Souter Confirmation Day 1, Part 2 - Sep 13, 1990

Transcript Text

  • The CHAIRMAN

    At 00:00:49
    22 seconds

    The hearing will come to order.
    Judge, would you please stand to be sworn? Do you swear that
    the testimony you are about to give will be the whole truth and
    nothing but the truth, so help you God?

  • Judge SOUTER

    At 00:01:11
    6 seconds

    I do.

  • The CHAIRMAN

    At 00:01:17
    1 minute

    We are going to wait a moment while the photographers
    have an opportunity to leave and get their lunch or
    whatever they would like to do. They are very angry with me.
    [Pause.]
    Welcome back to the hearing, Judge Souter. As I
    indicated before we left, we would welcome any opening statement
    you have to make for as short or as long as you wish to make it.
    Then we will begin with questions.
    TESTIMONY OF HON. DAVID H. SOUTER, TO BE ASSOCIATE
    JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

  • Judge SOUTER

    At 00:02:29
    6 seconds

    Thank you, Mr. Chairman. I probably should
    begin by asking you if you can hear me as well as I can hear you.

  • The CHAIRMAN

    At 00:02:35
    1 second

    Yes, we can, Judge.

  • Judge SOUTER

    At 00:02:36
    13 minutes

    Mr. Chairman, Senator Thurmond, and other
    members of the committee, as you know, I did not ask to make a
    formal and preprepared statement, but I would like to accept your
    invitation to say a few words before our dialog together does begin.
    I would like to start maybe in a very obvious way simply by
    saying thanks for some things, to begin with, to thank every
    member of this committee who, in the waning and the very hectic
    days that you went through prior to the summer recess, nonetheless
    found some time to see me when I came by to meet you, in
    most cases for the first time. I was grateful for the reception and
    the courtesy that every one of you gave to me.
    Equally obviously, I would like simply to say here what I have
    already said privately this morning, or at least quietly this morning,
    in thanking both Senator Humphrey and Senator Rudman for
    their generosity to me in their introduction and their sponsorship
    of me before you. And I will have to continue, as I have been trying
    to do for the past 7 or 8 weeks now, to say some adequate thanks to
    the President of the United States for the confidence that he
    showed in me in making that nomination. I have not succeeded in
    doing that adequately yet, but I will keep trying.
    In fact, I came to the notice of probably most of you on this committee
    when I stood next to the President and tried—again, with
    great difficulty—that afternoon in late July to express some sense
    of the honor that I felt, despite the surprise and even shock of the
    event to me. It is equally incumbent on me to try to express some
    sense of the honor that I feel today in appearing before you, as you
    represent the Senate of the United States in discharging your own
    responsibility to review the President's nomination. I could only
    adopt what Senator Metzenbaum said earlier this morning about
    the grandeur of this process of which we are a part.
    I mentioned to you the great surprise that I had on July 23 in
    finding myself where I was. I certainly found very quickly that I
    had no reason to be surprised at the interest which the United
    States and, actually, a good deal of the world suddenly took in me
    as an individual. And despite the reams of paper and I suppose the
    forests that have fallen to produce that paper in the time between
    July 23, I would like to take a minute before we begin our dialog
    together to say something to you about how I feel about the beginnings
    that I have come from and about the experiences that I have
    had that bear on the kind of judge that I am and the kind of judge
    that I can be expected to be.
    I think you know that I spent most of my boyhood in a small
    town in New Hampshire—Weare, NH. It was a town large in geography,
    small in population. The physical space, the open space between
    people, however, was not matched by the interspace between
    them because, as everybody knows who has lived in a small town,
    there is a closeness of people in a small town which is unattainable
    anywhere else. There was in that town no section or place or
    neighborhood that was determined by anybody's occupation or by
    anybody's bank balance. Everybody knew everybody else's business,
    or at least thought they did. And we were, in a very true sense,
    intimately aware of other lives. We were aware of lives that were
    easy, and we were aware of lives that were very hard.
    Another thing that we were aware of in that place was the responsibility
    of people to govern themselves. It was a responsibility
    that they owed to themselves, and it was a responsibility that they
    owed and owe to their neighbors. I first learned about that or I
    first learned the practicalities of that when I used to go over to the
    town hall in Weare, NH, on town meeting day. I would sit in the
    benches in the back of the town hall after school, and that is where
    I began my lessons in practical government.
    As I think you know, I went to high school in Concord, NH,
    which is a bigger place, and I went on from there to college and to
    study law in Cambridge, ME, and Oxford, England, which are
    bigger places still. And after I had finished law school, I came back
    to New Hampshire, and I began the practice of law. And I think
    probably it is fair to say that I resumed the study of practical government.
    I went to work for a law firm in Concord, NH, and I practiced
    there for several years. I then became, as I think you know, an assistant
    attorney general in the criminal division of that office.
    I
    was then lucky to be deputy attorney general to Warren Rudman,
    and I succeeded him as attorney general in 1976.
    The experience of government, though, did not wait until the day
    came that I entered public as opposed to private law practice; because
    although in those years of private practice I served the private
    clients of the firm, I also did something in those days which
    was very common then. Perhaps it is less common today—I know it
    is—but it was an accepted part of private practice in those days to
    take on a fair share of representation of clients who did not have
    the money to pay.
    I remember very well the first day that I ever spent by myself in
    a courtroom. I spent in a courtroom representing a woman whose
    personal life had become such a shambles that she had lost the custody
    of her children, and she was trying to get them back. She was
    not the last of such clients. I represented clients with domestic relations
    problems who lived sometimes, it seemed to me, in appalling
    circumstances. I can remember representing a client who was
    trying to pull her life together after being evicted because she
    couldn't pay the rent.
    Although cases like that were not the cases upon which the firm
    paid the rent, those were not remarkable cases for lawyers in private
    practice in those days before governmentally funded legal
    services. And they were the cases that we took at that time because
    taking them was the only way to make good on the supposedly
    open door of our courts to the people who needed to get inside
    and to get what courts had to offer through the justice system.
    I think it is fair to say—I am glad it is fair to say—that even
    today, with so much governmentally funded legal service, there are
    lawyers in private practice in our profession who are doing the
    same thing.
    As you know, I did go on to public legal service, and in the
    course of doing that, I met not only legislators and the administrators
    that one finds in the government, but I began to become familiar
    with the criminal justice system in my State and in our Nation.
    I met victims and sometimes I met the survivors of victims. I met
    defendants. I met that train of witnesses from the clergy to con artists
    who passed through our system and find themselves, either
    willingly or unwillingly, part of a search for truth and part of a
    search for those results that we try to sum up with the words of
    justice.
    As you also know, after those years I became a trial judge, and
    my experience with the working of government and the judicial
    system broadened there because I was a trial judge of general jurisdiction,
    and I saw every sort and condition of the people of my
    State that a trial court of general jurisdiction is exposed to. I saw
    litigants in international commercial litigation for millions, and I
    saw children who were the unwitting victims of domestic disputes
    and custody fights which somehow seemed to defy any reasonable
    solution, however hard we worked at it.
    I saw, once again, the denizens of the criminal justice system,
    and I saw domestic litigants. I saw appellants from the juvenile justice
    system who were appealing their findings of delinquency. And,
    in fact, I had maybe one of the great experiences of my entire life
    in seeing week in and week out the members of the trial juries of
    our States who are rightly called the consciences of our communities.
    And I worked with them, and I learned from them, and I will
    never forget my days with them.
    When those days on the trial court were over, there were two experiences
    that I took away with me or two lessons that I had
    learned, and the lessons remain with me today. The first lesson,
    simple as it is, is that whatever court we are in, whatever we are
    doing, whether we are on a trial court or an appellate court, at the
    end of our task some human being is going to be affected. Some
    human life is going to be changed in some way by what we do,
    whether we do it as trial judges or whether we do it as appellate
    judges, as far removed from the trial arena as it is possible to be.
    The second lesson that I learned in that time is that if, indeed,
    we are going to be trial judges, whose rulings will affect the lives of
    other people and who are going to change their lives by what we
    do, we had better use every power of our minds and our hearts and
    our beings to get those rulings right.
    I am conscious of those two lessons, as I have been for all of the
    years that I was on an appellate course. I am conscious of them as
    I sit here today, suddenly finding myself the nominee of the President
    of the United States to undertake the greatest responsibility
    that any judge in our Republic can undertake: The responsibility to
    join with eight other people, to make the promises of the Constitution
    a reality for our time, and to preserve that Constitution for
    the generations that will follow us after we are gone from here.
    I am mindful of those two lessons when I tell you this: That if
    you believe and the Senate of the United States believes that it is
    right to confirm my nomination, then I will accept those responsibilities
    as obligations to all of the people in the United States
    whose lives will be affected by my stewardship of the Constitution.
    Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 00:16:06
    2 minutes

    Thank you very much, Judge, for a statement
    that gives us all more insight into you. When I ended my opening
    statement, I said "maybe a little glimpse into your heart," I think
    you have given us a little glimpse into your heart as well as how
    you view the responsibility you hope to undertake.
    Judge, before I begin my questioning, I want to make it clear to
    you that under precedence—we can debate and argue, which we
    will up here, about how long they have existed—but under precedence
    dating back, as one of my colleagues said, at least to the
    1950's, and arguably much earlier, each member of the committee
    can decide whatever questions he deems proper to ask you. We
    have never imposed a gag rule on any committee member.
    But, Judge, while we may ask any questions we deem proper, you
    are free to refuse to answer any questions you deem to be improper.
    No one is going to try to force you to answer any question you
    think in good conscience you cannot appropriately address. So,
    Judge Souter, I trust you are fully capable of deciding for yourself
    which questions you can and cannot speak to. And we or an individual
    Senator may not agree with your decision, but that decision
    is yours and will be protected.
    Everyone involved in the process, both the members of this committee
    and you, I think have to be guided by the most considered
    interpretation of our respective constitutional responsibilities. And
    I know from my first discussion with you weeks ago that that was
    a judgment, as I think you have said, to paraphrase you, when the
    photographs had left my office, and I said "How are you? What are
    you looking forward to?" And you said something to the effect:
    Going home to New Hampshire to think about how you can appro53
    priately reveal to us and the Nation your constitutional philosophy
    within the limitations you think you are bound by.
    So to clear it up, to state it again, any member can ask anything.
    You don't have to answer if you think it is inconsistent with what
    your responsibilities are.

  • Judge SOUTER

    At 00:18:41

    I appreciate that. Thank you.

  • The CHAIRMAN

    At 00:18:41
    1 minute

    NOW, Judge, let me begin. You said in your statement,
    you used the phrase "the promises of our Constitution." That
    is the phrase you used, and that is really what I want to discuss
    with you—the promises of our Constitution. What does it promise?
    Because there are very, very different views held by very bright
    women and men, all experts in the law, many incredibly well informed,
    who have very different visions of what the promises of
    our Constitution are.
    Judge, it comes as no surprise to you, as I discussed with you a
    little bit yesterday, there is nothing intended that I am about to
    ask you that is designed as a surprise, so much to the extent that I
    think you were probably surprised yesterday when I told you what
    I was going to ask you.

  • Judge SOUTER

    At 00:19:42
    3 seconds

    I was a little bit.

  • The CHAIRMAN

    At 00:19:45
    23 seconds

    And it will not surprise any of the press I see out
    there because it is something I care deeply about, and they are
    probably tired of hearing me talk about it, but I am going to continue
    to talk about it. And as, Judge Souter, a close friend of yours,
    and I consider him, quite frankly, a close friend of mine, my colleague
    Warren Rudman, has said—he has said many things, but he
    has said that Supreme Court

  • Judge SOUTER

    At 00:20:08
    4 seconds

    YOU should have been staying with him for the
    last 10 days. [Laughter.]

  • The CHAIRMAN

    At 00:20:12
    5 seconds

    NO, we each have our own jobs. That is your job,
    not my job.

  • Judge SOUTER

    At 00:20:17
    1 second

    I realize that.

  • Senator HATCH

    At 00:20:18
    3 seconds

    We live with him every day, let me tell you.
    [Laughter.]

  • The CHAIRMAN

    At 00:20:21
    1 minute

    But he has indicated that one of the Supreme
    Court Justices you most admire was the second Justice Harlan,
    who served on the Supreme Court between 1955 and 1971, and who
    was widely regarded, is widely regarded as one of the great conservative
    Justices ever to serve on the Court.
    Now, Justice Harlan concurred in the Court's landmark decision
    of Griswold. That is the Connecticut case that said that the State
    of Connecticut, the legislature and the Governor couldn't pass a
    law that—constitutionally—said that married couples could not use
    birth control devices to determine whether or not they wished to
    procreate.
    Justice Harlan indicated that that Connecticut law violated the
    due process clause of the 14th amendment which says that no State
    can deprive any person of life, liberty, or property without process
    of law.
    Now, my question is this, Judge: Do you agree with Justice Harlan's
    opinion in Griswold that the due process clause of the 14th
    amendment protects a right of a married couple to use birth control
    to decide whether or not to have a child?

  • Judge SOUTER

    At 00:21:45
    10 seconds

    I believe that the due process clause of the 14th
    amendment does recognize and does protect an unenumerated
    right of privacy. The

  • The CHAIRMAN

    At 00:21:55
    9 seconds

    And that—please continue. I didn't mean to interrupt.
    I like what you are saying.

  • Judge SOUTER

    At 00:22:04
    1 minute

    The only reservation I have is a purely formal
    reservation in response to your question, and that simply is: No
    two judges, I am sure, will ever write an opinion the same way,
    even if they share the same principles. And I would not go so far as
    to say every word in Justice Harlan's opinion is something that I
    would adopt. And I think for reasons that we all appreciate, I
    would not think that it was appropriate to express a specific opinion
    on the exact result in Griswold, for the simple reason that as
    clearly as I will try to describe my views on the right of privacy,
    we know that the reasoning of the Court in Griswold, including
    opinions beyond those of Justice Harlan, are taken as obviously a
    predicate toward the one case which has been on everyone's mind
    and on everyone's lips since the moment of my nomination—Roe v.
    Wade, upon which the wisdom or the appropriate future of which it
    would be inappropriate for me to comment.
    But I understand from your question, and I think it is unmistakable,
    that what you were concerned about is the principal basis for
    deriving a right of privacy, and specifically the kind of reasoning
    that I would go through to do so. And in response to that question,
    yes, I would group myself in Justice Harlan's category.

  • The CHAIRMAN

    At 00:23:40
    9 seconds

    Well, Judge, let me make it clear, I am not
    asking you about how you would decide or what you even think
    about Roe v. Wade.

  • Judge SOUTER

    At 00:23:49
    2 seconds

    I understand that.

  • The CHAIRMAN

    At 00:23:51
    19 seconds

    NOW, in the Griswold case, I am curious what
    proposition you think it stands for. Do you believe it is a case in a
    long line of cases, establishing an unenumerated right to privacy, a
    right the Constitution protects, even though it is not specifically
    mentioned in the document?

  • Judge SOUTER

    At 00:24:10
    2 minutes

    I think probably it would be fairest to say that it
    is a case in a confused line of cases and it is a case which, again
    referring to the approach that Justice Harlan took, it is a case
    which to me represents at least the beginnings of the modern effort
    to try to articulate an enforceable doctrine.
    My own personal approach to that derivation begins with, I suppose,
    the most elementary propositions about constitutional government,
    but I do not know of any other way to begin. I am mindful
    not only of the national Constitution of 1787, but of the history of
    State constitution-making in that same decade.
    If there is one generalization that we can clearly make, it is the
    generalization about the intended limitation on the scope of governmental
    power. When we think of the example of the national
    Constitution, I think truly we are at the point in our history when
    every schoolchild does know that the reason there was no Bill of
    Rights attached to the draft submitted to the States in the first instance
    after the convention recessed, was the view that the limitations
    on the power to be given to the National Government was so
    clearly circumscribed, that no one really needed to worry about the
    possible power of the National Government to invade what we
    today group under the canon of civil liberties, and we know the history
    of that response.
    We know that there were States like my own which were willing
    to ratify, but were willing to ratify only on the basis of requesting
    that the first order of business of the new Congress would be to
    propose a Bill of Rights in New Hampshire, like other States, who
    was not bashful about saying would not be in it.

  • The CHAIRMAN

    At 00:26:35
    1 second

    Did you wish to continue?

  • Judge SOUTER

    At 00:26:36
    1 minute

    If I may. This attitude did not sort of spring up
    without some antecedent in 1787. I am not an expert on the constitutions
    of all of the original States, but I do know something about
    my own.
    One of the remarkable things about the New Hampshire Constitution,
    which began its life at the beginning of that same decade, is
    the fact that it began with an extraordinarily jealous regard for
    civil rights, for human rights. The New Hampshire Constitution
    did not simply jump in and establish a form of government. They
    did not get to the form of government until they had gotten to the
    Bill of Rights first.
    They couched that Bill of Rights with an extraordinary breadth
    and a breadth which, for people concerned with principles of interpretation,
    requires great care in the reading. But the New Hampshire
    constitutionalists of 1780 and 1784 were equally concerned to
    protect a concept of liberty, so-called, which they did not more precisely
    define.
    So, it seems to me that the starting point for anyone who reads
    the Constitution seriously is that there is a concept of limited governmental
    power which is not simply to be identified with the enumeration
    of those specific rights or specifically defined rights that
    were later embodied in the bill.
    If there were any further evidence needed for this, of course, we
    can start with the ninth amendment. I realize how the ninth
    amendment has bedeviled scholars, and I wish I had something
    novel to contribute to the jurisprudence on it this afternoon, which
    I do not.

  • The CHAIRMAN

    At 00:28:33
    13 seconds

    It is novel that you acknowledge it, based on our
    past hearings in this committee. [Laughter.]
    One of the last nominees said it was nothing but a waterblot on
    the Constitution, which I found fascinating. At any rate, go ahead.

  • Judge SOUTER

    At 00:28:46
    50 seconds

    Well, I think it is two things—maybe it is more. I
    have no reason to question the scholarship which has interpreted
    one intent of the ninth amendment as simply being the protection
    or the preservation of the State bills of rights which preceded it.
    Neither, quite frankly, do I find a basis for doubting that, with
    respect to the national bill of rights, it was something other than
    what it purported to be, and that was an acknowledgment that the
    enumeration was not intended to be in some sense exhaustive and
    in derogation of other rights retained.

  • The CHAIRMAN

    At 00:29:36
    5 seconds

    IS that the school to which you would count
    yourself a graduate?

  • Judge SOUTER

    At 00:29:41
    17 seconds

    I have to count myself a member of that school,
    because, in any interpretive enterprise, I have to start with the
    text and I do not have a basis for doubting that somewhat obvious
    and straightforward meaning of the text.

  • The CHAIRMAN

    At 00:29:58
    37 seconds

    Let me ask you another question here, and I realize
    this is somewhat pedantic, but it is important for me to understand
    the foundation from which you build here.
    You have made several references appropriately to the Bill of
    Rights and the Federal Government. Do you have any disagreement
    with the incorporation doctrine that was adopted some 70
    years ago applying the Bill of Rights to the States? Do you have
    any argument with that proposition?

  • Judge SOUTER

    At 00:30:35
    34 seconds

    No; my argument with the incorporation doctrine
    would be with the proposition that that was meant to exhaust the
    meaning of enforceable liberty. That, in point of fact, as you know,
    I mean that was Justice Harlan's concern.
    The next really—I mean that brings to the fore sort of the next
    chapter in American constitutional history that bears on what we
    are talking about, because one cannot talk about the privacy doctrine
    today, without talking about the 14th amendment.

  • The CHAIRMAN

    At 00:31:09
    57 seconds

    Judge, I am truly interested in us going back
    through in an orderly fashion the evolution of constitutional doctrine,
    but as my colleague sitting behind you will tell you, I only
    have a half hour to talk to you and I want to ask you a few more
    specific questions, if I may.
    The 14th amendment, as you know, was designed explicitly to
    apply to the States. Speaking to the liberty clause of the 14th
    amendment, Justice Harlan said:
    The full scope of the liberty guaranteed by the Due Process Clause cannot be
    found in or limited by the precise terms of the specific guarantees elsewhere provided
    in the Constitution,
    Which is totally consistent with what you have been saying thus
    far.

  • Judge SOUTER

    At 00:32:06
    1 second

    Yes.

