you could do that, you would end up saving more life, and that is the thrust of the book.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I think that sort of outcomes analysis is probably unrealistic in view of the life cycle of any President of this country; that by the time one were able to demonstrate that, then he or she would certainly long be out of office. So I am not sure that is going to be a practical solution. I see my time is up, and I appreciate your answers, Judge.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I hope that was spoken as a political scientist
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. And not as a judge
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Absolutely. 310
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. Because we make those judgments every day. The American people have no doubt that more people die from coal dust than from nuclear reactors, but they fear the prospect of a nuclear reactor more than they do the empirical data that would suggest that more people die from coal dust, from having coal-fired burners. They also know that more lives would be saved if we took that 25 percent we spend in the intensive care units in the last few months of the elderly's lives, that more children would be saved. But part of our culture is that we have concluded as a culture that we are going to, rightly or wrongly, we are going to spend the money, costing more lives, on the elderly. We made that judgment. I think it is incredibly presumptuous and elitist for political scientists to conclude that the American people's cultural values in fact are not ones that lend themselves to a cost-benefit analysis and to presume that they would change their cultural values if in fact they were aware of the cost-benefit analysis. I have no doubt that more people know that more people die of cigarettes than they do of other substances, but they have concluded they would rather have the money spent on research in other areas. We make those decisions every day, and I am delighted that as a judge, you are not going to be able to take your policy prescriptions into the Court. I yield to Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. Judge Breyer, I would like to ask you a few questions about your decision in the Ottati case. As I understand the Ottati case, you upheld a ruling that allowed a company responsible for polluting 43 acres in Kingston, NH, to clean up that site about one-tenth as much as EPA determined was necessary to protect Kingston's residents from 439 cases of cancer over their lifetimes. I do not want to question you about the merits of your decision in that case. What concerns me, however, Judge, is that you decided a case that reduces polluters' and their insurance companies' liability for cleaning up hazardous waste at a time when your investment at Lloyd's of London included environmental liability insurance policies. In retrospect, Judge, do you feel that possibly you should have recused yourself from hearing that case?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, I looked at this very carefully. There was no party that I had invested in in the case. It had been fully disclosed. The issue to me, and I think the issue under the canons, is whether there would flow from that investment a substantial effect on my investment from that decision in that case. That is not a speculative effect, it is not a remote effect, it is not a contingent effect. It is a real, substantial effect. And having looked at that case before and looked at it again, it seems to me that it was correct under the canons that I could sit in that case. I do think that, though I understand in fact the various problems you have raised.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I know that there are some who think that it was proper under the canons; there are some who disagree. Justice Scalia—whom I did not think I would ever be quoting in connection with the law—but he says that 455(a) covers all forms of partiality and requires them all to be evaluated on an 311 objective basis so that what matters is not the reality of partiality, but its appearance. He goes on to say: "Quite simply and quite universally, recusal was required whenever impartiality might reasonably be questioned." He is not addressing himself to this matter as such, but that is a quote from him. Now, in your response to Judge Heflin, you acknowledged that, as Professor Hazard said, it was possibly imprudent for you as a Federal judge to invest in Lloyd's. Isn't the corollary of that reasoning that it was possibly imprudent for you to decide the Ottati case since your Lloyd's syndicates included environmental pollution liability?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What he said was imprudent, Senator, he believes that it is ethical, that no ethical canon was violated, and he is concerned—and I have since read this—whether or not it is prudent for a judge to have an investment in an insurance company. And haying listened to your concerns, which I realize were in very good faith and were very, very important to address thoroughly, I have come to the conclusion that it would be best not to have such an investment, and that is a matter of prudence; it is not a matter of ethics. But having listened to that, that is how I feel about it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Having said that it would probably be prudent not to have such an investment, isn't the corollary of that equally true, and that is that were similar matters to come before you in the future, matters that might have some impact upon your Lloyd's investment, would it not be prudent in those cases to recuse yourself from hearing those cases?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that I must have a very, very careful system to achieve the very objective you are announcing and enunciating and I have listened to. What I think that system is is that it must be absolutely disclosed fully, in whatever court I am in, just what that investment is, and indeed, the parties have to be directed, their attention directed to it, and the parties have to be able to—anonymously, so I do not know which party—either orally or in writing, point out how there might be a real impact on that investment from a holding in the case. And then I think that must be communicated to me in a way that I do not know which party raised the issue, and I must evaluate that with great care and then, having done so, if I come to the conclusion that there would be a direct, a real impact on my investment, then I recuse myself.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think you said a direct, real impact. What we are talking about in the Ottati case is not a question of whether or not your investment in Lloyd's was being affected by your judgment in the Ottati case, but whether or not your judgment in the Ottati case might set precedents, might set certain standards in the law
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM [continuing]. That could affect your investment.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. There is no question Lloyd's was not on the Ottati liability. Now, as a matter of fact, environmental law experts tell me that as a practical matter, the Ottati case does make it more difficult for EPA to pressure polluters into speedy hazard85-742 - 95 - 11 312 ous waste removal under stringent cleanup standards; second, it reduces EPA's ability to clean up more hazardous waste sites because EPA must use its own limited resources to clean up these sites, rather than making the polluters clean them up immediately; and it allows the district courts to weaken EPA's cleanup requirements to one-tenth—one-tenth—of EPA's standard when the agency seeks a preliminary injunction. Is that not the practical effect of your decision in Ottati?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The question, from my point of view, is was there a real, direct impact on the investment. And I think the question of whether there is a real, direct impact on the investment by those who have looked at it—the answer is no. And I think that what I would like to do in the future is to look to see, after having been advised by the parties or anyone who wants to, is there a real impact on the investment from the holding in the case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, it should be pointed out that Ottati did have a direct and predictable effect on pollution insurance, particularly like Merritt 418, which was your investment, because all polluters and their insurers stand to benefit from that ruling, by less hazardous waste cleanup and weaker cleanup standards. So I think that the Ottati case is relevant to your investment, but indirectly, not directly, and to what extent, neither you nor I know. Would you agree with that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. If I thought there were a substantial, that is, a direct, effect, I would have taken myself out, and that would be the correct thing to do. If, judgmentally, I think that the effect is remote or speculative or contingent, then I think the thing to do is to sit. And in making my judgment on that case, I concluded that any effect on my investment was remote or speculative or contingent, not substantial, not direct. I think that was a correct judgment. What I am trying to do is, in the future, make certain that I am fully informed so I can make similar judgments with complete information, with the parties fully understanding the problems, the likelihoods.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Would the Senator yield on Ottati? I am confused. Since I asked about the case, Judge, I thought the facts in Ottati were that the EPA chose a procedural route that allowed the district court judge to make a judgment that the judge otherwise would not have been able to make had the EPA proceeded and attempted to enforce its own judgment. Is that correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. What I am confused about is how does that affect any insurance case, on anybody. I am confused about that.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I could not find a way. I think it does not. I think it does not. And I suppose there are people who have thought of some way, but I think any way people might think of would be speculative. I personally cannot think of a real way.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If you had ruled—if the EPA had gone directly to the district court judge under a different procedure, and the district court judge substituted his or her judgment as to what was sufficient under the statute for EPA, then I can understand how it could be argued that you have changed the rules of the game and put district court judges, who could be more or less stringent than EPA, in the driver's seat. But that was not the case, was it? 313 I thank the Senator for allowing me to yield, because I am confiised about this.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I would just say that I do not think I want to debate the substance of the Ottati case with my friend, the chairman, and I will ask him to give me additional time by reason of the interruption. But the fact is under the conclusion you reached, it was necessary for the EPA to go back to get a final order, which could take an additional 2, 3, 4, 5 years, which would be very costly to EPA, and in the interim, fewer waste sites would be cleaned up, and there would be less cleanup as a result of Ottati. As a matter of fact, in the Ottati case, you say additional cleanup will cost an added several million dollars, and then you say: International Mineral and Chemical has already spent about $2.6 million, all for very little purpose, since 1 part per million is not significantly safer than 5 or 10. That is your language. Just prior to that statement, you note: Evidence suggests that a one part per million standard would reduce the risk of 439 human cancers from lifetime exposure to about one in a million. You then stated that Allowing 10 times more contamination would lead to 10 times as many cases of cancer. How could you conclude that by allowing 10 times more pollution, that causes 10 times more cancers, you are making the environment significantly safer? I have trouble following that, and I have to say that with respect to the chairman's inquiry on the question of when the decision is made, following your order, there was to be something like a 2-, 3-, 5-year delay, at substantially additional cost to the EPA, and I do not think any of the EPA lawyers or the EPA questions the fact that your decision was a major setback to their efforts.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I did not see it that way, Senator. I thought that the case involved fact-related matters growing out of a particular waste dump, and I think those fact-related matters were viewed under the standard of whether the district court was clearly erroneous. It is very difficult for an appellant to get an appeals court with a 40,000-page record on a fact-related matter to achieve a reversal under a clearly erroneous standard. EPA did, indeed, achieve such a reversal on one of the matters before us. We decided in favor of the EPA on one of those fact-related points, and we decided on the other fact-related points that the district court's decision was not clearly erroneous. That is basically, in my mind, what was at issue in that case in the area you are talking about.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That case, I think, had been dragged out for about 10 years up until the time it got to you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think you added maybe another 5 years to the matter of getting the matter resolved. And I think that does help the defendants in those cases, the polluters, and it certainly does not help the EPA. But let me proceed. 314 I do not know if you realize that the polluters' own experts admitted that their cleanup fell far short of their own proposed lenient standards. As a matter of fact, the records before you show that up to 280 times more contamination was involved than EPA considered safe or 28 times more contamination than even the polluter acknowledged would be dangerous. My question is: In view of that additional exposure and risk, why did you disregard the data on the need for more thorough hazardous waste cleanup?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. On the issue of volatile organic compounds, one of the fact-related issues, after reading through many thousands of pages, we all came to the conclusion that the district court was wrong, and we supported EPA and sent it back for more thorough cleanup on that point. On the other fact-related points, we decided there was enough evidence to support the district court. Quite honestly, when I finished, I thought maybe EPA has won on this aspect of the case, because it is very difficult to achieve a reversal on that fact-related type of issue. It won some, the important one of VOC. It lost others. I thought the whole matter is factrelated, fact-specific. I went through it conscientiously, reading thousands of pages of records. And on the basis of those thousands of pages, I came and my colleagues came to the fact-related conclusions that we wrote in the opinion.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, in a recent book, you express actually pretty much disdain for EPA's approach to cleaning up the environment. In Ottati, when you say, The site was mostly cleaned up. All but one of the private parties had settled. The remaining private party litigated the cost of cleaning up the last little bit, a cost of about $9.3 million. How much extra safety did the $9.3 million buy? That is your language. Without the extra expenditure, the waste dump was clean enough for children playing on the site to eat small amounts of dirt, but there were no dirt-eating children playing in the area, for it was a swamp. Judge Breyer, I think in that situation you were not actually correct. TTie record before the district court indicates that the land in dispute in Ottati was not a swamp, but the land in dispute was zoned residential. And the record shows the land is partially surrounded by a residential neighborhood where children play, and, therefore, the children did have an exposure. It was not just a swamp. But let me go on to
