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• 

  The CHAIRMAN

  At 00:00:59
  2 minutes

  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 nominating process this
  committee takes very seriously. We have afforded over the decades
  and requested—"afforded" may be the wrong word—the American
  Bar Association to testify before this committee and give this committee
  its judgment as to qualifications of judicial nominees. It is
  something we take seriously, and it is something that the ABA
  takes seriously. And I know they take it seriously because Irene
  Emsellem represents them, and she used to be on this committee.
  So I know it has to be serious if she is still willing to represent
  them.
  All kidding aside, I do welcome our first panel. It has been the
  tradition of this committee long before my chairing the committee
  that the first public witness before the committee would be the
  American Bar Association. And our first panel today, testifying on
  behalf of the American Bar Association, includes Mr. Robert Watkins,
  who chairs the Bar Association's Standing Committee on the
  Federal Judiciary. A former U.S. attorney, Mr. Watkins is a partner
  in the firm of Williams and Connolly here in Washington, DC.
  Accompanying Mr. Watkins is Mr. Michael Greco, who is a partner
  at Hill and Barlow in Boston, MA. Former president of the
  Massachusetts Bar Association, Mr. Greco is the first circuit representative
  to the ABA's Standing Committee on the Federal Judiciary.
  Gentlemen, we welcome you and thank you for your effort and
  work. I might point out for the record that, although this committee
  and individual members of the committee have occasionally had
  disagreements with the ABA and their recommendations, it undertakes
  a great deal of work for which there is no compensation. We
  appreciate your public service in that regard, and we are going to
  ask you, as well as all the public witnesses, to attempt to limit
  your comments to 5 minutes, if you would.
  Mr. Watkins, welcome.
  PANEL CONSISTING OF ROBERT P. WATKINS, CHAIR, AMERICAN
  BAR ASSOCIATION, STANDING COMMITTEE ON THE
  FEDERAL JUDICIARY, WASHINGTON, DC; AND MICHAEL S.
  GRECO, FIRST CIRCUIT REPRESENTATIVE, AMERICAN BAR
  ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY,
  WASHINGTON, DC
  

• 

  Mr. WATKINS

  At 00:03:27
  4 minutes

  Thank you, Mr. Chairman.
  Members of the committee, my name is Robert Watkins. As you
  heard, I practice law in the District of Columbia, and I am chairman
  of the American Bar Association's Standing Committee on the
  Federal Judiciary. With me today is Michael S. Greco of Boston,
  MA, the committee's first circuit representative and the principal
  investigator in this investigation.
  We appear here today to present views of the American Bar Association
  on the nomination of Stephen G. Breyer, Chief Judge of
  the U.S. Court of Appeals for the First Circuit, to be an Associate
  Justice of the Supreme Court of the United States.
  At the request of the administration, our committee investigated
  Judge Breyer's professional qualifications.
  Our investigation assessed
  Judge Breyer's integrity, his judicial temperament, and professional
  competence. Our work involved discussion with more than
  500 persons, including Supreme Court Justices, Federal and State
  court judges from all over the country, and practicing lawyers
  throughout the United States. The committee members also interviewed
  law school professors, including constitutional law and Supreme
  Court scholars.
  In addition, Judge Breyer's opinions were read by two reading
  groups. One group consisted of Supreme Court practitioners. It was
  chaired by Rex E. Lee, former Solicitor General of the United
  States and currently the president of Brigham Young University.
  The other group was made up of law professors on the faculty at
  Vanderbilt University School of Law. This group was chaired by
  Prof. Nicholas S.
  Zeppos of the Vanderbilt Law School. Their reports
  were evaluated by members of our committee who also read
  Judge Breyer's opinions and his published writings on various legal
  subjects. Finally, Judge Breyer was interviewed by two members of
  our committee.
  The committee began its investigation of Chief Judge Breyer on
  May 17, 1994, and completed its work on June 30, 1994. Based on
  our evaluation, we reported to the White House and to this committee
  that the standing committee is unanimously of the opinion
  that Judge Breyer is well qualified, the highest rating for a nominee
  to the Supreme Court of the United States.
  That rating is reserved for those who are at the top of the legal
  profession, have outstanding legal ability and wide experience, and
  meet the highest standards of integrity, professional competence,
  and judicial temperament. The well-qualified rating merits our
  committee's strongest affirmative endorsement.
  I have filed with the Judiciary Committee a letter describing the
  results of our investigation and shall not repeat those results in de401
  tail here. I request that the letter be included in the record of these
  proceedings.
  To summarize our findings, the committee is satisfied that Judge
  Breyer's academic training, his broad experience in the Federal
  Government, his service on the faculty of a distinguished law
  school, his scholarly writings, and his distinguished service for 14
  years, 4 as chief judge, on the court of appeals establish his professional
  competence. His integrity is above reproach, and he possesses
  and exhibits the highest level of judicial temperament.
  We are pleased to have the opportunity to appear here today to
  present the committee's findings, and we will respond to questions
  about our investigation and evaluation of Chief Judge Breyer.
  

• 

  The CHAIRMAN

  At 00:07:55
  3 minutes

  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 by my Republican
  and Democratic colleagues. That is the elements you look at
  in considering your evaluation, while evaluating and considering
  your recommendation.
  With regard to lower court judges, district court judges, and circuit
  court judges—obviously both very important, but particularly
  district court judges—we often find ourselves in the circumstance
  in this committee, particularly when we are attempting to find—
  not we, but when the President, this President or former Presidents
  recommend minorities, or recommend people who have had
  distinguished legal careers but have had legal careers that either
  have been confined to academia or confined to commercial practices
  where they did not do any trial work. You often withhold—not you
  personally, the ABA often withholds recommendations, and occasionally
  withholds the most positive recommendation and occasionally
  recommends "unqualified" based upon the fact that the particular
  nominee did not have trial experience or has not practiced
  the law in the sense that they have been in a law firm and handling
  the cases of individual clients and conflicts and controversies.
  That has created some difficulty, depending on the President and
  the nominee, difficulty with Republican Senators or Democratic
  Senators as to whether or not the ABA is doing the job as it should
  be done from their perspective.
  My question is this: Judge Breyer, who has incredible credentials,
  to the best of my knowledge, if he were coming here for the
  district court judgeship in the State of Massachusetts, someone
  would say, well, he has no trial experience. He has not practiced
  law. He has been a brilliant professor, a significant legal scholar,
  handled the job that your former associate, Cynthia Hogan, who
  runs my staff on this committee and who will not go back to your
  firm, if I have anything to do with it. You cannot have her back
  at Williams & Connolly.
  All kidding aside, he has done that job, but he has not, to the
  best of my knowledge, gone out there and practiced law like both
  of you do. Explain to the committee, will you, if that is a consideration
  in the Supreme Court, and if it is a consideration for district
  courts, and why in one and not the other?
  

• 

  Mr. WATKINS

  At 00:11:18
  1 minute

  Senator, you are correct in your portraying the approach
  that the ABA takes to evaluating judges, nominees to the
  various courts. And I think that we cannot use gross terms, and
  we have to separate those in the district court from those from the
  court of appeals and those from the Supreme Court.
  In the courts of appeals and in the Supreme Court, it is vitally
  important for us to have people who have the academic, analytical
  ability to take complex controversies and resolve them through
  analysis and writing.
  Oftentimes, people that have those characteristics do not come
  from the trial bar. They come from the ranks of academia. And if
  you will recall, since I have been chairman of the committee, I believe
  that there have been at least three law school deans or professors
  who have been approved, not for the district court but for the
  courts of appeal.
  

• 

  The CHAIRMAN

  At 00:12:44
  2 seconds

  Correct.
  

• 

  Mr. WATKINS

  At 00:12:46
  2 minutes

  The district courts provide a somewhat different
  situation. Our committee believes that some of the most important
  issues of our time are first presented in the U.S. district courts of
  the United States. And we also believe that lawyers who are going
  to be district court judges ought to have been involved in the trial
  process, not necessarily in the Federal courts but in some courts
  where they understand the trial process, not only understand it
  from a reading-books point of view, but actually have been involved
  in the trial process, have tried cases, have taken depositions, have
  argued motions. And on those candidates, our committee uses as
  one of the criteria—not the only criteria—one of the criteria the
  ability and the experience of having tried cases.
  Now, let me turn to Judge Breyer. Judge Breyer, I believe it is
  true that he has not tried any cases. However, he has been a distinguished
  professor at the Harvard Law School.
  He has been a
  Chief Judge for the Court of Appeals for the First Circuit for 4
  years, and 10 years before that, he was a judge on the court of appeals.
  He in that capacity has taken those difficult controversies that
  come from the district court and analyzed them, resolved them,
  written about them, and some of those controversies are similar
  and, indeed, may be identical to the kinds of issues that he will be
  called on to resolve in the Supreme Court of the United States.
  So I think a short answer to you would be that the district courts
  pose a slightly different problem than the courts of appeals and the
  U.S. Supreme Court. And since Judge Breyer is a nominee for the
  U.S. Supreme Court, our emphasis on trial experience is somewhat
  less than it would be if he were being considered for the U.S. district
  court in Boston.
  

