Text Timeline

Text Timeline
Graphical Timeline

00:01:1746 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware 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,...
00:02:0344 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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,...
00:02:472 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware Without objection, it will be included.
00:02:493 min.	Leahy, Patrick J. - U.S. Senator, [D] Vermont I would like to just mention a couple of things I say at the end of that statement. When your nomination was first announced, you said during...
00:05:541 min.	Breyer, Stephen G. - Judge 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...
00:06:5956 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:07:552 min.	Breyer, Stephen G. - Judge 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...
00:10:194 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont But do you protect nonpolitical speech like, say, a scientific debate?
00:10:23	Breyer, Stephen G. - Judge Of course.
00:10:232 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont And art and literature?
00:10:252 sec.	Breyer, Stephen G. - Judge Of course.
00:10:271 min.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Let me go into another area, then, as we follow this a little bit. I have been both a prosecutor and a defense attor161 ney. You are brought...
00:12:171 min.	Breyer, Stephen G. - Judge 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,...
00:14:061 min.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:15:372 sec.	Breyer, Stephen G. - Judge Yes.
00:15:3919 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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?...
00:15:581 min.	Breyer, Stephen G. - Judge 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...
00:17:075 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont YOU also see jurors in some criminal cases terrified to be jurors, too.
00:17:121 min.	Breyer, Stephen G. - Judge 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...
00:18:392 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont It is also saying there are no absolutes either.
00:18:412 sec.	Breyer, Stephen G. - Judge There are not. There are not.
00:18:4326 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont If the Government is giving out Federal funds for whatever—art, libraries, so on—can they require recipients of Federal funds to express...
00:19:094 sec.	Breyer, Stephen G. - Judge If you put it like that, it does not sound likely. I mean it does not sound that they could.
00:19:1326 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:19:3947 sec.	Breyer, Stephen G. - Judge 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...
00:20:264 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Well, that is easy. That is easy when you say it only applies to statues or only applies to paintings.
00:20:30	Breyer, Stephen G. - Judge That is right.
00:20:3013 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont But within the statues, shall we say we can only have statues of political figures that are acceptable?
00:20:434 sec.	Breyer, Stephen G. - Judge Yes; where, of course, I am tending to agree with you
00:20:476 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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?
00:20:5332 sec.	Breyer, Stephen G. - Judge In principle, in principle, censorship is undesirable. It is undesirable. And when actual cases of censorship come up, typically it is going...
00:21:2517 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:21:423 sec.	Breyer, Stephen G. - Judge Well, that is right. That is right.
00:21:4520 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Suppose the Government wants to protect the integrity of the Internet or new computer superhighway? Can they prevent computer users from...
00:22:0529 sec.	Breyer, Stephen G. - Judge 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...
00:22:341 min.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:23:411 min.	Breyer, Stephen G. - Judge 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...
00:24:5225 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Well, for example, would you use the same test if you had education regulations, for example, which might affect parochial schools? Would...
00:25:1760 sec.	Breyer, Stephen G. - Judge 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...
00:26:1735 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:26:524 sec.	Breyer, Stephen G. - Judge That is true, yes.
00:26:564 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont YOU said that the State should not side with one religion over another.
00:27:002 sec.	Breyer, Stephen G. - Judge Or a religion
00:27:028 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Would you also agree the State should not side with those who practice religion over those who are nonadherents to any religion?
00:27:109 sec.	Breyer, Stephen G. - Judge I think that is basic. The Supreme Court has, I think, been very clear about that. Very clear.
00:27:1959 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont We have the Kiryas Joel Village School District that tried different ways to provide special education programs to the handicapped children...
00:28:1850 sec.	Breyer, Stephen G. - Judge 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,...
00:29:081 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont I have a feeling
00:29:091 sec.	Breyer, Stephen G. - Judge I think it will
00:29:1043 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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...
00:29:536 sec.	Breyer, Stephen G. - Judge I think that is well established. Well established.
00:29:595 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont On the constitutional right to privacy, do you recognize such?
00:30:044 sec.	Breyer, Stephen G. - Judge I think that is well recognized. I think that is well established in the law.
00:30:0811 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Where are the unenumerated rights such as the right of privacy? Are those in the 9th amendment, 4th amendment, 14th amendment?
00:30:1912 sec.	Breyer, Stephen G. - Judge 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...
00:30:312 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont That is why I ask.
00:30:3313 sec.	Breyer, Stephen G. - Judge 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...