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Are you going to let him answer? Do you want to answer?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. From my appearance of reading the records, Senator, the area was the way I described it, and there was—but the point that I want to make is what I have written in the book and the decision in the case are two totally separate things. I have gone in my mind, thinking that case is decided as a judge. It is decided, recognizing as I wrote that when the EPA decides something in an administrative context rather than coming into a case in court, all presumptions are for the EPA. It did appear in a book written on a policy basis, having nothing to do with my role as a judge, pointing out a variety of things that I have tried to point out, for other 315 people—environmentalists and many others—to read and to accept or to reject as they wish. My object, purely as a person who is interested in public policy, was to write matters down so that other people could consider them, question them, criticize them, say they are absolutely wrong. That is fine with me. I like that. I think that is important to get that kind of criticism as a policymaker, and, indeed, to get it as a judge as well. But I want to be very, very clear that that book does not have to do with my role as a judge.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I hope the Chair will continue to allow me additional time for questions that are not mine. Judge, the Ottati case becomes very relevant because you were a major investor in Lloyd's. I have recently come to know an investment in Lloyd's is unusual. A Lloyd's investor puts up only a very small deposit, and the investor's real investment is his or her personal guarantee. If the syndicate loses money, the investor's personal assets pay the losses. It makes investing in Lloyd's very, very risky. A Lloyd's investor can be wiped out, lose everything right down to his home, his car, his total assets. A Lloyd's investment is totally different than a purchase of stock, whether in a mutual fund or an insurance company or any other kind of business investment. So your decisions having to do with Ottati and seven other environmental cases is particularly relevant to our hearing, because you have had and continue to have a very substantial exposure to Lloyd's. Now, do you have any disagreement with the description that I gave of Lloyd's investors?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do, rather. That is to say, I do not know if you are speaking theoretically or practically. When I went into Lloyd's, I viewed it as a very conservative investment in which, in fact, you are exposed to insurance companies that sell and insure and buy anything in the world. And all these things over time, whether there are earthquakes in Japan or whether there are tidal waves or whether there is maritime losses or these kind of loses—there can be losses in everything, anything. You never know what your own syndicate may be winning, may be losing, whatever it is. It is done in a conservative way so that whether a particular case there is a loss or does not balances out somewhere else, and you do not know. Now, as a practical matter and as a theoretical matter, as a practical matter I believed and I still believe that my risks and benefits would consist of several thousand dollars in income each year, and sometimes several thousand dollars—by that I mean under $10,000 or $12,000 certainly, possibly having to write a check. There was a deposit at Lloyd's that possibly was meant for the worst case that went up to about $150,000. Theoretically—theoretically—if worse had come to worse, and it was stressed to me at the time that over 300 years in conservative syndicates, worse did not come to worse. But if worse came to worse, luckily because I am in a very fortunate economic situation, about 20 percent to 25 percent of our family assets would have been lost. That is the worse, theoretically, coming to worse. 316
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And that would have been about how much money?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It would have been an awful lot of money. It depended on the year. It depended on the year.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. We are talking about something in excess of
Stephen G. Breyer
Nominee
(D)
Judge BREYER. We are talking about several hundred thousand dollars.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Or maybe $1 million.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not think it could have gone that high, but it is possible.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But neither you nor I nor any of us know what the loss will be in connection with this one particular syndicate you went into, which was 418, which had exposures in asbestos where you have already recused yourself in those cases, and also had pollution exposures. And it seems to be arguable as to exactly how much the risk could be, but everyone seems to agree that Merritt 418 was probably one of the worst of the Lloyd's of London exposures or syndicates.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Senator, what I do if I have a lot of money at stake or if I have a little money at stake, if there is a big investment or if there is a small investment, it is the same question. The question is: Look at those cases, see if there is anyone from the investment that is a party in that case. If so, you are out of it. If not, look again. Look again at that case to see if the decision in that case could substantially affect your pocketbook. If so, you are out of it. If not, fine. I apply that test with alarm bells to whatever investment I have, big or small. And in that case, no alarm bell went off, and the reason that no alarm bell went off is I thought judgmentally that there was no substantial effect on a small investment, on a big investment, on a medium-sized investment, on any investment. And I think that that conclusion has been verified by others.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In retrospect. You are saying it has been verified by others. You mean that the White House asked some ethics professors for their opinion, and one said it was imprudent, others said that it was entirely proper, and some other professors apparently have said it was totally inappropriate.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. What I must do as a judge is I must make up my own mind on a case-by-case basis whether there is a substantial impact or whether there is not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [presiding]. Would the Senator yield on that point? I think we ought to put into the record, at this point in the record, exactly what those letters contained. And I dare say they are not as described by the Senator from Ohio. I think in fairness to this nominee we ought to put into the record what those legal scholars and ethicists that have been called on by this committee under Republicans and Democrats alike and who are some of the most distinguished, thoughtful, and profound individuals that write on this subject matter. We will just put that in the record. I think that is what is important, rather than characterizations about some
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And all but one found .in your favor and said there was nothing unethical. 317
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, as a matter of fact
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let's get with it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I did not think that I was in a debate with my colleagues on this committee.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. We want an accurate statement of what has been characterized in the record.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, the fact is I have no problem about putting it in the record. Also put into the record the indication by Professor Hazard that the matter of hearing the case was imprudent. Also put in the fact, I believe, that there is a letter coming from a Professor Freedman, who teaches ethics at Hofstra, in which he comes to the conclusion, as I am informed, that it was inappropriate and was unethical. But I want to make it clear here.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, he did not say it was imprudent.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO, he did not say that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That is what we are getting at. He did not say it was imprudent. He said because a potential for possible conflict of interest, a possible appearance of impropriety, in light of the facts, no conflict of interest or appearance of conflict materialized. And I do not think it is fair to go on and mischaracterize it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. What does he say about the word imprudent?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have put it in the record, Senator. You have asked for my opinion whether Judge Breyer has committed a violation of judicial ethics in investing in Lloyd's name and insurance underwriting while being a Federal judge. In my opinion, there was no violation of judicial ethics. In my view, it was possibly imprudent for a person who is a judge to have such an investment because of the potential for possible conflict of interest and because of possible appearance. However, in light of the facts, no conflict of interest or appearance of conflict materialized.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have no objection putting that in.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, that is different from what was stated.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It certainly was.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I want to ask the Chair also, there is a letter coming from Professor Freedman, who indicates, as I understand it, that he considers it was unethical. But I want to make it clear: I am not challenging the ethical propriety of your conduct because I believe you conducted yourself in a manner that you considered to be ethical and still do. I am concerned about what happens tomorrow when cases come before you, and I think we are entitled to your view on that, Judge Breyer. [The letters referred to follow:
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, Senator. I have taken into account your concern, and I understand the concern, and I think it is extremely important that people have confidence in the integrity and that there is absolutely no conflict in such circumstances. What I intend to do, as I said, is that whatever investment I have in this area in whatever court I am in will be posted clearly, all information given, with the clerk of court. The parties in every case will be directed to that so they will find it and know what it says. They will be told that, anonymously—anonymously—they may write out or tell orally to the clerk any way in which they see that the holding in this case could really affect that investment. Then the clerk would or an appropriate person would communicate that to me anonymously. I would consider very carefully, in light of what you and others have said, whether in any case there would be really an impact on the investment from the holding of that case. And should I conclude there would be, I would recuse myself.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I believe that that is a major step in the right direction. I think it is the right step, and I think that the concerns that many of us have about your continued exposure in the Merritt syndicate 418 may warrant or may necessitate your recusing yourself in future cases. I believe that it is our obligation to and I think we have sensitized you to this issue. Nobody has said, at least I have not said— some have said but I have not said—that you have conducted yourself in an unethical manner. I do not think that you have. But I think that if the Ottati case were before you again, using the present standard that you are talking about, I somehow have the feeling that you might not have gone forward in hearing that case. It is a fait accompli, and you are not going to hear the case over again, and so it does not necessitate our going into a lengthy discussion. But I think your new approach to matters, until you get out of the Lloyd's investment, will be helpful, and at least this Senator thinks it will make you that much better a Supreme Court jurist than I hope you will be notwithstanding.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Senator.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I guess my time has expired.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU can have more time, because I interrupted you, if you want to take a few more minutes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Several more. All right. I think I will. Thank you, Mr. Chairman. On this whole question of the Merritt 418 and its relationship to your exposure and cases you have heard, the latest annual report emphasizes not only the uncertain upper limit of losses, but also the breadth of the exposure. With respect to asbestos, it says: The falling off in the number of new claims long predicted has yet to occur. Major uncertainties lie in the estimate of the number of future claimants. You have already recused yourself in connection with asbestos cases. With respect to pollution, it says: A number of claims have been made against our insureds and, therefore, against us. The amount of theoretical aggregate liability is clearly huge and, indeed, unquantifiable. 346 Even the syndicate's auditor, the accounting firm of Ernst and Young, will not give a firm opinion as to the size. I think that the point that I would make with you, Judge, is that you were aware that you had certain exposure. You had concerns. You actually sent several letters to other investors in Merritt 418, dated from February 1992 through February of this year. Those letters indicate your knowledge of Merritt's asbestos risk in 1987 and 1988 and describe why you decided by 1988 to recuse yourself from asbestos cases because of Merritt's asbestos risk. You say in one letter: I was surprised Merritt syndicate was involved more than average, for this seems contrary to what I had wanted. As a result, I have had to disqualify myself on all asbestos cases, and ultimately, for that reason, in 1988 I decided to leave Lloyd's. And then it goes on, other letters that you wrote. I think we can agree that the Merritt 418 was obviously a bad investment. The Merritt 418 had all sorts of exposure, asbestos, pollution, other kinds of exposures. And the question of your recusing yourself in future cases until you can discharge yourself of the liability, potential liability that you have arising out of it I think is a valid concern. I think you have addressed yourself to that concern. I am pretty well satisfied that when and if matters come up before you, you will be aware of some of the questions that have been discussed with you here, and I wish you well.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Does that mean the matter is closed, Senator?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Pardon?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Does that mean the matter is closed?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. For the moment. [Laughter.] I think so, but who knows what the next hour will bring?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I surely do not. I know the next 10 minutes will bring a break. You have been sitting there a long time, Judge. Why don't we break until 10 minutes after. That is about 8 or 10 minutes. [Recess.] The CHAIRMAN. The hearing will come to order. Our next questioner is the distinguished Senator from Wyoming,
Senator Alan Simpson (WY)
Senator
(R)
Senator Simpson. Senator, the floor is yours. Senator SIMPSON. Mr. Chairman, I thank you very much. Judge Breyer and associates, fellow lawyers and family and so on. Anyway, in my first round of questions, I mentioned that bills had been introduced in both Houses of Congress by members of both parties to eliminate birthright citizenship. I kind of fired this out the other day, knowing you would mull it, as you do. The issue of eliminating birthright citizenship in the case of a child born in the United States to persons who are here illegally. There are calls for repeal of what we would term birthright citizenship for children of aliens who are in an illegal status, and part of the impetus behind this interest in changing the law regarding birthright citizenship is that these children, often born impoverished to impoverished parents, are immediately eligible for public assistance, and then that assistance, of course, is provided to the parents who care for their citizen child even though the parents themselves would not qualify for public assistance because they are illegal, undocumented persons. 347 Having been in this issue for some 15 years, I have never seen more of a rush toward doing something. Things are being said by people on both sides of the aisle that, if I had said them 10 years ago, I would have been prey to the designation of bigotry or racism or some other. But this is an issue filled with that when we talk about immigration and refugees and legal and illegal and permanent resident aliens and so on. But illegal immigration in the United States, in combination with the development of the modern welfare state in this country, has increased the fears and resentments of many citizens in the most heavily impacted States. And as I mentioned to you, the citizenship clause of the 14th amendment provides that any person born in the United States and subject to the jurisdiction thereof is a citizen of the United States. While the citizenship clause was intended originally to benefit black Americans, it is obvious that this "jurisdiction requirement," as it has been called, was intended to narrow the scope of the birthright citizenship principle. Clearly, the American-born children of foreign diplomats who receive extraterritorial immunity from our laws are not subject—not subject to the jurisdiction thereof. Further, the debate over the Civil Rights Act of 1866 makes clear that citizenship of NativeAmericans was also an issue. I mention the 1866 act because the citizenship clause in that statute was apparently the basis for a similar provision in the 14th amendment. So at the time the framers of the citizenship clause wrote that provision, the United States maintained a policy of open borders. It was a time when immigration was thoroughly encouraged. We wanted to populate the vast open spaces of a young nation, and I suppose there were no illegal aliens in 1868. Immigration at that time was essentially unregulated. Today the vast majority of Americans would consider an open-border policy to be nonsensical, if not unthinkable. And so, rather, now all policy discussions today revolve around control of our borders and a sovereign nation's duty to control its borders. One scholar examined this issue of birthright citizenship in some depth. His name was Peter Schuck, of Yale. He has written: It is difficult to defend a practice that extends birthright citizenship to the nativeborn children of illegal aliens. Parents of such children are, by definition, individuals whose presence within the jurisdiction of the United States is prohibited by law. They are manifestly individuals, therefore, to whom the society has explicitly and self-consciously decided to deny membership. And if the society has refused to consent to their membership, they can hardly be said to have consented to that of their children who happen to be born while their parents are here in clear violation of American law. In my view and research and study, the meaning of the clause subject to the jurisdiction thereof is very unclear and ambiguous. And my question to you: As a general matter, may the Congress by statute define an ambiguous constitutional provision? Judge BREYER. The short answer, Senator, is it would depend upon the provision and it would depend upon the statute. You have raised the question about whether those words subject to the jurisdiction thereof are meant to exclude only a few people, such as 348 diplomats' children and some others, or whether Congress can control that definition by statute. I understand the question, and I am absolutely certain if legislation of that sort is enacted, court challenge will follow immediately. And, therefore, we would consider that—I would have to if I was on the Court—in the context of litigation, get the briefs, get the arguments, and think hard about it. Senator SIMPSON. Actually, mine is the general question, although it was obviously long and somewhat tedious, about the single issue of the birthright. But on the general question of whether the Congress may statutorily define or clarify any ambiguous constitutional provision, do you have a view on that, completely aside from the citizenship clause jurisdiction issue requirement?