  • The CHAIRMAN

    At 00:32:07
    20 seconds

    NOW, do you agree with Justice Harlan that the
    reference to liberty in the 5th and 14th amendments provide a
    basis for certain—not all, but certain—unenumerated rights, rights
    that the Constitution protects, even though they are not specifically
    enumerated within the Constitution?

  • Judge SOUTER

    At 00:32:27
    1 minute

    I think the concept of liberty as enforceable under
    the due process clause is, in fact, the means by which we enforce
    those rights. It is sterile, I think, to go into this particular chapter
    of constitutional history now, but you will recall that Justice Black
    was a champion at one point of the view that the real point of the
    fourth amendment, which was intended to apply unenumerated
    substantive rights, was the privileges of immunities clause, and not
    due process. Well, as a practical matter, that was read out of the
    possibility of American constitutionalism, at least for its time, and
    it has remained so by the slaughterhouse cases.
    What is left, for those who were concerned to enforce the unenumerated
    concepts of liberty was the liberty clause and due process,
    and by a parity of reasoning by the search for coherence in constitutional
    doctrine, we would look to the same place and the same
    analysis in the fifth amendment when we are talking about the
    National Government.

  • The CHAIRMAN

    At 00:33:28
    1 minute

    NOW, let us follow on. We recognize, you recognize,
    you have stated that Griswold and the various means of rea57
    soning to arrive at the conclusion that there was a constitutionally
    protected right of a married couple to determine whether or not to
    procreate, to use birth control or not, is a constitutionally sound decision.
    Now, shortly thereafter there was a similar case in Massachusetts,
    although in this case it did not apply to married couples,
    there was a Massachusetts statute, in the Eisenstadt case, that said
    unmarried couples, and the rationale was that there is reason to
    not be out there allowing unmarried couples to buy birth control,
    because it would encourage sexual promiscuity, and the Supreme
    Court struck that down, as well, saying that it violated a right to
    privacy, having found once again, most Justices ruled that way, in
    the 14th amendment.
    Now, do you agree that that decision was rightly decided?

  • Judge SOUTER

    At 00:34:47
    15 seconds

    Well, my recollection—and I did not reread Eisenstadt
    before coming in here, so I hope my recollection is not faulty,
    but my recollection is that Eisenstadt represented a different approach,
    because the reliance on the Court there was on equal protection.
    I know that my recollection is

  • The CHAIRMAN

    At 00:35:02
    2 seconds

    Yes, the

  • Judge SOUTER

    At 00:35:04
    1 second

    I am sorry.

  • The CHAIRMAN

    At 00:35:05
    1 second

    GO ahead. I am sorry.

  • Judge SOUTER

    At 00:35:06
    49 seconds

    My recollection is that the criticism of Eisenstadt
    at the time was whether the Supreme Court was, in fact, reaching
    rather far to make the equal protection argument. But I think
    there is one point that is undeniable, without specifically affirming
    or denying the wisdom of Eisenstadt, and that is there is going to
    be an equal protection implication from whatever bedrock start privacy
    is derived under the concept of due process, and I think that
    then leads us back to the essentially difficult point of interpretation,
    and that is how do you go through the interpretive process to
    find that content which is legitimate as a concept of due process.

  • The CHAIRMAN

    At 00:35:55
    35 seconds

    Also, to what extent you find it legitimate. Is it a
    fundamental right, or is it an ordinary right? In the case of Griswold,
    in the Griswold case, it was discerned and decided that there
    was a fundamental right to privacy relating to the right of married
    couples to use contraceptive devices. Do you believe they were correct
    in that judgment, that there is a fundamental right?

  • Judge SOUTER

    At 00:36:30
    42 seconds

    I think the way, again, I would express it without
    getting myself into the position of endorsing the specifics of the
    cases, is that I believe on reliable interpretive principles there is
    certainly, to begin with, a core of privacy which is identified as
    marital privacy, and I believe it can and should be regarded as fundamental.
    I think what we also have to recognize is that the notion of protected
    privacy, which may be enforceable under the 14th amendment,
    has a great potential breadth and not every aspect of it may
    rise to a fundamental level.

  • The CHAIRMAN

    At 00:37:12
    2 minutes

    I agree. That is why I am asking you the question,
    because as you know as well as I do, if the Court concludes
    that there is a fundamental right, then for a State to take action
    that would extinguish that right, they must have, as we lawyers
    call, it is required they look at it through the prism of strict scrutiny.
    Another way of saying it, for laymen, is that they must have a
    pretty darn good reason. If it is not a fundamental right and it is
    an ordinary right, they can use a much lower standard to determine
    whether the State had a good enough reason to preempt that
    right.
    So, as we talk about this line of cases, in Griswold and in Eisenstadt—
    let me skip, in Moore v. East Cleveland, where the Court
    ruled, extending this principle of privacy from the question of procreation,
    contraception and procreation, to the definition of a
    family. As you know, East Cleveland had an ordinance defining a
    family that did not include a grandmother and grandson, and so
    East Cleveland, under that ordinance, said that a grandmother and
    her two grandchildren could be evicted from a particular area in
    which they lived, because they were not a family, as defined by the
    local municipality in zoning ordinance.
    Now, the Court came along there and it made a very basic judgment.
    It said—if I can find my note, which I cannot find right now,
    and I think it is important to get the exact language, if I can find
    it—I just found it. [Laughter.]
    Justice Powell said, "freedom of personal choice in matters of
    marriage and family life is one of the liberties protected by the
    Due Process Clause of the 14th amendment."
    Now, my question, Judge, is do you believe that that assertion by
    Justice Powell is accurate?

  • Judge SOUTER

    At 00:39:35
    1 minute

    I think that assertion by Justice Powell represents
    a legitimate judgment in these kinds of problems with respect
    to Moore just as in the discussion with Griswold. I am going to ask
    you to excuse me from specifically endorsing the particular result,
    because I recognize the implications from any challenge that may
    come from the other privacy case that is on everyone's mind.
    But the one thing that I want to make very clear is that my concept
    of an enforceable marital right of privacy would give it fundamental
    importance. What the courts are doing in all of these cases
    is saying—although we speak of tiers of scrutiny—what the courts
    are saying, it seems to me in a basically straightforward way—is
    that there is no way to escape a valuation of the significance of the
    particular manifestation to privacy that we are concerned with,
    and having given it a value we, indeed, have to hold the State to
    an equally appropriate or commensurate reason before it interferes
    with that value.

  • The CHAIRMAN

    At 00:40:44
    1 minute

    That is exactly what I am trying to find out in
    your answering. So the valuation applied to a definition of family,
    is fundamental. The valuation applied to whether a married couple
    can use contraception is fundamental. The valuation applied to
    whether or not an unmarried couple can use contraception is fundamental.
    Now, I would like to ask you, as I move along here, as you look
    at this line of cases we have mentioned—and I will not bother to go
    through a couple of others that I have anticipated—is my time up?
    I saw the light go off and I thought my time was about up and the
    one thing these fellows are not likely to forgive me for—they will
    forgive me for a lot of things but not for going over my time.
    That when it comes to personal freedom of choice, as Justice
    Powell put it, in family and in marriage, one basic aspect of that
    freedom is the right to procreate. Now, early in the 1940's, in the
    Skinner case, the Supreme Court said that criminals could not be
    sterilized. The Court made it very clear and it said, "Marriage and
    procreation are fundamental" and that sterilization affected "one
    of the basic civil rights of man."
    I assume that some of the civil rights that you are referring to
    that those who wrote the New Hampshire Constitution referred to.
    Do you agree that procreation is a fundamental right?

  • Judge SOUTER

    At 00:42:33
    10 seconds

    I would assume that if we are going to have any
    core concept of marital privacy, that would certainly have to rank
    at its fundamental heart.

  • The CHAIRMAN

    At 00:42:43
    18 seconds

    NOW, the reason I am pursuing this is not
    merely for the reason you think, I suspect. It is because you have
    been categorized as—I believe you have described yourself as an interpretivist.

  • Judge SOUTER

    At 00:43:01
    1 second

    I did and I have, yes.

  • The CHAIRMAN

    At 00:43:02
    1 minute

    YOU have begun—and I thank you for it—you
    have begun to flesh out for me on which part of the spectrum of
    the interpretivists you find yourself.
    Let me, in the interest of time, move on here. I am trying to skip
    by here.
    Let me ask you this, Judge. The value that the Court places on
    certain alleged, by many, privacy rights will dictate, as we said earlier,
    the burden placed upon a State in the circumstance when they
    wish to extinguish that right, or impact on that right.

  • Judge SOUTER

    At 00:44:30
    1 second

    Yes, sir.

  • The CHAIRMAN

    At 00:44:31
    36 seconds

    NOW, you have just told us that the right to use
    birth control, to decide whether or not to become pregnant is one of
    those fundamental rights—the value placed on it is fundamental.
    Now, let us say that a woman and/or her mate uses such a birth
    control device and it fails. Does she still have a constitutional right
    to choose not to become pregnant?

  • Judge SOUTER

    At 00:45:07
    44 seconds

    Senator, that is the point at which I will have to
    exercise the prerogative which you were good to speak of explicitly.
    I think for me to start answering that question, in effect, is for me
    to start discussing the concept of Roe v. Wade. I would be glad—I
    do not think I have to do so for you—but I would be glad to explain
    in some detail my reasons for believing that I cannot do so, but of
    course, they focus on the fact that ultimately the question which
    you are posing is a question which is implicated by any possibility
    of the examination of Roe v. Wade. That, as we all know, is not
    only a possibility, but a likelihood that the Court may be asked to
    do it.

  • The CHAIRMAN

    At 00:45:51
    1 minute

    Judge, let me respectfully suggest the following
    to you: That to ask you what principles you would employ does not,
    in any way, tell me how you would rule on a specific fact situation.
    For example, all eight Justices, whom you will be joining, all
    eight of them have found there to be a liberty interest that a
    woman retains after being pregnant. That goes all the way from
    Justice Brennan—who is no longer on the Court—who reached one
    conclusion from having found that liberty interest, to Justice Scalia
    who finds a liberty interest and yet, nonetheless says, explicitly he
    would like to see Roe v. Wade, he thinks Roe v. Wade should be
    overruled.
    So the mere fact that you answer the question whether or not a
    woman's liberty interest, a woman's right to terminate pregnancy
    exists or does not exist, in no way tells me or anyone else within
    our earshot how you would possibly rule on Roe v. Wade.

  • Judge SOUTER

    At 00:47:09
    44 seconds

    I think to explain my position, I think it is important
    to bear in mind there are really two things that judges may or
    may not be meaning when they say there is a liberty interest to do
    thus and so, whatever it may be. They may mean simply that in
    the whole range of human interests and activities the particular
    action that you are referring to is one which falls within a broad
    concept of liberty. If liberty means what it is, we can do if we want
    to do it. Then obviously in that sense of your question, the answer
    is, yes.

  • The CHAIRMAN

    At 00:47:53
    1 minute

    It is more precise, Judge, than that. I mean liberty
    interest has a constitutional connotation that most lawyers and
    all justices have ascribed to it in varying degrees. For example,
    Justices Blackmun, Brennan, Marshall, and Stevens, they have
    said a woman has a strong liberty interest, although Justice Stevens
    has phrased it slightly differently. Justice O'Connor has made
    it clear that she believes a woman has some liberty interest. Even
    Justices Rehnquist, White, Kennedy, and Scalia, all of whom criticized
    the Court's rulings in this area have said that a woman has
    at least some liberty interest in choosing not to remain pregnant.
    Now, each of these Court members has acknowledged what we
    lawyers call a liberty interest after conception. So my question to
    you is, is there a liberty interest retained by a woman after conception?

  • Judge SOUTER

    At 00:48:55
    35 seconds

    I think, Senator, again, we have got to be careful
    about the sense of the liberty interest. There is the very broad
    sense of the term which I referred to before and then there is the
    sense of an enforceable liberty interest. That is to say, one which is
    enforceable against the State, based upon a valuation that it is fundamental.
    It seems to me that that is the question which is part of
    the analysis, of course, upon which Roe v. Wade rests.

  • The CHAIRMAN

    At 00:49:30
    28 seconds

    Well, all liberty interests have following all liberty
    interest is a right. The question is, how deeply held and rooted
    that right is; and what action the State must take and how serious
    that action must be—the rationale for that action—to overcome
    that interest?
    But once we acknowledge there is a liberty interest, there is a
    right.

  • Judge SOUTER

    At 00:49:58
    2 seconds

    But what—I am sorry.

  • The CHAIRMAN

    At 00:50:00
    20 seconds

    SO I am not asking you to tell me—I am just told
    my time is up—I am not asking you to tell me what burden of
    proof the State must show in order to overcome that. I am asking
    you is there a liberty interest and your answer is what, yes, or no?

  • Judge SOUTER

    At 00:50:20
    29 seconds

    My answer is that the most that I can legitimately
    say is that in the spectrum of possible protection that would
    rank as an interest to be asserted under liberty, but how that interest
    should be evaluated, and the weight that should be given to it
    in determining whether there is in any or all circumstances a sufficiently
    countervailing governmental interest is a question with respect,
    I cannot answer.

  • The CHAIRMAN

    At 00:50:49
    11 seconds

    With all due respect, I have not asked it.
    But I will come back to that. My time is up. I yield to my colleague
    from South Carolina.
    I thank you, Judge.

  • Judge SOUTER

    At 00:51:00
    2 seconds

    Thank you, sir.

  • Senator THURMOND

    At 00:51:02
    30 seconds

    Thank you, Mr. Chairman.
    Judge Souter, the Constitution of the United States is now over
    200 years old. Many Americans have expressed their views about
    the amazing endurance of this great document. Would you please
    share with the committee your opinion as to the success of our
    Constitution and its distinction as the oldest existing constitution
    in the world today.

  • Judge SOUTER

    At 00:51:32
    2 minutes

    Well, Senator, it is difficult to make a pronouncement
    which is commensurate with the magnificence of the document.
    If I have to explain it in a few words I would do it by reference
    to a very limited number of concepts.
    The first reason for the Constitution's success is its insistence
    and its recognition on the source of power. The source of governmental
    power is the people.
    The second concept which has guaranteed its endurance is that
    that power is no more granted to government than the people
    grant to government. The very concept of the National Government
    is one of limited power, was one of its motivating, one of its
    very forces of life from the moment that it was presented to the
    people.
    Third, I would look to the concept implicit in that document and
    as a basis of the bedrock of the structural sense of American constitutionalism
    that power is divided and that that division of power
    even granted, is a division of power which must be protected if the
    entire Government is to remain in the place that it was intended to
    have.
    That structural sense of the division of power encompasses not
    only what we speak of as the separation of powers doctrine within
    the National Government, itself, but the concept of the distribution
    of power in a federal system.
    I think the reasons then for the remarkable and blessed endurance
    of the American Constitution are extraordinarily pragmatic
    reasons. It rests upon a recognition of where its power comes from
    and it is structured with a recognition that power will be abused
    unless it is limited and divided and restrained.

  • Senator THURMOND

    At 00:53:49
    26 seconds

    Judge Souter, the 10th amendment to the
    Constitution provides that powers not delegated to the Federal
    Government are reserved to the States or the people.
    Would you describe your general view about the proper relationship
    between Federal and State Governments, as well as how
    would you characterize the States' power to legislate in areas not
    specifically enumerated to the Congress.

  • Judge SOUTER

    At 00:54:15
    4 minutes

    Well, Senator, as we know—certainly you know
    better than I, having sat in this Congress as you have—there is a
    great overlap of subject matter in which we know the Congress
    under article I has authority, and which is equally covered by the
    States. We are familiar with the doctrines of preemption which
    have developed over the years and we are familiar, of course, with
    the provision of the Constitution that in cases of conflict in legislation
    within both the constitutional competence of the States and
    the National Government, the National Government is, of course,
    going to prevail.
    One of the things that I think we have to recognize in dealing
    with problems of federalism today is a basic political problem
    which in those areas of overlap the Constitution, itself, cannot
    solve for us. That is a political problem that arises from the willingness
    or the unwillingness of the States to exercise the constitutional
    powers that they have to address the problems that are
    really before them.
    One of the things that I was reminded of in my preparation, my
    sort of autobiographical inquiry—which has preceded my coming
    here today and has been going on for the last 7 or 8 weeks—is a
    speech which I gave years ago in Newport, NH, in which I was
    talking about—which to most people and to me seemed—an erosion
    of power all in the direction of the National Government from the
    States.
    But the explanation for that erosion began with the fact that
    there were problems to be solved which the States simply would
    not address and the people wanted them addressed and therefore,
    the people looked to Washington. They looked to Washington, of
    course, because Washington had the means or exerted the means of
    raising the money to solve them.
    So one of the problems that has to be recognized, as underlying
    so much of the tension which sometimes gets expressed by focus on
    the 10th amendment, is, in fact, a political problem and ultimately
    a fiscal problem.
    We know that the concept of the 10th amendment today is something
    that we cannot look at with the eyes of the people who wrote
    it. At the very least, two developments in our constitutional history
    have necessarily changed the significance of the 10th amendment
    for us.
    The first, of course, is the concept of the commerce power which
    I think—whatever everyone's predilections may be—has grown to
    a, and has been recognized as having a plenary degree which would
    probably have astonished the Founders.
    The second development which has got to be borne in mind in
    coming to any approach to the 10th amendment is simply, the
    14th. There was, very expressly, authority given to the National
    Government through the 14th amendment, which again, was inconceivable
    to the Framers of the 10th.
    It is those two developments that have led to the difficulty reflected
    in a number of cases in recent years, in trying to determine,
    whether in fact, there is a substantive basis, an objective basis, perhaps
    I should say, for identifying and protecting State power under
    the 10th amendment; or whether conversely, the 10th amendment,
    in effect, has been relegated to the expression of kind of a political
    truism.
    When I was in public practice, the case known as National
    League of Cities v. Usury was the law, which recognized a basis for
    enforcing limitation on national power in name of the 10th amendment
    under the wage and hour law. Subsequently National League
    was overruled by Garcia v. San Antonio, which has left the law, at
    the present time far closer to, in effect, a reflection of the politics
    of the Congress of the United States.
    I do not know what the next step in that chapter may be, but I
    do know that any approach to the 10th amendment today is an approach
    which has got to take into consideration constitutional developments
    outside of the 10th amendment which we cannot
    ignore, and, as I have said, would have astonished the Framers.

  • Senator THURMOND

    At 00:59:09
    19 seconds

    Judge Souter, the famous decision of Marbury
    v. Madison is viewed as a basis of the Supreme Court's authority
    to interpret the Constitution and issue decisions which are
    binding on both the executive and legislative branches. Would you
    give the committee your views on this authority?

  • Judge SOUTER

    At 00:59:28
    2 minutes

    Well, I suppose for anyone in the year 1990 to
    speak admiringly of Marbury v. Madison is a fairly conservative
    act, so I don't have any trouble in sort of going out on the limb in
    support of Marbury v. Madison.
    I recognize that the difficulty which may be facing us in assessing
    the significance of Marbury v. Madison today is a difficulty in
    defining the appropriate role of Congress with respect to the appellate
    jurisdiction of the Supreme Court of the United States. We
    might all hope that that kind of a contest would not come before
    us, but we cannot rule it out.
    The question, of course, is not whether Marbury can be overruled
    as such, but whether the force of Marbury can, in fact, be eroded
    by limitations upon the appellate jurisdiction of the Supreme Court
    of the United States. As I am sure you know as well as I, the existing
    precedent on that is not of very great help to us.
    We know that in the one case expressly addressing the Supreme
    Court's appellate jurisdiction, a post-Civil War case, McCardle, the
    Court seemed to say that there could be such an erosion through
    the exercise of congressional power, although there are times when
    I find McCardle a somewhat more ambiguous case than some have
    found it.
    On the other hand, we know in the Klein case that followed not
    long after that, which dealt with the jurisdiction of the lower Federal
    courts not the appellate jurisdiction of the Supreme Court,
    that the Supreme Court clearly put limits upon what the Congress
    could do in trying, in effect, to limit jurisdiction for the sake of
    bringing about particular results or avoiding particular results
    which were thought to be undesirable.
    But those are all post-Civil War cases. They seem to speak with
    conflicting and certainly not with consistent voices. And they are
    going to be the preface to any question about the ultimate vitality
    of Marbury in our time. But it is at least comforting to be able to
    end my response to you as I began it; that subject to that issue
    which has yet definitively to come before the courts, I trust everyone
    like me will accept Marbury as constitutionally essential to
    government as we know it.

