The hearing will come to order. While we are
waiting for the photographers to clear the well, I want the record
to show, so I do not get graded badly by Professor Heinzerling from
Georgetown, who is sitting behind me, that I do know that Ms. Patterson
was not fired; she alleged racial discrimination. And I just
want the record to show that, because I get graded by the visiting
professors who come and help us on this.
So I just want the record
to reflect that.
Thank you, Mr. Chairman.
Judge Breyer, throughout your career, you have set forth what
can fairly be called a pragmatic, nonideological vision of the law.
In your own words, you said at one time:
Law itself is a human institution serving basic human or societal needs. It is
therefore properly subject to praise or to criticism in terms of certain pragmatic values,
including both formal values, such as coherence and workability, and widely
shared substantive values, such as helping to achieve justice by interpreting the law
in accordance with the reasonable expectations of those to whom it applies.
Now, I would like to explore what implications if any your pragmatic
vision of the law has for your understanding of the role of
a Supreme Court Justice. It is, after all, one thing to have a pragmatic
view of the law; it would be something quite different to believe
that some or all actors in the legal system have a roving mandate
to pursue their individual visions of pragmatic justice.
In your view, what constraints, formal or informal, legal or prudential,
really bind a Supreme Court Justice in his or her own decisionmaking?
I think, Senator, I would start by saying this, and
I have said this before, and it is something that has considerable
significance to me. Why is it that judges wear black robes? I have
always thought that the reason that a judge wears a black robe is
to impress upon the people in the room that that particular judge
is not speaking as an individual. In an ideal world, the personality
of the judge, the face of the judge, would not be significant because
when the judge speaks with a black robe on, in no matter what
court, the judge is speaking for the law. And in an ideal world, the
law is the same irrespective of the personality of the judge.
That is a very different thing. It is an absolutely true thing. But
it is consistent with believing that the law that the judge interprets
and enunciates with his black robe on is in fact a body of rules and
institutions and so forth that is supposed to work properly for people.
And so, remembering that, I would imagine that on the Supreme
Court, what I would be bound by is the words, the history, the
precedents, the traditions, all of those things which in fact go up
to make this great body of institutions, including legal advice and
how businesses and labor unions interpret it and so forth, that we
The role of the subjective preference of the judge is not supposed
to be relevant, and while no one can escape from his own background,
from his own opinions, from his own personality, et cetera,
Learned Hand once described in fact, at a speech given to commemorate
Justice Cardozo, he described the judge as a runner,
stripped for the race. He may have been quoting Holmes then. But
in his view, what that meant was to the best ability, a judge should
be dispassionate and try to remember that what he is trying to do
is interpret the law that applies to everyone, not enunciate a subjective
belief or preference.
Would you agree, then, that a judge's authority
derives entirely from the fact that he or she is applying the law,
not simply imposing his or her policy preferences?
Of course, that is true. And why it is difficult, in
an important court like the Supreme Court, is of course people disagree,
often, about how, in vast, uncertain, open areas of law,
where there are such good arguments on both sides of such important
policy issues, of course people disagree about what the proper
outcome of those issues is. But in trying to find the correct solution,
the helpful solution consistent with the underlying human
purpose, the judge follows canons, practices, rules, cases, procedures,
all those things that help define the role of the judge, which
is the same for judge A as it is for judge B.
Would you agree, then, that the meaning of the
law is to be ascertained according to the understanding of the law
when it was enacted?
Almost always. Almost always.
Can you think of any situation
The reason that I hesitate a little is because of
course, there are instances, particularly with the Constitution and
other places, where it is so open and unclear as to just how the
Framers or the authors intended it.
And I accept that. Would you also agree that
separation of powers concerns mandate that courts be careful not
to intrude on the terrain of the various political branches?
All right. Those are important issues to me and
I think to everybody who understands or is concerned with constitutional
Judge Breyer, as you know, the first liberty protected in the Bill
of Rights is religious liberty. Specifically, the free exercise clause
of the first amendment provides that Government shall make no
law prohibiting the free exercise of religion.