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The reason that I say I think it depends is because I know there are legal arguments about the extent to which section 2, I guess, or section 5 of the 14th amendment does or does not allow Congress to do or say certain things in statutes. So, not having gone into it thoroughly, I suspect it depends upon the particular statute and the particular provision. Always there will be a question with any statute and any provision: If there is an area of ambiguity, does that particular statute nonetheless fall outside of it? So those are the kinds of questions that would arise.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And will arise?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, they will.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That is why you do not intend to go any further.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is right.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. IS that correct?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is exactly right.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thus sparing you further pain. Let me ask you, I want to follow up on home schooling. Surprisingly enough, I have received a tremendous amount of mail. I do not know what group is generating this, but I want to be certain— and I know others have asked about it, and should, and my colleague, Senator Warner, who is not on the panel, our panel, asked me about it. And he, too, is receiving a great deal of material. But we discussed the New Life Baptist Academy case Tuesday, and you assured me you had nothing against or no bias against home schooling. If I might just ask a final question on that, at least from me, as a Justice you will be, of course, interpreting the Constitution. And so I am interested, and I know many, as I say, in my State and other States are interested, in hearing your interpretation of the Constitution as it pertains to the right of parents to teach their children at home and the right of religious organizations to operate private schools. In your mind, what does the Constitution have to say about that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. In general, though not in detail, I think it fair to start from the proposition, it is true, religion is extremely important to all of us. Even if we have different religions, we share the fact that it is important. And from a constitutional point of view, it is there protected in the first amendment because the Founders recognized the importance of religion and the importance of allowing people freely to exercise their religion. They had learned 349 through experience. That experience came from the religious wars of the 17th century. They put that in the Constitution to be absolutely certain that that free exercise was protected. In my own view, if someone or a State or someone tried to prevent people from teaching their religion to their children or practicing a home school that was based on that kind of thing, very serious constitutional questions would arise. They would have to be decided in the context of the case. But on their face, it would be a very serious problem.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. But the Constitution, without
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is designed to protect the right of the parents to pass along to their children their religion and to protect that from State interference.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And to then also have home schools if that
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think those home schools based on that principle follow from that, and that is why I say somebody who tried to prevent that legally would suddenly face very, very serious constitutional challenges.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I think that is important, and I have been listening to what Senator Brown has asked, and others. It seems rather absurd that you can get on your hind legs now and do about any kind of oral expression known except you cannot pray in schools. I do not know how it got to that point, but I think that certainly there has been a great removal of religion from our society. And I am not talking about forcing it on people, but commencement exercises. I understand all those things, but it seems to me that it is a part of the heritage of our country, one of the only countries on the face of the Earth founded in a belief in God, that is the United States. They came here to freely exercise their religion. That is who came here. And to see it all twisted in these ways through judicial interpretation through the years is puzzling, a curious thing to me. We have almost removed religion, certainly the establishment of religion. I think I understand that. But to remove these things in a— well, enough. But that is a puzzler to me when we are the country that was founded—the only one I know of founded on a belief in God, and when all of its Founding Fathers were deeply committed in almost elitist ways to worship. Interesting. You do not have any comment on that, do you? You are waiting for more?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, I understand this is an area—how the first amendment is applied in this area is a matter of great contention legally. But I do not think it is contentious, and I think the vast majority of people, I think there is a kind of consensus that that first amendment—it is not my opinion. I think there is a consensus opinion that that first amendment protects the right of people to pass their religion on to their children, and the home school situation on its face seems to fall within that. Therefore, I think there is a consensus. Not my personal opinion but a consensus that some protection is offered there.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I thank you. In response to the question on judicial activism in the committee questionnaire, you said, among other things: 350 One must recognize that legislators and executive entities have sometimes failed to address problems until constitutional violation resulted. It would be vastly preferable for all branches of Government and for the public if the political branches were able to resolve such issues and render their determination through judicial adjudication unnecessary. Then you also noted that: If the legislature or the executive either acts or fails to act in a manner that results in a violation of individual rights, the Court's role must include the difficult and sensitive task of defining an appropriate judicial remedy. Could you share, if you would, what are some of those issues which have not been resolved by the executive or legislative branches which, in your view, the judicial branch has had to resolve through judicial adjudication? Are there any such issues or problems before us today for which the judicial branch might be called upon to define an appropriate judicial remedy due to present and historical inaction by the executive and legislative branches?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is certainly true, Senator, that Congress gets advice from all kinds of people, everybody in the country, including judges, including policymakers, including dozens of others, and it is up to Congress to decide, the legislature, what to do. So, therefore, I would stick to a historical example. The one that most obviously comes to mind is: Wouldn't it have been a wonderful thing, in my mind, if sometime around the year 1870, 1880, 1885, 1890, any time before 1954, that Congress had decided to enact laws that made that promise of fairness in the 14th amendment a real thing? How wonderful that would have been. And yet there was not that law. I think in 1954 the Court said that promise will be made a reality, and it has been a very difficult thing, but an ultimately critical thing, that that become real. I can hardly think of all our country's problems—and there are so many, whether you start with violence, or hunger, or children, or reading, or anything. Right there at the top of that list is the need to make that promise a reality. And that is hard. So I think the courts began that in 1954, and I know Congress has stepped in, and I just wish, wouldn't it have been wonderful if that had been done earlier.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I remember Justice Brennan, in visits with him, and Justice Burger, I was fortunate to come to know both of them personally. Wonderful men. And they would both say, in rather remarkably guarded ways: When will you people begin to do something about illegal immigration? This is when the commission started back in the early 1980's because the court cases were coming in. The Texas case; you had to educate the children of an illegal, undocumented person because you couldn't visit the sins of the parent upon the child, and that child was entitled to an education, and is. So that was a gentle goading from the other side of the triangle of our constitutional government, like: Don't you think you ought to get busy with something? And I remember we did get busy, and we did a bill, and eventually dealt with that in a way which we will have to revisit. But one final question, and then I will yield back the balance of my time. A continuing aspect of the game in these Supreme Court nominations is the committee's efforts to learn or try to learn a 351 nominee's position on one legal issue or another, countered by the nominee's efforts to avoid disclosing where he or she stands on specific issues. This is our ritual. We say we need to know in order to assure ourselves and the Senate that the nominee is within "the mainstream" of legal thought. That was a phrase that we heard during these latter years, "the mainstream." The nominees argue that it would be inappropriate, if not wholly improper, to indicate where a prospective Justice stands on a particular issue which may come before the Court on which the nominee hopes to sit. But if the nominee has written or spoken on an issue, it is often rather difficult for him or her to duck that issue at the confirmation hearings. The exceedingly bright and able Judge Bork had written and spoken extensively. He had done 106 opinions. None of them had been overruled. And six of his dissents became majority opinions of the U.S. Supreme Court. But before my eyes, the nomination process turned him into a lot different guy than that. That was a painful thing, and I would not want to revisit any of it. And there have been others just as painful. But as a result, with him we had a lengthy and wide-ranging, free-range discussion of his views on many constitutional issues during his hearings, and that is reported historically that that might have hurt him badly. Justice Scalia handled it quite differently. He declined to respond to most questions on current constitutional questions, a man of similar brightness and ability as Judge Bork or as you. He felt it inappropriate, and said it clearly, to discuss legal issues that are, to use your words, I think the other morning, "up in the air," issues that are still "up in the air." Now, however, my question: Justice Scalia was recently reported, at least reported—I never really believe everything the fourth estate says because I think they blur journalism with divinity. There will be a report on that now that I have done something ugly and quite evil with them, but line them up in the other alley because we will do it again. Now, Justice Scalia recently is reported to have suggested that caning might pass constitutional muster. I do not know that. In the last year, Justice Blackmun announced to the country his position on the death penalty. Now, other sitting judges, Justices, have made statements disclosing their position on various controversial issues, and without necessarily commenting on the behavior of any particular Justice or nominee or yourself, do you see any valid reason why a Supreme Court nominee should be less forthcoming than a sitting Justice about his or her views? I am not going to ask you about a view, but should they be less forthcoming about his or her views on constitutional jurisprudence during confirmation hearings than he or she might be after becoming a sitting Justice, other than wanting very much to obtain the job? Would not the public perception of bias be just as applicable to a sitting Justice as to a nominee?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. YOU are asking me if I can think quickly of a distinction, and obviously I cannot. But, nonetheless, I think what is important, which is what I have tried to do, is to expose to you how I might go about thinking and dealing with a problem. 352 What the basic view is, how I see things basically, the reason, as I see it, for hesitating to go into—there are three, really—to go into something that is going to be a specific case, the best reason, which is usually the true reason, is that I have not thought about it in that kind of depth, and I should not go say something that I have not thought about that is likely to come up in the context of a particular case. That is always true. A second reason is, even if you think you have thought about it, how often it really is true that I think I know something, I think I have thought it through, and then a real case comes along— maybe it is like a vote. I do not know if it is or not, but suddenly it is real. Suddenly you really know that people's lives turn on it. And that produces a tremendous degree of concentration that might previously have been lacking. You read the briefs, and you understand the full facts, and that is not true in a context before it becomes real. And of course, the third reason is that you want to impress upon people that you will be fair and openminded in a particular case, and decide on the basis of briefs and arguments and thought at the time.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I think it is important for Supreme Court Justices and Justices in the State Supreme Courts to interact with the public, to let them know that there is not just mystery coming down from on high. Do you feel that way?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes; there are many, many ways of interacting. In my career, I have written quite a lot, and I have gone to bar meetings, and I have gone around and talked to people. It is not secret. It is not—there should be this interaction, and trying to work out how you do the interaction, what is going to far, what you can say, what precisely the boundaries are in terms of policy issues relating to courts, and all the different things I might have taught about or whatever—that is difficult. There are no easy answers to those things, but the need to get out and communicate, I have always felt strongly; I have tried to build a career that reflects that. I do not guarantee I have always drawn the line correct, but that
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Will you hope to be able to continue to do that?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I do.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And you will do that.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Every instinct I have cuts in that direction.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I think it would be very important.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I will be careful. I would be careful if I am confirmed.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Oh, yes, you will. They will be watching. They will not be watching for the good things you are saying; it will be as you dibble around the edges. But I remember Justice Burger. He would speak about advertising of lawyers, go to forums, lay it on the line. I remember his great phrase he had, with regard to courtappointed attorneys and people who were not prepared in court, that we had 747 litigation and Piper Cub lawyers. That was controversial. I think it is very important for judges to speak out, let them know that they are not just there to please those who are engaged in Elysian mysteries. And I said when we started that, knowing you as I do, you will not give them legal mumbo-jumbo. You will 353 give them justice and understanding, in English, of what it is you have done. Is that your hope?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I certainly hope so.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It is mine, too, and I know you will, from my knowledge of you. I thank you, Mr. Chairman, and I have further questions; I am just going to submit those in writing, if I may. Thank you for your courtesies and your manner in conducting the hearing.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. He likes judges that are controversial, but that is easy for a man who never has known controversy to say that. If you had a little controversy, political controversy, you might not encourage him so much to do that.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It takes one to know one, my friend. You have been there. [Prepared questions of Senator Simpson and Judge Breyer's responses follow:] QUESTIONS FOR JUDGE BREYER SUBMITTED BY SENATOR ALAN K. SIMPSON 34529 1. I am asking this question at the request of Senator Warner. A number of Senator Warner's constituents have called and written asking what are your views of "home schooling" and "private religious schools." This week you addressed some testimony to these issues. Senator Warner has asked me to give you the attached op-ed piece from the July 13 Virginia Pilot written by Michael Farris, who is the president and founder of the Virginia-based Home School Legal Defense Association, for you review. Specifically, in the case of New Life Baptist Church Academy v. Town of East Longmeadow, the District Court had ruled that it was a violation of the First Amendment for the public school district to evaluate teachers and curriculum in the New Life Baptist Church Academy, a "private religious school." You reversed the lower court's decision on September 7, 1989. This raises concerns with not only those whose children are home schooled or in private religious schools, but also for others who are committed to a strict interpretation of the First Amendment. Judge Breyer, what assurances can Senator Warner give his constituents about your views on "private religious schools" and the protection afforded these institutions in the First Amendment? And, religion aside, what protection does the Constitution offer to those parents who wish to teach their children at home? 2. What do you think of the efficacy of state medical malpractice and product liability tort laws in the following areas: (a) compensating people who have been injured or killed by corporate or professional negligence; (b) deterring the marketing of unsafe products and the practice of substandard medical care; and (c) alerting state and federal health and safety agencies to information that enables them to perform their generalized duties? 3. What are your views on the preemption of state tort laws through a federal statute1 that does not confer federal question jurisdiction over tort lawsuits? In other words, do you think it is wise for Congress to pass a federal law to govern product liability or medical malpractice lawsuits that are brought in state courts under state common and statutory law? 1 S. 687, which was recently defeated on the Senate Floor, would have preempted state product liability laws with a statute that would be interpreted by 30 different state court systems. 354
