Good morning, Senator Specter.

My name is Robert B. Fiske, Jr. I practice law in New York City,

and I am chairman of the American Bar Association,...

Thank you, Senator.

To summarize our findings, Judge Scalia has an outstanding

academic record and has demonstrated strong abilities in

his...

I am not sure I am in a position to give you a precise

number, Senator, and perhaps, if you wold like that, I will go back

through the detailed...

If I can say, Senator, just so you understand the way

this process worked, I will be glad to answer the question.

What we did right from...

Well, again, I cannot give you a precise number because

I have not gone--

I would say more than 10 percent. That is a rough

judgment.

Yes. Well, first of all, Senator, as you probably noted,

that sentence appears in the section of our letter that is headed

interviews with...

I do not remember any lawyer that said he felt so

strongly about it that he did not think Judge Scalia should be on

the Supreme Court.

I think about an hour and a half, Senator.

Well, we discussed some of his ways of proceeding

on the court, how he functions in the appellate court that he now

serves, how he uses...

Well, I certainly would encourage Mr. Lane to amplify

my remarks, but we did raise generally those issues because

they had been suggested...

I do not think we discussed them specifically. I

think we raised the first amendment cases as a matter of some concern

that had been voiced,...

I think, so the record will be clear here, we did not try

to press him on important issues of the day. We did not try to find

out how this...

Senator, I would respond publicly as I have to you privately

in our earlier discussions. We believe this committee has

high standards. They...

We will, Senator.

Well, Senator, I would just like to make an initial response,

and then Mr. Lafitte, who was here last week presenting

the committee's position...

Senator, none of us were on the committee at that

time. I think

Senator, I would disagree with you to this extent. My

understanding in reviewing the history of the committee is that

the committee did...

Senator, may I

Well, I think, Senator, some of the things that you put

to us a minute ago may be beyond the proper scope of our committee's

function.

Well, Senator, I think we make it very clear in the

second paragraph of our letter that the committee's evaluation of

Judge Scalia is based...

Senator, I have been trying to—I think those are

legitimate questions, but I do think you need to understand the circumstances.

You mentioned...

May I just finish, Senator?

The other thing is the Tatum v. Laird issue which, so far as I

know, came to light on the Monday morning of...

I said that.

It was never raised to us in our investigation either.

What I am saying, Senator, is it was not raised in

our investigation. It was not raised to us as an issue, and therefore,

not something...

Senator, if I may add—may I further respond to Senator

Kennedy?

Just briefly.

I think that once we saw the voter rights thing

coming up again in these proceedings, it was at least my judgment,

that this committee had...

Thank you, Senator. I appreciate that.

I think to quantify it, I think it perhaps would be of

interest to this committee to know, that in a typical investigation

that is done...

Yes, it is, Senator.

Yes, sir.

That is correct.

More than 60.

Yes. The procedure, Senator, was that within each circuit—

we, as you know, we have a member from each circuit.

That circuit member went to the dean and prominent

faculty members in each of the leading law schools in his or her

circuit to obtain their...

Yes, sir.

Yes. We also had his opinions reviewed by the dean

and a group of professors at the University of Michigan Law

School.

Well, he had 107 published opinions. They reviewed

all of them. And I believe there were another maybe 60 or 70 unpublished,

and I believe...

We had two separate reviews. We had one by the University

of Michigan dean and law professors, and we had a separate

review conducted by...

That they both spoke very highly of Judge Scalia's

writing ability, his intellectual capacity, his ability to analyze legal

issues, his...

Well, that is the conclusion our committee came to;

yes, sir.

Approximately 240.

I am sorry. About 200. There were 340 persons interviewed;

all together, about 200 of those were Federal and State

judges.

What we...

Yes. Every one that we were able to

Every one that we were able to reach in the State

courts and in the Federal courts. We went to the chief judge of

each of the circuit courts...

Yes, sir.

A little more than approximately 80.

Yes. And another thing we did: we picked what we

considered to be a group of 25, of Judge Scalia's leading opinions,

and we made a list...

Yes. In all of our investigations, one of the important

things we do with respect to any sitting judge is, we always go to

lawyers who have...

Well, the consensus of the lawyers was again, they

had the highest praise for Judge Scalia's judicial competence, his

temperament and his...

Yes. As our letter indicates, and as I said earlier,

there were isolated expressions of concern, but the overwhelming

consensus was a high...

Thank you, Senator.

Senator Metzenbaum, Senator Specter asked questions

earlier with respect to the very issue that you have just

raised, and I would like to...

We did, Senator, without—we did make inquiries of

minority bar associations and women's groups. We told them we

were doing this investigation...

Well, Senator, first of all let me respond to one thing

you said. To make it clear, the way this committee functions, because

I think it...

It is a very important part of our process that that

committee member personally does all of the interviews with the

lawyers, judges, or...

But it is important that you understand, Senator, by

the reason of the fact that they do this personally, and they are

people who are trusted...