In its 1990 decision in Employment Division v. Smith, the Supreme
Court held" that a neutral, generally applicable law need not
be justified by a compelling interest even if the law has the incidental
effect of severely burdening a particular religious practice.
And as you may know, I was very concerned that in the aftermath
of the Smith case, the freedoms of religious minorities in this country
were vulnerable to hostile majorities. For this reason, I was the
lead sponsor along with Senator Kennedy in enacting the Religious
Freedom Restoration Act, which became law last year and which
restored the compelling interest standard that was widely understood
to be in force before the Smith case.
I would like to ask you about an opinion that you wrote before
the Smith case was decided, and that was New Life Baptist Church
Academy v. Town of East Longmeadow, back in 1989.
You ruled that a local school committee's proposed procedures for
reviewing the adequacy of the secular education provided to students
at a Fundamental Baptist Church school did not violate the
free exercise clause. And as you know, your ruling in this case has
been criticized as not sufficiently protective of religious liberty.
How would you respond to those criticisms about your decision
in that case? Both Senator Kennedy and I are watching you very
SO is Chloe. Chloe was out last summer in Los
Angeles. She was working with a minority religious group, the
Vietnamese Buddhists, and they were actually having a very practical
problem, because they were trying to set up home temples in
areas of the city where the rules and regulations had made it tough
for them, and the question was could you work that out in a way
that both satisfied the needs of the city and also allowed these people
to practice their religion. That was terribly important. So she
is also very interested in that.
Well, good for you, Chloe. When we enacted the
Religious Freedom Restoration Act, we were strongly supportive of
protecting religious liberty and freedom.
Of course, and the particular case, I found extremely
difficult. Why? I will tell you a little bit about it. If you go
back into the Constitution, even free speech, I read recently it really
descends historically from the need to protect religion. There is
nothing more important to a person or to that person's family than
a religious principle, and there is nothing more important to a family
that has those principles than to be able to pass those principles
and beliefs on to the next generation.
That is why schools are so important in this area. That is why
people feel so strongly about schooling. So one starts with the realization
that what was at issue in the first amendment, I think both
for speech and for religion, was a decision made sometime around
the 17th century, that it is about time to stop killing each other
because of religious beliefs, and what we are going to do is respect
the religion of each other, and people are going to be free to practice
that religion and to pass it on to their families. They are going
to teach their children, and their children can teach their children.
That is absolutely basic.
Well, as you know
The opposite side of the coin is that, of course,
the people, as organized in government, have an interest to see
that you or I or any other family do not abuse our children, and
they have an interest in seeing that our children, each other's children,
do receive some kind of education—that they learn how to
read, they learn how to write, they learn mathematics—and for
that reason, it is absolutely well-established that although people
can teach their children at home if they wish, because of the need
to pass on their religion, it is equally well-established that the
State has some interest in seeing that education is going on and
that the children are being taught.
Now, in that particular case, it was a little unusual because the
argument came up—and I read through that record with pretty
great care—and what had gone on, I think, was everyone in the
State said they could teach their children at home, that particular
religious group. There were some complaints about the quality of
the education—they had a special school—and everybody agreed
that the school system could go in and look and see what was being
Indeed, the religious school itself had said at one point, We do
not mind if you come in and look; what we do not want to do is
we do not want to acknowledge the school board, because we believe
there is no higher authority than God. And the school board,
making an effort to accommodate, had said, Do not acknowledge
us; we do not want you to acknowledge us. Just let us look and see
what is happening, the same way as you might any visitor at all.
And then the school had said, Yes, that is OK. But somehow in the
legal argument in the lower court, that became a little confused,
and before you know it, what had happened was that the lower
court had entered a decree which said the way to go about this,
State, is to test the children after they leave school; while the State
had said, no, no, it is better to go in and see.
