Thank you, Mr. Chairman.

Yes, Mr. Chairman, I would. I would point out

that the principle goes back even farther than Cardozo and Frank-

VerDate 0ct 09 2002 10:17...

Well, Senator, the importance of settled expectations

in the application of stare decisis is a very important consideration.

That was emphasized...

Well, I feel the need to stay away from a discussion

of particular cases. I’m happy to discuss the principles of stare

decisis, and the...

Again, I think I should stay away from discussions

of particular issues that are likely to come before the Court

again. And in the area...

Well, in the particular case of Roe, obviously you

had the Casey decision in ’92 or ’93.

’92, in which they went through the various factors

in stare decisis and reaffirmed the central holding in Roe while

revisiting the trimester...

Yes, Senator, as a general proposition. But I do

feel compelled to point out that I should not, based on the precedent

of prior nominees,...

Well, I do think the considerations about the

Court’s legitimacy are critically important. In other cases—I’m

thinking of Payner v. Tennessee,...

An overruling of a prior precedent is a jolt to the

legal system. It is inconsistent with principles of stability and yet—

I was just going to say, the principles of stare

decisis recognize that there are situations when that’s a price that

has to be paid. Obviously,...

That is the general approach when you’re considering

stare decisis. It’s the notion that it’s not enough that you

might think that the precedent...

Well, it’s a term that hasn’t found its way into

the Supreme Court opinions yet. I think—

I think one way to look at it is that the Casey

decision itself, which applied the principles of stare decisis to Roe

v. Wade, is itself...

The interesting thing, of course, is not simply

the opportunity to address it, but when the Court actually considers

the question. And that,...

Well, beyond that, it’s settled as a precedent of

the Court, entitled to respect under principles of stare decisis. And

those principles,...

I think the initial question the judge confronting

an issue in this area, you don’t go straight to the Roe decision; you

begin with Casey,...

I agree with that, Senator, yes.

Well, I think people’s personal views on this

issue derive from a number of sources, and there’s nothing in my

personal views based on faith...

Senator, I do. The right to privacy is protected

under the Constitution in various ways. It’s protected by the

Fourth Amendment, which provides...

Those views reflected the Dean’s speech. If you

read his speech, he’s quite skeptical of that right. I knew the Attorney

General was, and...

I think that’s fair, yes.

Well, I think those are some of the considerations

the Court applied in Casey when it applied stare decisis to

Roe, and those were certainly...

Well, I think that gets to the application of the

principles in a particular case, and based on my review of the prior

transcripts of every...

In the Casey decision at—

I think in that case, the Chief’s explanation of

why they weren’t going to revisit Miranda is—it persuaded, I believe,

all but one member...

I’d agree that the tradition of liberty is a living

thing, yes.

I was asked frequently by other partners to help

out particularly in my area of expertise, often involved moot courting,

and I never turned...

But, you know, I think—

Like most people, I resist the labels. I have told

people when pressed that I prefer to be known as a modest judge,

and to me that means...

Well, I have said I do not have an overarching

judicial philosophy that I bring to every case, and I think that’s

true. I tend to look at...

That’s what the joint opinion of the three Justices

said, it was reaffirming the central holding, it revisited and

altered the framework.

Well, the plurality opinion is regarded I think

as the opinion of—it’s the opinion of the plurality, but as the leading

opinion of the Justices...

Well, the question of the workability of the

framework is I think one of the main considerations that you look

to under principles of stare...

That was his view, yes.

Based on his published opinions—now, I don’t

remember—well, certainly he wrote in Casey, I don’t know if he’s

written since then, so I just...

Well, Justice White’s insight that was quoted by

Senator DeWine yesterday, that judges’ obligation is to decide

cases, really has constitutional...

I will certainly make every effort to do so, Senator.

I appreciate the point that in some cases the question of

whether you are interpreting...

Well, I guess the first thing I would say is look

at—begin with my opinions as a judge over the past 2 years on the

court of appeals. I...

Yes.

The Court has frequently explained that stare

decisis is strongest when you’re dealing with a statutory decision.

The theory is a very straightforward...

There are different limits, of course, but, yes,

the limits in the Constitution on Congress are as important as limitations

on State legislatures...

Well, the obligation to say what the law is, including

determining that particular legislation is unconstitutional,

is, as Chief Justice...

Yes, Senator. If I am confirmed, I would hope

to do that, and if I’m not, I would hope to do that back on the court

of appeals. I think...

I do.

Yes.

Yes. That was the—represented a lot of work by

Chief Justice Earl Warren, because my understanding of the history

is that it initially was...

I’m sure.

Certainly, Senator. The importance of the

Court’s approach in Brown is, of course, to recognize that the issue

was whether or not the discrimination...

—yes, as it was at the time of the decision.

Well, the reasoning, though, I think it’s important,

is focused on the effects, yes, but the conclusion was that they

didn’t care if the...

I don’t think any issue has been raised concerning

those. You know, I’m cautious, of course, about expressing

an opinion on a matter that...

