| 00:00:592 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
The hearing will come to order. Today we begin our panels of public witnesses, whose input into the Supreme Court and all of our judicial... |
| 00:03:274 min. |
Watkins, Robert - Chairman
Thank you, Mr. Chairman. Members of the committee, my name is Robert Watkins. As you heard, I practice law in the District of Columbia,... |
| 00:07:553 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Thank you very much. Mr. Watkins, I really only have one question, and it is a question often raised to me as the chairman of this committee... |
| 00:11:181 min. |
Watkins, Robert - Chairman
Senator, you are correct in your portraying the approach that the ABA takes to evaluating judges, nominees to the various courts. And I... |
| 00:12:442 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Correct. |
| 00:12:462 min. |
Watkins, Robert - Chairman
The district courts provide a somewhat different situation. Our committee believes that some of the most important issues of our time are... |
| 00:15:201 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Well, I appreciate the answer. My question was not meant as a criticism. It was meant to lay in the record what I just told you so you understand... |
| 00:17:052 sec. |
Hatch, Orrin - U.S. Senator, [R] Utah
I am thinking about it. [Laughter.] |
| 00:17:072 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
But, seriously, I think it is a very important point because we are going to have some conflicts as we go on, we, this committee and the... |
| 00:19:3516 sec. |
Greco, Michael S. - Officer
Senator, just for the record, in the case of Chief Judge Breyer, I found during my interviews of the outstanding members of the trial bar... |
| 00:19:513 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Absolutely. |
| 00:19:5430 sec. |
Greco, Michael S. - Officer
And I think this is so because, in addition to what you were saying, which is true—it is important to have a balanced court, especially... |
| 00:20:241 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
He clearly does, and Judge Breyer has one of those unique abilities to seem to be able to master the subject matter before him that impacts... |
| 00:21:4821 sec. |
Hatch, Orrin - U.S. Senator, [R] Utah
Mr. Watkins and Mr. Greco, I just want to personally thank you for the efforts that you have put forth here. You have done a very good job.... |
| 00:22:09 |
Watkins, Robert - Chairman
Thank you, Senator. |
| 00:22:091 sec. |
Greco, Michael S. - Officer
Thank you. |
| 00:22:103 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Thank you, Senator. Senator Metzenbaum. |
| 00:22:132 min. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Well, Mr. Chairman, I appreciate the fact that you got into this matter of the Bar Association saying that a lower court judge up for approval... |
| 00:24:512 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
DO not get carried away, now. [Laughter.] |
| 00:24:532 sec. |
Simon, Paul - U.S. Senator, [D] Illinois
It might be a close vote on the committee. |
| 00:24:555 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Well, since I have included you both, you can see how far I am prepared to go. [Laughter.] |
| 00:25:002 sec. |
Hatch, Orrin - U.S. Senator, [R] Utah
YOU can see how radical Howard really is. |
| 00:25:0219 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Yes; but I have great difficulty in the position that you have established as a rule of thumb that a nominee for the district court has... |
| 00:25:2132 sec. |
Watkins, Robert - Chairman
Well, Senator, I know the matter to which you refer is a very difficult matter for the committee. We looked at it long and hard, and we... |
| 00:25:532 sec. |
Hatch, Orrin - U.S. Senator, [R] Utah
Would Senator Metzenbaum yield for just a second? |
| 00:25:551 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Surely. |
| 00:25:561 min. |
Hatch, Orrin - U.S. Senator, [R] Utah
I reviewed that whole file, and I think there is room for question here. I do think I would just caution the Bar Association that you should... |
| 00:26:5835 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Put another way, Mr. Watkins, do not be insulted when we disregard your recommendation on those, because we will disregard your recommendation... |
| 00:27:337 sec. |
Hatch, Orrin - U.S. Senator, [R] Utah
We sure do. The CHAIRMAN [continuing]. And hopefully, you appreciate the fact we are not going to pay attention to some of them. |
| 00:27:4047 sec. |
Watkins, Robert - Chairman
Well, Senator Biden, there are a couple of things. We recognize that the committee only provides a recommendation. We are not of the view... |
| 00:28:274 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
AS long as I am chairman of this committee— which could only last another couple months, possibly—I look at no other recommendation more... |
| 00:32:4912 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
Thank you, Mr. Chairman. I think the discussion has been very helpful. I would like to go back and just say that I think it is important... |
