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
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,
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
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
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
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.
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
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?
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 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.
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.
I am thinking about it. [Laughter.]
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.
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.
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.
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.
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.
Thank you, Senator.
Thank you, Senator.
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
DO not get carried away, now. [Laughter.]
It might be a close vote on the committee.
Well, since I have included you both, you
can see how far I am prepared to go. [Laughter.]
YOU can see how radical Howard really is.
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.
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.
Would Senator Metzenbaum yield for just a second?
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
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.
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
We sure do.
The CHAIRMAN [continuing]. And hopefully, you appreciate the
fact we are not going to pay attention to some of them.
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.
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
I yield to the Senator from Maine.
Thank you, Mr. Chairman.
I think the discussion has been very helpful. I would like to go
back and just say that I think it is important that they do give due
consideration to trial experience when we are talking about
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
Is someone who has, obviously, a
strong sense of ego, has a
Well, I do not subscribe to that.
A good memory
I subscribe to that.
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
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.
May I respond, Senator?
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.
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
And has two law clerks sitting with him.
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
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.
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
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
Thank you, Senator. We would be happy to look
at that and see if it would make any difference with regard to
I cannot think that it—I do not think that it
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.
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
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, Senator.
I thank you for your presence here today, and I
look forward to meeting with you soon.
Thank you for allowing us to appear.
Thank you, Senator.
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
Governor Cuomo would have been an excellent
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?
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.
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
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.
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.
I have no questions.
Let me yield to my colleague, Senator Grassley.
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?
That is not quite fair, Senator.
OK; I will listen to your
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
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
If they say no, then we do not use that interviewee's information.
But as a general rule, then, the idea is that
you will keep the names of the people you have interviewed confidential?
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.
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
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?
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
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
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?
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.
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.
May I respond?
YOU can. I said I would listen to you. I owe
you that courtesy.
I believe that those judges that resigned or were
impeached, there were questions of integrity that caused their resignation
That is probably very true, but they still were
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.
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.
Thank you, Senator Grassley.
I have already had questions.
Mr. Greco, I believe, has something to add to what
I said, Senator.
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.
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
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?
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
I would hate to see the messenger shot for delivering the message
from that individual's legal community.
Unless the messenger is tainted in his inquiry,
then perhaps he deserves to be shot.
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
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.
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.
Thank you, Senator.
Thank you for having us.
I look forward to seeing you very soon, Mr. Watkins.
YOU are very kind, Senator.
NO, I am serious. I do want to talk to you about
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
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
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.
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.
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
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
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
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
STATEMENT OF KATHLEEN M. SULLIVAN
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
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
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
Kathleen, it is only our friendship that is allowing
you to go beyond your 5 minutes, but go ahead.
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.
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?
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
That was my next question. I would like to know
why you conclude that.
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
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.
YOU think that is the spectrum? I kind of think
it goes Rehnquist, Ginsburg, to some other place. But
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.
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
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.
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.
SO that if anyone is dissatisfied with the Court,
they can blame in on Harvard and Stanford.
That is right.
Senator Biden, may I add something?
Please. I am finished.
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.
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.
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, Senator.
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.
Thank you, Senator.
The clock has gone on. I wanted to just
Excuse me, Senator. They tell me we have 6 minutes
before the vote.
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?
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.
Thank you very much. Our time I think is up,
I again want to thank the panel.
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.
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.
Yes, she is.
I assume that was in honor of my appearance here
today. Please express my appreciation to her.
I will. Let me ask staff, are there any Senators
who wish this panel to stay? I do not believe there was a request
I thank you both very, very much.
Thank you, Mr. Chairman.
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.