• 

  The CHAIRMAN

  At 00:15:20
  1 minute

  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 this committee, because occasionally—
  I do not think there has been much conflict between the
  Chair and the committee, but occasionally there has been conflict
  between the committee and the ABA. And I just would want the
  record to show that there is that distinction, and the rationale for
  the distinction is as you have stated it.
  As you well know, under the law, under precedent, we are not
  bound in any way to accept your recommendations. I can say up
  to this point my support for Judge Breyer is enthusiastic—I have
  not heard all the witnesses today, so I will withhold final judgment
  until I hear everyone. And I think he is a fine man who will potentially
  make a great Justice. I for one think we should have people
  like you on the bench. I mean "you" in the editorial sense. I do not
  know you well enough to know whether you should be on the
  bench, but I think there should be people like you gentlemen. This
  is the first Court that I am aware of in over 200 years that has
  no practitioners of any consequence on it, and that is a serious
  problem, in my view. That is a serious problem.
  I want Justice Powells on that bench. I want Hugo Blacks on
  that bench. I want Earl Warrens on that bench. If I want that, the
  only way to get that is have Orrin Hatch appoint me President.
  But, I do not get to choose that.
  

• 

  Senator HATCH

  At 00:17:05
  2 seconds

  I am thinking about it. [Laughter.]
  

• 

  The CHAIRMAN

  At 00:17:07
  2 minutes

  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 bar. We are probably going to reject the
  recommendation of the bar with regard to an unqualified recommendation
  for a district court judge in Maryland because the
  person had not had trial experience. We happen to think, looking
  at all the other factors you consider, my guess is we will say that
  person should be confirmed.
  So I do not want people to misunderstand that the differences relate
  to any fundamental character questions. They relate to what
  you weigh as the most important factors and having the best guess
  that we will have a good judge, and to what we relate to it. In this
  case, I do not think there is much of a disagreement at all, and I
  am not suggesting Judge Breyer has to have trial experience, because
  I, quite frankly, think his experience in working in public
  matters, working in the political fora, gives him the same kinds of
  exposure one would get in court.
  This is not a case against academics. I do not mean that at all.
  But I would like to see a Court made up of people who have actually,
  to use the trite phrase, been in the trenches, had to stand before
  clients and say, well, I do not know whether we are going to
  win this one, we have a settlement offer, I cannot guarantee you,
  we could get more, or not get more, I cannot guarantee you would
  be found guilty or innocent, but here is my best judgment.
  They are hard decisions for lawyers to make, hard decisions, and
  I would like to have a few people on the Supreme Court who have
  had to make those kinds of hard decisions in addition to the very
  difficult decisions academics and scholars make as well.
  So that is the reason I have raised the question, because we have
  not had much of a chance to talk about the entirety of the process,
  and I will refrain from doing that any more now. But I wanted the
  record to reflect the basis upon which you legitimately look to trial
  experience for the district court, and ironically, weigh that more.
  In the minds of the average person, they would say, well, gee, why
  would a person for the lowest court have to have that experience.
  Well, there is a good reason why, and you have stated it.
  Mr. Greco, you look like you want to say something.
  

• 

  Mr. GRECO

  At 00:19:35
  16 seconds

  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 in the first circuit that Judge Breyer enjoys
  tremendous respect on the part of the trial bar.
  

• 

  The CHAIRMAN

  At 00:19:51
  3 seconds

  Absolutely.
  

• 

  Mr. GRECO

  At 00:19:54
  30 seconds

  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 at the Supreme Court level—what is equally or
  more important is to have an individual who has the respect of the
  trial bar and who is respected, among other things, for his fairness
  and open-mindedness and his concern for resolving disputes involving
  ordinary people. And Judge Breyer has that respect, and I just
  wanted to point that out for the record.
  

• 

  The CHAIRMAN

  At 00:20:24
  1 minute

  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 upon the people who are before him.
  He not only has the sympathy of the trial bar; I have no doubt that
  he understands the trial practice as well as anyone could who has
  not had a trial practice.
  So I do not have any doubt about that ability. I just thought it
  was important that it be in the record, because people, my colleagues—
  this is basically a "get out of jail free" card for me a little
  bit, Mr. Watkins—because my colleagues constantly say to me, Joe,
  why do you listen to the ABA when they review this guy that the
  President sent up or this woman the President sent up in my district,
  who has practiced law for 21 years and is a fine person and
  give him or her a partially unqualified, you know, a mixed rating.
  And I say, well, why did they get the rating? They say, well, look
  at it. The rating says because they have not had a trial practice.
  So this discussion here is in part to explain that process as well.
  J thank you for your answer. And, again, I do not have any doubt
  about Judge Breyer's ability to handle anything that comes before
  the Supreme Court, but I now yield to a trial lawyer, at least a
  former trial lawyer, Senator Hatch.
  

• 

  Senator HATCH

  At 00:21:48
  21 seconds

  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. It has been thorough. It has been professional.
  It is the type of a job we would like to see all ABA investigations
  conduct. So I want to compliment both of you, and I agree
  with your conclusions.
  

• 

  Mr. WATKINS

  At 00:22:09
  

  Thank you, Senator.
  

• 

  Mr. GRECO

  At 00:22:09
  1 second

  Thank you.
  

• 

  The CHAIRMAN

  At 00:22:10
  3 seconds

  Thank you, Senator.
  Senator Metzenbaum.
  

• 

  Senator METZENBAUM

  At 00:22:13
  2 minutes

  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 has to have trial experience. As
  a matter of fact, you go much further than that. You go to the point
  of saying that a district court judge has to have practiced within
  the last 10 years in the trial court. And I must say that that is—
  you are making a face, Mr. Watkins, but I can tell you that in connection
  with a nomination that I have made, that is exactly what
  has been stated; that is, he has not been in the district court or
  in a trial court in the last 10 years.
  I do not have any quarrel about Judge Breyer's nomination and
  confirmation as far as his not haying been in the lower court trying
  cases. I have more difficulty with the Bar Association somehow
  concluding that you do not need that experience if you are on the
  appellate bench or you are on the Supreme Court, but you do need
  it if you are a district court judge. I think, frankly, that is a distinction
  without a difference, and I think that in one matter that I am
  familiar with, that is the only basis on which the Bar Association
  is coming forward and saying that a district court nominee is not
  qualified because he has not practiced, tried cases within the last
  10 years. Everybody else says everything is wonderful about him.
  I just say that I do not think that you are wrong in indicating
  that Judge Breyer is an appropriate person to be confirmed as a
  Supreme Court Justice. But I think you are terribly wrong, I think
  you are totally inconsistent in saying that a lower court judge
  needs that experience but an appellate court judge or a Supreme
  Court Justice does not. And, basically, I think the original point is
  I think you are totally wrong that in order to be a judge you have
  to have practiced in the trial courts in the last 10 years.
  I would think that Senator Biden or Senator Hatch might very
  well make good Federal court judges. I think I would even be willing
  to vote for both of them. They have not been in the trial
  court
  

• 

  The CHAIRMAN

  At 00:24:51
  2 seconds

  DO not get carried away, now. [Laughter.]
  

• 

  Senator SIMON

  At 00:24:53
  2 seconds

  It might be a close vote on the committee.
  

• 

  Senator METZENBAUM

  At 00:24:55
  5 seconds

  Well, since I have included you both, you
  can see how far I am prepared to go. [Laughter.]
  

• 

  Senator HATCH

  At 00:25:00
  2 seconds

  YOU can see how radical Howard really is.
  

• 

  Senator METZENBAUM

  At 00:25:02
  19 seconds

  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 to have practiced in—been at trial in the
  courts during the previous 10 years.
  

• 

  Mr. WATKINS

  At 00:25:21
  32 seconds

  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 had several people evaluate that particular
  person. And the committee came out the way it did, not without
  great anguish and thought before the results were put together.
  

• 

  Senator HATCH

  At 00:25:53
  2 seconds

  Would Senator Metzenbaum yield for just a second?
  

• 

  Senator METZENBAUM

  At 00:25:55
  1 second

  Surely.
  

• 

  Senator HATCH

  At 00:25:56
  1 minute

  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 look at the total record. And it is certainly
  a factor to be considered. But the person that Senator
  Metzenbaum has recommended appears to have widespread support
  in his community. The person that Senator Biden mentioned,
  as far as I am concerned, has played the game the way it should
  be played, is a very good person, and frankly, deserves the opportunity
  to serve. So I hope the bar will reconsider its position in
  this.
  I agree it is a factor. Anybody who is concerned about getting
  good judges certainly will have to consider that as a factor. But I
  would consider the totality of the person's experience, and in the
  case of Senator Metzenbaum's and this other, I personally believe
  that they are both very qualified to serve as judges.
  

• 

  The CHAIRMAN

  At 00:26:58
  35 seconds

  Put another way, Mr. Watkins, do not be insulted
  when we disregard your recommendation on those, because
  we will disregard your recommendation on Mr. Williams of Mary406
  land, we will disregard your recommendation on the Senator
  Ohio's recommendation, unless there is some other reason that
  see. I do not want to discourage you from factoring that in ai.
  more than I want to discourage you from factoring in the different
  factors you do in the Supreme Court.
  I just want the record to indicate that we truly appreciate the
  effort; we appreciate your recommendations
  

• 

  Senator HATCH

  At 00:27:33
  7 seconds

  We sure do.
  The CHAIRMAN [continuing]. And hopefully, you appreciate the
  fact we are not going to pay attention to some of them.
  