00:30:469 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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.
00:30:553 min.	Breyer, Stephen G. - Judge It says, 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Now,...
00:33:571 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Thank you, Mr. Chairman.
00:33:582 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware In the meantime, there was the incorporation doctrine.
00:34:002 sec.	Breyer, Stephen G. - Judge Yes.
00:34:024 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware Senator Grassley. OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA
00:34:061 min.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa I would like to have my opening statement inserted into the record. Judge Breyer, I am glad to hear you say in your previous discussion...
00:35:173 min.	Breyer, Stephen G. - Judge 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...
00:38:324 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa YOU saw Judge MacKinnon's motion to be extraordinary, then.
00:38:3611 sec.	Breyer, Stephen G. - Judge 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...
00:38:475 min.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa I want to now talk with you about precedent on the Supreme Court. You have different considerations, obviously, than you will as an appellate...
00:44:211 min.	Breyer, Stephen G. - Judge They are relevant. I think they are relevant. I think that in applying the Constitution in general, one looks, of course, to the conditions...
00:45:263 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa I think I am reading you that you would have an open mind.
00:45:291 sec.	Breyer, Stephen G. - Judge Yes, I would.
00:45:302 min.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa Yes; and I think that is pretty important because the President who nominated you, President Clinton, liberals in Congress, conservatives...
00:48:041 min.	Breyer, Stephen G. - Judge 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...
00:49:5616 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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...
00:50:121 sec.	Breyer, Stephen G. - Judge Yes.
00:50:131 min.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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...
00:51:241 min.	Breyer, Stephen G. - Judge 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...
00:52:4010 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa What does it say about Congress' willingness to kind of punt to the judiciary what might be a tough legislative decision?
00:52:502 sec.	Breyer, Stephen G. - Judge Sometimes Congress will.
00:52:522 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa It probably says we are shirking our responsibility.
00:52:5418 sec.	Breyer, Stephen G. - Judge 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...
00:53:125 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa SO you would say that there is a limit to the Court's reliance upon legislative history.
00:53:178 sec.	Breyer, Stephen G. - Judge 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,...
00:53:2510 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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.
00:53:353 sec.	Breyer, Stephen G. - Judge That is true.
00:53:381 min.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa In fact, in Langraf, the Court said it would not permit uncertainty in litigation if Congress has not specified whether a statute is to...
00:54:4841 sec.	Breyer, Stephen G. - Judge 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...
00:55:294 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware If the Senator would yield, retroactive canons are particularly difficult.
00:55:3310 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa Well, you know, as a former staff member of this committee, you surely had to deal with some of these problems as well.
00:55:431 sec.	Breyer, Stephen G. - Judge Yes.
00:55:4425 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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...
00:56:091 min.	Breyer, Stephen G. - Judge 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...
00:57:3352 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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,...
00:58:252 sec.	Breyer, Stephen G. - Judge Your basic point, I
00:58:2715 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa Getting back to legislative history, there is another limit. Wouldn't you agree that it is inappropriate for a judge to use legislative...
00:58:4219 sec.	Breyer, Stephen G. - Judge Sure. Ultimately, you are there with the language of the statute, and the language of the statute is what governs. You know, history comes...
00:59:015 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa By the way, in that 8-to-l Langraf case, do you think that you would have been in the majority?
00:59:064 sec.	Breyer, Stephen G. - Judge I have not read it with enough thoroughness to know.
00:59:101 min.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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....
01:00:3950 sec.	Breyer, Stephen G. - Judge 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...
01:01:292 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa That is this confirmatory clause?
01:01:3113 sec.	Breyer, Stephen G. - Judge 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...
01:01:449 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa YOU wrote about that 11 years ago. Do you think you would still feel the same way today in that Georgetown Law Review article?
01:01:5314 sec.	Breyer, Stephen G. - Judge 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...
01:02:0727 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa Well, if Congress could use a provision like that, it seems to me like it would effectively give Congress some control over the regulations...
01:02:343 sec.	Breyer, Stephen G. - Judge I think it is a possibility.
01:02:3722 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa 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...
01:02:592 sec.	Breyer, Stephen G. - Judge I would stick by what I said.
01:03:012 sec.	Grassley, Charles "Chuck" E. - U.S. Senator, [R] Iowa Thank you, Mr. Chairman.
01:03:031 min.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware I would like to point out for the record, Judge, that Senator Grassley, with each successive hearing, is losing his credibility in the following...