  • Senator THURMOND

    At 01:02:10
    27 seconds

    Judge Souter, the opinion of Miranda v. Arizona
    defined the parameters of police conduct for interrogating suspects
    in custody. Since th[e decision, the Supreme Court has limited
    the scope of Miranda in certain cases. Do you feel that the efforts
    and comments of top law enforcement officers throughout the
    country have had any effect on the Court's views?

  • Judge SOUTER

    At 01:02:37
    2 minutes

    Well, of, course, Senator, I cannot speak expressly
    for the Court, but I thi^ik those comments must have had some
    kind of effect. The legitimacy of that effect, the appropriateness of
    the Court's listening, I think has got to be assessed from two different
    standpoints. It is very important that courts not be swayed in
    any case merely by the politics of the moment. And there is, I
    think, a laudable tendency—I hope it will always be regarded as
    laudable—for the Court to keep itself above the momentary furor.
    It would be a mistake, however, from that, for a court to be unwilling
    ever to reexamine the wisdom of something that it had
    done. This is certainly true when we are dealing with decisions like
    Miranda, which are very pragmatic decisions. Whether one initially
    agreed or did not agree with Miranda, the point of Miranda was
    to produce a practical means to avoid what seemed to be unduly
    time consuming and sometimes intractable problems encountered
    in the Federal courts in dealing with claims that confessions were
    inadmissible on grounds of their involuntariness.
    But Miranda was a practical case on how to deal with it. The assumption
    of the Court was that if Miranda, in fact, was complied
    with, a lot of the very difficult voluntariness problems were just
    going to take care of themselves. When we are dealing with a rule
    like Miranda, which had a very practical objective which, as was
    said at the time, extended the fifth amendment to the police station
    for the sake of trying to avoid other more serious problems, of
    course it is appropriate to consider the practical effect that those
    decisions have. And I have no doubt that both in the briefs that
    have been filed before the courts and in the arguments of the specific
    parties, the satisfaction or the dissatisfaction of law enforcement
    with the practical effects of that decision have had an influence,
    and rightly so, on the courts.
    By the same token, I think it is important to note that when we
    look back on a decision which has been on the books as long as Miranda
    has now, we are faced with a similarly, I think, practical obligation,
    if one wants it modified or expanded or contracted, to ask
    very practical questions about how it actually works. That is a judicial
    obligation. If the judiciary is going to be imposing pragmatic
    rules.

  • Senator THURMOND

    At 01:05:36
    36 seconds

    Judge Souter, there are hundreds of inmates
    under death sentence across the country. Many have been on death
    row for several years as a result of the endless appeals process. Recently,
    the Senate passed legislation which would reduce the
    number of unnecessary appeals. Generally, would you give the
    committee your views on the validity of placing some reasonable
    limitations on the number of posttrial appeals that allow inmates
    under death sentences to avoid execution for years after the commission
    of their crimes?

  • Judge SOUTER

    At 01:06:12
    3 minutes

    Well, Senator Thurmond, I am not familiar with
    the bill which the Senate has passed, but I am assuming that it
    was probably in response to the report of the committee headed by
    Justice Powell a couple of years ago, retired Justice Powell, who
    was—the committee, rather, was addressing the problem of what
    you describe rightly as the seemingly endless appellate process and
    frequently of the confusion in haste which tended to characterize it
    at the Federal level.
    I think there was great wisdom in the recommendation of the
    Powell committee, because what the Powell committee centered on
    was not in the first instance a strict rule of limitation, but on the
    problem which, in fact, was leading to the resort, frequently at the
    last moment, to the Federal courts in death penalty cases.
    What the Powell committee identified as one of those reasons
    was the fact that, although counsel is guaranteed to a criminal defendant
    through the direct appellate process, in most States counsel
    was, in any event, in the process of collateral review by habeas
    corpus after the direct appeal process had been exhausted, there
    was not a mandate under the national Constitution to the States to
    provide counsel at that level, and most States were not doing so.
    The practical result was that in the attempt at collateral review
    at the State level, death row inmates were, in fact, trying to raise
    constitutional issues without counsel competent to do so—they
    were issues of sufficient subtlety that a pro se litigant simply could
    not handle them—and that time was being consumed in what was
    really unproductive, almost helpless, litigation in State court collateral
    review. And it was only when that was exhausted and only
    when, in fact, an execution date was set that the prisoners would
    then find it appropriate to try to go into the Federal courts for collateral
    review.
    What the Powell Commission recommended was that if we are
    going to place reasonable limits on Federal collateral review, we
    have got to accept the reality that there has got to be some kind of
    genuinely significant representation by counsel at the very point
    collateral review can begin, so that it can be worth something both
    at the State level and at the moment the petitioners enter the Federal
    scheme. And if that can be provided, if counsel can properly be
    provided at the initial stages, then it is fair and appropriate to
    place limitations upon the time in which collateral review can be
    sought.
    I can only say that I think that is an eminently fair approach to
    the problem.

  • Senator THURMOND

    At 01:09:26
    23 seconds

    Judge Souter, you are currently serving as a
    member of the U.S. Court of Appeals for the First Judicial Circuit.
    Previously, you served on the New Hampshire Supreme Court for 7
    years and the New Hampshire Superior Court for 5 years. How
    beneficial, in your opinion, will this prior judicial experience be to
    you if confirmed to sit on the Supreme Court?

  • Judge SOUTER

    At 01:09:49
    2 minutes

    Well, Senator Thurmond, for someone who has
    never sat on the Supreme Court, there is great difficulty in answering
    that question, because the one thing that I think we all hear
    about the Supreme Court and its workload is that the combination
    of the task, the volume of the task, and the responsibility of the
    task is something for which no one really feels prepared at the beginning
    of service on that Court. And probably it would be impossible
    that anyone could be.
    There are at least some bits of background which I hope would
    fit me to work into the responsibilities of the Court as fast as possible
    if I am confirmed. Although the supreme court on which I sat,
    without question, did not have the demands on me that the Supreme
    Court of the United States would have, it shares the problem
    of all appellate courts in the United States today of having a
    series of requests for review which, as a practical matter, tend to
    exceed the capacity of the court to deal with the depth that the
    court would like.
    In New Hampshire, before I ever went on the New Hampshire
    Supreme Court, we had gone necessarily to a system of discretionary
    review because it was impossible to review every request for an
    appeal on the merits. So I am familiar, in fact, with the business of
    the Court and the need to set some kind of limits to make any
    worthwhile adjudication possible.
    More than that, though, I think the important thing is what I
    alluded to in the remarks that I made before the questioning began
    today. There is one overriding responsibility that any judge on an
    appellate court has. It will not guarantee that he will get the right
    result, but it will guarantee that he will try as best he can to get
    the right results. And that is a recognition that however far removed
    from the bench of that court, the decision that the court
    renders, the ruling that the court makes is going to affect a life.
    I have learned that lesson, and it is a lesson which, if I am confirmed,
    I hope will stand me in good stead.

  • Senator THURMOND

    At 01:12:16
    37 seconds

    Judge Souter, I believe that judges should
    impose tough sentences in criminal cases, especially when the
    crime committed is one of violence. Society demands tough punishment
    for violent offenders. In the past, victims of those who committed
    violent crimes have often played a diminished role in the
    criminal justice system. However, recently, the number of victims
    who participate in the prosecution of criminal cases has increased.
    In your opinion, should victims play a major role in the criminal
    justice system? If so, to what extent should a victim participate?

  • Judge SOUTER

    At 01:12:53
    2 minutes

    Well, Senator, there are certainly two respects in
    which victims should be recognized in the system, and there is a
    further interest of victims which the government as a whole should
    recognize. The most obvious role of the victim, of course, is the role
    which any victim must play in establishing the fact of the crime.
    Your central witness, theoretically, in a criminal case is the victim.
    The victim also, it seems to me, has a claim to the attention of the
    court in a criminal case if there is, in fact, a conviction.
    We try to avoid disparity in sentencing, hue one of the subjects
    which is appropriate to bear in mind is exactly the one that you
    raised a moment ago, and that was: What was, in fact, the conduct
    of the defendant? What degree of either mild or outrageous behavior
    can we assign to the conduct of the defendant in relation to the
    victim in causing harm? The heinousness of a crime is an appropriate
    subject in any sentencing decision.
    I think going beyond that, one of the happy developments of the
    law in the last few years is the recognition by the government that
    after the criminal case is tried, whatever may be the result, the
    victim is still left, in many cases, in a mess not of the victim's own
    choosing; and that, in fact, there is a need to provide some help.
    The victim assistance acts which the States have been passing, it
    seems to me, is a step in the right direction.

  • Senator THURMOND

    At 01:14:53
    32 seconds

    Judge Souter, the doctrine of stare decisis is
    a concept well entrenched in our legal system and the concept that
    virtually all judges have in mind when making decisions, especially
    in difficult cases. I am sure that the issue of prior authority has
    been a factor which you have considered many times in your years
    on the bench.
    Could you please briefly state your general view of stare decisis
    and under what circumstances you would consider it appropriate to
    overrule prior precedent?

  • Judge SOUTER

    At 01:15:25
    58 seconds

    Well, Senator, as you know, the doctrine of stare
    decisis which we speak of in that shorthanded kind of way is a
    series of considerations which courts bear in mind in deciding
    whether a prior precedent should be followed or should not be.
    Some such doctrine or some such rule is a bedrock necessity if we
    are going to have in our judicial systems anything that can be
    called the rule of law as opposed simply to random decisions on a
    case-to-case basis.
    The problem that the doctrine of stare decisis addresses is the
    problem of trying to give a proper value to a given precedent when
    someone asks a court to overrule it and to go another way. And I
    suppose the complexity of the doctrine is such that, contrary to the
    terms of your question, I suppose I could talk about it for a very
    long time. And there may be other members of the committee

  • Senator THURMOND

    At 01:16:23
    1 second

    YOU need not do that.

  • Judge SOUTER

    At 01:16:24
    1 minute

    I was going to say, I think you have made it very
    clear that that is not what you had in mind, and I don't know
    whether any other members of the committee may be greater bears
    for punishment to go into it further than you have or not. Let me,
    though, in compliance with your terms, just state in a very kind of
    outline way what I think we should look to, without meaning to be
    exhaustive.
    The first thing, kind of the threshold question that, of course,
    you start with on any issue or precedent, is the question of whether
    the prior case was wrong. We don't raise precedential issues unless
    we are starting with the assumption that there is something inappropriate
    about the prior decision. Now, that decision may have
    been right at the time and there now be a claim that, in fact, it is
    wrong to be applied now. But the first question that we have to ask
    is: If we were deciding the case today, if we were living in a kind of
    Garden of Eden and we didn't have the precedent and this was the
    first case, would we decide it the same way?
    If the answer is no, we would not do so, then we look to a series
    of factors to try to decide how much value we ought to put on that
    precedent even though it is not one that we particularly like or
    would think appropriate in the first instance.
    One of the factors which is very important I will throw together
    under the term of reliance. Who has relied upon that precedent,
    and what does that reliance count for today? Have people

  • The CHAIRMAN

    At 01:18:00
    5 seconds

    Excuse me, Judge. Did you say if the answer is
    no or if the answer is yes? You said when we look back

  • Judge SOUTER

    At 01:18:05
    4 seconds

    My problem, Mr. Chairman, is I forget what the
    question was.

  • The CHAIRMAN

    At 01:18:09
    9 seconds

    I am sorry. You indicated that one of the things
    you looked at is whether the prior case was wrongly decided, isn't
    that correct?

  • Judge SOUTER

    At 01:18:18
    2 seconds

    Then the answer should have been yes. I said no?

  • The CHAIRMAN

    At 01:18:20
    2 seconds

    Yes. OK. I got it.

  • Judge SOUTER

    At 01:18:22
    1 second

    Thank you for amending that.

  • The CHAIRMAN

    At 01:18:23
    3 seconds

    I was getting confused.

  • Judge SOUTER

    At 01:18:26
    2 minutes

    If you are going to ask me for a statutory interpretation,
    I would be as liberal as that, then you may have me in a
    corner. But assuming we start with a precedent which is wrong for
    this time, considered by itself, one of the things we are going to
    start by looking at is the degree and the kind of reliance that has
    been placed upon it.
    We ask in some context whether private citizens in their lives
    have relied upon it in their own planning to such a degree that, in
    fact, it would be a great hardship in overruling it now.
    We look to whether legislatures have relied upon it, in legislation
    which assumes the correctness of that precedent. We look to
    whether the court in question or other courts have relied upon it,
    in developing a body of doctrine. If a precedent, in fact, is consistent
    with a line of development which extends from its date to the
    present time, then the cost of overruling that precedent is, of
    course, going to be enormously greater and enormously different
    from what will be the case in instances in which the prior case
    either has not been followed or the prior case has simply been
    eroded, chipped away at, as we say, by later determinations.
    Beyond that, we look to such factors as the possibility of other
    means of overruling the precedent. There is some difference, although
    we may have trouble in weighting it, there is some difference
    between constitutional and statutory interpretation precedent,
    which Congress or a legislature can overrule, so we look to other
    possibilities.
    In all of these instances, we are trying to give a fair weight to
    the claim of that precedent to be followed today, even though in
    some respect we find it deficient on the merits.

  • Senator THURMOND

    At 01:20:27
    34 seconds

    Judge Souter, former Associate Justice
    Lewis F. Powell once stated:
    Those of us who work quietly in our marble palace find it difficult to understand
    the apparent fascination with how we go about our business. However, as our decisions
    concern the liberty, property and even the lives of litigants, there can be no
    thought of tomorrow's headlines.
    Judge Souter, would you share with the committee your thoughts
    regarding Justice Powell's statement, especially his comment that
    "there can be no thought of tomorrow's headlines"?

  • Judge SOUTER

    At 01:21:01
    9 seconds

    Senator, I hope there is no judge in the Republic
    who would not agree with that statement of Justice Powell. If
    there is one thing that

  • Senator THURMOND

    At 01:21:10
    6 seconds

    That is sufficient. [Laughter.]

  • Judge SOUTER

    At 01:21:16
    8 seconds

    YOU are going to turn me into a laconic Yankee,
    if you keep doing that, Senator. [Laughter.]

  • Senator THURMOND

    At 01:21:24
    7 seconds

    I have just been told that my time is up,
    Judge Souter.
    Thank you. I was trying to get in another question,
    but it is too late.

  • Judge SOUTER

    At 01:21:31
    1 second

    Thank you, sir.

  • Senator THURMOND

    At 01:21:32
    1 second

    Thank you.

  • The CHAIRMAN

    At 01:21:33
    2 seconds

    Senator Kennedy.

  • Senator KENNEDY

    At 01:21:35
    4 minutes

    Thank you very much, Mr. Chairman.
    I would like to direct the judge's attention to the issue of civil
    rights. I am sure you understand, as all Americans understand,
    that the issue of slavery, when it was discussed at the Constitution69
    al Convention almost ruptured that whole process and compromises
    were made during the consideration of the Constitutional
    Convention.
    As a consequence of accepting slavery, we saw a vicious Civil
    War that took place in the 1860's on that issue. We saw this country
    go through enormous convulsion in the late 1950's and early
    1960's, with loss of life, as we were trying to move toward a fairer,
    more equitable society, to breath real life into the Constitution
    when it talks about equal protection of the laws.
    I am interested in your own views about the majesty of the Constitution
    and about providing guarantees for the citizens of this
    Nation, whether black or white, man or woman, of whatever religious,
    in assuring that the words "equal protection of the laws"
    really mean equal protection of the laws. I am most interested at
    this point in having your view about the authority and the legitimacy
    of the Congress in implementing the 14th amendment,
    through the 5th section.
    So, I would like to direct your attention to a couple of these
    areas, firstly that you took positions on as attorney general and assistant
    attorney general of New Hampshire.
    Both of these areas
    relate to the questions of pursuing equal rights and liberties. First
    of all, I want to talk about eliminating discrimination in the workplace
    and guaranteeing equal opportunity in employment.
    I am sure you are aware of the case which I am directing your
    attention to, decided in 1973, when the Equal Employment Opportunity
    Commission regulations required State and local communities
    and private firms with over 100 employees to file annual reports,
    listing racial composition of the employers' work force, to
    assist the Commission in its mission.
    In many circumstances, we see Evan Kemp, President Bush's
    head of EEOC, talking about how necessary such statistics are
    today and recognize the importance of the accumulation of that
    type of material.
    Now, unlike every other State, New Hampshire rejected the regulation
    and it refused to supply the data for 1973, 1974, and 1975.
    When the U.S. Government sued to enforce the requirement, you
    defended the refusal, as New Hampshire Attorney General, and
    when New Hampshire lost in the Federal district court, you appealed
    to the circuit court of appeals, which unanimously rejected
    your position, and then you tried to take the issue to the Supreme
    Court, which refused even to hear your case, let alone accept your
    argument.
    Your office took the position in all three courts that it was unconstitutional
    to require employers to compile reports of those statistics.
    A reading of the brief would indicate that you did not believe
    that Congress had the power to implement and develop that
    legislation of their work force.
    As far as I can determine, no other employer, public or private,
    pressed such an excessive claim, so hostile to civil rights. Your
    brief even went so far as to make the extraordinary argument that
    it violated a worker's constitutional right to privacy, for employers
    to report the overall racial composition of their work force.
    My question is this: Did you agree with the position of the State
    of New Hampshire that it is unconstitutional for Congress to re70
    quire employers to provide statistics about racial composition of
    the work force?

  • Judge SOUTER

    At 01:25:54
    14 seconds

    At the time that case was litigated, Senator, I did
    not know whether it was consitutional or not. That case, as I think
    you realize, was

  • Senator KENNEDY

    At 01:26:08
    54 seconds

    What I am directing your attention to is your
    view about the power of the Congress, under section 5 of the 14th
    amendment, that when it finds that there is discrimination, that
    we have the power to try and take steps to eliminate the discrimination
    as best we can. We are not going to argue that laws are
    going to resolve all of these problems. Clearly, they are not. But
    the issue and the question, the basic issue and question is whether
    you recognize the authority and the power of the Congress to develop
    legislation, in this case the EEO Act, which required the kind of
    information that I have mentioned, in order for the American
    people to be able to gain these rights.

  • Judge SOUTER

    At 01:27:02
    51 seconds

    There is no question that, under the law as it is
    understood today and under the law as I understand it, that Congress
    has a preferred and unique role of power in enforcing the
    14th amendment under section 5.
    There is probably no question that there will be further years of
    litigation before the exact limits of that power are defined, but
    there are some things that are clear now. It is clear now under the
    law that the Congress certainly does not stand on the same footing
    as the State and county and local governments may do in devising
    remedies for a broader societal discrimination than may come to
    light in specific cases. We know that the Congress has a preferred
    position in that respect.

  • Senator KENNEDY

    At 01:27:53
    55 seconds

    Well, you certainly had the opportunity to develop
    your own personal view at the time that you were developing
    the position, as the Governor's lawyer. Did you form any position
    on your own, as to whether that was the correct position? Did you
    do it reluctantly? What can you tell us? We know that the lawyer
    who assisted you in the case, Mr. Edward Haffer, was quoted in the
    press as saying that you were supportive of and involved in the
    effort to challenge the regulation. Governor Thompson has said
    that you did not discourage him from pursuing the case to the Supreme
    Court.
    So, did you at the time formulate any personal view about the
    legitimacy of the Congress in attempting to root out discrimination
    in the workplace?