Well, Senator

The reason I took it, Senator, is that I did interview

him.

I did interview Judge Scalia along with Mr. Lane.

And I think the answer, I guess the best answer to the question is:

We did not ask him...

Well, I do not think that is a fair conclusion, Senator.

Normally, when we conduct these investigations, we do have the

benefit of responses...

Yes, it is, Senator. Mr. Lafitte indicated, I think, if the

question had been asked, as I understood Judge Scalia's answer

yesterday, he...

We will ask the question.

I normally do, Senator.

That is correct, Senator.

Yes; it is, Senator. And as I indicated before, that is

what I believe what we tried to make clear in the second paragraph

of our letter...

Well, there certainly are matters, Senator, that we

feel the FBI is more able to investigate than we are. And there are

other matters where...

Yes, we recognize, Senator, that our function is, principal

function is, professional competence, integrity and temperament.

And we certainly...

Yes, sir.

Yes.

It will.

It will.

Yes.

Well, Senator DeConcini, I had no opportunity to observe

the testimony yesterday. I would just assume that if Judge

Scalia was evasive,...

Senator, let me respond to that. I do think, of

course, that this committee has the right to ask any and every

question it wants to ask,...

Yes. I would like to venture an answer to the

question. In the first place, I think this is an extremely delicate

and difficult situation

With respect to the nominee. He

must not say anything, which somebody else can interpret as a

commitment of some kind or other, and even...

None whatsoever, Senator. I think Judge Scalia demonstrates

great integrity of intellect and has addressed a large

number of issues, as...

I happened to collaborate with then Professor Scalia

in the preparation of the briefs in the legislative veto case, in

which our position...

Senator, my 15 years of experience working closely

with Judge Scalia belies the accusation that he has a rigid mind. I

heard the statement...

Senator, I agree with the other members of the

panel. In my opening statement I criticized the use of the term ideological.

I do not really...

Well, it is a difficult question, I think, for most of

us. We are drawing shades of

I do not see any significant difference myself. I

think in the case of Justice Rehnquist we now have some 12 to 14

years of his opinions...

Well, it shows, I think, that their sense of what is

judicially right in a particular case will overcome their broad ideology

or philosophy.

I...

NO; they would not. And it may be, if you made one

of those Harvard Law Review analyses of all the opinions of the

Court in the course of...

Senator, I will venture an answer. In short, I do

not think that there is that much difference. I think there may be

an appearance of difference...

Senator Leahy, I would just like to say I am here

to testify on behalf of Judge Scalia's nomination, and I would

prefer not to engage in...

It was, I am sure.

If I recall the article and the substance of it correctly, to allay

your concerns about the first amendment issue, is...

May I just follow up on that, Senator? I entirely

agree with Mr. Verkuil in his assessment of the Freedom of Information

Act article. Judge...

I agree with Secretary Hills, Senator, and I do think

it is important to have somebody on the Court who approaches the

Court from that perspective,...

I think I would say at this point, as I did when I

appeared before this committee in support of the nomination of

Justice Rehnquist, that...

I would say his qualities as a consensus builder are

so strong that if had turned to politics instead of the bench, I

would not want him...

The whole history of these things has been that,

generally speaking, there is not a great change resulting from

changes in the people on...

Senator, if I may say two things about that. First of

all, four Reagan appointments are, of course, unlikely. Assuming

four appointments,...

Yes, sir.

I do.

I do.

Thank you, Senator.

I am delivering this testimony on behalf of the National Organization

for Women and the National Women's Political Caucus....

Thank you, Senator Mathias.

The AFL-CIO was not asked to testify to argue for or against

Judge Scalia's nomination, but to voice certain...

My name is Joseph L. Rauh, Jr. I appear here this

afternoon on behalf of the Americans For Democratic Action and

the Leadership Conference...

It is 1979,1 believe—yes, the winter of 1979. At least,

it appeared in the Law Quarterly at that date.

Yes.

Well, I noticed, sir, that I think it was you, Senator,

who asked him this question yesterday, or at least Judge Scalia

was asked the question...

May I first say that one of the members of the prelunch

panel spoke of you and what you had done, and I felt remiss

that I had not done...

With respect to a comparison of Judge Scalia and

Chief Justice Burger, I would say there will be a significant drift to

the right as a result...

Yes, thank you, Senator.

To judge him from his writings in periodicals—his judicial opinions

are not that numerous, and as a junior member...

May I finish my answer?

I am very glad that Ms. Smeal gave you that quote

because I think it was a very good one.

I was going to read you the same thing you read...

There is no logic in saying that this applies to the less

important things—that his views apply to the less important issues

and not the...

I find it difficult to determine whether Judge Scalia

has an agenda or not, and that is one of the reasons we submitted

the kind of testimony...

TO me it does not matter whether it is a radical

view

I think that it is one which profoundly changes the

balance of power that the Constitution envisages. To say that it is

radical; to say...