01:04:383 min.	DeConcini, Dennis - U.S. Senator, [D] Arizona Mr. Chairman, thank you. Judge thank you for your understanding this process so well. If you want to take a break, I am more than...
01:07:491 sec.	Breyer, Stephen G. - Judge Yes, Senator.
01:07:501 min.	DeConcini, Dennis - U.S. Senator, [D] Arizona 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...
01:09:074 sec.	Breyer, Stephen G. - Judge That is correct.
01:09:1150 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona It was for the executive branch, in essence. Research shows us that the Senate Environment and Public Works Committee did authorize the...
01:10:011 sec.	Breyer, Stephen G. - Judge Yes, sir.
01:10:025 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona And what is that status of that courthouse now?
01:10:074 sec.	Breyer, Stephen G. - Judge I think, Senator, it is just going out for bid. I think it is just going out for bid now.
01:10:119 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona And are you aware that it averages approximately $5 less than the average courthouse for construction purposes?
01:10:202 sec.	Breyer, Stephen G. - Judge I think that is right, Senator.
01:10:2215 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Thank you. I think for the record it is important, Judge Breyer, that we understand what these buildings are. Courthouses are built for...
01:10:371 sec.	Breyer, Stephen G. - Judge Yes, Senator.
01:10:384 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona This building would have a lifetime of well over 50 years or perhaps 100 years.
01:10:422 sec.	Breyer, Stephen G. - Judge I hope a lot longer.
01:10:442 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona And it can accommodate substantial growth, within your judgment of that court.
01:10:464 sec.	Breyer, Stephen G. - Judge Yes, Senator.
01:10:501 min.	DeConcini, Dennis - U.S. Senator, [D] Arizona Judge Breyer, turning to the equal protection clause, I have always had great interest in this subject matter and have had an opportunity...
01:12:362 min.	Breyer, Stephen G. - Judge 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...
01:15:1649 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona 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...
01:16:057 sec.	Breyer, Stephen G. - Judge 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
01:16:122 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona YOU are not stuck in the intermediate by any means.
01:16:14	Breyer, Stephen G. - Judge Certainly not. I think those will be argued.
01:16:145 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona YOU will approach it from each case.
01:16:1913 sec.	Breyer, Stephen G. - Judge 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...
01:16:322 min.	DeConcini, Dennis - U.S. Senator, [D] Arizona Thank you, Judge Breyer. Let me turn to another subject. In a recent Supreme Court case, Liteky v. United States, the Supreme Court held...
01:18:582 sec.	Breyer, Stephen G. - Judge In abstract, you think you do not
01:19:004 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona I will accept it as that.
01:19:041 min.	Breyer, Stephen G. - Judge 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...
01:20:1326 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Let me give you a hypothetical. What if a judge clearly, undisputably makes an arguable prejudicial statement during the course of a trial? Is...
01:20:395 sec.	Breyer, Stephen G. - Judge The truthful answer is it depends on the statement and it depends on the trial.
01:20:444 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Well, given the fact that there is just no question that this was a
01:20:487 sec.	Breyer, Stephen G. - Judge If it really prejudiced the trial, out. That is the end; new trial. If it prejudiced the trial and it is an improper statement
01:20:556 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona SO an instruction would not suffice, in your judgment, in such a hypothetical?
01:21:0149 sec.	Breyer, Stephen G. - Judge 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...
01:21:502 min.	DeConcini, Dennis - U.S. Senator, [D] Arizona 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...
01:23:552 sec.	Breyer, Stephen G. - Judge Yes, I do. I do think about it.
01:23:571 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona What do you do?
01:23:581 min.	Breyer, Stephen G. - Judge 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...
01:25:4714 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona 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...
01:26:011 sec.	Breyer, Stephen G. - Judge Yes.
01:26:02	DeConcini, Dennis - U.S. Senator, [D] Arizona Have you?
01:26:0217 sec.	Breyer, Stephen G. - Judge Well, of course, because—I mean, you started with the courthouse. I would guess in respect to that courthouse that somewhere between 50...
01:26:191 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona YOU went yourself?
01:26:202 sec.	Breyer, Stephen G. - Judge Absolutely, and it was so wonderful for me.
01:26:222 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona And you took the criticism that I am sure there was as with any public building?
01:26:243 sec.	Breyer, Stephen G. - Judge Yes; I mean, you worry about
01:26:271 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona YOU didn't wear your robe?