  • Judge SOUTER

    At 01:28:48
    3 minutes

    I came to no comprehensive personal view of section
    5 at that time. The views that I came to grips with at that
    time were these: The first, of course, is that I was representing a
    client. The issue before me, as a lawyer in that case, was whether
    the client, whose policy was being set by the executive branch,
    speaking through the Governor, had a legitimate position which
    could in good faith be pressed before the courts. It was my judgment
    at that time that the State did, in fact, have a case which
    could be pressed in defense of the Governor's position.
    The most remarkable thing about it and the reason for coming to
    this conclusion which I drew as a lawyer, is indicated in an unusual
    way in our constitutional history. In a footnote in a later opinion
    by Justice Powell that came about years later—and I cannot cite it
    from memory, but I can produce it, if you would like—Justice
    Powell referred to a survey of discrimination by State and local
    governments on racial grounds, and I do not recall now whether it
    was strictly State employment discrimination or discrimination in
    voting, but it illustrated the truth that lay behind the decision that
    New Hampshire could take that position and press it before the
    courts, for whatever disposition, and that determination was that
    there was no indication that there had ever been racial discrimination,
    what we would today broadly call title VII discrimination, by
    the State or local governments.
    The issue that the Governor wished and the State wished to
    press forward was whether the power of section 5 of the 14th
    amendment, whether the congressional power could in fact be used
    to require the assembly of racial data by a governmental entity
    with respect to whom there was absolutely no historical indication
    of any discrimination.
    As I think you know from the briefs which I know have been
    brought to your attention, one of the concerns raised is that if you
    have not been thinking in racial terms and you are suddenly forced
    to start classifying nor at least to classify statistically in racial
    terms, you are running the risk that race is, in fact, going to play a
    role and a wrong role, which it has never done.
    The issue before me, as attorney general of New Hampshire, in
    carrying on with that litigation which had in fact begun before I
    became attorney general, was whether in fact there was an argument
    that could be made to that effect. I believed that there was
    an argument that could be made to that effect. The courts rejected
    it and it is, of course, not an argument that would be made today.

  • Senator KENNEDY

    At 01:31:52
    59 seconds

    Of course, first of all, as attorney general, you
    take the oath of office in upholding the Constitution. Second, the
    New Hampshire statute says the attorney general will represent
    the public interest in the administration of the department of justice,
    be responsible to the Governor, the general court, and the
    public for such administration.
    So, what we have to gather here, and when you give a response
    that you are just acting as the lawyer for the Governor, we have to
    give some weight to the fact that you are sworn to an oath of
    office, both in terms of the Constitution and the New Hampshire
    statute. Very clearly you are not only the lawyer for the Governor,
    but you also represent the public interest.
    You have stated that you support that concept as a matter of
    personal belief now and, as I gather, you were uncertain at the
    time when you filed the brief, is that correct?

  • Judge SOUTER

    At 01:32:51
    24 seconds

    The question that I thought could be legitimately
    raised at the time was whether, in fact, as against a governmental
    entity which had not practiced any discrimination, either specific
    or reflective of societal discrimination, that was an appropriate exercise
    of section 5 power. I think we now know very clearly that it
    is.

  • Senator KENNEDY

    At 01:33:15
    48 seconds

    Well, the point that we are talking about is a
    national determination by the Congress that this kind of information
    is necessary in order to try to gather discrimination information
    that is necessary before any action can be taken, and also to
    try to measure some progress in this area.
    Tell me, why did you file information with regard to gender in
    employment, and not with regard to race? I found that somewhat
    puzzling. You submitted the information to EEOC with regard to
    gender, but not with regard to race, and the 14th amendment
    clearly is about race and about gender—in terms of that—why did
    you file that?

  • Judge SOUTER

    At 01:34:03
    4 seconds

    As you indicate, I think the 14th amendment is
    about both.

  • Senator KENNEDY

    At 01:34:07

    Right.

  • Judge SOUTER

    At 01:34:07
    21 seconds

    I think, in fact, the answer to that is one which,
    with respect, I would almost have to direct to my client. If you
    were to ask me cold whether the State was filing gender information
    at that time, I could not have told you.

  • Senator KENNEDY

    At 01:34:28
    26 seconds

    Let me go to a second area of civil rights, and
    this is with regard to the literacy tests. You are familiar that in
    1965 the Congress took action to abolish literacy tests in the limited
    number of States that were included in the 1965 act, and then
    in the 1970 act we abolished literacy tests generally across the
    country?

  • Judge SOUTER

    At 01:34:54
    4 seconds

    I think they were suspended, were they not, for 5
    years by the 1970 amendments?

  • Senator KENNEDY

    At 01:34:58
    18 seconds

    Exactly. The State of New Hampshire vigorously
    defended the State law, arguing that Congress did not have,
    again, the constitutional authority to ban literacy tests. Your name
    appears on the brief. Do you remember whether you drafted it or
    not?

  • Judge SOUTER

    At 01:35:16
    13 seconds

    I was assistant attorney general at that time, and
    my recollection is that I filed aposttrial memorandum with the
    U.S. district court after that case was argued. I remember I was
    the assistant attorney general assigned to argue

  • Senator KENNEDY

    At 01:35:29
    3 seconds

    Well, your name is on the brief, the third one
    down.

  • Judge SOUTER

    At 01:35:32
    1 second

    Pardon me?

  • Senator KENNEDY

    At 01:35:33
    1 second

    Your name is on the brief.

  • Judge SOUTER

    At 01:35:34
    2 seconds

    I was not trying to get you to read the names off,
    Senator.

  • Senator KENNEDY

    At 01:35:36
    3 minutes

    We have got two of them.
    Now, when this was brought up in the district court, the position
    was rejected 3 to 0, and then when it was brought up eventually in
    the Supreme Court, the position was rejected 9 to 0. Again, the
    question I think is how you view the Congress' power to try and
    provide remedies against discrimination against minorities and
    women.
    Very little was given me when I heard you talk about the questions
    of limited power. You talk about the overlap of power that
    exists and the power of preemption by the National Government.
    You say that the National Government will prevail when there is
    conflict, and speak of the movement toward greater power to the
    National Government, primarily political and fiscal in recent
    times, but did not mention what has been the most, I consider the
    most important reason in the past several years, and that is to try
    and guarantee civil rights and liberties to minorities. This is something
    that we have to make a judgment on.
    Another part of that brief that concerned me that I want you to
    speak to, is in the brief you said that if people who could not read
    were permitted to cast ballots, it would dilute the votes of literate
    citizens. You went on to say:
    To this harm, must be added the impossibility of providing any means whereby
    illiterate voters could intelligently vote upon the constitutional proposals which are
    presented on the ballot in narrative form. The result of allowing illiterates to make
    a choice in such matters is tantamount to authorizing them to vote at random, utterly
    without comprehension.
    Yet, in a letter to the President on the issue, when Congress was
    considering the Voting Rights Act of 1970, Father Hesburgh, who
    was Chairman of the Civil Rights Commission, said this:
    The lives and fortunes of illiterates are no less affected by the actions of local,
    State and Federal governments than those of their more fortunate brethren. Today,
    with television so widely available, it is possible for one with little formal education
    to be well-informed, an intelligent member of the electorate.
    What troubles me is that you said that the Congress did not have
    the power to collect data on race discrimination. Now, you say that
    Congress does not have the power to ban literacy tests for voting.
    Congress is attempting to deal with the profound historical, national
    problem that this country has ached at over its history and continues
    to do so today.
    Yet, we have seen these fundamental areas—you seem to interpret
    the powers of Congress so narrowly that we cannot achieve
    our purpose—even fundamental areas such as race discrimination
    and the right to vote. *

  • Judge SOUTER

    At 01:38:49
    3 minutes

    Well, with respect, Senator, let me address a
    couple of points that you raise. Maybe the best place to start is
    with the fundamental one. That is about me today, as opposed to
    me as an advocate in a voting rights case 20 years ago.
    I hope one thing will be clear and this is maybe the time to make
    it clear, and that is that with respect to the societal problems of
    the United States today there is none which, in my judgment, is
    more tragic or more demanding of the efforts of every American in
    the Congress and out of the Congress than the removal of societal
    discrimination in matters of race and in the matters of invidious
    discrimination which we are unfortunately too familiar with.
    That, I hope, when these hearings are over, will be taken as a
    given with respect to my set of values.
    The second thing that I think must be said, with respect to that
    case of 20 years ago, is that I was not giving an interpretation 20
    years ago. I was acting as an advocate, as a lawyer, in asserting a
    position on behalf of a client. Maybe it is unnecessary to add, but I
    know that you recognize that the identity of the Governor has
    nothing to do with the responsibility of the attorney general to
    bring a case.
    This voting rights case, by the way, did not arise during the administration
    of the Governor that you have just been referring to.
    It arose during the Peterson administration which preceded his.
    The issue that was presented to the State was, in one respect, similar
    to one we have already discussed.
    New Hampshire had a literacy test. The literacy test had never
    been used or, indeed, ever have been claimed to have been used for
    any discriminatory purposes whatsoever. There is some question as
    to what its practical effect was in those days. But it had never been
    used for discrimination.
    There was one thing that we did know very clearly about the law
    in those days, and that was that the use of a literacy test for a nondiscriminatory
    purpose was constitutional under the 14th amendment.
    That had been litigated.
    So that New Hampshire's practice was, in fact, a wholly constitutional
    practice. The issue which the Governor requested the attorney
    general to raise was.
    Is it within the power of Congress, under
    section 5, to suspend a literacy test in a State in which there is absolutely
    no history or evidence of any sort, at any time, of its discriminatory
    use, in such a way as to be unconstitutional under the
    14th amendment?
    That issue was not ultimately decided until about 4 or 5 months
    after our case began. That issue was decided in Oregon v. Mitchell,
    and as you indicated a moment ago, the Court under varying rationales—
    some under 14th and some under 15th amendment analyses—
    decided that it was, in fact, within the power of the Congress
    to deal with literacy and the discrimination frequently associated
    with it, as a national problem, and to suspend the test without
    regard to any particular history of discrimination in the States.
    But that case had not been decided at the time that ours was
    brought. Therefore, the attorney general at the time was in the position,
    No. 1, of being requested by the Governor to defend a constitutional
    action under existing State law. I think that was within
    the appropriate role of an advocate, and it did not represent a personal
    opinion, either by the attorney general or anyone else involved
    in the litigation about the ultimate scope of Congress' power
    under section 5.

  • Senator KENNEDY

    At 01:42:44
    17 seconds

    Well, Judge, I must say that you keep coming
    back to the role of the Governor's lawyer. It is very clear to me
    that the oath of office that you take, as attorney general in the
    statute requires, and a part of your responsibility as attorney general
    is, your responsibility to the public trust and to the people.

  • Judge SOUTER

    At 01:43:01
    1 second

    That is correct.

  • Senator KENNEDY

    At 01:43:02
    4 seconds

    SO now we know where you are today. I think
    the question is, where were you then?

  • Judge SOUTER

    At 01:43:06
    34 seconds

    Well, Senator, I think you have answered that
    question. Where we were then, where the attorney general was and
    where I was as an assistant attorney general in that case was in
    defending a State practice which the Supreme Court of the United
    States had ruled to be constitutional under the 14th amendment.
    I think that cannot be reasonably regarded as a derogation of the
    duty of the State to its people. It may have turned out to be a legal
    position which the Supreme Court of the United States ultimately
    rejected, but I think it is a defensible one.

  • Senator KENNEDY

    At 01:43:40
    2 minutes

    Well, you can see what the impact would have
    been if they had not rejected it, because then we would have had
    50 different types of solutions which the Federal Government
    would have been attempting to deal with in a problem of major national
    concern.
    Let me go to the issue of the equal protection clause of the 14th
    amendment. The Supreme Court struck down virtually all laws
    that discriminate on the basis of race. On the other hand, they
    used a weak standard, on other classifications, and upheld many
    laws under the rational justification test.
    Obviously they have drawn a distinction between trucks and
    automobiles and different laws for businesses of different sizes.
    Before the 1970's, the Supreme Court applied the weakest test to
    cases involving claims of sex discrimination. The Court accepted
    any rational basis for laws that discriminated against women.
    Under this approach women were routinely excluded from many
    occupations, including being lawyers, and many areas even serving
    as jurors.
    Beginning in the 1970's, the Court began to apply a higher standard
    of review to laws that discriminated against women. But evidently
    you did not agree with that standard. In 1978, you urged the
    Court to reexamine and perhaps eliminate the new standard.
    The issue here does not turn on the facts of the case. It involved
    the New Hampshire statutory rape law, and a man convicted
    under the statute claimed the law was unconstitutional because it
    did not apply to women, too. The Supreme Court refused to hear
    the New Hampshire case, but a few years later the Court, in another
    case, made clear that under even the higher standard of
    review, statutory rape laws were valid, even though they do not
    apply to women.
    What I find very disturbing is that in your brief you urged the
    Supreme Court to eliminate the higher standard of review. It
    seems to me that if you are genuinely concerned about the rights
    of women the obvious argument to make is that even under a
    higher standard review the statutory rape laws are valid. But you
    did not take that course. You suggested the Court should go back
    to the old law, which had permitted sex discrimination to flourish.
    In your brief, you call on the higher standard as amoebic, and
    you said it was in the "Twilight Zone" which are generally considered
    to be, I think, disparaging, perhaps even derogatory, ways of
    referring to a constitutional requirement that made an enormous
    difference in any discrimination against women in our society.
    So do you think the Court should go back to uphold statutes that
    discriminate by sex if there is any plausible reason for the distinction?

  • Judge SOUTER

    At 01:46:36
    2 minutes

    No. That is not my position. My position which
    was described in that, which was raised as an advocate in that
    brief, went to a problem which is a problem that is still with us. It
    is a problem which anyone who is concerned about sex discrimination
    and the appropriate standard of review, I think has got to
    face.
    What we are dealing with when we are asking what is the appropriate
    standard of review in an equal protection case is what kind
    of pragmatic approach should we adopt in order to find whether
    there is or is not a defensible classification?
    As you have pointed out, we have come up with, or the courts
    have come up with basically three tiers of review, so that the
    courts do not have to reinvent the wheel in every case.
    Economic matters get the lowest scrutiny, and racial matters get
    the highest. The difficulty which has bedeviled the middle scrutiny
    test, under which classifications of sex and illegitimacy have been
    examined, is the looseness of the test.
    The rational basis test is fairly easy to understand. The strict
    scrutiny test is fairly easy to understand but the middle scrutiny
    test requires the court to determine whether there is a substantial
    relationship to an important governmental objective in deciding
    whether or not a discrimination, a classification on the basis of sex
    is appropriate.
    What is unfortunate about that standard of review is that it
    leaves an enormous amount of leeway to the discretion of the court
    that is doing the reviewing. The history of the middle-tier test illustrates
    this because we know there are examples, both State and
    Federal, in which the middle-tier test, in fact, has been treated as
    nothing more than the first-tier rational basis test—the lowest
    basis for scrutiny.
    I think the question that has got to be faced is whether there can
    be devised a middle-tier test providing a higher level of scrutiny for
    these classifications on the basis of sex and illegitimacy that does
    not suffer from the capacity of a court, as a practical matter, to
    read it back down to the lowest level of scrutiny, if it is inclined to
    do so.
    The trouble with the middle-tier test is that it is not a good,
    sound protection. It is too loose.

  • Senator KENNEDY

    At 01:49:29
    2 seconds

    I—excuse me.

  • Judge SOUTER

    At 01:49:31
    24 seconds

    No, I was just going to add, that has nothing to do
    with the question of whether sex discrimination should receive
    heightened scrutiny. I think that is to compare sex discriminations
    with common economic determinations seems to me totally inappropriate.
    The question is, what is a workable and dependable middle-tier
    standard for scrutiny.

  • Senator KENNEDY

    At 01:49:55
    7 seconds

    In your brief, you talk about even eliminating
    that test.

  • Judge SOUTER

    At 01:50:02
    10 seconds

    Well, I also talked about making the test more
    clear and eliminating this kind of protean quantity to it.

  • Senator KENNEDY

    At 01:50:12
    2 seconds

    And we will include the brief in the record.

  • Judge SOUTER

    At 01:50:14
    1 second

    Surely.

  • Senator KENNEDY

    At 01:50:15
    12 seconds

    But you talk about clarification but you also
    talk about eliminating it. My question is, do you not think that
    statutes that discriminate on the basis of sex should receive very
    close examination.

  • Judge SOUTER

    At 01:50:27
    2 seconds

    I do not think there is any question about it.

  • Senator KENNEDY

    At 01:50:29
    1 minute

    I know my time is just rapidly going by. I
    mention these, Judge, because these are questions of fundamental
    equality and discrimination in all forms and shapes that have
    been, as I mentioned earlier, a matter of enormous concern and
    this country has experienced a lot of pain, a lot of tears, a lot of
    blood. I do not think the American people want to go back.
    We have seen—and this is subject to many members understanding—
    we have seen recent judgments and decisions that have been
    made by the Supreme Court which many of us feel have been a significant
    retreat from protections for both women and minorities.
    So it is important, at least for this Senator, to understand your
    recognition of the authority and the responsibility that we, in the
    Congress, have in terms of fulfilling our responsibility under the
    14th amendment, clause 5, to make sure that when laws are necessary
    that we are going to pass them. And that we are going to have
    someone who is going to be sitting on the Court who is going to
    recognize the importance of interpreting them to deal with the
    problems of discrimination, and also who is going to give the adequate
    remedies for the enforcement of those laws.
    That is why I am most interested in understanding your views
    about it, but I appreciate your response to these questions.
    Thank you.

  • Judge SOUTER

    At 01:52:06
    1 second

    I appreciate your concerns.

  • The CHAIRMAN

    At 01:52:07
    3 seconds

    Before I yield to my colleague from Utah, I am a
    little confused, Judge.

  • Judge SOUTER

    At 01:52:10
    1 second

    Yes, sir?

  • The CHAIRMAN

    At 01:52:11

    YOU say there should be a standard between
    strict scrutiny and rational basis.

  • Judge SOUTER

    At 01:52:11
    44 seconds

    Well, I suppose there has got to be. It seems to me
    impossible to say that unless you are within those basically four
    categories that get the very strict scrutiny—race, alienage, national
    origin, fundamental rights—that there is no appropriate level of
    review except that bottom level of review which is reserved for basically
    the most garden-variety economic distinctions.
    That kind of a position seems to me not to take into account the
    variety of the importance of the interests that fall between them.

  • The CHAIRMAN

    At 01:52:55
    2 seconds

    SO there should be a middle level to define it
    more clearly?

  • Judge SOUTER

    At 01:52:57
    5 seconds

    There has got to be something other than just
    threshold level scrutiny.

  • The CHAIRMAN

    At 01:53:02
    1 second

    Right.

  • Judge SOUTER

    At 01:53:03
    11 seconds

    The tough thing is in writing—I have been saying
    and I will say it again—the tough thing is in finding—is in writing
    a test that does not have the undue flexibility in the middle.

  • The CHAIRMAN

    At 01:53:14
    2 seconds

    I thank you.
    I will yield to my colleague.

  • Senator HATCH

    At 01:53:16
    10 seconds

    Thank you, Mr. Chairman.
    I think you have more than adequately answered the concerns
    that Senator Kennedy has raised with regard to these issues, but I
    would like to just clarify them just a little bit, if we can.

  • Judge SOUTER

    At 01:53:26
    2 seconds

    Yes, sir.

  • Senator HATCH

    At 01:53:28
    20 seconds

    I would like to just make sure I correctly have
    the procedural history, say, of the EEOC case, the case regarding
    the racial data collection and the briefs you filed in that case.
    As I understand it, Governor Thomson refused to supply the
    EEOC with the racial, ethnic data information on State employees
    about 1973.

  • Judge SOUTER

    At 01:53:48
    2 seconds

    I believe that was the first year, 1972 or 1973, yes.

  • Senator HATCH

    At 01:53:50
    3 seconds

    Who was the attorney general at that time?

  • Judge SOUTER

    At 01:53:53
    10 seconds

    My esteemed former colleague, Senator Rudman.
    I would not want to suggest that Senator Rudman counseled any
    executive decision on that.

  • Senator HATCH

    At 01:54:03
    15 seconds

    NO. I am not trying to embarrass Senator
    Rudman here. But the point is that as I understand it Senator
    Rudman was then the attorney general when the Department of
    Justice sued the State of New Hampshire for this information in

  • Judge SOUTER

    At 01:54:18
    2 seconds

    That is correct.

  • Senator HATCH

    At 01:54:20
    12 seconds

    And as I understand, his name and Assistant Attorney
    General Edward A.
    Haffer, were on the answer to the Federal
    Government's lawsuit and they signed that particular answer,
    if you can recall.

  • Judge SOUTER

    At 01:54:32
    2 seconds

    I believe that was correct.

  • Senator HATCH

    At 01:54:34
    2 seconds

    Was your name on that answer?

  • Judge SOUTER

    At 01:54:36
    3 seconds

    I do not remember. I do not specifically remember.

  • Senator HATCH

    At 01:54:39
    3 seconds

    The answer is, no, I do not think you were.

  • Judge SOUTER

    At 01:54:42
    3 seconds

    YOU are a better student of my history than I am.