• 

  Mr. WATKINS

  At 00:27:40
  47 seconds

  Well, Senator Biden, there are a couple of things.
  We recognize that the committee only provides a recommendation.
  We are not of the view that we have the right to block any particular
  candidate. However, we think that over a period of time, we
  have developed the kind of expertise that will give us an ability to
  give guidance to this committee and the President that will be
  helpful in both venues by the President and by this committee
  about making a decision on someone who is going to be a district
  court judge or a court of appeals judge or a Supreme Court Justice.
  

• 

  The CHAIRMAN

  At 00:28:27
  4 minutes

  AS long as I am chairman of this committee—
  which could only last another couple months, possibly—I look at no
  other recommendation more closely; I value no other recommendation
  more highly; and I think in my 22 years of working with you,
  you have found that out. And so I do not mean this as an overall
  criticism. It is just something you should be aware of, because as
  we broaden the nature of the courts, as this President has become—
  and others have as well—committed to having the courts reflect
  society more, we are necessarily going to go through changes.
  I remember when President Carter was President. He was the first
  President to my knowledge who made a concerted effort to find
  women to go on the bench. The problem was when you and I graduated
  law school, we had about 2 percent women in our class—do
  not hold me to that number, but it was very small. In my class,
  there were 2 women out of 85 that I graduated with. My son graduated
  from the same law school, and out of a couple hundred graduating,
  I believe there were more women than men.
  But there used to be a rule, a rule of thumb, that you in fact
  would not consider someone for the bench without 10 years' experience
  in the legal community. There were not as many women having
  had 10 years' experience in 1976 and 1977—as there are now.
  Now every bar association in the Nation, thank God, has a bevy
  of qualified women that is equally almost as large, a pool that is
  close to as large as men, and we have no trouble—none. The ABA
  has no trouble finding women "qualified."
  But we did go through that period where we had the ABA coming,
  necessarily, based on their rule, saying, well, this person only
  has 6 years' experience. And it is generally a good rule. It is generally
  a good rule.
  My criticism to the extent there is a criticism is that sometimes
  the rule is cast in a way that it is hard and fast, and it overcomes
  in and of itself all the other factors, as opposed to it being stated,
  "otherwise qualified, but we believe that the lack of trial experience
  is enough not to recommend." That is usually not how it is stated.
  So we are going through that period now with black Americans,
  Hispanic Americans, and interestingly enough, we are having some
  difficulty getting young, successful lawyers to look to the bench
  now, and we are finding that some of the people who have had experience
  of 20, 25 years at the bar, but who have not had trial
  practices, are willing to go on the bench.
  So it is an interesting dilemma. It reflects the times. You get
  caught up in that crosscurrent—you, the ABA. I think you have
  done an admirable job on this and all the other ones that we have
  had, but I knew that this issue would be raised. I think it is appropriate
  it be raised. And what I would like to consider doing—and
  I will yield now to my friend from Maine—and I know you are willing
  to do this—I think I would like to, not in a formal hearing, although
  it may take that form—I have spoken to the president of
  the ABA about this—to invite my colleagues on the committee and
  any other of my colleagues, and invite you and other members of
  the ABA who are involved in this just to come to my office and sit
  down and have a long lunch and discuss some of these things; tell
  us your thinking about where you see all of this going—not to discuss
  any particular candidate—because there is a little bit, as you
  could detect, there is sort of a rising level of confusion—I will put
  it that way—on the part of Members of the Congress as to motivation.
  I do not question the motivation at all. I think it is a useful
  thing for us to discuss because it is a slightly different time and
  a different cadre of people to whom we are looking to go to the
  bench.
  I yield to the Senator from Maine.
  

• 

  Senator COHEN

  At 00:32:49
  12 seconds

  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 that they do give due
  consideration to trial experience when we are talking about
  

• 

  The CHAIRMAN

  At 00:33:01
  1 second

  Absolutely.
  

• 

  Senator COHEN

  At 00:33:02
  12 seconds

  U.S. district court judges. I think
  trial lawyers are an entirely different breed from corporate lawyers
  or real estate lawyers or estate lawyers. A trial lawyer
  

• 

  The CHAIRMAN

  At 00:33:14
  1 second

  I agree.
  

• 

  Senator COHEN

  At 00:33:15
  5 seconds

  Is someone who has, obviously, a
  strong sense of ego, has a
  

• 

  The CHAIRMAN

  At 00:33:20
  4 seconds

  Well, I do not subscribe to that.
  

• 

  Senator COHEN

  At 00:33:24
  1 second

  A good memory
  

• 

  The CHAIRMAN

  At 00:33:25
  1 second

  I subscribe to that.
  

• 

  Senator COHEN

  At 00:33:26
  1 minute

  Capable of attacking the jugular,
  but basically is an intuitive type of individual—and highly intelligent.
  The intuitive part of it is critically important in terms of
  how one conducts a trial. And I think the trial judge, a U.S. district
  court judge or an estate court, for that matter, has to have those
  same characteristics. He or she is called upon to make snap decisions
  based upon experience, ruling on evidence.
  All of those issues, I think, pertain to what type of individual
  that person is. So I think that they do give importance and should
  give importance to trial experience when you are looking at the
  trial court level. But as Senator Biden has said, we ought not to
  adopt a rule of thumb in each case instead of a rule of reason.
  There may be reasonable factors involved which would cause the
  bar to take into consideration that it does not have to be a 10-year
  period; it could be an 8 or 7 or 6, depending upon the qualifications
  of that individual, his or her demonstrable abilities while practicing
  law, while going before the court as a litigator.
  So I think that Senator Biden makes a good recommendation to
  see if there is not some flexibility that cannot be adopted so that
  we do not find ourselves in the position of simply thumbing our
  nose at the ABA, saying, thanks, ladies and gentlemen, but we disagree
  fundamentally with what you have recommended and just
  dismiss it.
  It is a good rule for the most part; and given some flexibility, I
  think it would be a really highly workable rule, and I would recommend
  that you sit down with committee members and see if we
  cannot find a way to take into account some additional flexibility
  when we do get candidates who seem extremely well-qualified and
  yet have not had the requisite number of years before the trial bar.
  

• 

  Mr. WATKINS

  At 00:35:22
  1 second

  May I respond, Senator?
  

• 

  The CHAIRMAN

  At 00:35:23
  2 seconds

  Please.
  

• 

  Mr. WATKINS

  At 00:35:25
  1 minute

  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 the future. And issues are raised
  and discussed at the committee level to try and respond to concerns
  that people involved in the process have.
  We are constantly looking at our criteria and making sure they
  are followed in a fair but flexible way. We have these issues that
  have been raised during my tenure as chairman, and you can be
  assured that we will try, and we will be raising the question of
  flexibility in the application of the standards that we apply, particularly
  to district court judges.
  

• 

  Senator COHEN

  At 00:36:25
  31 seconds

  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 whether or not you have experience at the district
  court level and whether or not you have it at the appellate
  court level. I think there is a major distinction to be made. I think
  anyone who sits at the appellate court level has a good deal more
  time to be reflective; does not have to make those kinds of snap decisions
  in the heat of battle, so to speak; who brings to bear an entirely
  different type of intelligence that might be much more analytical
  as opposed to intuitive at that case
  

• 

  The CHAIRMAN

  At 00:36:56
  3 seconds

  And has two law clerks sitting with him.
  

• 

  Senator COHEN

  At 00:36:59
  27 seconds

  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 court were consistent
  with the rulings made at the time as the law applied to them.
  So I think you have two entirely different types of qualifications
  for district court and appellate court, and the ABA is correct in approaching
  it on that basis. But to the extent that you can have
  more flexibility, I think that is something that would be worthwhile
  exploring.
  

• 

  The CHAIRMAN

  At 00:37:26
  23 seconds

  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 that there is a little uprising in
  the making in the Senate, and I think if you just are able to explain
  the rationale, it would be a very helpful thing.
  Now, we have 5 minutes left in the vote. I am going to yield to
  the Senator from Illinois to start.
  

• 

  Senator SIMON

  At 00:37:49
  1 minute

  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 of his Lloyd's of London investment,
  Judge Breyer indicated where he would recuse himself, sitting on
  the Court. I would like to get the copy of that transcript to you yet
  this afternoon. I would like you to discuss it with some of your colleagues,
  and I would like to call you on Monday afternoon, if I
  could, to get your evaluation.
  I think Judge Breyer is going to be a great U.S. Supreme Court
  Justice.
  I am concerned that he may recuse himself more than is
  good for the Court. And I would like to have you take a look at
  that, and we will get that to you this afternoon. I will call you on
  Monday afternoon.
  

• 

  Mr. WATKINS

  At 00:38:51
  10 seconds

  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 think that it—I do not think that it
  would
  

• 

  Senator SIMON

  At 00:39:01
  11 seconds

  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 the oath.
  

