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?
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.
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
Thank you, Mr. Chairman. I probably should
begin by asking you if you can hear me as well as I can hear you.
Yes, we can, Judge.
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.
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
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
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.
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.
I appreciate that. Thank you.
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.
I was a little bit.
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
YOU should have been staying with him for the
last 10 days. [Laughter.]
NO, we each have our own jobs. That is your job,
not my job.
I realize that.
We live with him every day, let me tell you.
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
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
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?
I believe that the due process clause of the 14th
amendment does recognize and does protect an unenumerated
right of privacy. The
And that—please continue. I didn't mean to interrupt.
I like what you are saying.
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.
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.
I understand that.
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?
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.
Did you wish to continue?
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
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
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.
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.
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.
IS that the school to which you would count
yourself a graduate?
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.
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?
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.
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
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?
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
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?
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
I am sorry.
GO ahead. I am sorry.
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.
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?
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.
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
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?
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.
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?
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.
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.
I did and I have, yes.
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
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.
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?
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
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
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.
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
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?
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.
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
But once we acknowledge there is a liberty interest, there is a
But what—I am sorry.
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?
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.
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.
Thank you, sir.
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.
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
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
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.
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.
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
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
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
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.
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?
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
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.
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?
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
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?
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
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
I can only say that I think that is an eminently fair approach to
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?
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.
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?
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.
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?
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
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
YOU need not do that.
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
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
Excuse me, Judge. Did you say if the answer is
no or if the answer is yes? You said when we look back
My problem, Mr. Chairman, is I forget what the
I am sorry. You indicated that one of the things
you looked at is whether the prior case was wrongly decided, isn't
Then the answer should have been yes. I said no?
Yes. OK. I got it.
Thank you for amending that.
I was getting confused.
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
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.
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"?
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
That is sufficient. [Laughter.]
YOU are going to turn me into a laconic Yankee,
if you keep doing that, Senator. [Laughter.]
I have just been told that my time is up,
Thank you. I was trying to get in another question,
but it is too late.
Thank you, sir.
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
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
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?
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
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.
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.
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
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?
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.
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?
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
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?
As you indicate, I think the 14th amendment is
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.
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
I think they were suspended, were they not, for 5
years by the 1970 amendments?
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
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
Well, your name is on the brief, the third one
Your name is on the brief.
I was not trying to get you to read the names off,
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
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
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. *
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
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.
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.
That is correct.
SO now we know where you are today. I think
the question is, where were you then?
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.
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
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
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?
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
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
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
The trouble with the middle-tier test is that it is not a good,
sound protection. It is too loose.
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.
In your brief, you talk about even eliminating
Well, I also talked about making the test more
clear and eliminating this kind of protean quantity to it.
And we will include the brief in the record.
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
I do not think there is any question about it.
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.
I appreciate your concerns.
Before I yield to my colleague from Utah, I am a
little confused, Judge.
YOU say there should be a standard between
strict scrutiny and rational basis.
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.
SO there should be a middle level to define it
There has got to be something other than just
threshold level scrutiny.
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.
I thank you.
I will yield to my colleague.
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.
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
I believe that was the first year, 1972 or 1973, yes.
Who was the attorney general at that time?
My esteemed former colleague, Senator Rudman.
I would not want to suggest that Senator Rudman counseled any
executive decision on that.
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
That is correct.
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.
I believe that was correct.
Was your name on that answer?
I do not remember. I do not specifically remember.
The answer is, no, I do not think you were.
YOU are a better student of my history than I am.
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.
I recall that.
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?
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.
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?
That is right. I was still deputy at that time.
On what date did you become attorney general
of New Hampshire?
I think it was January 20 of the next year, 1976.
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.
That is correct.
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?
That is my understanding.
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
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.
That is correct.
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?
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.
That is correct.
Which, of course, was a 1965 decision and has
been raised earlier by our distinguished chairman.
That is correct.
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.
We did the best we could, Senator.
YOU sure did.
Thank you. [Laughter.]
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?
Yes; I think by that time an order had been entered
against the State.
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.
When the case was over, it was over.
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.
Thank you, Senator.
I think the Senator from Utah has convinced
me we should not confirm Warren Rudman to the Supreme
Actually, I think
Senator, I would stipulate to that.
YOU will stipulate to that. [Laughter.]
Actually, I think he would make quite a great Supreme Court
I would be worried every time a case came down, however.
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.]
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.
Yes; it had. The use of a literacy test for a nondiscriminatory
purpose had been affirmed by the Supreme Court.