Stephen G. Breyer
Nominee
(D)
JUDGE BREYER'S RESPONSES JULY 18, 1994. Senator ALAN K. SIMPSON, 261 Dirksen Senate Office Building, Washington, DC. DEAR SENATOR SIMPSON: Thank you for your additional questions dated July 14, 1994. I am pleased to offer the following responses to your inquiry. 1. Home Schooling. Many years ago, in the cases of Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Supreme Court made clear that the "liberty" guarantee of the due process clause of the Fourteenth Amendment ensures parents' right to "direct the upbringing and education of children under their control." 268 U.S. at 534-35. The Court reaffirmed the existence of that right in Griswold v. Connecticut, 381 U.S. 479, 482 (1965). That basic guarantee of liberty protects parents who are not motivated by religious considerations as well as those who are. Thus it is well-established law that the Constitution offers protection independent of the Free Exercise Clause to parents in deciding how to educate their children. At the same time, it is also well-established law that the state has a "compelling" interest in making certain that its children receive an adequate secular education. See, e.g., Wisconsin v. Voder, 406 U.S. 205, 213 (1972) ("There is no doubt as to the power of the State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education."); Meyer v. Nebraska, 262 U.S. at 402 ("The power of the State of compel attendance at some school and to make reasonable regulations for all schools * * * is not questioned.") In the case of New Life Baptist Church Academy v. Town of East Longmeadow, 885 F.2d 940 (1st Cir. 1989), the First Circuit was required to engage in a delicate balance of those competing interests of parents and the state, and to ensure that both interests were respected. The state laws at issue in New Life Baptist provided that a local school commission must "approve" the quality of secular education (i.e., in nonreligious subjects) provided at private schools—religious and nonreligious alike—in order for students of those schools to comply with the state's compulsory school attendance laws. A unanimous panel, in a decision which I authored, upheld the proposed approval process after ensuring that the state's regulation of private secular education was "reasonable" and no more burdensome upon constitutional protections afforded to private religious schools than necessary to serve the state's interest. Several of my other opinions have recognized the importance of accommodating religious beliefs and of guaranteeing parents' right to send their children to private schools. See, e.g., Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 13 (1st Cir.) (Breyer, J., concurring) (states have latitude to provide services such as bus transportation to children attending private religious schools so long as those services are provided equally to public school students), cert, denied, 464 U.S. 851 (1983); see also Aman v. Handler, 653 F.2d 41 (1st Cir. 1981) (public university officials may not deny official recognition to religious student organizations simply because they disagree with the organizations' views); Alexander v. Trustees of Boston University, 766 F.2d 630, 646 (1st Cir. 1985) (Breyer, J., dissenting) (states must tolerate deviations from regulations and statutes where doing so would further the accommodation of sincere religious beliefs); Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en bano) (faculty hiring by church-operated universities should be exempt from the National Labor Relations Act). I might add that the test our court applied in New Life Baptist might be viewed as more protective of the free exercise of religion than the test later adopted by the Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), and far closer to the test that Congress recently enacted into law in the Religious Freedom Restoration Act. 2. State Medical Malpractice and Product Liability Tort Laws. The efficacy and wisdom of state medical malpractice and product liability tort laws is a highly controversial issue currently the subject of extensive legislative debate at both the state and federal levels. It would be inappropriate for me to comment on essentially legislative judgments. As a judge, I would enforce any constitutional federal legislation enacted in the area. 3. Preemption of State Tort Laws. The wisdom of enactment of a federal law to govern state product liability or medical malpractice lawsuits is likewise a legislative determination that is currently the subject of extensive debate. As a judge, I would enforce any federal legislation enacted in the areas that is in accord with the Constitution. 355 Thank you for your inquiry. My best wishes. Sincerely, STEPHEN G. BREYER.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [presiding]. Thank you, Mr. Chairman. As we know, a vote has just started in the last few minutes, and so I will not have the time to do a number of the questions I had wanted. Judge Breyer, you are the first nominee in the nearly 20 years I have been here that I have not been able to be here for every word of your testimony, and I apologize for that. Unfortunately, something that I had absolutely no control over, the foreign operations bill, was on the floor, and as we have in the last number of years, we have done both our authorizing and appropriating in the same bill. I am the manager of that bill, so I have been stuck there. I had a lot of followup questions from your earlier responses. I was impressed with your answers, but I was also impressed earlier that on a number of my questions, very artfully, you did not go into a full answer. I understand some of your reasons, but I would like to follow up on a couple of those questions. One answer in your discussion with Senator Simpson made me think of this question. You have talked of the ninth amendment. You have talked of unenumerated rights. You and I had a discussion of Justice Goldberg's decisions. But as I recall from my notes, after you noted that the ninth amendment protected unenumerated rights, as well as noting that a right to privacy is well-settled, you said that what these enumerated rights "are and how you find them is a big question." I would agree with that. You said you looked for a reference to liberty in the 14th amendment, and as I have read the transcript of your testimony in the evening, you have talked about the dignity of the person during the last couple days. Is that your way of articulating an unenumerated constitutional guarantee?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The ninth amendment, to Justice Goldberg, and I think to many others, makes clear that fact that certain rights are listed does not mean there are not others. Then the 14th amendment takes the word "liberty," and the question that you ask is, well, if there are others, how do we know what they are.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. HOW do you find them—where do you find them?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And what you have suggested is of course, you start with the text, and then you look back to history, and you look back to what the Framers thought. But so often, you cannot—what the Framers thought is that the Constitution should adapt, preserving certain basic values. So, what are those values? And we are back to where we started with a historic approach. We are back to where we started. I think the word "dignity" is important. At the most basic level, the Preamble to the Constitution lists what the Framers were up to—establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. Liberties are then listed, some, and underlying things like free speech and free religion, as I described or discussed when I talked about my own family, listening, is an idea, in my mind, of dignity. 356 Freedom from search, unreasonable search, unreasonable seizures, rights to fair trial, rights to speak and discuss, rights to express oneself creatively, rights to practice one's own religion without interference—all of those things have something to do with an individual, a man, a woman, a family, being able to lead a certain kind of life, to have a story to their life that is a story of a dignified life. That means many decisions must be up to them, and not to be told to them by the State. That, too, is why the Constitution, in my opinion, originally started out as a Government—and remains—of limited power. Now, you reserve the area of autonomy. You look back into history. You try to determine what are the basic values that underlay those things that are enumerated, and that gives you a key to other basic values. You look to what Frankfurter and Harlan and Goldberg and others talked about as the traditions of our people, always trying to understand what people historically have viewed as traditional, and the values being there, you look to history in the past, to history in the present, and to the meaning, to what life is like today, to try to work out how—maybe an idea a little bit into the future, too—to get an idea of what are those things that are fundamental to a life of dignity. I know those are very general statements, but in working that out with precedents and working that out in the context of the Constitution, you look and see what judges have tried to do, and you try to behave in that particular way.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you had said—in the discussion with Senator Simpson a few minutes ago, you talked about—if I am quoting you correctly—in the late 1800's, it would have been nice if the Congress, the President, the political powers, had taken the steps that the Supreme Court eventually did in 1954.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And I agree with you. The fact is, of course, the Congress did not, and in fact, the Congress probably would have been divided enough even in 1954 that they would not have taken those steps. The remarkable thing is that the Supreme Court did it, and did it in a unanimous opinion—probably one of the greatest gifts to our constitutional history and to the integrity of the Supreme Court that they were able to do that unanimously. But doesn't that mean that there are possibilities that the Court steps in, basically making a political as well as a legal decision? Or, another way of putting it—when we speak of these unenumerated rights, do you accept that there may be a time in the future that what the Court may see as unenumerated rights are, because of a changing society, something different than we might see today?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not think the values are different. I think how they might apply might be.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But obviously, the Court—you go from Dred Scott to Brown—I realize they are differing things—Plessy v. Ferguson, whatever—if you look at some of these decisions, you find the Court certainly changes. We still have the same Constitution, but the Court changes in how it sees rights.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That, of course, is true. But what I think in my own mind in respect to that particular opinion, Brown, surely, every time I think about it—and you go back to the pre-Brown 357 world—you can ask yourself how could people have looked at that promise, which is a promise of fairness, and think of the dignity that underlies so many of the first 10 amendments, and say we have it? They did not have it. It seems so obvious that that was not there that I think of Brown as an instance of applying law that was there, that was clear—a promise of fairness to circumstances where the fairness did not exist. And perhaps it is hindsight, but I would like to think that if I had been there before, it would have been foresight. And I understand that judges, like any human beings, can make mistakes and get things wrong, but you would like to think that if you are getting things right, you are referring back to the basic idea of values that reflect human dignity, that underlie the Constitution because they are necessary to assure the promise of the Preamble.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge Breyer, in many ways, it is with probably as deep a regret as I think I have had on just about anything in years, that now, with the clock down to where we have 5 or 6 minutes left in this vote, I am going to have to leave. I am also extraordinarily disappointed that 20 years of precedent has broken with you in that I have not been able to sit here for everything you have had to say, because I would like to carry on this discussion a great deal. You will be confirmed—we all know that—but I hope that you and I might have the opportunity to continue this discussion, if not in an on-the-record basis, in an off-the-record basis. And I hope— and I will put my closing statement in the record—but I hope that you will resist any pressure to become cloistered from the world. I have spoken of judges being outside the judicial monastery. I have a feeling that your wife and your children will, should you become too cloistered, bring you back to reality rather quickly.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And I suspect your friends will. But you need that. Every judge needs that. They need to go out—if somebody says, "Wait a minute, that is baloney. Let me tell you why"—because just as we in the Senate do, where people do not want to talk back to us, we need to go out and do it. I hope that you will do that. I will leave one question for the record, and this is the one I really am sorry that I am not going to be able to have a discussion with you. I would hope that you and I might perhaps some evening, some day, have this discussion. II is a question I ask all nominees to the Supreme Court, and that is: Since you left law school, or in the space of your experience, what are some of the most significant cases the Supreme Court has decided? Judge, I would ask you if you might take a moment after to submit an answer for the record. I am just curious, what are those things that stand out the most in your mind as those cases that have had probably the greatest impact from this unique and wonderful Court on which you are about to serve; what are the ones that have had the most impact? And with that, seeing that we are voting right now, we will recess, subject to the call of the Chair. Thank you.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you. 358 [Response of Judge Breyer and the prepared statement of Senator Leahy follow:] JUDGE BREYER'S RESPONSE TO SENATOR LEAHY'S QUESTION LEADING CASES In response to Senator Leahy's request that I identify Supreme Court cases of particular importance decided since I graduated from law school, I am providing the following list of decisions, the importance and wisdom of which are, in my judgment, widely accepted. 1. Reynolds v. Sims, 377 U.S. 533 (1964). This case redeemed the promise of our democratic form of government by ensuring an equal vote for every citizen. 2. Miranda v. Arizona, 384 U.S. 436 (1966). While the exact contours of the right against self-incrimination remain a subject of debate, Miranda established the basic proposition that the Fifth Amendment would prevent the most serious abuses of official power. 3. Brandenburg v. Ohio, 395 U.S. 444 (1969). By reinvigorating the clear and present danger test in a case involving the Ku Klux Klan, this decision affirmed the fundamental principle that the First Amendment must protect even the speech we hate. 4. Frontiero v. Richardson, 411 U.S. 677 (1973), and Craig v. Boren, 429 U.S. 190 (1976). These cases established the critical principle that the Fourteenth Amendment's guarantees extend to gender discrimination. 5. Mistretta v. United States, 488 U.S. 714 (1989). This decision is important not so much for its specific subject matter (the Sentencing Commission) but more generally because it reintroduced needed flexibility into the constitutional separationof-powers analysis, ensuring that Congress and the President can meet new challenges to effective governance posed by complex modern problems.