It may be or it may not. To us the test is whether the

nominee's view of the Constitution is sufficiently wrong that he is

not worthy of...

It is 50 plus 1 people making up their minds about

what is right or wrong.

Senator Heflin, my answer to your question on consensus

building is that you do not build a consensus from an extreme.

I do not care how...

Well, Senator

I hope we are not attacking Senator Biden. It would

be both foolish and unworthy. He is raising serious issues.

We did not choose to testify...

All I wanted to say, real quickly, is, that I think that

you would not have to worry if in 1988 it changed, and anything

like this was quoted...

I do.

I do.

It is highly unusual for me to know very well a

nominee for the Supreme Court of the United States. It is very unusual

for me to testify...

Well trained, is he not?

I am sure.

There certainly is not in explicit terms. However,

there are certain privacy values definitely protected by the Constitution.

The first...

The ninth amendment does not protect anything.

Indeed, the Supreme Court was required to refer to it as having

emanations and penumbras...

Certainly. The fourth amendment right against unreasonable

searches or seizures.

They are enumerated.

In the Constitution?

NO.

I will provide you with a specific number if you would

like that.

I do not know, Senator.

NO, I think that is absolutely false, Mr. Senator.

I did not found the organization. And I can refer you

to those who run it on a day-to-day basis in Washington and provide

any of the details...

I am not intimately familiar with the United Families

of America. I can tell you, I had nothing to do with its foundation.

I have sympathy...

At one time, yes, sir.

Yes, I did.

I was Associate Deputy Attorney General for 2 years

during the first term of the Reagan administration. I served for 2

following years approximately...

United Families of America asked me to represent

them here.

Yes, I am.

I think that is an overstatement, but I am counsel for

them at this proceeding, yes, sir.

It is an organization that promotes the family values

in the United States, as a matter of law and policy.

Mr. Senator, I gave you the complete reservoir of my

knowledge as to the values it promotes and the fact that I had

nothing to do with its...

Excuse me.

Bob Bartleson is the one who I spoke with in regard to

preparing the testimony and appearing here today and last week

as well.

I do not know what his particular title is. He is the

one who operates the Washington office.

I think that would be very true.

Well, let me tell you what I think about Judge Scalia's

attitude toward the Freedom of Information.

My understanding of Judge Scalia, and...

Well, I am, of course, fully in favor of do-it-yourself

oversight on the part of the press.

But I also think that I understand what he was

writing about, and what I think he is writing about is his view that

the first line of defense...

We certainly have not.

Yes, he has. He has had at least several cases in

all of these areas, and in case after case, he has consistently ruled

against civil rights...

Well, I would agree that he is indeed extreme.

And I would in particular point to the sexual harassment case

where the Supreme Court recently...

Well, he has not explicitly stated anywhere

whether he would overrule Roe v. Wade. He has very harshly criticized

the decision, and I think...

The holding of that case was that sexual harassment

was not actionable sex discrimination. And I believe he labeled

the idea that it might...

I believe that that was a decision that was written

by Judge Bork, in which he joined. It was a 7-to-3 decision of the

D.C. Circuit Court...

I think I have one quote Jiere which might clear

that up.

In the Vinson case, in his dissent, the opinion

which Judge Scalia joined said he was discussing the fact that the

civil rights laws might...

That is the case of Meritor Savings Bank v.

Vinson.

In the court below, it had the name of Vinson v.

Taylor.

Yes. Some people have cited that case as showing

that Judge Scalia may in fact believe that sexual harassment is actionable.

However, what...

I would certainly reconsider my testimony. I do

not think you can use a litmus test of any one particular issue in

judging a nominee. And,...

Yes, I am; I am practicing at the New York City

law firm of Paul, Weiss, Rifkind, Wharton & Garrison.

Five years.

Thank you.

I think you are always in a difficult position in

trying to predict what a judge will do in the future. But with Judge

Scalia we can only...

NO, we did not.

Well, the reason is because institutionally we set

up a system of volunteer attorneys, such as myself, to study potential

Supreme Court...

Well, we have a list of something like 15 members,

and you are welcome to hear the names, if you want. It's our

guess, as much as anyone...

I seemed to hit the right name, since I chose to

spend my time studying Judge Scalia for the past year.

I appreciate the compliment, and again I would

give part of the credit to the Nation Institute which set up a

system so that we had sufficient...

The Nation^ Institute is a private foundation. It is

a research organization with primary concerns on civil rights and

civil liberties....

Well, it's a private foundation, and it receives donations

from various sources, primarily from people who are interested

in civil rights...

Sure; that decision involved the president of Mobil

Oil Co. who was suing for libel over an article that claimed that he

had set his son...

That was the holding of the decision, yes.

Yes, it was.

NO other court has ever done that. Indeed, that is

what prompted the strong criticisms from columnists and others

about this decision.

Investigative...

I think if this decision was the law of the land,

which again it's currently vacated so it is not—but if Judge Scalia's

decision were the...