| 00:33:011 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Absolutely. |
| 00:33:0212 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
U.S. district court judges. I think trial lawyers are an entirely different breed from corporate lawyers or real estate lawyers or estate... |
| 00:33:141 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I agree. |
| 00:33:155 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
Is someone who has, obviously, a strong sense of ego, has a |
| 00:33:204 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Well, I do not subscribe to that. |
| 00:33:241 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
A good memory |
| 00:33:251 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I subscribe to that. |
| 00:33:261 min. |
Cohen, William S. - U.S. Senator, [R] Maine
Capable of attacking the jugular, but basically is an intuitive type of individual—and highly intelligent. The intuitive part of it is critically... |
| 00:35:221 sec. |
Watkins, Robert - Chairman
May I respond, Senator? |
| 00:35:232 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Please. |
| 00:35:2560 sec. |
Watkins, Robert - Chairman
Our committee has semiannual meetings, and we try to review what has happened in the past and what is happening— what will be happening—in... |
| 00:36:2531 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
I would take just a little bit of issue with my colleague from Ohio, who indicated that it is a distinction without a difference between... |
| 00:36:563 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
And has two law clerks sitting with him. |
| 00:36:5927 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
And has two law clerks sitting with him—and has time to reflect upon whether or not the evidence and the facts that were turned by the district... |
| 00:37:2623 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Let me make it clear, Mr. Watkins, we are not attempting to write your rules. The biggest thing I want to do— and we have talked about this—is... |
| 00:37:491 min. |
Simon, Paul - U.S. Senator, [D] Illinois
I am just going to take 1 minute and make a request of Mr. Watkins and Mr. Greco. Yesterday, in response to Senator Metzenbaum, because... |
| 00:38:5110 sec. |
Watkins, Robert - Chairman
Thank you, Senator. We would be happy to look at that and see if it would make any difference with regard to Judge Breyer. I cannot... |
| 00:39:0111 sec. |
Simon, Paul - U.S. Senator, [D] Illinois
Oh, I do not think it makes a difference in terms of our vote. I think we should clarify this, if it needs clarification, before he takes... |
| 00:39:121 sec. |
Watkins, Robert - Chairman
Fine. |
| 00:39:132 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Put another way, Mr. Watkins, one of the dilemmas that we have had here is that we do not want you—or, at least, I do not think the Senator... |
| 00:41:503 sec. |
Watkins, Robert - Chairman
Thank you, Senator. |
| 00:41:534 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I thank you for your presence here today, and I look forward to meeting with you soon. |
| 00:41:572 sec. |
Watkins, Robert - Chairman
Thank you for allowing us to appear. |
| 00:41:5913 sec. |
Greco, Michael S. - Officer
Thank you, Senator. |
| 00:42:123 min. |
Specter, Arlen - U.S. Senator, [R] Pennsylvania
Thank you very much, Mr. Chairman. I regret that other commitments prevented my hearing your opening testimony, but I would join in what... |
| 00:45:492 min. |
Watkins, Robert - Chairman
I would like to comment first about the question of silk-stocking versus wool stockings. In preparation for that other hearing to which... |
| 00:47:593 min. |
Specter, Arlen - U.S. Senator, [R] Pennsylvania
Well, Mr. Watkins, I am not saying your committee should be, but I do not know that because you pass on qualifications, that disqualifies... |
| 00:51:074 sec. |
Brown, George "Hank" Hanks - U.S. Senator, [R] Colorado
I have no questions. |
| 00:51:115 sec. |
Specter, Arlen - U.S. Senator, [R] Pennsylvania
Let me yield to my colleague, Senator Grassley. |
| 00:51:1648 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
Mr. Watkins, we had a chance to speak a few weeks ago, during the confirmation hearing of Alexander Williams. I want to follow up on some... |
| 00:52:042 sec. |
Watkins, Robert - Chairman
That is not quite fair, Senator. |
| 00:52:063 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
OK; I will listen to your |
| 00:52:091 min. |
Watkins, Robert - Chairman
If there are negative matters that arise during the course of our investigation, we raise those matters with the candidate in a general... |
| 00:53:157 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
But as a general rule, then, the idea is that you will keep the names of the people you have interviewed confidential? |
| 00:53:2232 sec. |
Watkins, Robert - Chairman
We keep the names confidential. We have found that we get information that sometimes the FBI does not get, and we can follow up on it. Many... |
| 00:53:542 min. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