Senator Patrick Leahy (VT)
Senator
(D)
PREPARED STATEMENT OF SENATOR LEAHY Mr. Chairman, I conclude my round of questioning with these observations: I want to commend my colleagues for their thoughtful participation in these most important proceedings and to commend Judge Breyer for the way he has conducted himself and his willingness to reveal something of himself and his thinking. Quite frankly, I would have liked him to be even more forthcoming and specific in his responses, but I acknowledge that the appropriate line is difficult to draw and recognize that my frustration may reflect my own perspective as a Senator asking questions. I have sensed through the course of these proceedings a disappointment among some that there has not been more controversy surrounding this nomination, that we have not had to endure a donnybrook or witness a wealth of political maneuvering. I suggest, to the contrary, that we should take pride in what is transpiring here: This is an occasion when all three branches of our Federal Government can be seen working together smoothly and efficiently. I hope that the members of the public who have had an opportunity to join us over the last few days either in person or to witness these proceedings on television have taken something positive from them. I again commend President Clinton for having chosen a nominee who can bring people of diverse political views together and who has engendered such praise as an excellent choice. Finally, if I might, I say to you, Judge Breyer, that after you are confirmed I hope that you will successfully resist the pressures to become cloistered away from the world. I think that your involvement with your family, demonstrated throughout these hearings, provides some protection for you. I doubt that your active wife and children are going to allow you to lose touch. In your opening statement and your answers over these last three days you have indicated your intention always to remember the effects that your decisions will have on real people—people who may not be powerful or well-connected. You have demonstrated that you have not only mastered the complexities of the law but are the fulfillment of your parents' influences toward public service and to awareness of the impact your work will have on the lives of others. So I urge you even while sitting on the High Court to be of the world. I do not suggest that you tailor your opinions to the winds of public opinion. Rather, I urge you to remember that you have learned about government and people. I call upon you to fulfill the promise you made to the American people as these proceedings began—to remember that the decisions you help to make will have an enormous effect upon the lives of many, many Americans and to do your utmost to see that 359 those decisions reflect both the letter and the spirit of law that is meant to help them. [Recess.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Senator GRASSLEY. Thank you. We went through legislative history, and I want to go back to legislative history, but not in the general way I did the first time. I will be a little more specific this time. I am somewhat concerned about some of the answers you gave me about statutory construction yesterday—or, I guess it was 2 days ago, now. In light of that, I want to ask you about your 1992 decision in Paleo. Paleo, for the benefit of those who do not know, had been convicted of four violent crimes, and under Federal law, a person with three or more violent crime convictions who possesses a firearm— and that is a very important ingredient—faces a 15-year mandatory minimum sentence. Paleo, as you recall, argued that the mandatory minimum sentencing provisions did not apply to him because he claimed that three of his convictions were constitutionally invalid. You ruled that the statute required that the criminal be allowed to challenge his prior convictions in Federal court. Last May 23, this year, the Supreme Court ruled in Custis that the same statute did not permit the defendant to challenge his conviction prior to sentencing. So I want to kind of compare your opinion with the Supreme Court's. For instance, the Supreme Court interpreted the key terms in the statute—three words—"three previous convictions"—according to the statute's very plain language. In other words, as I would read it, someone who has three previous convictions has in fact three previous convictions. Now, in contrast, I think your opinion did not follow the plain language, and you did not identify any compelling legislative history to justify your departing from the plain language. I think that you interpreted the statute according to what interest you believed the Government had in the operation of the statute, and you wrote that: The Federal Government has no recognizable interest in imprisoning a defendant on the basis of convictions that are constitutionally invalid. I suppose that your approach would be an example—and even beyond you, I suppose—of a judge who would use a style of statutory construction that would give me some concern. I am concerned that such a judge might in fact be what I do not like, a kind of activist-type judge who wants to put his own ideological imprint on something, because often, activists narrowly define the Government's interest at stake to rule against the Government. It seems to me that the Government's interest is having its statutes enforced according to their plain terms and in getting dangerous criminals locked up for long, long periods of time. I want to know why you interpreted the statute according to what I see as being maybe your own views, instead of the Government's interest, since you did not quote any legislative history. You applied your view of the Government's interest, instead of what I see as very, very plain language of the statute. 360
Stephen G. Breyer
Nominee
(D)
Judge BREYER. A difficult case. I think that if in fact I could have read the statute, "three prior convictions," to mean what you say— three prior convictions—the case would have been much easier. The problem in the case arose from the fact that you could not read it that way because the Supreme Court had said at least some of those things that say convictions are not convictions. They had said, for example, that one of those previous convictions was a conviction that was obtained without the person having a lawyer; then, it is not a conviction, even though it says "conviction." So the dilemma—and this is why it was so very difficult—is it assumed by everybody, everybody agrees, that you cannot just read conviction to mean conviction. Certain ones do not count. Those without a lawyer, for example, do not count. And now the question is are there some other ones that do not count. And the simplest thing seemed to me to be to say those that are unconstitutional do not count, because if you do not do it that way, you would have to say there are some unconstitutional convictions which are convictions, and there are other unconstitutional convictions—those without a lawyer—which are not convictions. And I did not understand how to draw that distinction. On the other side of it was if you take the approach I just said, won't it become very, very difficult for judges to work at sentencing hearings? Won't people challenge it all the time? And what you have in so many of these cases which was present there is you have some very strong policy reasons, which policy reasons are a key to try to understand how Congress would have wanted a statute interpreted where the language cannot be read literally, and where there is no legislative history. And where there is not, I am trying to put myself in the shoes of a person in Congress who has an objective, who is faced with the same kind of interpretive difficulties that I would be faced with. The Supreme Court went along with the opposite approach, I guess, which is that it is better to say there are different kinds of unconstitutional convictions, and some of them count, and some of them do not count. That is a reasonable view, too, and I did decide it the other way, and they are authoritative. But I do not think one view or the other is more or less a departure from the statute. I think in both instances, what you are trying to do is interpret a statute in conditions where it cannot be read just literally because of the circumstance I mentioned.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, could I ask you if, given what you know about the Supreme Court's opinion in that Custis case, would you have decided the Paleo case differently, either in terms of results or reasoning?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It would have had to come out the other way, in my opinion. I know there are some distinctions. We actually—the decision in Paleo was a very close, very difficult decision that we debated quite a lot, and I do not like to give a legal opinion, and so you are getting an off-the-cuff response to the Supreme Court, putting myself back, and most of the lawyers, I think, and the judges in our circuit would say that the recent Supreme Court opinion suggests it should have come out the other way. I do not make that statement definitely, but 361
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let me contrast your opinion with the Supreme Court's decision—and then ask you to react to that. The Supreme Court did not find that the statute contemplates that defendants could challenge their prior sentences. They pointed out that another provision of the same statute says that a Federal court cannot count a conviction "which has been set aside." To me, this surely means that the defendant's convictions that have not been set aside will be counted as the three strikes for an enhanced sentence. And the Court analyzed other statutes that provided specific procedures for challenging the validity of prior convictions used to enhance sentences. So Congress has drafted clearly in this area, both when we want to allow challenged convictions and when we do not. The Court also cited a 1980 Supreme Court case, interpreting a prior version of the same statute to disallow challenges to convictions. So then, that would lead me to ask why you did not consider the other portions of the statute—or other statutes where Congress expressly permitted defendants to challenge their convictions, or even this 1980 Supreme Court case.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think that is all there, Senator, and I think that what I am trying to do and I think most of us in the judiciary would try to do is to try to work out what the intention of the Congress is. The question that was a stumbling block for me and is in the Supreme Court opinion that you read is, well, prior precedent of the Supreme Court—which, by the way, they are free to modify or interpret. We are not free to modify or interpret. Prior precedent of the Supreme Court said that the defendant could challenge some prior convictions; for example, convictions that were obtained without a lawyer. That being so, what is the rule as to when a prior conviction could be challenged and when it could not? Are there different categories of constitutional violation? Are some more important than others? I cannot answer that question as a lower court judge. Looking at precedent when I looked at it, I found that there, and whether I was right or wrong, I thought that was a major stumbling block to the interpretation that the later court came up with. That was my thinking at the time, and that is what I tried to express in that opinion.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Paleo is about ineffective assistance from a lawyer as opposed to the denial of a lawyer.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, exactly. Exactly.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. And that is what Custis is about.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Exactly; and the Court, the Supreme Court has the power to say, look, there are differences in a conviction being unconstitutional because the person did not have a lawyer and a conviction being unconstitutional because he did have a lawyer and the lawyer acted ineffectively. The Supreme Court has the power to say those are two different things. As I interpreted it at the time, I did not see how to say that they were two different things, that they were different kinds of constitutional violation. I recognize the argument. You had to do it one way or the other. You had to say there are different kinds, or you had to create the procedural problem. And I thought more closely— 362 to the intent of Congress was the way I decided it, and the Supreme Court said later, no, it was the other way.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I guess I will move on. I would just like to leave a message with you. That would be in regard to the fact that we are now working on a crime bill where we hope to make very clear, three strikes and you are out, three prior convictions and you are out. And maybe what you are saying is we have not done it plain enough in the past. I think we have. I think the Supreme Court has differentiated enough, and I guess maybe I would just, based upon the Paleo case, ask you to take a view at whether or not we were clear enough in this instance. There was a recent column by William Raspberry in the Washington Post. After surveying various studies, Mr. Raspberry has come to a conclusion that the most effective antipoverty activities are provided by religious institutions. He finds that church-based drug rehabilitation and antiviolence programs are more effective than others. However, he is concerned that the establishment clause, that the Supreme Court has found blocks almost all public funding for parochial schools, might also be interpreted to bar aid to these very successful church-based antipoverty programs. I hope I do not have to say that I respect separation of church and state, but I also believe that what the establishment clause demands is neutrality toward religion. And I think a little bit along the lines of Senator Brown. I think that when the Government goes too far in avoiding religious issues, sometimes you can have government promoting secularism. I do not try to convince you that that can be a form of religion, but it seems to me the absence of religion is something we have to be concerned about in a society that has a moral basis for our existence. I think that you may also agree with what I just said about neutrality toward religion based on a 1989 decision of yours involving busing of parochial school students. The Government need not be hostile to religion to comply with the first amendment. It need not aid all antipoverty organizations except church-based ones. Can't Congress, consistent with the establishment clause, pursue the secular objective of trying to eliminate drug use and violent behavior and poverty by neutrally aiding a whole range of entities that have programs in these areas, including religious organizations?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There are areas, vast areas, as I really said yesterday and the day before and would say the same tomorrow and every other day, that there are vast areas where it is obvious that churches receive assistance from the Government. The area of social services, the area of fire departments is the obvious example I use, but there are many others. And there are tax exemptions— tax exemptions aimed at religious institutions. And there are various busing, as in the opinion that you read. And the difficult question, when you say neutrality, of course, immediately that is fine. In the context of any individual program, what happens when there is a challenge in court is someone says, yes, we understand that; yes, you are absolutely right. But this particular one goes too far. 363 Then what you have in a court case is the issue about whether this is or is not going too far. And what I can say is I consider those open-mindedly. You understand from my opinions in this area that I have a practical bent of mind to see if it really is going too far, not some theory, and that I will try to decide those cases in that light.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. In deciding establishment clause cases, do you see yourself being more inclined to fine tuning as opposed to making sweeping changes?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It sounds to me most of these cases that have come along have been involved in line-drawing, and is it really going too far up here, or is it not quite far enough? Is this too far or isn't it? That is my impression of most of what comes up in recent years in this area. I cannot promise there will not be major cases that come up. Obviously, there may be.