• 

  Mr. WATKINS

  At 00:39:12
  1 second

  Fine.
  

• 

  The CHAIRMAN

  At 00:39:13
  2 minutes

  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 from Illinois is suggesting—we do
  not want you, the ABA, to tell us whether or not that would change
  your view about Judge Breyer. Obviously, it will not and should
  not.
  What I think we are all groping for here—and I am not sure this
  is the forum in which to do it—is I think the ABA in its subcommittees
  that deal with the canons of ethics, I think the Judicial
  Conference in its appropriate method of dealing with the canons of
  ethics, and I think we who write legislation who can amend the existing
  law, should all look together at what is in a sense a case of
  first instance, but we are going to have more things like this—to
  look and see whether or not there should be additional circumstances
  under which a judge should recuse himself.
  But your opinion—I think what the Senator of Illinois is saying
  is he respects your personal, individual opinions; we are not looking
  for a corporate decision from the ABA at this moment.
  Let me suggest to you—and apologize to you for doing this—but
  we are going to have to go vote. Senator Grassley has questions.
  He is on his way back. I would now authorize Senator Grassley or
  whomever arrives back at the podium before I do to take the committee
  out of recess and begin their questioning, whoever shows up
  first, so we do not slow this process up.
  But let me say again, I truly appreciate the incredible amount
  of work that you all do and the good faith with which you do it.
  In the 22 years I have been here, I have disagreed on occasion, but
  I have never questioned the motivation, nor have I questioned the
  scholarship or the intensity of the effort put in by the ABA.
  But these are changing times, and I think it is time to sort of
  run the flag back up the pole, make it clear why you do what you
  do, and give the rationale so we can make a judgment here as to
  whether or not we wish to continue to afford you, in effect, you the
  ABA, the first seat in the process.
  Now, I see some of my colleagues are here. I would yield to Senator
  Specter and keep the hearing going. I am going to go vote, and
  I will be back.
  Thank you.
  

• 

  Mr. WATKINS

  At 00:41:50
  3 seconds

  Thank you, Senator.
  

• 

  The CHAIRMAN

  At 00:41:53
  4 seconds

  I thank you for your presence here today, and I
  look forward to meeting with you soon.
  

• 

  Mr. WATKINS

  At 00:41:57
  2 seconds

  Thank you for allowing us to appear.
  

• 

  Mr. GRECO

  At 00:41:59
  13 seconds

  Thank you, Senator.
  

• 

  Senator SPECTER

  At 00:42:12
  3 minutes

  Thank you very much, Mr. Chairman.
  I regret that other commitments prevented my hearing your
  opening testimony, but I would join in what Senator Biden said in
  thanking you for your work in the judicial evaluation process.
  There has been some interest on our committee and by other
  Senators in broadening the array of possible nominees which I understand
  is not precisely within the purview of the American Bar
  Association, but I would be interested in what you think about it.
  I have expressed concern, which is shared by others, that so many
  of the Supreme Court Justices—eight of the nine—were appellate
  judges elsewhere, seven of those eight from Federal courts of appeals,
  and one, Justice O'Connor, from the intermediate appellate
  court in Arizona.
  Judge Breyer's credentials are excellent, and I think he made a
  very good impression on the committee as a whole and on others
  during his testimony here.
  But I have been concerned that the same names seem to resurface—
  the great line from "Casablanca," "Round up the usual suspects."
  Last year, we had a small group under consideration that
  included Bruce Babbitt and Steve Breyer, and this year, we had a
  small group under consideration that again included Steve Breyer
  and Bruce Babbitt.
  And a thought which has been on my mind is to have the Judiciary
  Committee solicit from the chief justices of the State supreme
  courts, the chief judges of the courts of appeals, the Federal district
  courts, the presidents of the bar associations, and presidents of the
  minority bar associations, recommendations to try to broaden the
  field, to look for more people who have extraordinary credentials
  and perhaps have a broader background in everyday life.
  We had—not to go to a controversial note—Alexander Williams,
  who was turned down by the American Bar Association. One of my
  staffers, Charity Wilson, made a comment that so many of the
  nominees we see are silk-stocking, and Alexander Williams was
  with wool socks that had a hole in them, and perhaps had some
  diversity which would be helpful. And I expressed my view that it
  was unfortunate that Mr. Babbitt was not nominated in the sense
  that he is a former Governor, Secretary of the Interior, former
  Presidential candidate.
  Governor Cuomo would have been an excellent
  prospect.
  And while I understand that you do not pick nominees—nor do
  I—what is your thinking about the desirability of having a broader
  pool to bring to the attention of the President, to give him some
  suggestions? We do have an advice function, constitutionally, which
  we do not exercise very much. We do too much consenting, perhaps,
  and not enough advising. We dissent very infrequently, probably do
  not do enough of that.
  What do you think, Mr. Watkins?
  

• 

  Mr. WATKINS

  At 00:45:49
  2 minutes

  I would like to comment first about the question
  of silk-stocking versus wool stockings. In preparation for that other
  hearing to which you referred, we looked at the kinds or the types
  of practices of some of our nominees, of the nominees that we evaluated,
  and I think it is not accurate to say that we only give qualified
  or better ratings to those from silk-stocking firms. Many of the
  nominees that we have evaluated are not from silk-stocking firms.
  I believe that in the last year since I have been chairman, at least
  27 of the candidates that we have found qualified have been minorities,
  and not all of them have been from silk-stocking firms. So
  I wanted to try and straighten that—make that point.
  Second, I think with regard to giving the President a wider view,
  a larger list of nominees, I think that is a very good idea. I think
  that our committee cannot be involved in that. Our committee is
  insulated in that we only evaluate; we do not participate in the selection
  process, and I do not think that this committee should participate
  in the selection process, because it will make it difficult for
  us to fairly and objectively evaluate somebody.
  So I believe that our committee, whatever function it has, should
  be limited to the evaluation. Now, if there are other sources from
  which the President can obtain a wider group of candidates for him
  to select, I think that is a terrific idea, but I do not think that our
  committee should be involved in that.
  

• 

  Senator SPECTER

  At 00:47:59
  3 minutes

  Well, Mr. Watkins, I am not saying your committee
  should be, but I do not know that because you pass on qualifications,
  that disqualifies you from making recommendations. The
  Senate might be in the same position where you say the Senate has
  to vote, or this committee has to vote and make the preliminary determination,
  but of course, we have an explicit affirmative constitutional
  duty to advise as well as to consent. But there are plenty of
  sources for suggestions even if they do not come from the committee
  itself.
  I know that there have been minorities evaluated by your committee
  and recommended, and Senator Heinz and I established a
  judicial nominating panel, and we have had very extensive outreach
  for minorities, for African-Americans and for women. And
  you are not responsible for those who are sent to you, but I believe
  that, notwithstanding the efforts of many people, including President
  Clinton and Presidents Bush and Reagan, to broaden the
  base, that there is still a very, very heavy proportion of silk-stocking
  representation in the Federal judiciary. I think we have a long
  way to go on that, and when I saw the memo with Charity Wilson
  and the reference to the wool stockings, and the wool stocking with
  a hole in it, it struck a chord with me.
  And Judge Breyer went to some length to point out his associations
  as a ditch-digger, which I thought was a little thin, and his
  contacts with the people, which candidly, I thought was a little
  thin, too. I think Judge Breyer has a phenomenal background, com412
  ing from middle America, with a great education; he clerked for a
  Supreme Court Justice and worked for this committee and was a
  Harvard law professor and a first circuit judge. Those are extraordinary
  qualifications, but I do not think it really comes down to the
  level of being with the people.
  And the nomination of Justice Thomas I think posed that kind
  of a quality, and I might say we are still looking for those qualities
  to come forward from Justice Thomas that we do look for—and I
  think there is time yet on a career which has decades to span, only
  3 years into the career—but those are qualities which we look for,
  and we are going to be pressing hard from the committee to try to
  give that diversity.
  I think back to the famous story of Senator Borah, who was
  chairman of the Judiciary Committee in 1930 and was asked by
  President Hoover to look at a list of 10 people.
  Senator Borah
  looked at it and said, "I like number 10." It turned out to be
  Cardozo, and I think that was quite a selection.
  Let me yield to my colleague, Senator Brown.
  

• 

  Senator BROWN

  At 00:51:07
  4 seconds

  I have no questions.
  

• 

  Senator SPECTER

  At 00:51:11
  5 seconds

  Let me yield to my colleague, Senator Grassley.
  

• 

  Senator GRASSLEY

  At 00:51:16
  48 seconds

  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 things that we discussed at that
  time. You testified that the ABA interviews various lawyers in the
  community about the nominee, but you do not disclose the names
  of the people that are interviewed. Of course, that means that the
  nominee does not know who might be making allegations against
  them. And, of course, you do not tell the judiciary the identity of
  people who have participated in your investigation.
  Is that a fair characterization of how the ABA investigates?
  

• 

  Mr. WATKINS

  At 00:52:04
  2 seconds

  That is not quite fair, Senator.
  