01:26:286 sec.	Breyer, Stephen G. - Judge I don't think it would have made a difference to anyone in any of those groups if I had worn five robes.
01:26:341 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona I am sure that is true.
01:26:356 sec.	Breyer, Stephen G. - Judge And that is a good thing. I will tell you day and night it is a very, very good thing.
01:26:411 min.	DeConcini, Dennis - U.S. Senator, [D] Arizona 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...
01:27:574 sec.	Breyer, Stephen G. - Judge The first, yes; honesty in sentencing is there.
01:28:01	DeConcini, Dennis - U.S. Senator, [D] Arizona YOU think it is there?
01:28:011 min.	Breyer, Stephen G. - Judge 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...
01:29:025 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona DO you think it has been more positive than negative?
01:29:072 sec.	Breyer, Stephen G. - Judge Of course, I was part of it.
01:29:091 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona I understand.
01:29:103 sec.	Breyer, Stephen G. - Judge But I do think that, still; I do think that, on balance, yes.
01:29:131 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona It has improved the system?
01:29:144 sec.	Breyer, Stephen G. - Judge On balance, yes, and more to come, more to come.
01:29:1843 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona 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...
01:30:011 sec.	Breyer, Stephen G. - Judge Yes.
01:30:0241 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Well, I am a firm believer that the courts should be vested with a certain amount of discretion, particularly in regard to sentencing. Despite...
01:30:4336 sec.	Breyer, Stephen G. - Judge This has been an awfully big argument. In my own personal opinion, the increased authority of the prosecutor has come primarily because...
01:31:196 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona IS that good for the system, or do you think that should be continually reviewed?
01:31:251 min.	Breyer, Stephen G. - Judge 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,...
01:32:2721 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Well, knowing your criticism of mandatory minimums, would it be softened at all by inclusion of a so-called safety valve which would allow...
01:32:485 sec.	Breyer, Stephen G. - Judge Yes.
01:32:539 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona DO you think it should be expanded to anything further than nonviolent first offenders from your standpoint?
01:33:0233 sec.	Breyer, Stephen G. - Judge 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...
01:33:352 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona That is correct.
01:33:3733 sec.	Breyer, Stephen G. - Judge 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...
01:34:105 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona A safety valve would be beneficial, in your judgment, for nonviolent offenders?
01:34:152 sec.	Breyer, Stephen G. - Judge Yes.
01:34:172 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Thank you, Mr. Chairman. Thank you, Judge Breyer.
01:34:1925 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Mr. Chairman, I couldn't help but think, listening to Senator DeConcini's first area of questions on prejudicial statements, I had for years...
01:34:444 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Mr. Chairman, I would like my full opening statement regarding the Judge put in the record.
01:34:4817 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware Without objection, it will be done. Judge, before we let you go, let me ask you, is there a correlation between delegating to the Commission...
01:35:053 sec.	Breyer, Stephen G. - Judge I haven't thought about that, I haven't thought about that.
01:35:081 min.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware 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,...
01:36:50	Leahy, Patrick J. - U.S. Senator, [D] Vermont Mr. Chairman.
01:36:501 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Mr. Chairman.
01:36:511 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware Yes, gentlemen.
01:36:524 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona Mr. Chairman, there is a vote tomorrow at 10. We will meet after that vote?
01:36:561 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware There is a vote at 10?
01:36:57	DeConcini, Dennis - U.S. Senator, [D] Arizona I believe so.
01:36:573 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware I was unaware of that.
01:37:002 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona I believe it is a cloture vote.
01:37:023 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware I was under the impression that that might be vitiated.
01:37:058 sec.	DeConcini, Dennis - U.S. Senator, [D] Arizona OK.
01:37:1328 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware 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...
01:37:416 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Mr. Chairman, by a previous unanimous consent agreement, I am going to be managing a bill on the floor starting tomorrow.
01:37:47	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware Yes.
01:37:4713 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont Unfortunately, this was done before we knew about this. I just would like the Chairman to know that there are some followup questions, especially...
01:38:006 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware Yes; I am confident that other members will, and I know you have the Foreign Operations
01:38:066 sec.	Leahy, Patrick J. - U.S. Senator, [D] Vermont 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.
01:38:1238 sec.	Biden, Joseph "Joe" R. Jr. - U.S. Senator, [D] Delaware 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...
01:38:501 min.	Breyer, Stephen G. - Judge Thank you, Mr. Chairman.