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I have a question about our jury system. A number of recent criminal trials have garnered huge amounts of publicity, as you know. They also share something else in common. It seems like whether it is the Menendez brothers or whether it is John and Lorena Bobbitt or the police attackers of Rodney King or the attackers of the truck driver, Reginald Denny, the defendant was either acquitted outright or acquitted of all really serious charges. Now, remarkably, this occurred in this last instance, in the case of Denny, despite the fact that that was captured on TV videotape. Do you now believe that the jury system functions as well as in criminal trials as it has in the past? And do you have any suggestions about how to improve the function of criminal juries?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It is interesting. Of course, I am not a trial judge, but I talk to trial judges. And what is interesting to me when I talk to trial judges is the enormous faith that they have in the jury system. And again and again they will say, particularly in criminal trials—it is very interesting because at lunch we discuss this every so often. And in the district court in Massachusetts, the judges that I usually have lunch with, you know, quite often, they say it works. It works, again and again. And I do not promise you—and no one would—that it always works, that it works perfectly. But you do discover a tremendous sincere belief on the part of judges over and over in the value of the that system, that it does basically work pretty well. The jurors are admirable in contributing that time and effort. So I know that people, thoughtful people like you and me, I hope, and many, many others, are concerned with the way in which the right to fair trials interacts with the free press right. But the basic idea of the jury and the way it is working, my sense is among people who deal with it, they think it works.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Even though it is working somewhat differently in recent years than maybe it has historically, I do not think there is anything basically wrong with it. It was meant to have the opinion of the community invplved in the determining of justice. But I think there is something disturbing about the last 30 years. It seems like society has been less willing to hold people re sponsible for their actions in general. This is particularly true concerning crimes. What were once poor excuses are now frequently accepted as justification for finding the perpetrator to be a victim. Additionally, it seems like respect for all of our societal institutions, whether it be Mom and Dad in the home or our schools and the teachers in those schools or our churches and synagogues and the pastors and the priests and the rabbis connected with them, as well as even law enforcement, the respect that they used to have, it seems to me, has eroded greatly in the years. And the criminal justice process, the laws and the judges' instructions are not immune from these trends. I think maybe we are seeing some of this reflected there, especially since the jury was designed to reflect community sentiment. It might be reflected there like it is in other places. What suggestion would you have for those of us in the legislative branch who believe that we have got to stop blaming society when an individual commits a crime, and make people realize that they have to be responsible for their actions? And how do you suggest we restore respect for institutions, including our criminal justice system that sometimes loses respect when it looks obvious to the public at large somebody is guilty and they get off?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Of course, I agree that the trust problem is amazing. It is an amazingly big problem for institutions. In the particular area that you are talking about, what I have said publicly—I hope it is not overly optimistic; many would think it is—is that not all the solutions are legislative; that if, in fact, you get members of the bar who are interested in criminal defense work as well as those interested in prosecutions, and members of the press, and they get a sense of what each other's problems and responsibilities and so forth are, very often some of the things that you are concerned about that interfere with fair trials or whatever can be ironed out outside of the legal system, outside of laws and legislation, from people simply understanding the institutional problems of the other. That is the kind of thing I have talked about. I think it is still possible.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. When you say you have talked about it, do you mean publicly or privately?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Publicly.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes, and do you do it with the intent of trying to wake people up to the problem?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. And when you see these problems, do you see yourself as a leader who ought to help direct public opinion to maybe look inwardly and trying to solve them and not always solve them through a government action?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I hope so. We so see ourselves in our own institutions. I so much see myself as a judge, and we become so narrow, in a sense, not understanding not just the other person's point of view but the institution in which they are working. I think that is true of press and judges and everyone else. And conversation in an effort to see the different perspective, that is what I have said publicly. 365 I have tried to encourage that, and I would try to encourage it still.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU served in a number of different positions with the ABA, and you have done some of this since becoming a Federal judge. You have served on a governing body of the Administrative Law Section. I believe you have been a vice chair of the section's Judicial Review Committee. As I am sure you are aware, there is much controversy these days about the role of the ABA. The ABA has deeply involved itself in a number of controversial social and political issues. Through its governing bodies, the ABA has taken positions relating to legislative matters such as abortion, civil rights, affirmative action, parental leave, the death penalty, gun control. Just this past week, the president of the ABA stated his support for the Racial Justice Act, which, of course, right now has our crime conference bogged down. The ABA has filed amicus briefs with Federal appellate courts, including the Supreme Court, addressing employment discrimination, good-faith exception to the exclusionary rule, capital punishment for minors, and the constitutionality of the independent counsel and legislative veto, and I suppose there are a lot of other things. In light of the ABA's activity in policy areas, questions have come up concerning the propriety of judicial participation in the organization. In fact, in 1991, an ABA commission of judges, including four of your fellow Federal appellate colleagues, recommended limitations on judicial activity within the ABA. Specifically, the commission suggested that judges be permitted to join various ABA committees and sections only if all policy statements and all briefs disclaimed that they reflect the views of its judicial members or that judges participated in the adoption of the views. The commission also recommended that judges not participate in formulating or adopting ABA policies concerning matters on which the judge in his own name could not comment upon. Finally, the commission recommended that no judge occupy any ABA position that would lead the public to associate that judge with ABA policy even if the judge played no role relating to the specific policy. These recommendations were developed in light of the Code of Judicial Conduct. The code prohibits judges from taking stands on controversial legal issues, from making statements that might impair court proceedings, and from engaging in activities that might require recusal because they call into question the judge's impartiality. In light of this report of the ABA's own commission, are you concerned about judicial participation in the ABA? And what role do you intend to play in that organization if you are confirmed to the Court?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The approach of that report—I am not saying that I agree with everything in that report, but the approach of that report is an approach that I would call disclosure, and what I would think would be clear to the public anyway. The Administrative Law Section of the American Bar Association has taken the 366 positions that are controversial that you describe, and I think it should be apparent through ABA policy that they are not speaking for judges when they talk about something controversial that judges have no business talking about. And in the Administrative Law Section, should something have come up that I thought was something I should not express my view upon as a judge, I would just say so, if it was not apparent to everybody from the situation that that was the case. I would not like to see membership in that association by judges discouraged. I do think it is so terribly important for judges to be associated with members of the bar and to be able to have forums where they can discuss problems of judging, the institution of judging, problems of the bar, problems of the litigants that lead to the bar, having clients. All these matters are terribly important, in my opinion, to discuss outside the pure ivory tower of the judiciary. And I see the American Bar Association as offering forums where those kinds of discussions are encouraged and appropriate, and I favor that.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Could you think of maybe one example of where you have not associated yourself with or spoken a point of view in the association since you have been a judge?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. There are things that come up. I think that
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU think there has been some time, when you have not associated with the ABA's point of view?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, on the ABA, there would be in the council in the Administrative Law Section, things would come up and I would just say this, of course, doesn't include me. I can't pinpoint it, but I do have a distinct recollection there have been such instances.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Since crime has become a very serious concern of so many communities around the country, and particularly the increasingly violent and even the random nature of it, and the fact that even a lot of young people are committing more crime and even more serious crime, citizens of some of these communities have tried to keep young people from joining gangs and/or committing crimes, and one method they have used has been to impose curfews on youth. The Washington Post had a front-page story this week that reminded me of this, and they said almost 1,000 jurisdictions across the country have done this. The curfew reflects a belief that, after a certain hour, it is important that kids be at home, not hanging around the streets without supervision and, in the process, being exposed to very dangerous situations. Some communities interested in enacting such curfews have been discouraged from doing so, because of concerns regarding the first amendment. Indeed, some judges who usually live in the communities, totally isolated from the crime-ridden world, as they do, have found some curfews unconstitutional. That is not meant to be derogatory, but I presume most judges don't live in crime-ridden areas. It seems to me that the case law is quite clear that children do not have the same constitutional rights as adults, and it also seems to me that the interest of keeping children from being in situations where they can be recruited to commit crimes, where they actually 367 commit crimes, and where they are victimized by crime is a very compelling argument for curfew. If local communities want to do it, we should let them do it. I know you cannot express your views on specific language of any specific curfew, because you might be dealing with that. But what are your general views about whether the first amendment prevents communities from imposing curfews on juveniles?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I know your general statement that a child is different and in need of greater protection is correct, it is an important interest. There are circumstances in which curfews, I am sure, are normal in various circumstances in which they have been upheld. The constitutional argument which you say is being made means that I have to be cautious, because I would absolutely want to approach that with an open mind, and so it is hard for me to go further into that. The interests that you identify, I am absolutely certain are there. In other words, I can't easily discuss this, as you say, which is totally true, that it is likely to be the subject of a case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, I do not have another question, but I would like to take 2 minutes to do a Metzenbaum and just ask him to consider something.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think everyone is entitled to be a Metzenbaum at least one time in their life. I am a Metzenbaum today. That is why I am wearing this tie. [Laughter.] While you are preparing your question, I should point out that a number of press have asked me about this tie. This tie is a consequence of some of my colleagues in the Senate, particularly the Senator from the State of Washington, Patty Murray, walking up to me and looking at me and saying, "Joe, I must tell you, you are very dull," and then saying, why couldn't I be more like Howard Metzenbaum. Now, I have been here a long time and this is the first time anyone has said that to me, and so I went out and got a Metzenbaum tie. So you can ask a Metzenbaum question.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, I am not sure your tie is protected by the first amendment. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. They are cartoon characters, for the record.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yesterday, we discussed the Supreme Court's decision on illegitimacy, and I appreciate what you said, that you would keep an open mind, if someone asked the Court to overrule those decisions, in light of the changes in our factual underpinnings that have occurred over the last three decades. Throughout its history, the Supreme Court has overruled constitutional decisions. Since the 1960's, the Court has overruled, I think, more than 160 constitutional decisions. This has occurred, in the words of Justice Brandeis, who, of course, was 40 years before that, because, "Not only the decisions of the fact have been rendered upon an inadequate presentation of then existing conditions, but the conditions may have changed meanwhile. Moreover," he continues, "the judgment of the Court in the earlier decisions may have been influenced by prevailing views as to the economic or social policy, which have since been abandoned." 368 Now, it is one thing for the Supreme Court to overturn decisions which were always contrary to the original meaning of the Constitution and which were based on faulty social theory, as I think these illegitimacy cases were. In hindsight, the Court's theory of social engineering that its decisions would not increase illegitimacy have turned out to be wrong statistically, as well as practically. We see it every day. It is quite another thing to say that the meaning of the Constitution changes as society changes. That view suggests that Justices conduct an ongoing constitutional convention in which the law is made up as the judges go along. Overruling decisions that were never true to the Constitution in the first place is, as you understand, a judicial obligation. But the Constitution is not up for grabs with every case. Changed circumstances permit judges to justify and to change the application of the constitutional provisions. Changed circumstances do not change the core meaning of the provision. The latter belief makes it too easy for judges to enshrine their own personal prejudices into constitutional law. So that is what I submit happens and did happen in some of these illegitimacy cases, and we have had terribly disastrous results for our country, and there is bipartisan unanimity on it. And if the President speaks in the State of the Union Message saying that we have got to do something about the illegitimacy problem, you know it is bad. So I hope that if you are confirmed to the Supreme Court, that you would keep this distinction in mind between what is the basic Constitution as what is the application of those principles to the things of the day. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Now we are going to move to Senator Heflin. Again, let me make it clear that it is 5 o'clock, but we are finishing tonight. So I would ask staff to let their principals know that if they have questions, please be ready to ask. I see two other of my colleagues are here prepared to go, but I want all the staff to know that we will finish with the witness tonight.