• 

  Senator GRASSLEY

  At 00:52:06
  3 seconds

  OK; I will listen to your
  

• 

  Mr. WATKINS

  At 00:52:09
  1 minute

  If there are negative matters that arise during the
  course of our investigation, we raise those matters with the candidate
  in a general way so that he has an opportunity to respond
  to them.
  There are times when raising a particular matter will identify to
  the candidate the person who made the comment. In those cases,
  we go back to the interviewee and say to him, well, we have to
  raise this issue with the candidate, and if we raise it, your identity
  will be revealed. Will you allow us to reveal your identity to the
  candidate? Sometimes the interviewees say yes; sometimes they
  say no.
  If they say no, then we do not use that interviewee's information.
  

• 

  Senator GRASSLEY

  At 00:53:15
  7 seconds

  But as a general rule, then, the idea is that
  you will keep the names of the people you have interviewed confidential?
  

• 

  Mr. WATKINS

  At 00:53:22
  32 seconds

  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 times we are able to verify the information
  that is given to us confidentially from other sources that
  are public, and if we can do that, then it makes it easy for us to
  reveal that information to the candidate.
  

• 

  Senator GRASSLEY

  At 00:53:54
  2 minutes

  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 way the
  FBI does an investigation of a nominee. The nominee is advised of
  any adverse information, is given a chance to respond, and then we
  get that entire file for our review, and we look it over, and it is our
  responsibility to draw our conclusions.
  In addition, this committee has, of course, an investigative staff,
  and as I understand it, an individual must be willing to put his or
  her allegation on the record before this committee will act upon it.
  And a specific reference to that would be that that was part of Senator
  Biden's difficulty with Prof. Anita Hill's allegation in the first
  instance. I just use that as an example, not to bring that up again,
  but the point is that we want to know who is making allegations.
  It seems to me that as far as this committee is concerned, I guess
  maybe as far as Justice and the White House are concerned, the
  ABA is given a very special consideration to do those investigations,
  keep the names a secret, and then at least as a practical
  matter—and I know that as we were discussing last time, you took
  exception to my use of the word "veto." I accept that you do not
  see your role that way, but as a practical matter, at least during
  the Reagan-Bush years, the ABA was given a virtual veto over judicial
  nominees.
  If the lawyer will not speak on the record about a nominee, why
  would the ABA even pay attention to such secret charges? And I
  heard what you said, that you may get some information you would
  not otherwise get. But is that such an overriding consideration that
  you keep everybody's name secret, keep it from the committee, and
  let us draw our conclusions?
  

• 

  Mr. WATKINS

  At 00:56:16
  2 minutes

  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 and they will share things with one
  another. That is the first thing.
  It seems to us that it is not unfair to keep the names secret, if
  there is any negative information that comes up, that we share
  that with the candidate. We do. That is our process. If any negative
  information arises and we can share it with the candidate, we do.
  And if the negative information comes from a source that the candidate
  will be able to identify, we go back to that source of information
  and say we have to reveal this to the candidate so he can respond.
  If that source says, I do not want you to reveal my name or I
  do not want you to indicate this negative information if it would
  reveal my identity, then we do not use that information. That information
  is discarded. We do not use it. We do not put it in our report
  that is circulated to the committee.
  So I think that the candidate is, in effect, given an opportunity
  to rebut any negative information that this committee gets and
  considers.
  Now, if the candidate is not given that opportunity, I agree with
  you, that would be unfair. But that is not the way our committee
  works. If there is any negative information, it is shared with the
  committee; and if the negative information cannot be shared with
  the committee—with the candidate, our committee does not consider
  it.
  

• 

  Senator GRASSLEY

  At 00:58:24
  16 seconds

  Well, if the information is not correlated to
  a particular source that the candidate can identify, then he cannot
  rebut it because the name is not known. So does he really have a
  chance to clarify?
  

• 

  Mr. WATKINS

  At 00:58:40
  1 minute

  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 instance, discovery disputes. Those are things
  that go on between lawyers about whether documents should be revealed
  or whether documents should be produced. Over a period of
  time, if an individual is known or has been known in the legal community
  as someone who hides hot documents or you have to go to
  court all the time to get hot documents or documents that should
  be produced, if that comes from two or three sources, we can say
  to the candidate, Candidate, this issue has arisen in our contacts
  about you. What do you have to say about that? And the candidate
  can respond, and we will consider what the candidate says; therefore,
  the candidate knows that that is an issue to be dealt with.
  But we do not reveal the names.
  

• 

  Senator GRASSLEY

  At 01:00:08
  2 minutes

  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 as well. I kind of take off from what I think
  is a sincere belief on your part and your committee's part and probably
  a historical view that you have. I think over my tenure on this
  committee—I did not start out this way, but after some experiences
  I think have not been good, I question the special role that the
  ABA serves and whether or not it serves any purpose whatsoever.
  I think the words you used that expressed your view is that you
  feel you have developed some expertise, and out of that expertise,
  through this very important process of selecting people for a lifetime
  tenure on our courts, you can add something to the process.
  I would just use some examples, and maybe I went over this with
  you before, but I want to go over it again. I took the Carter administration
  as an example. There were four nominees rated not qualified;
  three were confirmed and one, I believe, served with distinction
  because I know how he served—Judge O'Brien in my State. He
  is now going to go to senior status, and we are now going through
  the process of picking a person to succeed him. But that would
  have been 15 or 16 years he served, I believe.
  Now, during later years, we have impeached two Carter era
  judges, and another one resigned after conviction, and none of
  these were the same individuals that the ABA committee had rated
  not qualified. So an ABA evaluation apparently does not bear any
  relationship to the likelihood that a judge will have a successful
  tenure. And so that is why I continue—I mean, those are just some
  examples. There are lots of reasons beyond those examples that I
  am going to continue to question the role of the ABA.
  

• 

  Mr. WATKINS

  At 01:02:29
  1 second

  May I respond?
  

• 

  Senator GRASSLEY

  At 01:02:30
  4 seconds

  YOU can. I said I would listen to you. I owe
  you that courtesy.
  

• 

  Mr. WATKINS

  At 01:02:34
  13 seconds

  I believe that those judges that resigned or were
  impeached, there were questions of integrity that caused their resignation
  or impeachment.
  

• 

  Senator GRASSLEY

  At 01:02:47
  4 seconds

  That is probably very true, but they still were
  rated qualified.
  

• 

  Mr. WATKINS

  At 01:02:51
  1 minute

  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 were nominated, there was no indication
  of their having problems with integrity. That is one of the areas
  that I think our committee is almost inflexible about. If there are
  integrity problems with a candidate and they are established, I
  would believe that our committee would not bend very much.
  One can argue about the question of whether a candidate has
  sufficient trial experience or has the appropriate judicial temperament.
  On issues of integrity, however, our committee, I would like
  to characterize it as firm in that, if there is any question of integrity
  and it is investigated and our committee is of the opinion that
  there is some problem here, I can assure you, Senator, that that
  candidate will not be confirmed.
  Now, for those three people that you have referred to, I think
  this issue of integrity came after they came on the bench, and it
  was their activities while they were on the bench that caused them
  to be impeached or resign.
  

• 

  Senator GRASSLEY

  At 01:04:27
  23 seconds

  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 not too distant future that we will be
  able to obtain that information by our own Department of Justice
  and our own committee investigative staff.
  Mr. Chairman, I yield the floor.
  

• 

  Senator METZENBAUM

  At 01:04:50
  7 seconds

  Thank you, Senator Grassley.
  Senator Cohen.
  

• 

  Senator COHEN

  At 01:04:57
  2 seconds

  I have already had questions.
  

• 

  Mr. WATKINS

  At 01:04:59
  5 seconds

  Mr. Greco, I believe, has something to add to what
  I said, Senator.
  

• 

  Senator METZENBAUM

  At 01:05:04
  14 seconds

  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 of integrity, you can be certain that
  the person will not be approved.
  

• 

  Mr. WATKINS

  At 01:05:18
  17 seconds

  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 surprised if our committee would approve or find
  anybody qualified.
  

• 

  Senator METZENBAUM

  At 01:05:35
  37 seconds

  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 are the inquirers themselves,
  who are on the committee. And that integrity, we have no way of
  assuring ourselves about that, but I personally have concerns about
  the integrity of some who have been the inquirers in some of the
  cases that have come before this committee. So I think that your
  committee ought to give some little thought to that question of not
  only judging others but those who are judging being judged themselves.
  With that, I think, Mr. Greco, if you have a statement?
  

• 

  Mr. GRECO

  At 01:06:12
  36 seconds

  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 Association is really the messenger. It is not
  this committee that makes the final judgments as to whether some416
  one in a legal community should or should not be given a lifetime
  appointment.
  I would hate to see the messenger shot for delivering the message
  from that individual's legal community.
  

• 

  Senator METZENBAUM

  At 01:06:48
  4 seconds

  Unless the messenger is tainted in his inquiry,
  then perhaps he deserves to be shot.
  