And, obviously, those names are not available to us on the Judiciary Committee. Now, the reason that I ask this is to compare it to the... |
| 00:56:162 min. |
Watkins, Robert - Chairman
Let me see if I can respond to that, Senator. We have found that lawyers talking to lawyers is a process whereby they speak the same language... |
| 00:58:2416 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
Well, if the information is not correlated to a particular source that the candidate can identify, then he cannot rebut it because the name... |
| 00:58:401 min. |
Watkins, Robert - Chairman
Well, let me give you an example. There are times when there is a quality that comes through that we hear from two or three sources; for... |
| 01:00:082 min. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
Let me just say something in conclusion. You may want to react. If you want to, I will listen to you. If you do not want to, it is okay... |
| 01:02:291 sec. |
Watkins, Robert - Chairman
May I respond? |
| 01:02:304 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
YOU can. I said I would listen to you. I owe you that courtesy. |
| 01:02:3413 sec. |
Watkins, Robert - Chairman
I believe that those judges that resigned or were impeached, there were questions of integrity that caused their resignation or impeachment. |
| 01:02:474 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
That is probably very true, but they still were rated qualified. |
| 01:02:511 min. |
Watkins, Robert - Chairman
Right; and I would suggest, although I was not on the committee when those persons were evaluated, I suggest that at the time those people... |
| 01:04:2723 sec. |
Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa
Well, as important as a nominee's reputation in his or her legal community might be—and it is very important, I believe—I hope that in the... |
| 01:04:507 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Thank you, Senator Grassley. Senator Cohen. |
| 01:04:572 sec. |
Cohen, William S. - U.S. Senator, [R] Maine
I have already had questions. |
| 01:04:595 sec. |
Watkins, Robert - Chairman
Mr. Greco, I believe, has something to add to what I said, Senator. |
| 01:05:0414 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
I just want to add something along the line of what Senator Grassley is questioning. You talked about the fact that if there is a question... |
| 01:05:1817 sec. |
Watkins, Robert - Chairman
I think if we find that there is a question of integrity, that we can have a basis for questioning a person's integrity, I would be very... |
| 01:05:3537 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
What concerns me, Mr. Watkins, is you are dealing with human beings, and there are reasons at times to question the integrity of some who... |
| 01:06:1236 sec. |
Greco, Michael S. - Officer
Thank you, Senator. On your point and on the point that was raised earlier by Senator Grassley, I want to point out that the American Bar... |
| 01:06:484 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Unless the messenger is tainted in his inquiry, then perhaps he deserves to be shot. |
| 01:06:522 min. |
Greco, Michael S. - Officer
Well, that is an assumption that is a very serious assumption that you are suggesting, Senator. And until that assumption is demonstrated,... |
| 01:09:5115 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
We are not going to shoot anybody. We just want to keep this dialog going. I thank you both very, very much for being here. Again, thank... |
| 01:10:06 |
Greco, Michael S. - Officer
Thank you, Senator. |
| 01:10:061 sec. |
Watkins, Robert - Chairman
Thank you for having us. |
| 01:10:073 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I look forward to seeing you very soon, Mr. Watkins. |
| 01:10:102 sec. |
Watkins, Robert - Chairman
YOU are very kind, Senator. |
| 01:10:121 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
NO, I am serious. I do want to talk to you about this. NOW, our next distinguished panel is comprised of two well-known members of... |
| 01:12:0010 sec. |
Casper, Gerhard - President
Thank you very much, Mr. Chairman, for your very generous opening remarks. I am glad there is one person in the country who recognizes how... |
| 01:12:1014 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Well, there will soon be another one. There will soon be President David Boren, former Senator who will be president of the University of... |
| 01:12:245 min. |
Casper, Gerhard - President
I was bemused by his expectation that life might be easier at the university than in the U.S. Senate. [Laughter.] It is a great privilege,... |
| 01:18:113 sec. |
Metzenbaum, Howard M. - U.S. Senator, [D] Ohio
Professor Sullivan. STATEMENT OF KATHLEEN M. SULLIVAN |
| 01:18:147 min. |
Sullivan, Kathleen M. - Professor
Thank you very much to the chairman for his generous introduction, to the chairman and the members of the committee for the privilege of... |
| 01:25:345 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Kathleen, it is only our friendship that is allowing you to go beyond your 5 minutes, but go ahead. |