Senator Howell Heflin (AL)
Senator
(D)
Senator Heflin. Senator HEFLIN. Judge, in an article entitled "The Regulation of Genetic Engineering," you argue that the Government should refrain from the regulation of genetic engineering. In your article, you reference the existence of strong natural forces that tend to contain and reverse undesirable practices in connection with genetic engineering. Would you say that these strong and natural forces govern the field of bioethics generally?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That, Senator, was a brief article years and years ago. I think it was written at a time—I don't know much about genetic engineering now, and I can say I knew less then—it was as time when people didn't know a lot about it. And I think the thrust of that was get to the scientists and find out what is really happening before you enact specific legislation. I think that was the thrust of the article. I think since that time there have been programs in the legislatures, in statutes. I think that the executive branch has acted in 369 a variety of ways to try to assure adequate protection in that area, like others.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, are you skeptical of the efficacy of governmental intervention in bioethical issues?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO; it would depend on what it was. The ethical issues are very, very important, very important. If I am remembering correctly, one way in which some of those issues—I think Professor Freund wrote an article suggesting you try to get members of the community—doctors, ministers, and others—into groups that can jointly work out the way of dealing with some of these implications and problems. That kind of approach, too, not necessarily the only approach, but that can be a possible approach.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I think it becomes pretty clear that you try to pattern your thoughts in some organized fashion, and the word technocrat has been frequently used in descriptions about you. I know that technical approach has sometimes been criticized. I think Cardozo once warned of judges who become pharmacists, on the idea that they were unduly fond of neat formulas in which they separated the cases and they separated their thinking. Do you have any feeling that you are unduly a technocrat?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I hope not. I hope what I am doing is using the technical part to try to uncover the human purpose that we are trying to help. Airline, et cetera, that was technical, you can say, but they are real human beings who couldn't afford to fly, and those real human beings have benefited, if it is a lower electricity rate, it is a lower air fare. All these technical things have to do with real people and may affect their lives a lot. I plead guilty to a dry style of writing. That is to say when I wrote this book on regulation, the object of which, of course, was to produce a style of regulation that would be effective and that would help people. The Los Angeles Times, in reviewing that, said—I don't know how the Los Angeles Times was reviewing a technical book, but they did, and they said, well, Alice, when she emerged from the pool of tears in "Alice in Wonderland," turned to the door mouse, who was reading Hume's "History of England." Why are you reading that, said Alice. "We are all wet," said the door mouse, "and this is the driest thing I know." That was before, said the Times, Judge Breyer wrote this book. [Laughter.] Now, I plead guilty to that, but the purpose is a human purpose.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU know, there are problems that we are facing, and one of the problems we are facing in the judiciary is the issue of backlogs and the creation of new judgeships. We have a number of judges that we are trying to approve or go through the confirmation process at trial and appellate level. In some circuits, there are proposals, on the ninth circuit particularly, to increase the number of judges substantially. I think the ninth circuit has 29 judges, and the idea is to increase the size to 38. Do you think that we need to try to relook at the organization of circuits? I will ask you this, with an idea of having more of an effective administrative approach toward it for decisionmaking. Have we gotten so big in the judiciary, with so many judges, that we need to relook at some alternatives that might be available?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. This is an area that you have thought about a great deal, I think, from reading what the commissions have been 370 that you have been on and your own experience. There are a limited number of alternatives, and eventually, I guess—you know the door-closing approach doesn't work very well. The reorganizing having more and more appellate judges has its problems. I sometimes describe that as judges can cause confusion, as well as enlightenment, and there are limitations on size and numbers at the appellate level, certainly. The commissions have recommended, at least for future study, the possibility of additional tiers in the Federal system. Without advocating an approach, I think that eventually Congress and others like you yourself who are interested in these problems will begin to look at restructuring. That may happen. It may happen in 10 years, it may happen in 30, it may wait and see what happens to the growth. The ultimate problem is delivering justice to people who have problems. That is the basic bottom line. If it keeps growing and growing, somehow, without depriving the public of justice, you have to work out the effective way of doing it, and that could involve restructuring at some point.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. At the trial level, you know, we passed legislation in the Biden Civil Justice Reform Act authorizing various alternate dispute resolution techniques. There are those, including myself, who have some question about the constitutionality of the mandatory aspects of ADR that might remove the right of trial by jury. Do you have thoughts pertaining to alternate dispute resolution and whether its various forms can be effective? Do you have any advice to leave us before you assume the black robe, and probably will not give us too much advice then from a legislative viewpoint?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I don't have better than you have, the ADR, et cetera. There are human beings in the world. Those human beings have problems. They get into disputes. Really, I think what they are interested in, those people, are two things, to get the problem resolved and to get it resolved fairly. Now, ADR, mediation, all those things have an enormous role to play, because they can sometimes get people's problems resolved faster, and then we have to watch, because there is a price that could be paid in terms of fairness that you nor I nor anyone wants to see paid. So I end up usually thinking, yes, it is a good idea to look at all those things. They can produce wonderful results inexpensively. But watch, be careful that that system doesn't turn into an unfair system. Those are the two general things in my mind that I think about with that.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU reviewed a book in the New York Times entitled Private Choices in Public Health. In that book, the authors, Philipson and Posner, who are with the Chicago School of Economic Concepts—and you have been accused of following that—used economic theory to answer the public policy question of how much the Government should spend on AIDS research. In reviewing the book, you suggested that in matters relating to health and safety policy, the Government should not use economic principles alone in determining appropriate allocation of resources. 371 In that book, you indicated that Government allocates considerable resources to people who, by their own choosing, put themselves in danger, such as those who live on fault lines in earthquakes, and we come back and help. I think you used the illustration where we rescue mountain climbers, even though they know the perils of where they are going into. What principles do you think, not just economic principles, that one ought to follow in trying to follow the thing in a rational and systematic fashion? What thoughts do you have on that? In that book review, some questions are raised that are interesting, and, of course, the issue of AIDS is something that is in the minds of a lot of people today.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The thrust of the review, it was a restrained style. As I said, maybe my style is dry. I hope my thinking isn't dry. My thinking was that, no, economics doesn't. So a person had gotten into a bad fix and it was his or her own fault, to which the response is so what, so what? If somebody comes to your doorstep and they are in trouble, you help them. You help them, even if maybe it is their fault. So what? In that kind of decision, I am not saying if you want to evaluate a program or you want to know how well something is working or you want to compare some alternatives, maybe economics has some role there. But to the basic question of how do you help, that is not an economic question. That is a moral question, and it is that kind of thing that I think people should appeal to in that area, and that is the kind of thing that they do appeal to, and you have to decide those things as matters of legislative policy.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU have been asked about legislative history, and this gives me some concern about the overall way that judges interpret statutes, et cetera. I suppose that maybe my own thinking is that I may be halfway between Justice Scalia's concept and yours. We had, for example, the Vietnam war that occurred. Some people argue that that was unconstitutional, because Members of Congress did not intend to authorize the President at the time to expand the war in the manner that he did. If, however, you read the resolution, it was so broad that almost any exercise of Presidential authority in Indochina would be in conformity with the language of the resolution. Now, you could go back and find legislative history, pretty much, that would have been that it was not intended to be as broad and as comprehensive. Now, you have a situation where that occurs, and then it may have been the authors' intent to give broad language there. So it is a problem as to how far you go relative to the language and how far you go in regards to legislative intent. I don't know, again, maybe a technocrat can decide some of these issues, just like we have, of course, rules of statutory construction, and it may well be that you have to have some type of rules that need to be looked at. For example, report language, which is basically the report of the chairman of the committee, but it may not be on the floor when the discussion goes on, has been really the intent to go that far, or else the Members of Congress did not read it and did not understand it. 372 Another instance is where you have colloquys that are put into the record and not read, but they are supposed to give legislative intent. And sometimes, we use them as a way of reaching compromises, and it seems to me that it causes problems for judges. Report language—Justice Scalia makes a point that they never voted on, and he says that you give attention to the report language, and nobody ever votes on it, so you do not know whether or not it really was the intent of the overall Congress, or was it the intent of two or three individuals. It just seems to me that you are going to have more and more, and you are going into a situation where you have got someone who has strong opposite feelings, perhaps, from yours—but maybe we will rely on your consensus-building ability to come up with some rules relative to it. I think there is a need for some rules relative to how legislative history ought to affect the decisions that are made relative to the interpretation of the intent of Congress. Do you have any comments on how far you think we might go? Do you see problems with just outright saying, well, Congress says—and here it is in the Congressional Record?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. It depends. I think no process works perfectly, but I would like to think that in writing reports, there used to be— and I think there is—it is a method. The different staffs of the Senators who are involved in that are supposed to, and when it is working well, they understand their Senators' positions on matters of policy, and they keep everyone informed. It used to be before any report came out, there were no secrets; everything is circulated to everybody, and they are supposed to read it and understand whether that correctly reflects the view, the policy view, of the Senator who did the voting. And I do not know if it always works perfectly, but it is supposed to be circulated, open, understood, and reflect the policy. Looking to reports—yes, sometimes. Sometimes floor statements can help, and sometimes, for reasons that you say, they do not. I find it more of an art, and it is hard.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. We are faced more and more in Congress with the issue of federalizing crimes that have historically been in the purview of the State legislatures for the crimes, and it may well be that they feel that the issue is such; but there are dangers, of course, of overburdening particularly, and judges are particularly alarmed with the idea that they are transferring more and more in the criminal field relative to it, and that that issue also has to be looked at with the Speedy Trial Act, and that civil litigation may suffer as a result of it because of the shortage of manpower, the procedures that we follow, and increasing particularly in regard to federalizing, putting more and more burdens on the Federal courts. Do you have any thoughts as to what we ought to do relative to this?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. My thinking is that people have a terrible problem with crime—it could hardly be worse; very, very bad—and they would like help with it. And in respect to jurisdiction, that is one aspect of the problem. That is not a determinative aspect. So my suggestion, if you are asking for a suggestion, is that when Congress or a legislature of any State is working on criminal 373 "• jurisdiction, on criminalizing behavior, that they think out what is going to happen in practice when this law is enforced—who will enforce it; how; which courts will be affected—and then, with that in mind, make a judgment about how to create a system, including the way it gets into court, that will most effectively stop crime. In other words, I am asking, I think, to think, whether it is the Justice Department, or here, or in other places, that they think through ways of allocating crime-fighting resources as well as courts, so that overall, you are more effective in the aim of fighting crime.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. We have a number of problems dealing with the issue of armed conflicts, and the Constitution relative to Congress' power to declare war. And we have adopted the War Powers Act, but there is a lot of feeling that we have gone to the extent where executive decisions are made under the constitutional authority of Commander in Chief, and that Congress, the representatives of the people, have not really authorized the use of force in conflicts. However, that is debatable when appropriation bills are approved. You, of course, have been here at various times. Do you have any particular thoughts concerning the authority and what ought to be done relative to this; or do you have feelings that the War Powers Act is a proper approach to this issue?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I do not have special thoughts that I would think would be particularly enlightening in that area.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NOW let me ask you about the Judicial Conference. I am hearing more and more complaints that in the rulemaking power that the courts have—they send over their rules to us, and we have a 6-month period in which to act to negate or to change during that period of time. I hear more and more that there is too much judge participation and not enough lawyer participation in the rulemaking process. And there are feelings that when you get into judicial reform, that if you leave it to judges alone, things will not change. I think C.K. Chesterton wrote a line one time saying the horrible thing about all judges, legal officials, barristers, and sheriffs was not that they were corrupt, or not that they were incompetent, but that they had become used to it, and therefore were not really looking to make much change that needed to be made. And we are living in times where change is occurring in so many different fields that we may well be looking in the future toward some changes. But what has been your experience relative to—you mentioned a while ago the American Bar Association and the relationship between judges and lawyers getting together to have a forum where they can discuss issues. It seems to me that probably the Judicial Conference and the advisory committees have moved away from lawyer and public participants more than they should, and that that input is needed.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The input is important; the input is good. The Conference itself works mostly through committees. The biggest change that has been going on is the change resulting from the law that you described earlier, Senator Biden's Civil Reform Act, and that requires committees that are made up of lawyers and all kinds of people who are not judges to have input into that process. 374 My impression has been that that input has been important and has worked pretty well.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I think that concludes my questions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Judge on that score, there was a great deal of resistance at the outset because of the very reason of including those folks, but I must say I have been very pleased that most of the circuits have, in an unsolicited way, come back and said, you know, this has turned out to be a good thing for us. I think Judge Heflin has a point about the Conference itself. But I yield now—and again, just a little mechanical scheduling here—I will yield to Senator Specter now, and what we will do then is we will have a break, but