That’s an issue, of course, as you know, it’s up

for renewal and that is a question that could come before the

Court. The question of Congress’s...

Yes, and the issue would be—

Oh, well, the existing Voting Rights Act, the

constitutionality has been upheld—

—and I don’t have any issue with that. There is

a separate question that would be raised if the Voting Rights Act

were extended, as I know...

Well, I’m not aware of any constitutional issue

that’s been raised about it.

But again, I don’t want to express conclusions

on hypothetical questions, whether as applied in a particular case,

whether there would be...

—and I do need to keep—avoid expressing an

opinion on those issues.

My hesitancy, Senator, is simply this, that cases

do come up—I had one in the D.C. Circuit—concerning issues

under the Voting Rights Act—

—and I don’t know what arguments parties will

be raising in those cases. So an abstract question, you need to

know obviously what is the...

Again, I think that my understanding is it’s

been upheld and I’m not aware of any issues that are arising under

it. I suppose if there’s...

It is preservative, I think, of all the other rights.

Without access to the ballot box, people are not in the position to

protect any other...

Senator, you will recall at the time of the—this

was 23 years ago. I was a staff lawyer in the Justice Department.

It was the position of...

Senator—

Well, Senator, you disagree—

The point is, and again, this is revisiting a debate

that took place 23 years ago—

VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO...

Certainly. And the only point I would make, this

is the same disagreement and the same debate that took place then

over whether the Court...

Senator, with respect—

—you have selected—

Senator, you did not accurately represent my position.

The Grove City College case presented two separate questions,

and it was a matter...

Well, Senator, again, the administration policy

was as I articulated it, and it was my job to articulate the administration

policy.

I know I agree with it. Now let me figure out

what he meant by it.

[Laughter.]

I think what he meant was that judges operate

as...

No, I don’t think there is. Sometimes it’s hard

to give meaning to a constitutional term in a particular case. But

you don’t look to your...

I have said that it is not the job of the Court

to solve society’s problems, and I believe that. It is the job of the

Court to decide particular...

Again, it is the obligation of the courts to decide

particular cases. Often that means acting on the side of justice as

we understand it,...

Well, I don’t want to directly comment on what

Justice Souter said.

He’s either going to be a colleague or continue

to be one of my...

The issue was the—in the Grove City case, the

Court had said that receipt of financial aid by students triggered

coverage under the civil...

Well, it’s, again, 23-some years ago. But my

recollection is that that was his proposal. Our response was that,

no, we’re not going to do...

Well, President Reagan’s policy and the Attorney

General’s policy was to support the longest extension of the

Voting Rights Act in history...

Yes. It was the responsibility of the Justice Department

and, before the Supreme Court, of course, the Office of

the Solicitor General to...

Fine, thank you.

I do, Senator. I think that the Court’s expressions,

and I think if my reading of the precedent is correct, I think

every Justice on the...

Certainly.

Certainly.

Well, that is in an area where I think I should

not respond.

Because—

Then-Judge Ginsburg and now Justice Ginsburg

explained that she thought she was at greater liberty to discuss her

writings. She’d written...

Well, I explained why she felt at liberty to comment—

Well, that’s how Judge Ginsburg explained it at

her nomination hearings. She said she could talk about the issues

on which she had written.

I think it does make sense that she can be questioned

about the articles that she’d written because they raised certain

questions and she...

You know, I have no quarrel with the majority’s

determination and—

That’s a bad word, Senator.

Senator, my answer is that the independence

and integrity of the Supreme Court requires that nominees before

this Committee for a position...

I’m not going to comment on whether or not a

particular nominee adhered to the approach that they announced.

Senator—

Senator, I was not speaking specifically to any

piece of legislation there. That was making a very—

That was the issue that had come up on the

show, and the general issue that was being addressed is a question

of federalism. I think it...

—confirms that.

The memo you talked about, Senator, I’ve had

a chance to look at it. It concerned a 50-State inventory of particular

proposals to address...

Yes, Senator, I do. And I, again, always have.

The confusion is in the use of the term. There are those who use

the term ‘‘heightened scrutiny’’...

Referring to what you called strict scrutiny.

Well, I was about to lay it out, and you said you

didn’t want to hear about it.

[Laughter.]

Strict scrutiny is the—

And, Senator, the memorandum is using

‘‘heightened scrutiny’’ the way you used ‘‘strict scrutiny,’’ which is

the scrutiny that’s limited...

I’m sorry. What was the date of the memo, Senator?

I can’t elaborate on—I can’t elaborate beyond

what’s in the memo. I just—

Well, I have the memo and see that one of the

areas that you mentioned I say that—and this is to the Attorney

General, and I say the reason...

I was a lawyer on his staff, and according to this

memorandum—and, again, I don’t remember anything independently

of this 23 years ago....

Senator, I was a staff lawyer. I didn’t have a position.

The administration had a position, and the administration’s

position was the two-fold...

The question—