  • Senator HATCH

    At 01:54:45
    16 seconds

    The names of the same two persons, Senator
    Rudman and Assistant Attorney General Haffer appear on the
    State's memorandum in support of the cross motion for summary
    judgment which was filed, as I recall, December 9, 1975. I think
    you would agree with that.

  • Judge SOUTER

    At 01:55:01
    2 seconds

    I recall that.

  • Senator HATCH

    At 01:55:03
    12 seconds

    The Federal district court, later in December
    1975, then granted summary judgment for the Federal Government.
    Now, who filed the State's notice of appeal to the Court of
    Appeals for the First Circuit?

  • Judge SOUTER

    At 01:55:15
    7 seconds

    My best recollection is that the notice of appeal
    probably had been filed before I became attorney general, but I
    would have to check the dates.

  • Senator HATCH

    At 01:55:22
    8 seconds

    Again, it was Senator Rudman and Mr. Haffer, I
    believe it was.
    Now, I believe that the notice was filed on December 31, 1975,
    and your name was not on it?

  • Judge SOUTER

    At 01:55:30
    2 seconds

    That is right. I was still deputy at that time.

  • Senator HATCH

    At 01:55:32
    4 seconds

    On what date did you become attorney general
    of New Hampshire?

  • Judge SOUTER

    At 01:55:36
    5 seconds

    I think it was January 20 of the next year, 1976.

  • Senator HATCH

    At 01:55:41
    28 seconds

    SO by the time that you became head of the
    office of attorney general of New Hampshire, the Governor had re108
    fused to comply with Federal data requests and the Federal Government
    had sued the State to obtain the data and the State's
    answer and legal arguments had already been fully set forth in the
    Federal district court and the State had lost in that court.
    And the State's attorney general, our current colleague, Senator
    Rudman, had already noticed an appeal and all of this occurred
    before you became attorney general.

  • Judge SOUTER

    At 01:56:09
    1 second

    That is correct.

  • Senator HATCH

    At 01:56:10
    16 seconds

    OK. Now, is it accurate to say that the State's
    appellate brief filed in the first circuit and the State's petition for
    certiorari, after the first circuit upheld the lower court, generally
    tracked the arguments made in the district court filing, while Senator
    Rudman was attorney general?

  • Judge SOUTER

    At 01:56:26
    1 second

    That is my understanding.

  • Senator HATCH

    At 01:56:27
    28 seconds

    That is true.
    Now, I am pointing out who was attorney general at what stage
    of the proceedings. I am not trying to suggest that you should seek
    to disassociate yourself from the briefs. You clearly have not done
    that.
    But I just want this episode and its perspective because I think
    that has to be said.
    Then I would like to also add that you and then attorney general,
    my good friend Senator Rudman, you were both advocates and
    you have made that point here.

  • Judge SOUTER

    At 01:56:55
    1 second

    That is correct.

  • Senator HATCH

    At 01:56:56
    15 seconds

    It was your duty to do the best you could for
    your client who was, in this case, the Governor and the State of
    New Hampshire. And as such, it is not only appropriate but it is a
    part of your responsibility to advance the plausible arguments to
    try and win the case, is that a fair statement?

  • Judge SOUTER

    At 01:57:11
    2 seconds

    Yes, sir.

  • Senator HATCH

    At 01:57:13
    19 seconds

    I notice that these briefs asserted—I thought
    that this was fairly ingenious—that these briefs asserted the right
    to privacy for State employees not to reveal their racial identity
    and the briefs based it on Griswold v. Connecticut.

  • Judge SOUTER

    At 01:57:32
    1 second

    That is correct.

  • Senator HATCH

    At 01:57:33
    3 seconds

    Which, of course, was a 1965 decision and has
    been raised earlier by our distinguished chairman.

  • Judge SOUTER

    At 01:57:36
    2 seconds

    That is correct.

  • Senator HATCH

    At 01:57:38
    56 seconds

    NOW, this argument, I might add for the benefit
    of my colleagues who are concerned that you might not be an advocate
    of the right of privacy, this argument extended far beyond Roe
    v. Wade with regard to the right of privacy, in those briefs cited,
    because the line of privacy cases cited grew out of the marriage relationship
    and the personal interest in procreation.
    But as a critic of the Roe y. Wade decision, which I am—I am not
    the least bit troubled by its inclusion in your brief.
    As an advocate, you have to make plausible arguments based on
    then current case law, and the principles you find there. I have to
    give my old friend, Senator Rudman, a lot of credit, and you as
    well, for having the ingenuity for making the arguments based
    upon Griswold v. Connecticut.

  • Judge SOUTER

    At 01:58:34
    1 second

    We did the best we could, Senator.

  • Senator HATCH

    At 01:58:35
    2 seconds

    YOU sure did.

  • Judge SOUTER

    At 01:58:37
    2 seconds

    Thank you. [Laughter.]

  • Senator HATCH

    At 01:58:39
    24 seconds

    YOU were wrong, but you made very, very good
    arguments. That is all I can say. I would be more concerned if as a
    judge you had accepted that inventive argument, you see.
    Now, let me just ask one other question. When you did become
    attorney general, did your office comply and provide the racial and
    ethnic identification data in response to the EEOC surveys?

  • Judge SOUTER

    At 01:59:03
    3 seconds

    Yes; I think by that time an order had been entered
    against the State.

  • Senator HATCH

    At 01:59:06
    20 seconds

    SO once you had taken a shot at it and tried to
    change the law and, as best you could, with innovative arguments
    in representing your client as an advocate and as one who inherited
    the case from prior ingenious advocates—and I say that with respect—
    you complied with the law once you lost.

  • Judge SOUTER

    At 01:59:26
    1 second

    When the case was over, it was over.

  • Senator HATCH

    At 01:59:27
    26 seconds

    It was over. Well, I think that makes the case
    pretty well that it is improper for us to try to use your position as
    an advocate to determine whether or not you have—or to determine
    your own beliefs as you exist here today as the nominee for
    the Supreme Court.

  • Judge SOUTER

    At 01:59:53
    2 seconds

    Thank you, Senator.

  • Senator METZENBAUM

    At 01:59:55
    8 seconds

    I think the Senator from Utah has convinced
    me we should not confirm Warren Rudman to the Supreme
    Court. [Laughter.]

  • Senator HATCH

    At 02:00:03
    1 second

    Actually, I think

  • Judge SOUTER

    At 02:00:04
    2 seconds

    Senator, I would stipulate to that.

  • Senator HATCH

    At 02:00:06
    8 seconds

    YOU will stipulate to that. [Laughter.]
    Actually, I think he would make quite a great Supreme Court
    Justice.
    I would be worried every time a case came down, however.

  • Judge SOUTER

    At 02:00:14
    9 seconds

    I was going to say I think he would be a great
    Justice, too. I thought it was a question of him against me, and
    under those circumstances. [Laughter.]

  • Senator HATCH

    At 02:00:23
    16 seconds

    I wouldn't push that if I were you. I know
    Rudman too well.
    With regard to the literacy case, the law of New Hampshire had
    basically, in your opinion, been upheld before you tried that case.

  • Judge SOUTER

    At 02:00:39
    5 seconds

    Yes; it had. The use of a literacy test for a nondiscriminatory
    purpose had been affirmed by the Supreme Court.

  • Senator HATCH

    At 02:00:44
    8 seconds

    AS I understand it, the New Hampshire Constitution
    required all voters to be able to read and write and understand
    English.

  • Judge SOUTER

    At 02:00:52
    15 seconds

    Yes. It was a requirement, and I don't think this
    was the point of any question so far. But needless to say, no one
    had authority to suspend the imposition of that literacy test except
    a court of competent jurisdiction.

  • Senator HATCH

    At 02:01:07
    11 seconds

    Well, as I understand it also, that law required
    voters to be 21 years of age, and it restricted absentee voting to
    people who were actually outside of the State, at least as I understand
    it.

  • Judge SOUTER

    At 02:01:18
    2 seconds

    I believe that is correct.

  • Senator HATCH

    At 02:01:20
    7 seconds

    The Department of Justice took the position that
    the Voting Rights Act of 1965 outlawed all of these practices.

  • Judge SOUTER

    At 02:01:27
    1 second

    That is correct.

  • Senator HATCH

    At 02:01:28
    6 seconds

    SO when you and Senator Rudman took that
    matter on, you had current law that seemed to support you.

  • Judge SOUTER

    At 02:01:34
    1 second

    Yes, sir.

  • Senator HATCH

    At 02:01:35
    14 seconds

    In addition, you were both, as advocates, as attorneys
    general, if you will, you were both required by your oath of
    office to uphold the New Hampshire Constitution and statutory
    law.

  • Judge SOUTER

    At 02:01:49
    1 second

    Yes; we were.

  • Senator HATCH

    At 02:01:50
    8 seconds

    In fact, it would have been unseemly if you had
    not tried to uphold the constitution that had been enacted by elected
    representatives in your State.

  • Judge SOUTER

    At 02:01:58
    31 seconds

    The only case, Senator, in which our responsibility
    would have been different from the way we saw it would have
    been a case in which the national and State constitutions clearly
    conflicted. And in those circumstances, our oaths would have required
    us, if we so believed—and we believed that there was no
    reasonable argument that could have been made to defend the
    State position—our obligation would have been to state that to the
    court. We did not find ourselves to believe that we were in that position.

  • Senator HATCH

    At 02:02:29
    11 seconds

    IS it fair to say constitutionally that at that time
    back in 1970, the constitutionality of the Voting Rights Act was
    being legitimately disputed at that particular time?

  • Judge SOUTER

    At 02:02:40
    11 seconds

    Yes. That was being litigated, and it was a final
    determination on that, or at least on the issues that concerned us,
    came with Oregon v. Mitchell, which was decided, I think, about 4
    months after our own State case.

  • Senator HATCH

    At 02:02:51
    5 seconds

    It was disputed, basically, on the principles of
    federalism arguments.

  • Judge SOUTER

    At 02:02:56
    1 second

    Yes; it was.

  • Senator HATCH

    At 02:02:57
    11 seconds

    All right. Well, as I understand it, the district
    court itself expressed some doubt about the issue but said that the
    act was "probably" constitutional.

  • Judge SOUTER

    At 02:03:08
    6 seconds

    Yes; they were at an injunction stage, and they
    made that judgment.

  • Senator HATCH

    At 02:03:14
    13 seconds

    I also understand that you and Senator Rudman,
    then attorney general of the State of New Hampshire, complied
    with all aspects of the Justice Department suit as soon as the constitutionality
    of the act was settled by the Supreme Court.

  • Judge SOUTER

    At 02:03:27
    13 seconds

    Yes. My recollection is that after Oregon v. Mitchell
    came down I believe there was a joint stipulation filed by the
    State and Federal counsel, which ended the case.

  • Senator HATCH

    At 02:03:40
    28 seconds

    We can go through a lot of questions on the
    other point that Senator Kennedy raised with regard to the gender
    issue, but let me just say this: In its petition for writ of certiorari,
    your State in that particular case did refer to the Supreme Court's
    case laws evincing a "middle-tier" approach and asked the Supreme
    Court to make it clearer and more precise and, in addition,
    to uphold your statutory rape law.

  • Judge SOUTER

    At 02:04:08
    2 seconds

    That is correct.

  • Senator HATCH

    At 02:04:10
    17 seconds

    NOW, there is simply nothing here giving rise to
    any legitimate concern, as far as I am concerned, about you because
    the brief made reasonable arguments back in 1977 seeking to
    I l l
    construe precedent in a manner which would uphold your own
    State's statutory rape law.

  • Judge SOUTER

    At 02:04:27
    1 second

    That is correct.

  • Senator HATCH

    At 02:04:28
    21 seconds

    A May 5, 1987, opinion of the New Hampshire
    Supreme Court, which you joined in, made reference to the socalled
    middle-tier level of heightened scrutiny with respect to
    gender. And so, even on the bench, you acknowledged this middletier
    gender characterization.

  • Judge SOUTER

    At 02:04:49
    3 seconds

    That is correct.

  • Senator HATCH

    At 02:04:52
    37 seconds

    I think I have to say that I don't see any reason
    to criticize you on the basis of any of those matters. As a matter of
    fact, I see every reason to say that in the fight for principle, you
    may be wrong but you fight for it. You may be right but you fight
    for it. And you are an effective advocate and an ingenious representative
    of the people and, I might say, a clever and good writer of
    the law.

  • Judge SOUTER

    At 02:05:29
    1 second

    Thank you, Senator.

  • Senator HATCH

    At 02:05:30
    6 seconds

    But that once the decision is made, you immediately
    followed those decisions.

  • Judge SOUTER

    At 02:05:36
    1 second

    We did.

  • Senator HATCH

    At 02:05:37
    10 seconds

    I don't know what more we could ask for in
    somebody who is here sitting as a nominee for the Supreme Court
    of the United States of America.

  • Judge SOUTER

    At 02:05:47

    Thank you, Senator.

  • Senator HATCH

    At 02:05:47
    58 seconds

    I want to compliment you for it because, you
    know, let's just be honest. If we are going to start criticizing advocates
    because they advocated for people who may have been wrong,
    we would hardly ever have an opportunity of putting a criminal
    lawyer on the Supreme Court, or any other bench, for that matter.
    Nor would we have an opportunity of putting people who actually
    go to bat for some pretty reprehensible people in our society and
    try and uphold their rights, which is time honored, one of the most
    important obligations of any attorney worth his or her salt. So, you
    know, I don't see any problems at all with you as an advocate. As a
    matter of fact, I would be surprised if you had not advocated the
    way you did at the time. It would have been nice if you had known
    how the Supreme Court was going to rule in advance.

  • Judge SOUTER

    At 02:06:45
    2 seconds

    I could have been a very successful lawyer.

  • Senator HATCH

    At 02:06:47
    6 seconds

    Well, you are also going to be in a position
    where I think you are going to know how it is going to rule in advance
    in the future. That will be great.

  • Judge SOUTER

    At 02:06:53
    1 second

    Thank you, Senator.

  • Senator HATCH

    At 02:06:54
    11 seconds

    NOW, you have sat on a State trial court, a State
    supreme court. You have had tremendously broad experience. You
    have heard domestic relations cases, right?

  • Judge SOUTER

    At 02:07:05
    1 second

    Yes, sir.

  • Senator HATCH

    At 02:07:06
    1 second

    Child custody cases?

  • Judge SOUTER

    At 02:07:07
    1 second

    Yes.

  • Senator HATCH

    At 02:07:08
    1 second

    Criminal law cases?

  • Judge SOUTER

    At 02:07:09
    1 second

    Yes.

  • Senator HATCH

    At 02:07:10

    Divorce cases?

  • Judge SOUTER

    At 02:07:10
    1 second

    Yes.

  • Senator HATCH

    At 02:07:11
    3 seconds

    In fact, you have heard cases of employment
    law.

  • Judge SOUTER

    At 02:07:14

    Yes.

  • Senator HATCH

    At 02:07:14
    3 seconds

    YOU have heard cases involving almost every
    aspect of human endeavor.

  • Judge SOUTER

    At 02:07:17
    3 seconds

    Anything that can come before a trial court of
    general jurisdiction.

  • Senator HATCH

    At 02:07:20
    7 seconds

    Yes, and you have heard them in a more refined
    sense with arguments on both sides in the appellate courts that
    you have been on.

  • Judge SOUTER

    At 02:07:27

    Yes, I have.

  • Senator HATCH

    At 02:07:27
    22 seconds

    All right. Well, having had that experience and
    now sitting on an intermediate Federal court, the highest court
    under the Supreme Court of the United States, could you describe
    for the committee the process by which you have reached your decisions
    in cases as they come before you? It is a generalized question,
    but I would like you to give us the benefit of how you go
    through deciding these cases.

  • Judge SOUTER

    At 02:07:49
    6 seconds

    Well, do you want me to refer to the trial court
    experience as well as appellate court?

  • Senator HATCH

    At 02:07:55
    7 seconds

    NO, just the appellate experience I think would
    be fine at this point, since it is closely parallel to the Supreme
    Court experience I hope you will have.

  • Judge SOUTER

    At 02:08:02
    4 minutes

    Well, the process is one which helps to discipline
    the mind as we go through it. I will leave aside the question of determining
    whether there should be discretionary review in a given
    case and start with the point at which the case is docketed before
    the court.
    In the normal course, sometime in the month before the case is
    going, to be argued, we get a set of briefs. My practice would be
    usually in the week or the weekend before the argument to read
    those briefs through, to make notes on the covers of the briefs of
    questions that I want to ask. And also, as a matter of curiosity, to
    try to settle a lawyer's argument, I engaged in a practice for the
    last couple of years of trying to get some sense in a way that I
    could measure of the effect of the oral argument on me, which
    would come after the briefs had been read.
    What I would do after I had read the briefs and noted the questions
    that I knew that I wanted to ask counsel, I would make a notation
    on my docket list, which I kept in my own file, of what I
    thought was the strongest position at the time, a kind of first, even
    prestraw-poll indication of where I thought I might come out on
    the case.
    Following the oral argument in the case, I would then compare
    my determination after oral argument with that first indication
    that I had put on the docket list. One of the things that I wish I
    had done before I came down here and I didn't think to do was to
    try to go down to my chambers and pull out my old docket lists
    and tabulate those points at which I had had some change of decision
    from the preliminary to the postargument decision. But I did
    change my mind in enough cases so that I remember there are
    enough little x's in the margin to indicate that the second look
    after argument suggested something that the first look before argument
    had not, to indicate to me that oral argument was a matter
    of substantial importance to me in deciding cases.
    I would then, following that oral argument, of course, go through
    a preliminary discussion of the case and a preliminary vote with
    the other justices. We would decide how the case probably would
    come out, and the case in the New Hampshire Supreme Court
    would be assigned randomly. And if I got the case, I would then
    start working on the opinion.
    The way I happen to work on opinions was to ask a law clerk
    whom I would assign to that particular case to draft an opinion
    which followed a rough outline that I would give the clerk of the
    points that I wanted to cover and the basic reasoning that I wanted
    to go through. What I wanted the clerk to do was not to write me
    an opinion which I was necessarily going to use—because, in fact,
    on the New Hampshire Supreme Court I never did use a clerk's
    draft ultimately. What I wanted the clerk to do was, in effect, to
    make the run-through, help me with the research, reduce down the
    amount of reading that I personally had to do of the most important
    authorities, and to give a further preliminary look at whether
    there was some flaw in our reasoning that I was not catching or
    that the other judges in the majority with me were not catching.
    After I would get the clerk's draft back—we may or may not
    have argued about it in the meantime. But after the clerk's draft
    came back, I would then work my way through the briefs again. I
    would read the portions of the record sent up to us that were germane
    to the decision. I would then go through my own research
    process of rereading cases, even though I might think I was familiar
    with them, that the parties had relied on.
    At that point, I would make a final assessment myself as to
    whether there was any reason to change my view from what it had
    been when the court voted. If there was, I would either go back to
    the court or I would draft an opinion indicating the change and circulate
    that and explain why I was doing it. If there was no change,
    I would then write my own opinion. I would revise it an unfortunate
    number of times. And then I would let the clerk have a go at
    it again, and the clerk would try to tear it to pieces. Usually, another
    clerk would review it then, and ultimately it would circulate
    to the rest of the court, at which point I might or might not be in
    trouble. But that was at least the process that I went through up to
    there.

  • Senator HATCH

    At 02:12:52
    11 seconds

    Well, that is good. I have other questions I would
    like to ask. I have about 10 minutes left, but I think I will just reserve
    that time and we will move on from here. But thank you,
    Judge.
    It has been great to be able to ask a few of these questions.

  • Judge SOUTER

    At 02:13:03
    1 second

    Thank you, Senator.

  • The CHAIRMAN

    At 02:13:04
    6 minutes

    I think it may be appropriate now for us to take
    a short break. But before we do, let me ask my colleagues to think
    about it while we are on break. We have 2% hours' worth of questioning
    left. I indicated we would stop around 6 o'clock, which is
    my preference this evening. But I would like my colleagues to
    think about that, and we will come in in the morning, and those
    who haven't had their first round would start off when we started
    in the morning. But I would just like to ask my colleagues to think
    about that while we take a break.
    We will have a recess until 4:30, at which time we still start
    promptly at 4:30.
    [Recess.]
    The hearing will come to order.
    Judge, would you like a soda or some coffee or anything?