• 

  Mr. GRECO

  At 01:06:52
  2 minutes

  Well, that is an assumption that is a very serious assumption
  that you are suggesting, Senator. And until that assumption
  is demonstrated, I think my point is that if you assume that
  this committee, which has been in existence for many, many years
  and since the early 1950's has been looked to by both the White
  House and the Senate for its evaluation, what we do as a committee
  is to try to ensure that someone who is appointed for life, someone
  who cannot be removed from judicial office except by a cumbersome
  impeachment process, that that person is qualified, at
  least qualified if not well qualified, to be a Federal judge.
  And what concerns me is that criticism of the work of the committee,
  the ABA Standing Committee on the Federal Judiciary, is
  really slightly off the mark because if—going back to Senator
  Cohen's question, if the committee finds that the nominee of the
  President is totally lacking in trial experience and the appointment
  is for the trial court, for the Federal district court, we are doing
  no one a favor. We are not doing the public a favor, we are not
  doing trial lawyers a favor, we are not doing the nominee a favor
  by putting that person in the cauldron of having to act as a trial
  judge.
  In fact, we are doing just the opposite. Instead of ensuring
  justice, perhaps we are creating a situation where injustice will result.
  The committee standards, the ABA committee standards, are
  very broad. We do not have a rigid 10-year rule that if someone has
  not been a trial lawyer for 10 years that person will not be considered.
  We do not have a rigid rule that says that if a person has
  not tried so many cases he or she will not be considered. On the
  contrary, our standards are broad enough that where that situation
  exists, not enough years at the bar, not enough trials, we look at
  other compensating factors, other similar kinds of activities of a
  trial nature, other service in the profession.
  So that while we welcome the opportunity to meet with Senator
  Biden and others to talk about the standards of the committee, we
  believe that the standards are broad enough. And I am getting a
  sense from what Senator Biden said earlier that the messenger—
  when we deliver a message to your committee that the individual,
  the nominee's community, legal community, is of the view that the
  person is lacking in one way or another, that it is the messenger
  being shot rather than the message being heard that we try to
  communicate from that nominee's legal community.
  

• 

  The CHAIRMAN

  At 01:09:51
  15 seconds

  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 you for the extraordinary amount of effort
  you have put into this in taking the time out of your practices.
  

• 

  Mr. GRECO

  At 01:10:06
  

  Thank you, Senator.
  

• 

  Mr. WATKINS

  At 01:10:06
  1 second

  Thank you for having us.
  

• 

  The CHAIRMAN

  At 01:10:07
  3 seconds

  I look forward to seeing you very soon, Mr. Watkins.
  

• 

  Mr. WATKINS

  At 01:10:10
  2 seconds

  YOU are very kind, Senator.
  

• 

  The CHAIRMAN

  At 01:10:12
  1 minute

  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 the legal academic community, both
  from Stanford University, Judge Breyer's alma mater. Gerhard
  Casper is a distinguished scholar and administrator. He is president
  of Stanford University, which I am sure he finds as politically
  trying as any one of us up here. He will not acknowledge that, I
  suspect, or maybe he does not believe that. But it would seem to
  me the next hardest job—maybe the harder job is being the president
  of a major, nationally known, and internationally recognized
  university. He is a former dean of the University of Chicago School
  of Law, and I want to ask him how he hired all those law and economics
  guys and women out there—that is a joke, an attempt at
  a joke—and provost at that university. He became president of
  Stanford in 1992.
  And if I do not run the risk of ruining your reputation, we also
  have an old acquaintance and friend, Kathleen Sullivan, who has
  moved from coast to coast here, who was kind enough to try to educate
  me, which was a very difficult job—as a Senator, not educate
  me in her classroom. Professor Sullivan was then a professor of law
  at Harvard Law School and is now a professor of law at Stanford.
  And she is an expert on constitutional and criminal law, someone
  I have personally called on a number of times when I have needed
  legal advice for the committee, and I welcome her here as well.
  So I would invite you, Mr. President—we do not often get to use
  that phrase here in the hearing—to begin your testimony, if you
  would.
  PANEL CONSISTING OF GERHARD CASPER, PRESIDENT, STANFORD
  UNIVERSITY, PALO ALTO, CA; AND KATHLEEN M. SULLIVAN,
  PROFESSOR, STANFORD UNIVERSITY LAW SCHOOL,
  PALO ALTO, CA
  STATEMENT OF GERHARD CASPER
  

• 

  Mr. CASPER

  At 01:12:00
  10 seconds

  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 challenging and interesting the life of
  a university president is.
  

• 

  The CHAIRMAN

  At 01:12:10
  14 seconds

  Well, there will soon be another one. There will
  soon be President David Boren, former Senator who will be president
  of the University of Oklahoma, and he is going to find out and
  tell us all what it is like.
  

• 

  Mr. CASPER

  At 01:12:24
  5 minutes

  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, indeed, to appear before you in support of
  President Clinton's nomination of Judge Breyer for the Supreme
  Court. I have been acquainted with Stephen Breyer's work
  throughout most of my professional life. In my still relatively new
  position as president of Stanford University, I can, as the chairman
  pointed out, happily claim Judge Breyer as an alumnus of the university,
  but I am, of course, not testifying in my role as president.
  One of the great American judges of this century, Henry Friendly,
  who served on the U.S. Court of Appeals for the Second Circuit,
  in a paper about Justice Cardozo, once referred to what is required
  in a judge. Among the requirements is, of course, that a judge
  needs to be a lawyer of "the highest grade." But a judge also needs
  to be somebody who seeks wisdom and is "blessed with saving common
  sense and practical experience as well as sound and comprehensive
  learning."
  Judge Breyer is a lawyer of the highest grade.
  He has sought opportunities
  to do the work of a lawyer in all three branches of the
  Federal Government. Indeed, I know few men or women who could
  match his varied legal experience in this respect.
  In the executive branch, he served in the Antitrust Division of
  the Justice Department.
  He also was a prosecutor in the Watergate
  Special Prosecutor's Office. In Congress, he was chief counsel to
  this important committee. In the judiciary, he started out at the
  Supreme Court, to which I hope you will return him, and, since
  1980, has been one of the most distinguished Federal appellate
  judges.
  He has even worked what you might call among the branches
  through his service as a charter member of the U.S. Sentencing
  Commission, one of those hybrid interbranch agencies that seem to
  partake of all branches at one and the same time. As a student of
  the separation of powers, I wish I had had a similar in-depth exposure
  to the workings of American Government.
  In the last few months, I have seen the press frequently refer to
  Judge Breyer as pragmatic.
  This is not a bad attribute, provided
  it is not intended to suggest that Judge Breyer prefers any result
  over no result. The opposite is true. Throughout his life, he has
  been interested in the right results. In that sense, I have always
  thought of Stephen Breyer as a man of strong ideals who thinks
  and worries much about justice, about the ends we pursue, the
  means we employ towards those ends, and what effects they will
  have.
  In his recent book, "Breaking the Vicious Circle," he expresses
  the belief that trust in institutions arises from openness, but also
  from those institutions doing a difficult job well. I quote: "A Socratic
  notion of virtue—the teachers teaching well, the students
  learning well, the judges judging well, and the health regulators
  more effectively bringing about better health—must be central in
  any effort to create the politics of trust." Trust in institutions
  should be one of our highest priorities.
  Judge Breyer's public service reflects "a saving common sense
  and practical experience." These qualities can also be found in his
  writings. His approach to the issue of societal risk management is
  marked by "a saving common sense." In this instance, the attribute
  "saving" may be taken quite literally, since Breyer favors foregoing
  those regulatory gains and risk management that are too small in
  relation to the resources they consume. What is saved can be applied
  to other national needs and social priorities.
  I referred to Judge Breyer's "Socratic notion of virtue," which includes
  that judges should judge well. The first prerequisite of judging
  well is to judge clearly. Reading Breyer opinions is a genuine
  pleasure—perhaps, as he has suggested, even "for a high school
  student," though I confess to doubts on that count. His opinions are
  so written that you understand every step of the way: what the
  parties argue, what evidence they rely upon, what the judge understands
  to be the state of the law, what the uncertainties are, how
  he intends to resolve them and why, how the judge views the facts,
  and, finally, the conclusions all of this leads him to. One can readily
  agree or disagree with Judge Breyer because he is clear about
  where he stands.
  In the era of administrative government, we should consider ourselves
  fortunate that the nominee is one of the country's leading
  experts on administrative law who has a mature understanding of
  the Constitution and the requirements that follow from a commitment
  to the rule of law. Perhaps the most important question concerning
  trust that the country faces for the foreseeable future is
  who will control administrative government and how. In order to
  cope with that challenge, the Supreme Court needs much wise understanding
  of how the institutions of government work. It is my
  belief that Judge Breyer will bring that understanding to the
  Court, in addition to his commitment to the Constitution and the
  rule of law.
  Thank you very much, Mr. Chairman and other members of the
  committee.
  