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mr. Chairman, I am going to have about 5 minutes, or 10 minutes at the most, of questions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, maybe, if it is OK, we can just finish with Senator Simon, and then we will break. And then what we will do is reconnoiter 10 minutes after that and find out how many other Senators have questions. I do not think there are many more questions. Judge, and you are holding up well—your physical constitution is impressive—and then we will make a judgment as to how late we will go. But we are going to finish with you tonight. So again, I say to the staff, please tell your principals to head on back if they have questions. I yield to the Senator from Pennsylvania, Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge Breyer, I not only compliment you on your stamina, but your family on their stamina. Of all the participants, the Senators have moved in and out—we have had votes and floor matters—and not only have you been at the podium all the time, but your wife, your three children, your brother, your sister-in-law. So it is a very impressive family support.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Thank you. I thank them, too.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. When I finished my first round, I was asking you questions about U.S. v. Ottati and Goss, which involved the question of potential conflict of interest. And I said at the time that I did not think there was an actual conflict of interest or anything which undermined the question of your integrity. The question which I could not come to because of time limitation was on the issue of Lloyd's potential liability on Superfund cases; whether the principles that you set down in the Ottati case might have affected many other factual situations where Lloyd's could have had potential liability. And it has been called to my attention that Justice O'Connor recused herself in two cases in which NCR was a party in a tax challenge, and then participated in a case involving Colgate-Palmolive Co. on an almost identical issue which might have indirectly affected NCR's liability. The question which comes to my mind is whether there are not ramifications which bear on public confidence, which should lead us to take another look at the language of the disqualification statute, which calls for disqualification, recusal, in a number of situations. One is "any other interest that could be substantially affected by the outcome of the proceedings." So that if a judge is to decide Superfund liability, even though it does not involve Lloyd's, the 375 judge does not have an interest in any corporation, is not a party, but those principles could affect a company in which the judge does have an interest, that a broader look ought to be undertaken. And you and I had a moment in our closed session to talk about such potential liability, and you used the word "proximate cause," which is a complex legal doctrine that befuddles many people as to how far it goes on proximate cause. Lawyers will remember the Palsgraf case, a traditional law school case, which illustrated how hard it is to find out what is a proximate cause. And in the light of this issue, which is very much on your mind and our minds, if you have a view that there might be a modification of the recusal statute which would be broader—because when people watch these proceedings, and disappointed litigants are sometimes very, very disappointed—if we ought not go the extra mile. Now, I realize we do not want to dissuade lawyers from undertaking judgeships when they have investments, but my experience has been that lawyers are very interested in being Federal judges, very interested in being circuit judges, and even more interested in being Supreme Court Justices. So might it not be worthwhile to broaden that recusal disqualification statute so that there is absolutely no doubt anywhere? I am not sure quite how we do it, but what do you think?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I think the general word, better than "proximate"—I do not know if that was exactly it—what I am thinking of with that is if the interest is—if there is only a speculative effect on your investment, or a remote effect, or contingent, then, under the present standard, you do not disqualify yourself. If it is a substantial effect, you do—direct, substantial—all right, those are the words. And of course, as you point out, in that case, I did not think that there could be more than an indirect or speculative or remote effect on the insurance industry at all, let alone Lloyd's or my own pocketbook. Do you want to change that standard—that is really your question. And I will sympathize with both things that you said. It is absolutely crucial that the integrity of the system be clear, that people have confidence in it, that they absolutely know that a pocketbook is not guiding a case. That could not be more important to me, not only personally—and it is personal—but to the system as a whole. Now, if you are going to try to worry about—and it is worth worrying about—but you will find judges do have investments. It is perfectly clear that if any investment is directly involved in that case, a party, you are out, even if it is worth one penny; but where there is not that direct participation, the reason that the standard have evolved as they have, I think, is because it is so possible there will be remote or indirect connections in so many cases. Could a judge sit in an FDIC case if he owns real estate somewhere, knowing that possibly the holding could in some remote way affect the value of some real estate? What is the possible remote connection—do you see why I think I agree with you that it is very difficult?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Oh, I understand. I understand your views. 85-742 - 95 - 13 376
Stephen G. Breyer
Nominee
(D)
Judge BREYER. I am not saying that it is not worth thinking about. I think it probably
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. We will struggle with it. It is a legislative matter. I have absolutely no doubt that you were not in that case with any view to any money in your pocket.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is true. That is correct.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. YOU would not be a Federal judge if you were concerned about money, really.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is correct.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. YOU might not even be a Senator if you were really concerned about money. But the appearance, what litigants think is something very different. And the principles from that case are very far-reaching on Superfund liability and could involve lots of money. We allocated $8.5 billion for Superfund. So that is something that we will struggle with, but I think that the experience here today suggests that we would be wise to do that. It is a legislative issue for the Congress. Shifting to another subject, Judge Breyer, there continues to be intensive debate in this country on the establishment clause and the appropriate separation of church and state. And I was pleased to hear you forcefully affirm Jefferson's view of the wall of separation between church and state. That is not a universal view. Rev. Marion Pat Robertson was quoted in the Washington Times on November 26, 1993, as saying the radical left keeps "talking about separation of church and state. It is a lie of the left." The issue of the appropriate line comes up in a number of contexts. Now, there is absolutely no doubt that there is a valued place in politics for people with deep moral and religious convictions, just as there is a valued place in everyday life for people with moral convictions. And there is no doubt that we need more morality in our everyday life and not less of it. So there is no issue about excluding people from active participation in politics where people have deep religious and moral convictions. But the question emerges as to a mixture of church and state, where you have political activities which are intimately connected with churches, and there is the overlay of establishment—that is, help by the Government—fairly directly in the tax-exempt status which churches enjoy. And I would like to call your attention to two specific contexts and then ask you a question. There are circumstances where political rallies are held in churches, and a flier announces "(Blank) for Congress. The (Blank) for Congress campaign is having our largest rally in the (Blank) church on (Blank) day." And at the Texas Republican Convention, there is a photograph of a placard for a specific candidate, on which it says a vote for that candidate is a vote for God. The two questions which I would like to have your views on are, first, what is your sense of what is happening to basic American values involved in the mixture of this church and politics, and this mixture of church and state; and how would you approach the underlying constitutional issue—I am not asking you how you would decide a case, but how you would approach the underlying constitutional issue—on the implication of governmental financial sup- 377 port—establishment, really—for churches through their tax-exempt status?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. On the one hand, I know I had a case in which I wrote that the school system, when they have a place open for public meetings, has to let churches meet there, too, religious groups, too. Certainly, there is support for religion in the Constitution. When you come to the establishment clause, it is well established that that clause does not prohibit tax exemption. To the contrary, there is tax exemption.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But the tax exemption is very narrowly tailored and cannot cross the line where there is any support for a political candidate—any support.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And when you get into areas beyond that, when you get into areas of definition when the support is greater, what I have said before—and it is hard to go beyond this—is there are difficult problems of line-drawing. The principle is fairly clear in the establishment area at the extremes. Some is absolutely permitted—the fire department, the tax exemptions of certain kinds, busing of certain kinds. Some is quite clearly prohibited. And then what you find are a difficult set of cases in this middle area, and what is going too far. It is hard for me to be more specific than that, because those are the cases that do come up, that are difficult, that I would have to think about in light of the particular context. That is in the legal area. Outside the legal area, I am not expert.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, you have not given me too much on how you would approach the legal issues, really, Judge Breyer; and you have not given me anything on your sense of values aside from the legal issues. We probe to get your thinking.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The one area which is not an impermissible mixture of Senator and nominee is values. So how about it?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, I think that is a fair question. And as I saw what you described as the wall, what I saw as underlying that, which I think is more important today than ever, is that we are a nation—in terms of values—we are a nation of many, many different people, many different groups, many different religions, and each person's religion—mine and yours, and that of every other person—is extremely important to him, to her, to his family. And the history of the first amendment teaches us that that importance, legally, grows out of a world in which those religious differences on matters of such importance led to wars, death—and you still see that in some places. And for that reason, the thing that must be preserved is the freedom to practice, the freedom to pass that along to your children. That is why schools are so important, and
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Breyer, those are—did you want to finish?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. NO, no.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Those are generalizations which I have heard you say before, especially on the children, and I certainly agree with you. And in our society, we are urging people to come into Government and into politics with deep moral views and deep reli- 378 gious convictions. But do you share my concern about having political rallies in churches? It looks to me as if it is flatly against the prohibition against political activity, support of a candidate when a candidate is there, or where you have the mixture of "a vote for my candidate is a vote for God." Does that give you a problem of our basic value on separation of church and state?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. That is such a politically divisive and such a political matter, and so important to so many people in so many different directions, that I think I have to restrict myself in that very divisive, potentially, very uncertain area. I have to draw back to the law. And when I go back to the law and try to go further in how I would approach the thing from a legal point of view, remember the thing that I have tried to identify as underlying this is each person thinks, "My religion is terribly important," and each person is right. Each person thinks, "I want to pass this on to my children," and each person is right. But each person may think, or many may think, "It is fine if the Government favors me and my religion," but then, I would ask that person to think: But suppose it is not your religion that the Government is favoring? And that question, which asks for neutrality on the part of the people who practice religion—me and you and everybody else—that is the kind of question that the establishment clause is asking people to ask themselves.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. One final question on the subject before moving on. How would you approach the constitutional issue—I am not asking you for a decision, but an approach—of the constitutional issue that a religious group meeting in a church organizes itself as a political party, perhaps takes over an existing party, and then receives taxpayer funds through Federal law which authorizes the Treasury to defray the cost of a nominating convention for President?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Oh, I see. You are thinking of the Government program
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, this is a specific Government program, there is specific authorization for paying for Presidential campaigns. And we do want people with deep religious and moral convictions involved in politics
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes, we do. Yes, we do.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER [continuing]. But—but—how do you approach the line?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. And can I go beyond the general thing that I have tried to say about asking ourselves: "It is fine if it is my religion. How do I feel if it is somebody else's religion?" and is this going to be impermissible favoritism, going too far, or is it the kind of thing that we find all the time
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And these are people who do not believe, do not accept, the definition of church and state separation.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. The trouble is I keep coming back to thinking that is one of those difficult line-drawing questions that could be right in front of us if I am on the Court. That is my problem.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Senator Heflin broached the question of the conflict between the President's authority as Commander in Chief and the congressional authority to declare war, and this is a sub- 379 ject which we have talked about with many nominees, and I know that these confirmation hearings have some resemblance to professional football—we look at all your films, we read all your opinions and all of your books; you look at the videotapes of our questioning of a number of nominees. And I appreciated the meeting which you and I had, and I told you that I was going to ask you the question which I have asked before about the Korean conflict—was it a war?
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, we are making some progress.
Stephen G. Breyer
Nominee
(D)
Judge BREYER. Well, I do not know if that is too helpful, but yes. Ask any of the people who were involved or their families, "Was that a war?" and they will say it certainly was.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I was involved, stateside, however, but I thought it was a war; maybe that is why I keep coming back to the Korean war. We struggle in the Congress for a way to resolve it. Back in 1983, when Senator Baker was the majority leader, I drafted an extensive complaint, seeking original jurisdiction in the Supreme Court, trying to get the agreement of the White House and the Congress to make a submission under the War Powers Act. I do not know that it would have worked, because there are ways that the Court does not have to take those issues—nonjusticiable, not a case in controversy, et cetera. Last year, we passed in an appropriation bill a prohibition of the Department of Defense for using moneys in the military action in Somalia beyond March 31, 1994. Now, we do not like to do that in Congress, and earlier today, Senator Leahy and I were on the floor—missing part of these proceedings—discussing the situation in Haiti. There are some of us who are concerned that we may be involved in a war in Haiti when the Congress is out of session, and we passed a sense-of-the-Senate resolution that we did not want to see an invasion of Haiti; but a sense-of-the-Senate resolution does not bind the President. Then, a resolution was offered that no funds should be used for an invasion of Haiti, and that was defeated. And Senator Leahy and I came to sort of an agreement that we really ought to face it head-on. No American war can succeed— and we learned that in Vietnam—without public support, and the way you start on that is to get congressional authorization. And I hope that if the President wants to maintain the military option, that he will come to the Congress and ask for a resolution of authority, as President Bush did in Iraq, and let it be a congressional declaration. If the President has to act in an emergency, so be it; he can use his powers as Commander in Chief. And the question that I have for you, Judge Breyer: Is it realistic to look for the third supreme branch? We know the courts are supreme to both the Congress and the President, because the Court told us so in Marbury v. Madison. When the Constitution was formed, the Congress was No. 1; the President was No. 2, in the second article; and the courts did not come up until article III, but all that was changed. It was renumbered in Marbury v. Madison. And the question is: Is it realistic to try to get some help from the Court on breaking this conflict, which comes up very frequently, between the President and the Congress, or do we have to come back to the political give and take, and the withholding of 380 funds, and the declarations on the Senate floor and the President from his news conferences?