  • Judge SOUTER

    At 02:19:27
    4 seconds

    No, I am fine. Thank you, sir. I was offered anything
    I needed out back.

  • The CHAIRMAN

    At 02:19:31
    1 minute

    We have done a little bit of a check here and I
    think this is consistent with my colleagues and the White House, I
    think we are all in agreement, which we usually always are.
    [Laughter.]
    That is that this is how we will proceed. I checked with the ranking
    member, Senator Thurmond, because we do not do anything he
    does not agree to, and this is what we will do: We will go next to
    Senator Metzenbaum, then to Senator Simpson, and then to Senator
    DeConcini, and we will stop after Senator DeConcini, and by
    that time we will have a consensus.
    Is there a preference when you wish to convene tomorrow morning,
    somewhere between 9 and 10? Before we close out, I will have
    that, because a lot of the press are asking. I do not—and we have
    discussed this—I do not intend to go late tomorrow afternoon. We
    will go into the middle of the afternoon, to the 5 o'clock area, but it
    will not be a late night tomorrow, and I expect, based on that, as
    we indicated before, have a reasonable prospect of finishing up
    early Monday and then begin with our witnesses, but we will see
    from there.
    Again, I thank you. You obviously have one advantage that most
    witnesses do not have, Judge. You are accustomed to sitting for a
    long time, and you

  • Judge SOUTER

    At 02:21:06
    2 seconds

    That is the third lesson I learned as a judge.
    [Laughter.]

  • The CHAIRMAN

    At 02:21:08
    7 seconds

    YOU do it with great aplomb, your physical constitution
    as well as your understanding of the Constitution are
    matched.

  • Judge SOUTER

    At 02:21:15
    1 second

    Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 02:21:16
    11 seconds

    NOW, let me turn to my colleague from Ohio Senator
    Metzenbaum, for his questioning.
    Senator Metzenbaum.

  • Senator METZENBAUM

    At 02:21:27
    2 minutes

    Thank you, Mr. Chairman.
    Judge Souter, I want to focus on your view of really what is at
    stake in the abortion debate. Now, we write the laws in Congress,
    the Court interprets the laws, but we all must be aware that the
    laws affect the personal lives and the hopes and the dreams of the
    people who must live with the laws we make.
    I want to start to talk with you on a personal level, not as a constitutional
    scholar nor as a lawyer. This year, I held hearings on
    legislation that would codify the principles of Roe v. Wade. I heard
    stories from two women who had had illegal abortions prior to
    1973. They were women about your age. They told horrifying stories.
    One woman was the victim of a brutal rape and she could not
    bear raising a child from that rape along side her own two children.
    Another woman, who was poor and alone, self-aborted. It is a
    horrible story, just a horrible story, with knitting needles and a
    bucket.
    I heard from a man whose mother died from an illegal abortion
    when he was 2 years old, after doctors told her that she was not
    physically strong enough to survive the pregnancy.
    I will tell you, Judge Souter, that the emotion that those people
    still feel, after more than 20 years, is very real, sufficiently strong
    to have conveyed it to those of us who heard their testimony. Each
    woman risked her life to do what she felt she had to do. One of
    those women paid the price.
    My real question to you is not how you would rule on Roe v.
    Wade or any other particular case coming before the Court. But
    what does a woman face, when she has an unwanted pregnancy, a
    pregnancy that may be the result of rape or incest or failed contraceptives
    or ignorance of basic health information, and I would just
    like to get your own view and your own thoughts of that woman's
    position under those circumstances.

  • Judge SOUTER

    At 02:23:54
    2 minutes

    Senator, your question comes as a surprise to me.
    I was not expecting that kind of question, and you have made me
    think of something that I have not thought of for 24 years.
    When I was in law school, I was on the board of freshmen advisers
    at Harvard College. I was a proctor in a dormitory at Harvard
    College. One afternoon, one of the freshmen who was assigned to
    me, I was his adviser, came to me and he was in pretty rough emotional
    shape and we shut the door and sat down, and he told me
    that his girlfriend was pregnant and he said she is about to try to
    have a self-abortion and she does not know how to do it. He said
    she is afraid to tell her parents what has happened and she is
    afraid to go to the health services, and he said will you talk to her,
    and I did.
    I know you will respect the privacy of the people involved, and I
    will not try to say what I told her. But I spent 2 hours in a small
    dormitory bedroom that afternoon, in that room because that was
    the most private place we could get so that no one in the next suite
    of rooms could hear, listening to her and trying to counsel her to
    approach her problem in a way different from what she was doing,
    and your question has brought that back to me.
    I think the only thing I can add to that is I know what you were
    trying to tell me, because I remember that afternoon.

  • Senator METZENBAUM

    At 02:26:13
    2 minutes

    Well, I appreciate your response. I think
    it indicates that you have empathy for the problem. In your writings,
    as a matter of fact, you reveal real empathy for those who are
    morally opposed to abortion.
    For instance, in 1986, as a State supreme court justice, you wrote
    a special concurrence in a wrongful birth case called Smith v. Coat,
    outlining, in your words, how a physician with conscientious scruples
    against abortion—this is a quote:
    How a physician with conscientious scruples against abortion and the testing and
    counseling that may inform an abortion decision can discharge his professional obligation,
    without engaging in procedures that his religious or moral principles condemn.
    As a matter of fact, that was sort of dictum. That was dictum in
    the case, it was not necessary.
    As attorney general, you filed a brief in Coe v. Hooker, which emphasized
    that^
    Thousands of New Hampshire citizens possess a very strongly held and deepseeded
    moral belief that abortion is the killing of unborn children.
    That brief went on to conclude,
    It is not accurate to say that the moral feelings of other individuals and groups,
    both public and private, may not constitutionally interfere with a woman's otherwise
    unrestricted right to decide to have an abortion.
    I start off saying it is not accurate to say that. Now, you obviously
    indicated a concern for the doctor with conscientious scruples
    against abortion, you indicated your concern about feelings of individuals
    and groups, both public and privately. My concern is do you
    have the same degree of empathy for the woman who must make a
    difficult decision when faced with an unwanted pregnancy. That is
    really the thrust of my concern, and I think the thrust of the
    concern, frankly, Judge Souter, of millions of American women, not
    really wanting to know how you will vote on a particular case, but
    wanting to know whether you can empathize with their problem.

  • Judge SOUTER

    At 02:29:08
    1 minute

    If they were to ask me whether I could, I would
    ask them to imagine what it was like to be in that room that fall
    afternoon that I described to you. That is an experience which has
    not been on my mind, because it has not had to be, but I learned
    that afternoon what was at stake.
    I hope I have learned since that afternoon what is at stake on
    both sides of this controversy. You mentioned my opinion in the
    Smith v. Cody case. I do not know whether that was dictum or not.
    I did not think it was at the time.
    What I thought I was addressing at the time was as moral dilemma
    which had been created not unnecessarily, but which had necessarily
    been raised by the majority opinion of my court.
    If I were to generalize from that concurrence in Smith v. Cody, it
    would be that I believe I, indeed, can empathize with the moral
    force of the people whom I addressed, and I can with equal empathy
    appreciate the moral force of people on the other side of that
    controversy.

  • Senator METZENBAUM

    At 02:30:56
    2 minutes

    My staff just points out to me that each
    year almost 3.5 million women face that problem of an unwanted
    pregnancy, much like the woman that you mentioned.
    Everybody talks about Roe v. Wade as a case. I do not think of it
    as a case. I think of it as those witnesses who came before my committee.
    I think of it as women generally. I think of it as my own
    daughters, who are married, and I can imagine a situation where
    they might need to have or want to have an abortion. Other
    women less fortunate than they would not be able to go to a different
    State, if there were no law.
    I think about what would happen if there were no constitutional
    protection, and I ask you not how you vote on the case, but what
    are your thoughts as to what would happen to those women in this
    country who might be able to go, if they had the money, to State x,
    but not get an abortion, not be able to stay in State y, because that
    State prohibits abortions.
    My concern is what does Judge Souter think about this moral,
    and it goes beyond being a moral question, it becomes a really
    heart-wrenching decision that actually goes beyond morality, it
    goes to the very heart of living, the kind of living that people experience.

  • Judge SOUTER

    At 02:32:59
    2 minutes

    I think I have to go back to something that I said
    to all of the members of the committee when I was speaking at the
    very beginning, before my testimony this afternoon.
    If I have learned one thing, I have learned that whatever we do
    on any appellate court is not, just as you said it was not, just a
    case. It affects someone and it changes someone's life, no matter
    what we do.
    One of the consequences undeniably of the situation that you describe
    would be an inconsistency of legal opportunity throughout
    this country. Some States would go one way, others would go another.
    Some would fund abortions, some would not fund abortions.
    There is no question that that is a consequence that has to be
    faced.
    I do not think that, any more than any other given fact, as tragic
    as that fact may be, is sufficient to decide a case. We can never
    decide a case totally that way, and I know you are not suggesting
    otherwise.
    But you remember what I said is the second lesson that I learned
    as a trial judge, that knowing that any decision we make is going
    to affect a life and perhaps many lives, we had better use every resource
    of our minds and our hearts and every strength that we
    have to get it right. It is the imperative for conscientious judging.

  • Senator METZENBAUM

    At 02:35:12
    52 seconds

    Judge, I think you are a very sincere man
    and I think you are a very moral man. What is bothering me,
    maybe some others as well, is that you have already expressed concern
    for the conscientious scruples of physicians in connection with
    abortion, you have expressed concern for the moral feelings of
    others in connection with abortions.
    The real concern is, would the conscientious scruples of a physician
    or the moral feelings of others override a woman's decision
    when and whether or not to have her child.

  • Judge SOUTER

    At 02:36:04
    2 minutes

    There is no question that the decision about the
    future of Roe v. Wade does not rest upon an assessment of a physician's
    moral scruples. The issue of Roe v. Wade is one which, as
    you know, on the merits I cannot comment on.
    But there is one thing that I can say, and I do not know how else
    to say it, is that whatever its proper resolution may be, it is an
    issue. It is not simply a label for one view, whether that view be in
    favor of continuing Roe v. Wade or in favor of overruling it.
    You are asking me at this point have I demonstrated, can I point
    to something on the record that demonstrates as kind of equality of
    empathy on either side, and I think the only thing that I can, without
    self-serving rhetoric, say to you is I have talked and I have
    counseled with someone on the other side.
    I have been the trustee of a hospital which has opened its facilities
    to people on the other side, people who did not agree with
    these conscientious doctors, and to the extent that I have a record
    that goes behind the legal issue in the case, I think you may properly
    look to that. And you may properly ask, and I hope you will
    ask yourself, as you and the other members of this committee
    listen to me over the course of the next few days, you may properly
    ask whether, on other issues generally, I am open enough to listen.
    What you want to avoid is a judge who will not listen, and I will
    ask you when these hearings are over to make a judgment on me
    as to whether I will listen or not. I think I have a record as a judge
    which indicates that I will, and after you and the other members of
    this committee have finished examining it, I will ask you to judge
    me on that basis.

  • Senator METZENBAUM

    At 02:38:40
    1 minute

    We will.
    In Griswold v. Connecticut, Justice Douglas articulated the very
    important privacy concerns that were at stake if Connecticut fully
    enforced its anticontraceptive statute. He asked, "Would we allow
    the police to search the sacred precincts of marital bedrooms for
    telltale signs of the use of contraceptives." This idea is obviously
    repugnant to everyone.
    Surely, the Court has to concern itself with the problems of enforcing
    statutes regulating reproductive rights. The Court must be
    willing to reap what it sows, if it overturns Roe and permits States
    to once again criminalize abortion.
    I do not have to tell you, until last November, what was occurring
    in Romania, the draconian regime, the manner in which they
    enforced their criminal abortion laws, each month police would
    enter factories to examine women to determine if they were pregnant.
    No question, that would not happen in this country.
    Romanian women who had miscarried were interrogated to make
    sure they had not had an abortion. We know that will not happen.
    But if the Supreme Court were to overturn Roe and a State passed
    a statute criminalizing abortion, would it then be constitutional to
    put a woman in jail for obtaining an abortion?

  • Judge SOUTER

    At 02:40:28
    30 seconds

    I think the only answer to that, Senator, is a reference
    back to the laws that preceded Roe. We know that in my
    own State there were misdemeanor statutes on the book for procuring
    an abortion. And it was exactly such statutes as that that Roe
    rendered unenforceable.

  • Senator METZENBAUM

    At 02:40:58
    3 seconds

    Excuse me, I did not mean to be rude.

  • Judge SOUTER

    At 02:41:01
    9 seconds

    I was going to say it was exactly such statutes as
    that that Roe rendered unenforceable.

  • Senator METZENBAUM

    At 02:41:10
    54 seconds

    NOW, according to news reports at the
    time you were attorney general, you opposed repealing New Hampshire's
    criminal abortion statutes which had been passed before
    Roe v. Wade.
    The legislative archives of the bill that would have repealed the
    criminal statutes contain a memorandum from the attorney general's
    office outlining the effects of Roe v. Wade. Although it is unclear
    when the memo was written, it was likely written soon after
    Roe was decided in 1973, although I am not certain about that.
    At that time, you were deputy attorney general. The memo concluded
    that "the effect of the Supreme Court decision is to invalidate
    RSA 585:12, 585:13, and to make RSA 585:14 a nullity."
    Are you familiar with that memo?

  • Judge SOUTER

    At 02:42:04
    7 seconds

    I do not recall the memo, no.

  • Senator METZENBAUM

    At 02:42:11
    9 seconds

    Did you agree then, or do you believe now
    that the Supreme Court's decision in Roe rendered the New Hampshire
    criminal statutes unconstitutional?

  • Judge SOUTER

    At 02:42:20
    1 minute

    The fact is I cannot give you a categorical answer
    to that. To begin with, it is an issue that I have not even given
    thought to for, I guess, 17 years and I do not recall the extent to
    which I may have been aware of that memorandum at the time.
    The further reason for the difficulty and a categorical answer is
    that you may recall that there are questions about the effect of Roe
    or the Roe-type decisions depending on the form of the State statutes
    in question.
    Now, I am going to say something from memory and it may be
    inaccurate, so I want you to take it with that disclaimer. But my
    recollection is that the Court's indication of the enforceability of
    the statute in Roe v. Wade was different from its indication of the
    enforceability that came out of Doe v. Bolton.
    Quite frankly, Senator, without a reexamination of precisely
    what they were saying on whether the statute remained partially
    enforceable to the extent allowable under Roe v. Wade as opposed
    to becoming totally unenforceable, I would have to go back and
    reread those carefully and parse the New Hampshire statutes,
    which I have not done.
    It is—in one sense I think we are inclined to say, well, that
    ought to be an easy question, and I do not think it is an easy question.

  • Senator METZENBAUM

    At 02:44:02
    3 minutes

    I will change the subject.
    The day after President Bush nominated you to the Supreme
    Court, White House Chief of Staff John Sununu called in an advocate
    for the right, conservative movement and said that you
    would—to assure him and the right, that those on the right would
    be very happy and that Bush selected you over better known conservatives.
    He called a man by the name of Pat McGuigan. Mr.
    McGuigan works for or is involved with something called the Coalitions
    for America; Paul Weirich, national chairman; Eric Licht is
    the president; library, court/social issues; Stanton, defense and foreign
    policy; Kingston, budget and economic policy; 721 Group, judicial
    and legal policy; Siena Group; Catholic Coalition; the Omega
    Alliance; Young Activist Coalition; Resistance Support Alliance;
    Freedom Fighter Policy; Jewish Conservative Alliance.
    At that meeting, according to the memo that Mr. McGuigan then
    wrote to Paul Weirich and a number of others, it was stated that
    Sununu asked, how are you doing? I replied, well, John, you guys
    could have hit a home run if you had picked Edith Jones, a Texas
    judge.
    Instead, you hit a blooper single which has barely cleared
    the mitt of the first baseman who is backpedaling furiously and
    almost caught the ball.
    Sununu smiled and replied, Pat, you are wrong. This is a home
    run and the ball is still ascending; in fact, it is just about to leave
    Earth orbit.
    It was not too long after that the Coalition for America announced
    they were fully supporting your nomination. That original
    memo that I mentioned specifically provided that there were to be
    absolutely no leaks allowed.
    Judge Souter, what does John Sununu know about you that we
    do not know? Can you tell us what conversations you have had
    with him or with others at the White House either before the nomination
    or since the nomination concerning any matter of issues,
    points of view, that make it possible for Mr. Sununu to say that it
    is a home run; the ball is still ascending?

  • Judge SOUTER

    At 02:47:10
    54 seconds

    I have never discussed the issue in question with
    Governor Sununu.
    After Governor Sununu came to Washington, I
    did not see him until one day last December. I think it may have
    been around the 11th or the 12th. I was in Washington that day in
    connection with the nomination or the possible nomination to the
    court of appeals.
    The Governor invited me to lunch and I did have lunch with
    him. We did not discuss any substantive issue that his memorandum
    referred to. We largely, as I recall, talked politics in New
    Hampshire. I did not see the Governor again until the day before
    this nomination.
    I did not have discussions with him on the issue that you referred
    to.

  • Senator METZENBAUM

    At 02:48:04
    13 seconds

    HOW about on other issues? Did you discuss
    other issues with John Sununu, or others at the White House
    or connected with representing the White House?

  • Judge SOUTER

    At 02:48:17
    6 seconds

    I was going to just try to establish how far back in
    time we want to go with Governor Sununu.

  • Senator METZENBAUM

    At 02:48:23
    2 seconds

    I did not mean to interrupt you.

  • Judge SOUTER

    At 02:48:25
    3 seconds

    NO. I just wanted to know how far back you want
    to go in time? To the beginning?

  • Senator METZENBAUM

    At 02:48:28
    16 seconds

    Well, anything that would give him sufficient
    knowledge to this kind of assurance and to call in the representatives
    of the far right and to assure them that you are going to
    be OK.

  • Judge SOUTER

    At 02:48:44
    24 seconds

    I have not discussed that issue or given any assurance
    to Governor Sununu.
    I presume that Governor Sununu was drawing a conclusion
    based on what he understood to be principles of judging* But I can
    assure you that I gave no assurance to him at any time on that
    matter. And I did not discuss that matter with him at any time.

  • Senator METZENBAUM

    At 02:49:08
    11 seconds

    Did you have any discussions with him or
    any other persons at the White House concerning issues that may
    or may not come before the Supreme Court?

  • Judge SOUTER

    At 02:49:19
    32 seconds

    The only discussion that I had with anyone at the
    White House in connection with this nomination or, for that
    matter the circuit nomination, was my conversation with the President
    which I think lasted about a half an hour on the afternoon
    that he announced his intent to nominate me. He asked for no assurance
    on any subject.

  • Senator METZENBAUM

    At 02:49:51
    20 seconds

    And at the time you were appointed circuit
    court of appeals judge, did anybody in the White House inquire
    of you concerning any of your political views, or views concerning
    matters that might come before the Supreme Court?

  • Judge SOUTER

    At 02:50:11
    31 seconds

    NO, Senator. The only conversation I had or conversations,
    I should say, plural, with anyone at the White House at
    that time, was during the course of the lunch that I mentioned.
    Governor Sununu—the lunch was in Governor Sununu's office.
    He
    was there and his assistant was there; the Governor's legal counsel,
    Mr. Gray, and Lee Liverman, who is on his staff.
    I was not asked for any statement of position or assurance on
    any issue in that conversation.

  • Senator METZENBAUM

    At 02:50:42
    5 seconds

    Thank you.
    Senator Biden, how much time do I have left?

  • The CHAIRMAN

    At 02:50:47
    10 seconds

    I do not know. You have 1 minute. That is just
    about enough time to call Governor Sununu, who is doing a fundraiser
    in Delaware for my opponent. Maybe we can get a hold of
    him.

  • Senator METZENBAUM

    At 02:50:57
    4 seconds

    DO I understand that we will be in several
    rounds?

  • The CHAIRMAN

    At 02:51:01
    14 seconds

    Yes. What we will do is this. We will have those
    Senators who have additional questions ask them tomorrow afternoon
    and/or Monday morning, or whatever the appropriate time is.
    Yes, there will be an opportunity.

  • Senator METZENBAUM

    At 02:51:15
    9 seconds

    I do, Judge Souter, wish to inquire of you
    concerning church-state issues, but time obviously does not permit
    it at this moment. Thank you very much for responding to my
    questions.

  • Judge SOUTER

    At 02:51:24
    1 second

    Thank you, sir.