• 

  Senator METZENBAUM

  At 01:18:11
  3 seconds

  Professor Sullivan.
  STATEMENT OF KATHLEEN M. SULLIVAN
  

• 

  Ms. SULLIVAN

  At 01:18:14
  7 minutes

  Thank you very much to the chairman for his generous
  introduction, to the chairman and the members of the committee
  for the privilege of allowing me to testify here. It is a great
  honor and a great pleasure and easy task to testify in enthusiastic
  support for Judge Breyer's nomination to the Supreme Court. I had
  the privilege and pleasure of serving as his colleague in nearly a
  decade that we were both on the Harvard Law School faculty, and
  I know his opinions and his academic writings well.
  I would like to focus briefly here today on three features of Judge
  Breyer's excellent virtues for the Court. The first is his pragmatic
  philosophy. Second is the excellence of his legal craft. And the third
  is his judicious temperament.
  Now, the committee has heard a great deal from Judge Breyer
  himself in the last few days about his pragmatism. He has said to
  you here, as he has said in his writings, that the law is a profoundly
  human institution. It is designed to allow the many different
  individuals who make up America from so many different
  backgrounds and circumstances to live together productively, harmoniously,
  and in freedom. It is a human institution serving basic
  human or societal needs.
  And he has said that it must be a practical effort, and many
  might think, well, this is all very good to be practical. It sounds
  sound. But is it a judicial philosophy? And my key point before the
  committee today is that I would like to emphasize that pragmatism
  is a coherent judicial philosophy. And, indeed, it is the philosophy
  of the 20th century Court.
  Judge Breyer, in his pragmatism, is the spiritual heir of the
  great Justices of the Court in this century. Most especially, we can
  start with Justice Oliver Wendell Holmes from Senator Kennedy's
  home State, the Commonwealth of Massachusetts. This came up in
  the colloquy with Senator Cohen and others on the committee the
  other day. Judge Breyer is the spiritual heir of Justice Oliver Wendell
  Holmes in the following sense: He sees, as Holmes did, that
  law is not an intellectual exercise in abstract theory. Rather, the
  law, including constitutional law, is a practical enterprise rooted in
  the complexity of actual social life.
  As Justice Holmes put the point in perhaps his most famous aphorism,
  'The life of the law has not been logic: it has been experience."
  That is why pragmatism rejects the notion that legal or constitutional
  interpretation can be reduced to any single grand unified
  theory, any simple, overarching approach.
  Judge Breyer, as a pragmatist in the tradition of Holmes, instead
  takes a flexible, undogmatic view of the tools that are relevant to
  interpreting the Constitution and the laws passed by the political
  bodies. Whether interpreting a statute or a constitutional provision,
  he would look to text and structure and history and tradition and
  precedent and the way we live today and the way we might live
  in the future as his guides to meaning. He would not rigidly limit
  himself to any of these tools alone.
  Pragmatism likewise stresses the need for flexibility and adaptability
  over time, so that the law, including constitutional law, may
  continue to serve its underlying purposes amid changed circumstances.
  As Judge Breyer stressed in his testimony, the Constitution
  must be read in light of its purposes, just as statutes
  must be read in light of theirs.
  Now, such reasoning is really in the mainstream of the greatest
  thought of 20th century Justices on the Court, from Holmes at the
  beginning of the century, to Harlan in an era closer to our own
  time. Justice Harlan captured pragmatism's look at the flexibility
  needed in law in his famous saying that due process cannot be reduced
  to any formula and its content cannot be determined by reference
  to any code.
  Now, you might say that is very well and good, but does pragmatism
  have any problems? And one might ask three questions
  about pragmatism, and I think the answer in Judge Breyer's case
  is very satisfactory as to all three.
  One might ask, first of all, does pragmatism mean that the judge
  is just going to do what he thinks is best according to his own light,
  what he thinks is practical or good? And there the answer is most
  clear from Judge Breyer's record: Absolutely not.
  As Judge Breyer's mentor, the late Justice Arthur Goldberg for
  whom he clerked once wrote
  In determining which rights are fundamental, judges are not left at large to decide
  cases in light of their personal and private notions. Rather, they must look to
  the "traditions and conscience of our people" * * * [and to] "experience with the requirements
  of a free society."
  Tradition, our people, our conscience, our experience, outside
  himself.
  Judge Breyer, as he himself assured the committee on Tuesday,
  has said that the job of a judge is not to legislate from the bench,
  but to look outside himself to those guides to meaning in order to
  follow the law laid down.
  Pragmatism is a philosophy of judicial humility, not judicial arrogance.
  It holds that, as Holmes said, general propositions cannot
  decide concrete cases, and that adjudication between two competing
  legal claims is necessarily a matter of degree.
  And one might ask, second, well, all right, I accept that pragmatism
  is respectful law, and a pragmatic judge will look outside
  himself and be guided by our history, our tradition, our precedent.
  But does this mean that he will decide things in an ad hoc fashion,
  that he will issue decisions that will only last for a time? And
  there, again, the answer is, in Judge Breyer's case, most clearly
  "no".
  As Judge Breyer himself has emphasized in his testimony, a
  pragmatist judge looks not only backward to our traditions but forward
  to how the law can be an authoritative and predictable guide.
  Of necessity, such an approach embodies deep respect for democratic
  institutions and the will of the community.
  Third, though, one might say, well, with all this respect for law
  and history and tradition and precedent and the will of the community,
  will a pragmatist judge like Judge Breyer sacrifice constitutional
  rights? Absolutely not. Again, the answer is clear. Absolutely
  not. Judge Breyer's record is quite clear that when rights are clearly
  embodied in the Constitution or in statute, he has not hesitated
  boldly and squarely to uphold them, whether rights of free speech,
  free conscience, rights to equal protection of the law.
  In sum, Judge Breyer's thoughtful commitment to pragmatism
  places him squarely in the mainstream of this century's most important
  judicial philosophy and allies him with the Court's most
  powerful and influential Justices from Harlan to Holmes.
  I will be brief on the second two points. I would like to say in
  addition
  

• 

  The CHAIRMAN

  At 01:25:34
  5 seconds

  Kathleen, it is only our friendship that is allowing
  you to go beyond your 5 minutes, but go ahead.
  

• 

  Ms. SULLIVAN

  At 01:25:39
  48 seconds

  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? We should not confuse passion with
  commitment to justice and fairness, and I think Justice Breyer's
  opinions, like Judge Breyer's opinions, will be marked by a kind of
  superior craftsmanship and legal excellence that enables him to
  bring about justice and fairness in a way that might be more enduring
  than the efforts of mere passion alone.
  And, last, he is, as you have seen and as others have testified—
  and I wholly concur—a man of great evenhandedness and openmindedness.
  He has the qualities of spirit as well as mind to be one
  of the great Justices on the Supreme Court in this century.
  Thank you very much.
  

• 

  The CHAIRMAN

  At 01:26:27
  1 minute

  Thank you very much, Professor.
  I read with some interest the treatise of Professor Farber of the
  University of Minnesota on pragmatism and the criticisms of the
  new pragmatism—as nonlawyers have a clear sense, we lawyers
  sometimes try to give phrases that have generic meanings very
  specific meanings that sometimes are difficult to understand. There
  are some very cogent criticisms of pragmatism.
  I have one question for you, Professor. You make it clear that
  you think that Judge Breyer is a legal pragmatist in the tradition
  of Holmes and Harlan. Apart from the work of these two Justices,
  what makes you conclude that the Court's dominant tradition in
  this century has been legal pragmatism?
  

• 

  Ms. SULLIVAN

  At 01:27:32
  34 seconds

  It is not just Justice Holmes, but also Justice
  Cardozo, to a great extent Justice Brandeis, who launched us in
  the modern constitutional tradition who were pragmatists, who
  were influenced by that distinctively American philosophy that
  says that the value of something is to be measured by its practical
  effect. It is a distinctively American tradition rooted in the writings
  of Dewey and Perse and James. But to connect it up with our own
  time, I believe it is also the dominant judicial philosophy on our
  Supreme Court today. It is a philosophy that enables
  

• 

  The CHAIRMAN

  At 01:28:06
  4 seconds

  That was my next question. I would like to know
  why you conclude that.
  

• 

  Ms. SULLIVAN

  At 01:28:10
  1 minute

  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 come from very different places in life and
  very different views of the world, very different political sides of
  the aisle, can come together around basic propositions such as that
  people should be unfettered in their right of access to basic constitutional
  rights, such as the view that there is a balance to be
  held between the interests of people in exercising their religion and
  the interests of keeping the public order free from the establishment
  of religion.
  In issues like privacy and speech and religion, the most contested
  issues in our time, where it is so easy to be divided, where it is
  so easy to be passionate, we have seen that pragmatism is what
  enables Justices, as distinctive across a spectrum from Chief Justice
  Rehnquist to Justice Ginsburg to agree, to agree on what is the
  best outcome in a particular case.
  

• 

  The CHAIRMAN

  At 01:29:11
  7 seconds

  YOU think that is the spectrum? I kind of think
  it goes Rehnquist, Ginsburg, to some other place. But
  

• 

  Ms. SULLIVAN

  At 01:29:18
  18 seconds

  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, but I think we have seen it in recent
  terms to be dominant, and that is no surprise. That is no surprise
  because the people on the Court today are bearers of the tradition
  that traces back to Holmes.
  