AS I understand it, the New Hampshire Constitution
required all voters to be able to read and write and understand
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.
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
I believe that is correct.
The Department of Justice took the position that
the Voting Rights Act of 1965 outlawed all of these practices.
That is correct.
SO when you and Senator Rudman took that
matter on, you had current law that seemed to support you.
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
Yes; we were.
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.
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.
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?
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.
It was disputed, basically, on the principles of
Yes; it was.
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.
Yes; they were at an injunction stage, and they
made that judgment.
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.
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.
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.
That is correct.
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.
That is correct.
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
That is correct.
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
Thank you, Senator.
But that once the decision is made, you immediately
followed those decisions.
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.
Thank you, Senator.
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.
I could have been a very successful lawyer.
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.
Thank you, Senator.
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?
Child custody cases?
Criminal law cases?
In fact, you have heard cases of employment
YOU have heard cases involving almost every
aspect of human endeavor.
Anything that can come before a trial court of
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.
Yes, I have.
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.
Well, do you want me to refer to the trial court
experience as well as appellate court?
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.
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
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
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
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,
It has been great to be able to ask a few of these questions.
Thank you, Senator.
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.
The hearing will come to order.
Judge, would you like a soda or some coffee or anything?
No, I am fine. Thank you, sir. I was offered anything
I needed out back.
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.
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
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
That is the third lesson I learned as a judge.
YOU do it with great aplomb, your physical constitution
as well as your understanding of the Constitution are
Thank you, Mr. Chairman.
NOW, let me turn to my colleague from Ohio Senator
Metzenbaum, for his questioning.
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
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.
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.
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
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.
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
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.
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
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
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.
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.
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.
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?
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
Excuse me, I did not mean to be rude.
I was going to say it was exactly such statutes as
that that Roe rendered unenforceable.
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?
I do not recall the memo, no.
Did you agree then, or do you believe now
that the Supreme Court's decision in Roe rendered the New Hampshire
criminal statutes unconstitutional?
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
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.
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
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
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?
I have never discussed the issue in question with
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
I did not have discussions with him on the issue that you referred
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?
I was going to just try to establish how far back in
time we want to go with Governor Sununu.
I did not mean to interrupt you.
NO. I just wanted to know how far back you want
to go in time? To the beginning?
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
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.
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?
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.
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?
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.
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 Biden, how much time do I have left?
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
DO I understand that we will be in several
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.
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
Thank you, sir.
Thank you, Senator.
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
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
Well, mine were not in a hole clawing to get this
information, or however you mischaracterized it.
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
If they were reading my opinions, they were.
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
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
And that is what has been most impressive to me—to hear you
respond to these questions in a way that is extraordinarily understandable
Thank you, sir.
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
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?
The answer is, no.
A crazy question to ask, is it not?
Well, far be it for me to say that a question from
you, Senator, is crazy. [Laughter.]
NO, do not. Just stop right there.
But we all agree.
DO not listen to them, just go ahead.
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.
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
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
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
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.
And that is your deep feeling. You have said
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?
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
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.
And you paid those dues not only through that
service but through pro bono activities, some of which you have described
I did some back in the time when I was in private
practice. Of course, I couldn't do that as a public lawyer.
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
I think you would have a great difficulty finding
a politician who was a listener.
That is right. Finding one would be the tough
That is why Senator Rudman and I have always
gotten along so well. I listen. [Laughter.]
We do know the propensities of your former
We do understand that, let me tell you.
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.
Thank you, Senator.
Thank you, Senator.
The Senator from Arizona, Senator DeConcini.
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?
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?
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.
Sure, and there is no reason why it cannot
shake up to the highest scrutiny standard, either, is there
Excuse me—particularly if the sex discrimination
case is, as you say, fundamental?
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.
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?
I do remember that, yes, sir.
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?
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
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?
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.
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
That is true.
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,
I can think of no reason to disagree with it.
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
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.
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?
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.
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?
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
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?
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
What other sources should a judge rely on in
a statutory construction case outside the statutes and legislative
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
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?
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
Let me interrupt you a minute. I do not
quite agree with that definition because
YOU are probably a more principled man than I
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
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
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?
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
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?
I would be wary of any abstract numerical principle
What about public opinion in a judicial decision?
Does that play any role in a judge's objective decision?
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.
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?
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.
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
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
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
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
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
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?
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
DO you subscribe to it?
I certainly do.
Thank you, Mr. Chairman.
Thank you, Judge Souter, very much.
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.
I will take that under advisement, Senator.
I appreciate your patience today, Judge.
We will reconvene tomorrow at 9:30 a.m.