  • The CHAIRMAN

    At 02:51:25
    4 seconds

    Thank you, Senator.
    Senator Simpson.

  • Senator SIMPSON

    At 02:51:29
    59 seconds

    Thank you, Mr. Chairman.
    We lawyers often are out doing our business, like correcting the
    record. So I did want to—you will notice Senator Biden and I this
    morning, as I pungently gave a comment about his quote and he
    pungently spliced it back together. So I thought we would just put
    the whole thing in because we both said exactly that, and it is in
    the same paragraph. And we have already had that answered, I
    think, now.
    But it is clear that what I said and what Senator Biden said are
    the exact quote with regard to the specific attitude of questions. So
    I just wanted to get that on record, because my staff was not on
    vacation. They were here laboring diligently. They were not at Rehobeth
    or anywhere.

  • The CHAIRMAN

    At 02:52:28
    4 seconds

    Well, mine were not in a hole clawing to get this
    information, or however you mischaracterized it.

  • Senator SIMPSON

    At 02:52:32
    21 seconds

    I was talking about those poor law professors. I
    think that was the part I should have clarified. Diana and the staff
    were doing their work, but the poor law professors and the academics,
    they were clawing and scratching. We have to realize that they
    have had an arduous summer and an arduous August, without
    question.

  • Judge SOUTER

    At 02:52:53
    4 seconds

    If they were reading my opinions, they were.

  • Senator SIMPSON

    At 02:52:57
    2 minutes

    Well, we all did a little of that. In any event,
    your remarks when you spoke with hardly or nary a note at 2 p.m.
    today was very impressive. I think to me, as a person who practiced
    law for 18 years in really what I thought of as the real
    world—and it was; you know, I have represented some real weird
    people, and did some real weird cases with some weird results, too,
    I can tell you that. [Laughter.]
    So the thing that impressed me is to hear you able to describe
    yourself and then hear you describe answers and form answers to
    pretty piercing questions from Senator Biden, Ted, Howard, Orrin,
    Strom. All of those—your answers come back with the lucidity of
    very impressive degree.
    I have always had the peculiar view that legislating should be
    done in a way—as I said earlier, in a way that is understandable to
    the governed. And certainly I always had a view of the law practice
    that if your clients could not understand what you had drafted for
    them, what was the purpose of practicing law?
    I know that is a screwy view, but it was mine. In other words, if
    the client did not know and looked at a contract that you had
    drafted and did not know what it said, what is the purpose of the
    law practice?
    And I think as a judge, writing opinions, what greater purpose of
    a judge is to write an opinion that the public can understand or to
    answer a question in a way that the public can understand, not
    just from some intellectual level, but from the gut level, from the
    commonsense level?
    And that is what has been most impressive to me—to hear you
    respond to these questions in a way that is extraordinarily understandable

  • Judge SOUTER

    At 02:55:31
    1 second

    Thank you, sir.

  • Senator SIMPSON

    At 02:55:32
    1 minute

    And showing, in a hackneyed word
    in these times, sensitivity and empathy. I know my friend, Howard
    Metzenbaum and I know my friend, Ted Kennedy, and we get to
    know each other pretty well in 12 years, and Joe Biden and Orrin
    Hatch and all the men at this table, and our fine ranking member.
    And we do know each other pretty well after 12 years and going
    through these kinds of exercises. We have been through some
    grinders here.
    The Bork thing was extraordinary in its, you know, intensity, in
    what occurred, and I do not see any portent of that at all here. Yet,
    my friend, Ted Kennedy, speaks with power as he gets into those
    issues of—he and I are chairman and ranking—and it was more
    fun when I was chairman and he was ranking, but we have done
    tough work together on immigration, refugees, things filled with, I
    often say, emotion, fear, guilt, and racism.
    None of us on this panel are racists. I do not know any racists in
    the U.S. Senate. So it is always something that when you bang
    around the edges of it, you almost want to ask the question, David
    Souter, Are you a racist?

  • Judge SOUTER

    At 02:57:15
    3 seconds

    The answer is, no.

  • Senator SIMPSON

    At 02:57:18
    2 seconds

    A crazy question to ask, is it not?

  • Judge SOUTER

    At 02:57:20
    3 seconds

    Well, far be it for me to say that a question from
    you, Senator, is crazy. [Laughter.]

  • Senator SIMPSON

    At 02:57:23
    4 seconds

    NO, do not. Just stop right there.

  • Senator HATCH

    At 02:57:27
    2 seconds

    But we all agree.

  • Senator SIMPSON

    At 02:57:29
    7 seconds

    DO not listen to them, just go ahead.

  • Judge SOUTER

    At 02:57:36
    4 minutes

    In a way, I think that answer might have been
    impressive to some people if I had grown up in a place with racial
    problems, and some people have pointed out that I did not. The
    State of New Hampshire does not have racial problems.
    So you can ask, well, what indication is there, really, as to
    whether you mean it or not. And you did not provoke this thinking
    on my part by your question immediately because I thought of it
    before I came in here. I can think of two things to say.
    The first is something very personal and very specific to my
    family. In a way, it surprises me when I look back on the years
    when I was growing up that never once, ever in my house that I
    can remember did I ever hear my mother or my father refer to any
    human being in terms of racial or ethnic identity. I have heard all
    the slang terms and I never heard them in my house.
    Now, as much as I esteem my family, I do not want to try to
    make them a race of saints, but the fact is, in that respect, they
    were perfect. They were perfect in some other ways, too, but they
    were in that respect.
    And if there is a kind of homely vision for America, in my mind,
    it is simply the vision of my home. And I have lived long enough
    and I have lived outside of my home long enough to know what the
    difference is. I am glad that I am conditioned by my beginnings
    and I am glad that I do not have to overcome them. I am glad that
    I can have an aspiration for America which is as good as the circumstances
    that I came from.
    Another thing that occurred to me, and it is equally personal—
    and I think that I will not offend the two people involved by saying
    this—two of my closest friends in this world are sitting in the row
    behind me. You have already heard from Warren Rudman. I heard
    Warren Rudman talk about what it was like to be discriminated
    against when he was a kid because he was Jewish. Somewhere out
    there, there is somebody who is discriminating against a friend of
    mine who is close enough to me to be a brother.
    And there is another friend of mine in that category in the row
    behind me; you haven't heard from him today. His name is Thomas
    Rath. I can remember Tom Rath telling me once years ago—I don't
    know why, I don't know how it came up. I remember him telling
    me about his grandparents, and his grandparents remembered the
    days when there were help-wanted signs up around the city of
    Boston that said "No Irish need apply." And that meant them.
    So if you want to know whether I have got the vision, if you will,
    behind the answer to my question, I will be content to have you
    look to my friends.

  • Senator SIMPSON

    At 03:02:05
    7 minutes

    Well, I come from Wyoming, and people think
    that I don't have the sensitivity about race. I remember I was at a
    baseball game with Coretta Scott King. It was the World Series in
    Kansas City several years ago, and she said, "I don't know much
    about baseball." I said, "Coretta, you will when I finish with you."
    So when we finished the game, she said, "Now, I want to ask you
    what you know about racism in Wyoming. And how many blacks
    are there in Wyoming?" I said, "Well, probably less than 1 percent.
    I have a large Hispanic population of 11 to 12 percent or something
    of that nature, and a native American population." Funny how you
    can be from a small area and somehow be known as not sensitive
    enough. I don't know what that is, but it is not real. And on the
    immigration reform business, was I sensitive enough to Hispanics?
    I don't know. Three million of them have come forward under that
    bill, and they are now no longer living in some illegal subculture,
    and that just pleases me immensely—Hispanics and Germans and
    everybody else, all the way up and down the line. So it isn't just
    one.
    This is a line of questioning that destroyed Robert Bork because
    all he had done was be a judge on a Federal district court, just like
    you, for 5V2 years, and he did 106 opinions, and 6 of his dissents
    became majority opinions of the U.S. Supreme Court, and he was
    never overturned. And he was turned into a racist right here—in a
    different room—also a sexist, also a violator of the bedroom, also a
    sterilizer of women. That is what happened right here. I was here.
    You don't have to like him or not. You don't have to get into anything
    else. That happened.
    So, you know, that is something we must be very careful about.
    That is not a good trait for any of us to say that somehow if someone
    does not agree with our views they are somehow, you know,
    racist or poll taxers or whatever or whatever. And that was uncomfortable.
    I didn't mean to drag that out, but it was all false. There
    was nothing in the background of the man that proved up one bit
    of it, and that is pretty tough stuff. That could happen to any of us.
    We saw John Tower, you know, with ballerinas dancing on
    pianos and things that were all fake. We had to go look at the FBI
    report on our colleague and found that witness T-4 said this. I said,
    "Who is T-4? Some disgruntled former somebody?" And that could
    happen to each one of us.
    That is what this committee, I think, should pride itself on, and
    we do pride ourselves in trying to assure that we do it right. I
    think we are going to do it right.
    The issue of abortion, that was a powerful, powerful response to
    my friend from Ohio. Those were not only eloquent answers; the
    questions were eloquent by Howard Metzenbaum. And he and I
    don't always agree, but I do enjoy that ornery rascal. And he is as
    spirited as I am in his causes, and I have enjoyed him in many
    ways. And the thing that—I guess I could almost ask that same
    question just the way he did. I really would, because it comes from
    real life.
    What we are dealing with here are real live people. I went
    through the abortion debate in 1975 when I was a State legislator.
    It was one of the most grueling, powerful, impressive debates of the
    State legislature that I had ever been involved in. From that and
    from my practice, I came to the determination that a woman
    should have the choice, and that I as a man and especially as a
    male legislator—a spouse would be different. That would be a
    whole new scenario God knows one would never want to go
    through. But as a male legislator, what was I even doing in the decision
    process, especially with, you know, a woman I remember—
    since we are speaking in some rather powerful little personal reminiscences
    of the woman who sat there and said, "I have five
    marvelous children, and now I know that if I am going to have the
    next one and I am pregnant, I am going to lose my mind. And I am
    here because you are a lawyer, and I am asking you what I should
    do."
    You know, I sat for over 2Vz hours with that lady, and she eventually
    made the decision to do that. And she also said that she, as I
    said, would destroy herself. She did not destroy herself. I had yet
    another situation that did destroy herself in that situation. So,
    really, it is so unfortunate that we get into this issue of extremism
    on both sides of this issue.
    In any event, there are two or three things that I would say, and
    then I do have a question. But I think you have said several times
    in just this short day that all activities and decisions and the
    things you have done as a judge or a lawyer, you have realized that
    the most paramount feature of it is that it has some impact on another
    life, somebody's life, some other person.

  • Judge SOUTER

    At 03:09:35
    4 seconds

    Yes, sir.

  • Senator SIMPSON

    At 03:09:39
    1 minute

    And that is your deep feeling. You have said
    that.
    I would like to ask you a question. What else have you done in
    that little community where you grew up and where you practiced
    and what you did to tie you closer to the human condition? You
    have talked about a hospital board. You talked about these other
    things. What is it you are most proud of in the things you have
    done that would disclose the man I think that the American people
    are seeing here today? You have given us some. Who are you?

  • Judge SOUTER

    At 03:10:40
    3 minutes

    If I had to pick one thing—you have already mentioned
    it—it would be that hospital board. It was like a second occupation
    for me. I went on it the way lots of people went on it.
    Somebody asked me to go on it. You say, well, why do you do it?
    Why do you do any of those things? You do it because you are
    paying your dues. You are in the group that is lucky. And the
    people in the group that are lucky have got an obligation to pay it
    back. And so we go on boards like that.
    Then the activities start taking sort of lives of their own. I went
    on in an unassuming way. I was a quiet trustee for a couple of
    years. Sooner or later, it became obvious that we were outgrowing
    a building, and in kind of an innocuous way, a lawyer who was a
    mentor of mine said, "Well, why don't you go on the planning committee
    and just make sure we don't do something foolish?" And I
    said, "Well, yes, I will do that."
    By increments, by short steps, I finally found myself back in the
    years when I first went on the superior court as the chairman or,
    as we called it, the president of the board. And I saw all sorts of
    conditions of people in doing that. We dealt with a regulatory bureaucracy
    because we could no longer just go out and build what
    we thought we needed. We dealt with a health care bureaucracy
    because whatever we built was going to affect the cost of health
    care throughout the State of New Hampshire. We dealt with the
    fact that there were people out there who did not have health insurance
    and who might or might not be eligible for governmental
    health benefits.
    Once a year, we all trotted around to the town meetings. I remember
    standing up in the town meeting of my town telling how
    much money the hospital had given away in free care in that town
    every year because there was a neighborhood tradition around
    there that the towns would chip in to offset the costs that the hospital
    would otherwise have to drain out of an endowment or recoup
    by raising rates to the people who did pay. So we all knew exactly
    what it was costing. We knew what it was costing our neighbors.
    We knew what health care was costing the people who couldn't pay
    for it. We knew what it was going to do to the cost of health care
    throughout the State when we had to build a building. And we finished,
    ultimately we finished the job.
    I am glad I did that. There are many other things, I suppose,
    that I might have done that would have given equal satisfaction.
    The reason it gave satisfaction I think is simply that in ways I
    never dreamed it would it was paying the dues. And I had a lot of
    dues to pay, and I got a chance to pay them.

  • Senator SIMPSON

    At 03:14:31
    8 seconds

    And you paid those dues not only through that
    service but through pro bono activities, some of which you have described
    earlier today.

  • Judge SOUTER

    At 03:14:39
    7 seconds

    I did some back in the time when I was in private
    practice. Of course, I couldn't do that as a public lawyer.

  • Senator SIMPSON

    At 03:14:46
    2 minutes

    Well, I have just a few minutes left, and I had
    a great temptation to ask about an issue. But since I have been
    railing about that most of the day, I can't really do much of that,
    but I will. That is the issue—here is the kind of tough stuff I would
    love to get into, but I think that you can see that 1 year with one
    nominee we will want to ask a lot of specific questions, and 1 year
    with another nominee we won't want to ask any. And we have all
    done that. I could bring out the quotes, seeing my friend from Massachusetts.
    But how about gun control? See there, there is one.
    There is a sign in Massachusetts on the border that says if you
    have a gun in your possession it is a $100 fine. And in Wyoming
    you carry a gun in the gun rack of your pickup truck. Now, that is
    a pretty big difference in the United States, and that is the kind of
    thing that you are going to be dealing with. And we fiercely defend
    the right to keep and bear arms, and my friend from Massachusetts
    has an ever more intimate and personal reason why it is
    deeper than anything any of us have ever hit on that one. Talk
    about crazies with arms, versus the legitimate citizen with his
    arms. So there is one for you.
    I guess I am not going to worry about you at all. I have read, and
    my President appointed you, and I think you are going to be a
    splendid, splendid judge. I can't wait to see you get on there with
    some of those others, get into some discussion. I wish we could
    record those. But the thing that is most critical and most important
    and the most exciting is that you are a listener. You are a listener,
    and that is the key. That is the very key.
    I would have very great difficulty voting for a politician who was
    not a listener or a judge, if I had the opportunity

  • The CHAIRMAN

    At 03:16:57
    3 seconds

    I think you would have a great difficulty finding
    a politician who was a listener.

  • Senator SIMPSON

    At 03:17:00
    1 second

    That is right. Finding one would be the tough
    part.

  • Judge SOUTER

    At 03:17:01
    9 seconds

    That is why Senator Rudman and I have always
    gotten along so well. I listen. [Laughter.]

  • Senator SIMPSON

    At 03:17:10
    3 seconds

    We do know the propensities of your former
    employer.

  • Senator HATCH

    At 03:17:13
    2 seconds

    We do understand that, let me tell you.

  • Senator SIMPSON

    At 03:17:15
    52 seconds

    Indeed we do. But that is so critical. And politicians
    need that and judges need that, and it is so important. That
    is impressive to me because there are people we deal with every
    day in this place, of either party, where you are talking to them
    and their eyes are just glazed over and you know they are not listening
    to one thing you are saying. You almost want to say, "Are
    you in there? Is anybody home back there? Are you just waiting to
    get out and get your suit boiled by the camera that is out in the
    hall? What are you doing?"
    And so enough. But I thank you for sharing a bit of yourself and
    your philosophy and your sensitivity—that is certainly not an overworked
    word and certainly a most appropriate one—and yourself.
    Thank you, Mr. Chairman.

  • Judge SOUTER

    At 03:18:07
    2 seconds

    Thank you, Senator.

  • The CHAIRMAN

    At 03:18:09
    5 seconds

    Thank you, Senator.
    The Senator from Arizona, Senator DeConcini.

  • Senator DECONCINI

    At 03:18:14
    1 minute

    Judge Souter, I was not going to mention the
    previous nomination hearing, but my good friend—and, indeed, he
    is a distinguished scholar—from Wyoming brought the Bork hearing
    to mind. So far, I don't think anybody sees any comparison at
    all. For instance, with regard to the equal protection clause, Judge
    Bork made some very strong statements about the Supreme Court's
    decision banning literacy tests as a prerequisite to voting. He
    stated that this decision, and another which abolished poll taxes,
    were very bad, indeed pernicious, constitutional rulings. I haven't
    found any similar statements like those you have made. Judge
    Bork's statements were written, and he admitted that he said
    them. You don't have any such statements some place that we
    have missed over the past 5 or 6 weeks, do you?

  • Judge SOUTER

    At 03:19:28
    1 second

    NO, sir.

  • Senator DECONCINI

    At 03:19:29
    1 minute

    I didn't think so. There is a great distinction
    here in these hearings as far as I see, and there was no racist approach
    toward Judge Bork at all—at least by this Senator, and I
    don't think there was by anybody on this committee. And I want
    that record at least explained from this Senator's point of view.
    There was a disagreement, a very strong disagreement, and that is
    what this process is all about.
    Chairman Biden touched upon the interpretivist approach, you
    stated in a recent interview on its relation generally as to the Constitution,
    and you said in an interview that you are not looking for
    original application, but, instead, are looking for meaning.
    Then, Senator Kennedy went on to the sex discrimination cases
    in that area, and I take it that it is fair to say, from your discussion
    with Senator Kennedy, that you have no qualms whatsoever
    about the existing three standards on discrimination cases vis-a-vis
    the equal protection clause that the Supreme Court has clearly laid
    out as the guidelines when they take up discrimination issues. Is
    that a fair assessment?

  • Judge SOUTER

    At 03:21:03
    2 minutes

    That is a fair assessment. The only concern that I
    have expressed, and Senator Kennedy alluded to it in the course of
    his questioning, is whether any of us could do a better job in trying
    to articulate the middle-tier scrutiny.
    As I said, what the courts are trying to get at, whether it be the
    Federal courts under the 14th amendment or the State courts
    under their own equal protection guarantees, is a way of approaching
    classifications which the law makes which is going to, in effect,
    weight the State's interests or channel the question of trying to
    weight the appropriate State interest to determine whether there
    is a real justification for the classification in question.
    Trivial interests are not going to require tremendous overbalancing
    by the interests of the State. Fundamental interests do.
    What the courts are doing by coming up with a three-tier test is
    in trying to give some structure to this enterprise, so that in each
    case the courts at least can begin, and particularly the trial courts,
    can begin by saying, all right, we know roughly what the State
    counterweight must be, once we know how the particular private
    interest is to be classified, and the concern, as I said a minute ago,
    with the middle-tier test—and, by the way, we use it in New
    Hampshire, so I have expressed this concern only in terms of the
    State Constitution in my own judicial writing—is whether we can
    come up with some kind of a standard which is less subjective, because
    the experience has been that the middle-tier standard tends
    to shade down into the first-tier standard, and if that happens,
    somebody with a classification claim is going to get shortchanged.

  • Senator DECONCINI

    At 03:23:13
    7 seconds

    Sure, and there is no reason why it cannot
    shake up to the highest scrutiny standard, either, is there

  • Judge SOUTER

    At 03:23:20
    1 second

    No, the

  • Senator DECONCINI

    At 03:23:21
    7 seconds

    Excuse me—particularly if the sex discrimination
    case is, as you say, fundamental?