• 

  The CHAIRMAN

  At 01:29:36
  3 minutes

  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 and Kennedy and others. I will end
  with this, but I was just asked by a press person 10 minutes ago
  on the way back from the vote where did I think Judge Breyer fit
  of the six or seven nominees I have presided over, the eight or nine
  that I have either been in the minority or majority, ranking member
  or Chair. And something struck me, and I would like you to
  comment on it. Notwithstanding that there have been some aberrations,
  there is a similarity in approach, although reaching different
  conclusions sometimes, from the Republican appointees of Kennedy
  and Souter, for example, and the Clinton appointees of Ginsburg
  and Breyer.
  I have no way to prove this, but it seems to me there is a
  generational element that fits here in the following sense—and I
  have facetiously said they are somewhere between "Ozzie and Harriet"
  and Roseanne Barr in terms of their life experiences, in what
  they value and do not value, what they view as accepted and given
  values of this society. I do not think we are going to see any fundamental
  difference among them on issues of race, on issues of
  basic civil rights and civil liberties.
  Oh, there will be disagreements. You know, that old expression:
  Hard cases make bad law, and lots of those hard cases get to the
  Supreme Court, on the rights of defendants and determining how
  far the right to privacy goes and does not go. But it seems as
  though they reflect these values that are shared in common that
  reflect this pragmatic approach you have referred to in their approach
  to constitutional methodology.
  Talk to me about that a little bit, about where you see these last
  four nominees in fitting within your definition of pragmatism and
  the tradition of Holmes and Harlan and others.
  

• 

  Ms. SULLIVAN

  At 01:32:38
  1 minute

  I agree, Mr. Chairman, with your description. I
  think that there is a lot of similarity of method and approach
  among these recent nominees, and I think that is no surprise, and
  I think it is generational, as you suggest.
  Justice Blackmun, whom Justice Breyer will replace, and Justice
  Kennedy and Justice Souter at Harvard and Judge Breyer at Harvard,
  like Justice O'Connor and Chief Justice Rehnquist at Stanford,
  received an education in this pragmatic tradition. The pragmatic
  tradition was distilled in the 1950's and 1960's into what is
  sometimes called the legal process school, dominated by Professors
  Henry Hart and former dean of Harvard Law School Albert Sachs,
  the late Albert Sachs.
  What they said is very much like what Judge Breyer has said to
  you today. We have got to look at all the sources of information we
  can, institutions, history, text, structure, tradition, precedent, in
  order to inform our judgments. And we have got to be humble; we
  have got to be modest; we have got to decide the case before us.
  We have got to mistrust grand theories and sweeping propositions.
  We mistrust the philosopher in his certainty that he has the right
  angle on all questions. We are more modest folks. We want to look
  at the case before us and decide things case by case.
  So I think their training, both at Harvard and at Stanford, and
  at the other schools from where the Justices comes, was very similar.
  

• 

  The CHAIRMAN

  At 01:34:07
  4 seconds

  SO that if anyone is dissatisfied with the Court,
  they can blame in on Harvard and Stanford.
  

• 

  Ms. SULLIVAN

  At 01:34:11
  2 seconds

  That is right.
  

• 

  Mr. CASPER

  At 01:34:13
  1 second

  Senator Biden, may I add something?
  

• 

  The CHAIRMAN

  At 01:34:14
  1 second

  Please. I am finished.
  

• 

  Mr. CASPER

  At 01:34:15
  49 seconds

  YOU pointed to the basic consensus among the Justices
  and the candidates you have seen on redefining American values.
  And I think in the heat of debate over the last decade or so,
  we sometimes forget how strong that consensus actually is. The
  consensus is very strong in the country.
  It so happened that I was just reading last night a paper on evaluating
  public attitudes toward those values, and it is very gratifying
  to see that the public across all ethnic groups continues to be
  very much dedicated to these values. And so is the group of lawyers
  that have been educated at our law schools, to a very large
  extent. The gap is not as great as it sometimes seems to be made
  out in the press.
  

• 

  The CHAIRMAN

  At 01:35:04
  2 minutes

  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," by Daniel A. Farber,* of the
  University of Minnesota Law School, which goes into great detail,
  but essentially raises in great detail the criticisms of legal pragmatism
  by others and the defenses. But I, quite frankly, gain some
  solace from what I think has been a diminution of the ideological
  warfare, if you will, that has gone on in the recent past on occasion,
  with the exception of the Justices that I have named, although
  I am absolutely convinced beyond any reasonable doubt
  that under the advise and consent clause Senators have a right to
  ask whatever they wish to ask and a right to resist an appointment
  whenever they so deem appropriate.
  What is a right is not always wise to exercise. I have views that
  have been informed by people like you, Kathleen, and others that
  are somewhat different sometimes from some of the Justices that
  are on the Court, and I am sure they will differ with Justice
  Breyer. But this acceptance that seems to run through the four
  Justices I have mentioned of the basic touchstones in the American
  value system on the important issues is, I think, an important
  point to make, and you have made it well. I thank you both.
  I yield the floor now to my friend from Utah.
  

• 

  Senator HATCH

  At 01:37:10
  24 seconds

  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 have you here and we appreciate your testimony.
  And I agree that this is an excellent nominee. Do I agree
  with him on everything? None of us does, and that is not the issue.
  The issue is, I think, more than put to rest by his testimony and
  helped by yours.
  Thank you.
  

• 

  Ms. SULLIVAN

  At 01:37:34
  2 seconds

  Thank you.
  

• 

  Mr. CASPER

  At 01:37:36
  4 seconds

  Thank you, Senator.
  

• 

  Senator KENNEDY

  At 01:37:40
  39 seconds

  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 committee have benefited from her
  enormous insight on these constitutional issues and questions. You
  have had an incredibly distinguished career up at Harvard Law
  School, and I know all the members of this committee have valued
  very much your insights, and the breadth of her sensitivity on so
  many of these fundamental issues of constitutional rights and liberties.
  We are delighted to have you here.
  

• 

  Ms. SULLIVAN

  At 01:38:19
  1 second

  Thank you, Senator.
  

• 

  Senator KENNEDY

  At 01:38:20
  2 seconds

  The clock has gone on. I wanted to just
  

• 

  The CHAIRMAN

  At 01:38:22
  5 seconds

  Excuse me, Senator. They tell me we have 6 minutes
  before the vote.
  

• 

  Senator KENNEDY

  At 01:38:27
  54 seconds

  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 of a woman to terminate a pregnancy is
  encompassed within that right. I would just like to ask you about
  Judge Breyer's record in that area.
  In Commonwealth of Massachusetts v. HHS, Judge Breyer joined
  the first circuit in holding that the so-called gag rule barring counseling
  with respect to abortion by federally funded family planning
  programs violated what the Court called the right of reproductive
  choice as well as the first amendment.
  Just based on this first circuit opinion and Judge Breyer's overall
  record, are you confident that Justice Breyer sitting on the Supreme
  Court will do honor to Justice Blackmun's legacy in upholding
  the fundamental right to choose recognized in Roe y. Wade?
  

• 

  Ms. SULLIVAN

  At 01:39:21
  1 minute

  Senator Kennedy, as Judge Breyer said before the
  committee, he regards Roe v. Wade as settled law, as reaffirmed in
  Casey two terms ago. But the case that you mention, Commonwealth
  of Massachusetts v. Secretary of HHS, reinforces that view
  because that was a case in which the first circuit, sitting en bane,
  Judge Breyer voting with the court for this view, held that the socalled
  gag rule that said those clinics that take Federal money can
  counsel for pregnancy but they cannot counsel in favor of abortion,
  what the first circuit did is they struck that down, and they said
  that violates not only the first amendment rights of doctors to
  speak and women to listen to truthful medical advice, but it also
  violates their right of privacy by, in effect, burdening that right
  with skewed information, a bum steer.
  Now, in a very close, it is a very difficult and controversial area
  because it involves Federal funding, and the Supreme Court came
  to the opposite conclusion in Rust v. Sullivan. But I think in that
  very thoughtful and very well developed opinion for the first circuit,
  Judge Breyer joined in a view that the right of privacy is fundamental
  and that it must be protected against burdens.
  

• 

  Senator KENNEDY

  At 01:40:34
  6 seconds

  Thank you very much. Our time I think is up,
  Mr. Chairman.
  I again want to thank the panel.
  

• 

  The CHAIRMAN

  At 01:40:40
  41 seconds

  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 be here and ask you a lot of questions anything
  other than respect for your testimony and lack of disagreement
  with what you have come here to suggest. So I thank you both
  very, very much, and, Mr. President, I mean this sincerely, I wish
  you well. You are at the helm of one of the great universities in
  the world, and it is a hell of an honor, I am sure, but an incredible
  obligation and difficult task. I wish you well. It is a great school.
  

• 

  Mr. CASPER

  At 01:41:21
  8 seconds

  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 colors.
  

• 

  The CHAIRMAN

  At 01:41:29
  1 second

  Yes, she is.
  

• 

  Mr. CASPER

  At 01:41:30
  7 seconds

  I assume that was in honor of my appearance here
  today. Please express my appreciation to her.
  

• 

  The CHAIRMAN

  At 01:41:37
  9 seconds

  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 you both very, very much.
  

• 

  Ms. SULLIVAN

  At 01:41:46
  1 second

  Thank you, Mr. Chairman.
  

• 

  The CHAIRMAN

  At 01:41:47
  1 minute

  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 Judge Breyer. And as soon as I return, we
  will empanel that panel and get on with the testimony.
  We will adjourn for a vote.