| 01:25:3948 sec. |
Sullivan, Kathleen M. - Professor
TWO sentences, Mr. Chairman. First, should not confuse—there has been talk of lack of passion. Is this man so pragmatic he has no passion?... |
| 01:26:271 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Thank you very much, Professor. I read with some interest the treatise of Professor Farber of the University of Minnesota on pragmatism... |
| 01:27:3234 sec. |
Sullivan, Kathleen M. - Professor
It is not just Justice Holmes, but also Justice Cardozo, to a great extent Justice Brandeis, who launched us in the modern constitutional... |
| 01:28:064 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
That was my next question. I would like to know why you conclude that. |
| 01:28:101 min. |
Sullivan, Kathleen M. - Professor
Because I think if we look at the decisions of the Court, the great decisions of the Court in the last few terms, we see the Justices who... |
| 01:29:117 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
YOU think that is the spectrum? I kind of think it goes Rehnquist, Ginsburg, to some other place. But |
| 01:29:1818 sec. |
Sullivan, Kathleen M. - Professor
There are some on the Court, of course, Mr. Chairman, who do not share this philosophy. There are some who do not share this philosophy,... |
| 01:29:363 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I happen to agree with you. That was one of the reasons—and I know I expose you here, I consulted you on the nominations of Justices Souter... |
| 01:32:381 min. |
Sullivan, Kathleen M. - Professor
I agree, Mr. Chairman, with your description. I think that there is a lot of similarity of method and approach among these recent nominees,... |
| 01:34:074 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
SO that if anyone is dissatisfied with the Court, they can blame in on Harvard and Stanford. |
| 01:34:112 sec. |
Sullivan, Kathleen M. - Professor
That is right. |
| 01:34:131 sec. |
Casper, Gerhard - President
Senator Biden, may I add something? |
| 01:34:141 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Please. I am finished. |
| 01:34:1549 sec. |
Casper, Gerhard - President
YOU pointed to the basic consensus among the Justices and the candidates you have seen on redefining American values. And I think in the... |
| 01:35:042 min. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I would like to attach to the record—I do not think we have to spend the money to put it in the record—"Legal Pragmatism and the Constitution,"... |
| 01:37:1024 sec. |
Hatch, Orrin - U.S. Senator, [R] Utah
Well, I want to welcome both of you here again. Ms. Sullivan, I welcome you to the committee again, and, President Casper, we are glad to... |
| 01:37:342 sec. |
Sullivan, Kathleen M. - Professor
Thank you. |
| 01:37:364 sec. |
Casper, Gerhard - President
Thank you, Senator. |
| 01:37:4039 sec. |
Kennedy, Edward "Ted" M. - U.S. Senator, [D] Massachusetts
Mr. Chairman, I want to join in welcoming the panel, and a special welcome to Professor Sullivan. 1 think all of us who have been on this... |
| 01:38:191 sec. |
Sullivan, Kathleen M. - Professor
Thank you, Senator. |
| 01:38:202 sec. |
Kennedy, Edward "Ted" M. - U.S. Senator, [D] Massachusetts
The clock has gone on. I wanted to just |
| 01:38:225 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Excuse me, Senator. They tell me we have 6 minutes before the vote. |
| 01:38:2754 sec. |
Kennedy, Edward "Ted" M. - U.S. Senator, [D] Massachusetts
OK; just in one area, Professor Sullivan, one area of constitutional law that is a specialty of yours is the right of privacy, and the right... |
| 01:39:211 min. |
Sullivan, Kathleen M. - Professor
Senator Kennedy, as Judge Breyer said before the committee, he regards Roe v. Wade as settled law, as reaffirmed in Casey two terms ago.... |
| 01:40:346 sec. |
Kennedy, Edward "Ted" M. - U.S. Senator, [D] Massachusetts
Thank you very much. Our time I think is up, Mr. Chairman. I again want to thank the panel. |
| 01:40:4041 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I know you both have come a long way to testify, and I say this with great sincerity. Please do not read from the failure of everyone to... |
| 01:41:218 sec. |
Casper, Gerhard - President
Thank you very much, Mr. Chairman. I regret that Senator Feinstein is not here any longer. I saw that she is even dressed in Stanford's... |
| 01:41:291 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Yes, she is. |
| 01:41:307 sec. |
Casper, Gerhard - President
I assume that was in honor of my appearance here today. Please express my appreciation to her. |
| 01:41:379 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
I will. Let me ask staff, are there any Senators who wish this panel to stay? I do not believe there was a request from them. I thank... |
| 01:41:461 sec. |
Sullivan, Kathleen M. - Professor
Thank you, Mr. Chairman. |
| 01:41:4760 sec. |
Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware
Let me announce, before I go to vote, our next panel is composed of three very distinguished people who wish to testify in opposition to... |