  • Judge SOUTER

    At 03:23:28
    1 minute

    Well, the Supreme Court's approach to that has
    been—and it was described very concisely in the Court's opinion in
    the Kleburn v. Living Center case—is to indicate that there were
    two factors foremost in their mind in putting the sex discrimination
    classifications in the middle-tier category.
    One was the likelihood that a classification might really have a
    legitimate reason behind it, a legitimate basis, and the case law,
    the experience with the cases coming up in the Court's view has
    simply been that there is greater chance that there may be a legitimate
    basis for some sex classification, in other words that it may
    not amount to invidious discrimination than would be the case in
    the racial area.
    The second thing that the Court has pointed to and, as I recall,
    did in the Kleburn case, is the likelihood that individuals against
    whom there really has been a discrimination have some effective
    political process by which to counter it, as well. And the Court, if I
    understood or recall correctly, the Court's opinion, the indication
    was that, in the area of sex discrimination, there was more likely
    to be some political responsiveness than our history has shown in
    racial discrimination, so that is why they put it in the middle.

  • Senator DECONCINI

    At 03:25:02
    26 seconds

    Judge, I know it is difficult to go back over
    all your cases—and I have read a number of your cases, a couple
    dozen of them during the recess—in one case State v. Dionne, you
    dissented from the majority, because you believe that the State
    constitution is required to be interpreted and understood strictly
    "in the sense in which it was used at the time of its adoption." Do
    you remember that?

  • Judge SOUTER

    At 03:25:28
    1 second

    I do remember that, yes, sir.

  • Senator DECONCINI

    At 03:25:29
    38 seconds

    My concern there is with what I see as a
    very rigid use of original intent, at least in this dissenting opinion,
    and how you would apply this approach to the equal protection
    clause, in light of what I think is very encouraging—maybe because
    I agree with it—your explanation of the equal protection
    clause, particularly as it applies to race and sex and economics.
    How do you apply that particular dissenting opinion?

  • Judge SOUTER

    At 03:26:07
    53 seconds

    Senator, I think the first thing that has to be understood
    about that dissenting opinion is that, whether it was written
    clearly or not, I referred to the test of—I believe I referred to
    the test of original meaning or original understanding of the terms.
    I have tended to shy away from the use of the term "original
    intent" in describing any approach of mine. I have done so, because
    the phrase "original intent" has frequently been used to mean that
    the meaning or the application of a constitutional provision should
    be confined only to those specific examples that were intended to
    be the objects of its application when it was, in fact, adopted. It is a
    kind of a

  • Senator DECONCINI

    At 03:27:00
    13 seconds

    Excuse me. Original intent, then, in what
    you are telling me is not applicable to your interpretation of the
    equal protection clause in the 14th amendment?

  • Judge SOUTER

    At 03:27:13
    2 minutes

    That is exactly right. I do not believe that the appropriate
    criterion of constitutional meaning is this sense of specific
    intent, that you may never apply a provision to any subject
    except the subject specifically intended by the people who adopted
    it. I suppose the most spectacular example of the significance of
    this is the case of Brown v. Board of Education. That case, I am
    glad to say, we may safely say that that particular principle is
    never going to come before the Court in any foreseeable future in
    my lifetime and we can talk about it. The equal protection clause
    was appropriately applied in Brown v. Board of Education.
    If you were to confine the equal protection clause only to those
    subjects which its Framers and its adopters intended it to apply to,
    it could not have been applied to school desegregation. I think it is
    historically accepted by people of all schools that it is a historical
    fact that those who proposed and those who adopted the 14th
    amendment never intended to require integrated schools. The
    Brown opinion itself alludes to that.
    The reason Brown was correctly decided is not because they intended
    to apply the equal protection clause to school desegregation,
    but because they did not confine the equal protection clause to
    those specific or a specifically enumerated list of applications, the
    equal protection clause is, by its very terms, a clause of general application.
    What we are looking for, then, when we look for its original
    meaning is the principle that was intended to be applied, and if
    that principle is broad enough to apply to school desegregation, as
    it clearly was, then that was an appropriate application for it and
    Brown was undoubtedly correctly decided.

  • Senator DECONCINI

    At 03:29:47
    32 seconds

    I agree with you, Judge, and I think you
    highlight the difference between this hearing and the discussion
    that we have had with other nominees who have been here, some
    of whom have been approved and some that have not. You deal
    with the principle of the equal protection clause, and not its original
    background. As you pointed out, you cannot find a justification
    to apply the clause to segregated schools if you apply original
    intent.

  • Judge SOUTER

    At 03:30:19
    1 second

    That is true.

  • Senator DECONCINI

    At 03:30:20
    22 seconds

    Let me ask you this, Judge: Justice O'Connor
    in a case, Mississippi University for Women v. Hogan, stated
    that sex-based classification should be subject to the same standard
    of review, regardless of whether they harm women or men. Would
    you agree with that, in general, not with the Mississippi case, particularly,
    but

  • Judge SOUTER

    At 03:30:42
    3 seconds

    I can think of no reason to disagree with it.

  • Senator DECONCINI

    At 03:30:45
    49 seconds

    Thank you. I read that case carefully and I
    was impressed with the logic and the writing of Justice O'Connor
    in analyzing that and coming to that conclusion, and I am pleased
    to hear your answer.
    Justice Marshall, on the other hand, has his own distinctive approach
    to equal protection claims that you may be more familiar
    with than I am. Marshall believes that the Court does not apply a
    three-tier approach to equal protection claims, but, rather, "a spectrum
    of standing as to the review." Thus, the more important the
    constitutional and societal weight given to an interest, the greater
    the scrutiny that should be applied. How do you approach that
    Marshall thesis?

  • Judge SOUTER

    At 03:31:34
    1 minute

    Well, there is no question about the correctness of
    the proposition, that the more significant the interest, the greater
    societal counterweight would be required to justify an interference
    or an abridgement of that interest.
    I think the question which this kind of a debate raises is whether
    it is useful to identify three places on the spectrum as a convenient
    basis for classification, and those who want to retain, as it were,
    the whole spectrum approach I think are saying to us in so many
    words, you are applying instruments that are too blunt when you
    try to identify just three points and say everything has to fit into
    one or the other of these three slots.
    I will confess that I have not come to the point, even though I
    have worried sometimes about whether we were articulating the
    middle-tier test as well as could be done, and maybe we are, but
    even though I have worried about that sometimes, I have not
    gotten to the point of saying we ought to scrap the whole notion of
    three tiers and just take, in effect, every issue as an original balancing
    issue in the first instance.

  • Senator DECONCINI

    At 03:32:49
    37 seconds

    But do you agree that the intermediate or
    middle test is not satisfactory for all of those cases that come
    before that seem to fall into that area, that you need to look at
    that middle tier more carefully and more on a case-by-case basis, to
    see whether or not that is really applying the equal protection
    clause in the manner of the history of that clause and its interpretation?

  • Judge SOUTER

    At 03:33:26
    10 seconds

    Well, I am certainly satisfied that it would be too
    blunt a set of instruments, just to have one test at the bottom and
    one test, if you will, at the top.

  • Senator DECONCINI

    At 03:33:36
    1 minute

    I get a feeling from the little bit I have read
    of Justice Marshall that he has the same quandary you do about
    that intermediate or middle test, that he is concerned that it falls
    down, instead of falling up.
    Let me turn to another subject, Judge. Over the last few terms of
    the Supreme Court, almost 50 percent of the Supreme Court cases
    have involved issues of statutory interpretation. Your judicial experience
    has been in a State court, so you have not had much exposure
    to cases of Federal statutory interpretation, and that is why I
    would like to ask a few questions.
    I did notice in the committee's questionnaire, you stated,
    The foundation of judicial responsibility in statutory interpretation is respect for
    the enacted text and for the legislative purpose that may explain a text that is unclear.
    Based on that response to what extent do you believe the legislative
    history should be taken into consideration, if you were sitting
    on the Supreme Court interpreting a statute passed by the Congress?

  • Judge SOUTER

    At 03:34:44
    2 minutes

    Senator, I am very much aware, in answering or
    in approaching an answer to that question, about the great spectrum
    of evidence that gets grouped under the umbrella of legislative
    history. It seems to me that the one general rule—and it is a
    truism to state it, but the one general rule that I can state is, when
    we look to legislative history in cases where the text is unclear, we
    at least have got to look to reliable legislative history.
    When we are looking to legislative history on an issue of statutory
    construction, what we are doing is gathering evidence, and the
    object of gathering evidence for statutory interpretation is ultimately
    not in any way different from the object of gathering evidence
    of extraneous fact in a courtroom.
    We are trying to establish some kind of standard of reliability, in
    this case to know exactly what was intended. And what we want to
    know is, to the extent we can find it out, is whether, aside from the
    terms of the statute itself, there really is a reliable guide to an institutional
    intent, not just a spectrum of subjective intent. I suppose
    a vague statute can get voted on by five different Senators for
    five different reasons, so that if we are going to look to pure subjectivity,
    we are going to be in trouble.
    What we are looking for is an intent which can be attributed to
    the institution itself, and, therefore, what we are looking for is
    some index of intended meaning, perhaps signaled by adoption or
    by, at the very least, an informed acquiescence that we can genuinely
    point to and say this represents not merely the statement of
    one committee member or committee staffer or one person on the
    floor, but in fact to an institution or to a sufficiently large enough
    number of the members of that institution, so that we can say they
    probably really do stand as surrogates for all those who voted for
    it.

  • Senator DECONCINI

    At 03:37:15
    16 seconds

    SO, in looking at legislative history, I take it
    from that, the amount, the intensity of it, those that are associated
    with the subject matter are of importance in a judge's interpretation?

  • Judge SOUTER

    At 03:37:31
    1 second

    Yes, indeed.

  • Senator DECONCINI

    At 03:37:32
    12 seconds

    More so than if it can be distinguished that
    someone merely put something in the record, because it appeared
    that it was the right place to put it in, but had no history in that
    legislation themselves.

  • Judge SOUTER

    At 03:37:44
    1 second

    Yes, sir.

  • Senator DECONCINI

    At 03:37:45
    10 seconds

    What other sources should a judge rely on in
    a statutory construction case outside the statutes and legislative
    history?

  • Judge SOUTER

    At 03:37:55
    2 minutes

    Well, there is a kind of, I suppose, broad principle
    of coherence that we look to. The fact is we so frequently speak of
    interpreting sections of statutes. What we are really obligated to is
    to interpret whole statutes. We should not be interpreting a statutory
    section, without looking at the entire statute that we are interpreting.
    One of the things that I have found—and I do not know particularly
    why I learned it, but I found one thing on the New Hampshire
    Supreme Court which has stood me in pretty good stead, and
    that is when I get a statutory interpretation issue in front of me, I
    read the brief, I listen to the argument. But if I am going to write
    that opinion, I sit down, I tell my law clerks to sit down, but I do it
    myself before I am done, and I just sit there and I read the whole
    statute. Fortunately, I do not have to construe the Internal Revenue
    Code, in which case I would be in serious trouble with that
    methodology. But within reason, I try to read the whole statute,
    and I am amazed at the number of times when I do that, I will find
    a clear clue in some other section that nobody has bothered to cite
    to me in a brief.
    We are trying to come up with statutory coherence, not with just
    a bunch of pinpoints in individual sections. So, the first thing to do,
    in a very practical way, is to read the whole statute.
    It is beyond the intent of your question, of course, to get into constitutional
    issues, but we do know it is accepted statutory interpretation
    that if we have a choice between two possible meanings, one
    of which raises a serious constitutional issue and one of which does
    not, it is responsible to take the latter, and, of course, we looked at
    that.

  • Senator DECONCINI

    At 03:40:01
    1 minute

    Judge, the term, textualism, has been used
    to describe a judge who attempts to limit the statutory interpretation
    to the text and ignores the legislative history. You explained
    what you do, and such an approach really fails to take into consideration,
    I think, the necessity—although I have never been a judge,
    I have certainly had a lot of association and argued enough cases
    where I have felt at least the judges have listened to legislative history
    propounded on both sides of it, maybe not always coming to
    the same conclusion.
    The fact that the matter is passed by a legislative body—often,
    those of us in those bodies are not clear ourselves as to the absolute
    interpretation or how it is going to be applied by the regulators or
    the bureaucracy that must implement our statutes.
    I think it is very important that you have laid out a record here.
    I am curious about your views as a judge who might disregard dispositive
    legislative history and create his own definitions. If that is
    a judge's final decision, would you consider that judicial activism,
    to ignore this discussion that we have just had?

  • Judge SOUTER

    At 03:41:33
    14 seconds

    Well, I was going to say activism is a term that
    we all employ to describe the activities of any judge when we do
    not approve of the activities. And so given that definition of activism

  • Senator DECONCINI

    At 03:41:47
    4 seconds

    Let me interrupt you a minute. I do not
    quite agree with that definition because

  • Judge SOUTER

    At 03:41:51
    2 seconds

    YOU are probably a more principled man than I
    am.

  • Senator DECONCINI

    At 03:41:53
    19 seconds

    Sometimes a judge will come to
    a conclusion that might very well be activism, and I can think of a
    few cases that I have argued before that I was very glad that he
    was an activist judge, even though I profess against that, but go
    ahead.

  • Judge SOUTER

    At 03:42:12
    21 seconds

    I think probably a fair bedrock of activism is at
    least—or example of bedrock activism is ignoring any clear and
    positive source, objective source of law. I think what you are de133
    scribing in your example is a refusal to accept an objective source
    of meaning.

  • Senator DECONCINI

    At 03:42:33
    1 minute

    Thank you, Judge, because I think that
    helps me a great deal as to how I feel you will approach the constitutional
    questions, and certainly the statutory questions.
    I want to say, Judge, you have said many impressive things
    today; many of them have left a very favorable impression with
    me. Most important to me is that you are very convincing, that you
    are a listener; nothing is more important in communication than to
    listen. That, to me, leaves me with a very good feeling about the
    nominee that is before us today.
    Senator Thurmond touched a little bit on the principle of respect
    for precedents, and although I do not think he said stare decisis,
    but along that line, how does a judge treat a 5-to-4 decision differently
    from a 9-to-0 decision when he is asked to perhaps consider
    not following stare decisis? Have you thought about that, having
    sat on the State supreme court?

  • Judge SOUTER

    At 03:44:00
    1 minute

    Senator, I think that is one of those questions
    that you cannot answer in the abstract like that. If we are talking
    about a 5-to-4 decision that is 50 years old and has spawned a body
    of consistent, supporting precedent which is basically the foundation
    of the law that we have, the fact that it was 5 to 4 originally is
    a matter of small or no consequence at all.
    If, on the other hand, we are talking about a 5-to-4 decision
    which was rendered the year before and in between there are arguably
    inconsistent precedents with it, then, of course, you are not
    going to be able to give it that much weight. I suppose the real significance
    of its being 5 to 4 under those circumstances is that if it
    were unanimous it is virtually unlikely that there would be the arguably
    inconsistent precedents following it.
    So I just think the numbers analysis standing by itself is a misleading
    analysis.

  • Senator DECONCINI

    At 03:45:00
    11 seconds

    SO you would not put any more weight in a
    5-to-4 decision to a 9-to-0 decision, as far as the application? Each
    case has to stand on its own in the history of that case?

  • Judge SOUTER

    At 03:45:11
    7 seconds

    I would be wary of any abstract numerical principle
    like that.

  • Senator DECONCINI

    At 03:45:18
    13 seconds

    What about public opinion in a judicial decision?
    Does that play any role in a judge's objective decision?

  • Judge SOUTER

    At 03:45:31
    13 seconds

    Well, Senator, it better not play any role in the
    application of principle. We all know of decisions—there could not
    be a better one than Brown.

  • Senator DECONCINI

    At 03:45:44
    31 seconds

    I agree with that. How does a judge—how do
    you, Judge, attempt to avoid that influence from the real world
    that you live in, as we all do—public opinion on a subject matter;
    that is, the abortion issue or some other issue where the polls demonstrate
    popular support another way? How do you attempt to
    mentally prevent yourself from being influenced?

  • Judge SOUTER

    At 03:46:15
    40 seconds

    By being conscious, Senator, of the fact that you
    could be influenced. It is a problem like any other problem; you
    solve it by facing it. You face the fact that you are human and that
    you are subject to being pushed unless you guard against it, and
    you face that as a possibility. You keep it in your consciousness.
    And by doing that, I think you can come as close as a human being
    can possibly do to eliminating that from a role in the decision
    which you otherwise might not even be aware it was playing.

  • Senator DECONCINI

    At 03:46:55
    1 minute

    Judge, let me ask you one last question for
    today. I am gravely concerned about the so-called litigation explosion
    and its effect on the working of our judicial system. In the
    past 25 years, the volume of court cases has increased dramatically
    at all levels, State and Federal courts. There were 15,000 filings in
    the district courts of the U.S. Federal courts in 1915; 45,000 in
    1950; 120,000 filings in 1975; today there are over 275,000 filings a
    year.
    There are 575 district judges to handle 275,000 filings; 168 circuit
    judges handling 33,000 filings, and 9 Supreme Court Justices handling
    over 5,000 filings.
    The number of pending product liability cases alone has increased
    257 percent in 8 years. Part of the reason perhaps is that
    this country has 750,000 lawyers. I am concerned, Judge Souter,
    and maybe you can just give us your ideas of it. I realize you do not
    control the Judicial Conference. That is the Chief Justice's statutory
    area, but nevertheless, you have had a long experience. You
    have seen this growth. You witnessed it. I am sure you have been
    under the pressure of it. What role do you see, or how do you see
    any changes? Do you have any, quite frankly, observations about
    it?

  • Judge SOUTER

    At 03:48:35
    2 minutes

    Senator, I have not—as you know, I have not
    been a part of the Federal judiciary long enough to have any qualification
    to give a judgment about the problems of the federal
    system. I have virtually just arrived as a circuit judge when I suddenly
    find myself here.
    But I know that I have gotten used to thinking about that problem
    in the State context from which I came. I never wrote a definitive
    analysis of it, but I think I have some appreciation of the complexity
    of it.
    We tend, it is true, as lawyers and judges to be willing to stab
    ourselves to a degree, at least when we are really being candid,
    with some responsibility for the problem. We say, well, there are
    all of those lawyers out there bringing the cases, and the judges
    may say, well, there are all of those judges recognizing new causes
    of action that did not exist 10 and 20 and 50 years ago.
    I am wary of putting very much weight to those explanations.
    There are, of course, instances in which liability has been expanded.
    Products liability has obviously grown as a preferred cause of
    action.
    But what we overlook are two other things that have happened
    in the last 25 or 50 years. The first is, at least in my own State, we
    have got an enormously larger population. The litigation explosion
    in New Hampshire is, to a very significant degree, in civil matters,
    of course, a function of population.
    One thing the State of New Hampshire, I know, has not done or
    tried to do seriously until recently is to try to keep up with that
    population explosion. The fact is the population has grown far
    more exponentially than rights of action have grown during that
    period.

  • Senator DECONCINI

    At 03:50:42
    14 seconds

    YOU do not think that we should be attempting
    to find new avenues to address the problem, or we should just
    keep up with more courts, more prisons if it is the criminal matter,
    and more courts to handle the civil cases?

  • Judge SOUTER

    At 03:50:56
    51 seconds

    Well, Senator, I think what you allude to with respect
    to civil litigation is what might be called the good news of the
    litigation explosion, and that is that it is forcing not just the judiciary,
    it is forcing society to ask seriously in a way that it did not do
    20 years ago, whether there is now a new significant class of cases
    which belong not just in regulatory agencies to get them out of the
    courts, but belong outside the adversary process entirely.
    I mean, the good news is that alternate dispute resolution has
    become a respectable subject of concern. It is a subject of experimentation
    in my own State, and I would assume in every State in
    the Union.

  • Senator DECONCINI

    At 03:51:47
    2 seconds

    DO you subscribe to it?

  • Judge SOUTER

    At 03:51:49
    1 second

    I certainly do.

  • Senator DECONCINI

    At 03:51:50
    2 seconds

    Thank you, Mr. Chairman.
    Thank you, Judge Souter, very much.

  • The CHAIRMAN

    At 03:51:52
    19 seconds

    Judge, the second to the last question the Senator
    asked about impact of public opinion—and you said you said
    you had to guard against it—I would respectfully suggest that you
    guard more closely against it when it comes from Rudman and less
    closely when it comes from Rath, McAulliffe, and Broderick.

  • Judge SOUTER

    At 03:52:11
    2 seconds

    I will take that under advisement, Senator.

  • The CHAIRMAN

    At 03:52:13
    1 minute

    I appreciate your patience today, Judge.
    We will reconvene tomorrow at 9:30 a.m.