Now, there, the question was does the Constitution require afterschool
testing, or does it require visits, or is it up to the State? And
that is a rather narrow point, and what we held in the case, unanimously,
was that the Constitution does not require after-school
testing; if the State wants to do it that way, they could. But you
see, some people might think that was more restrictive; others
might think it was less restrictive. In other words, it was a fairly
narrow technical matter growing out of the record.
I just hope that you and other members of the
judicial community will recognize these important issues, and I
think you do—and certainly recognize the importance of the Religious
Freedom Restoration Act
And the overwhelming vote that it
had in both Houses of Congress.
The principle is absolutely right.
Congress intended to give strong protections to
religious belief and liberty.
Unfortunately, just recently, in a case involving
an order to a church to return tithes made in good faith by churchgoers
who later became bankrupt, we have the current administration,
despite its support for the Religious Freedom Restoration Act,
interpreting the act in a manner that would effectively gut it, in
Now, I am not asking for your views on that case, because undoubtedly,
that is going to come before the Court; but I hope that
all of you will consider this particular act and its importance, and
that religious freedom is the first of the mentioned liberties in the
Bill of Rights. And I hope you will consider the overwhelming congressional
intent with regard to that.
The establishment clause of the first amendment provides that
Congress shall make no law respecting an establishment of religion.
Under the test devised by the Supreme Court in 1971, the
Lemon v. Kurtzman case, a practice satisfies the establishment
clause only if it, first, reflects a clearly secular purpose; second, has
a primary effect that neither advances nor inhibits religion; and
third, effectively avoids an excessive entanglement with religion.
Now, I am very concerned that this abstract, arid, and ahistorical
test is often applied in a manner that is insensitive to practices
that are part and parcel of our political and cultural heritage. In
particular, narrow reliance on the Lemon test ignores a richer
strain of Supreme Court precedent that recognizes that interpretation
of the establishment clause should comport with what history
reveals was the contemporaneous understanding of its guarantees.
In Justice Brennan's words, "the existence from the beginning of
the Nation's life of a practice * * * is a fact of considerable import
in the interpretation" of the establishment clause.
Now, do you agree or disagree that the historical pedigree of a
practice should be given considerable weight in the determination
of whether a practice amounts to an establishment of religion? You
mentioned that historical precedent is important to you. Do you
feel it is important in this instance?
It is important; there is no question it is important.
The establishment clause has tremendous foresight, tremendous
foresight, I think. The simple model—there is always in my
mind, like, two or three fairly simple things—I think of the establishment
clause, I think of Jefferson, and I think of a wall. And the
reason that there was that wall, the reason, which has become so
much more important perhaps even now than it was then, is that
we are a country of so many different people, of so many different
religions, and it is so terribly important to members of each religion
to be able to practice that religion freely, to be able to pass
that religion on to their children. And each religion in a country
of many, many different religions would not want the State to side
with some other religion, so each must be concerned that the State
Then, there are also cases arising. And when cases arise with
secular institutions, the question becomes have you injected too
much religion into them. You can inject some—I mean, you have
chaplains in Congress. Schools—what about schools? You see teaching
your own children—it becomes very important not to, in a secular
school, inject much religion into a school.
What of the other side of the wall? Can the State aid religion?
The answer is certainly, sometimes. Nobody thinks—nobody
thinks—that you are not going to send the fire brigade if the
church catches fire. Nobody thinks that the church does not have
the advantage of public services. The question becomes when is it
too much. And again, schools are critically important because of the
importance of schools to religious people.
So that is the framework that I use, and in trying to decide
whether and when, what is too much, of course you look at history,
and you look at tradition, and you look at the current world as we
live it in the United States.
At one time, you stated that, "Of course, the wall
between church and State is not absolute."
NO; no one is going to say—to use an extreme example—
no one would say that if the church is on fire, do not send
the fire department. No one would say that the public services of
a city are not available to the church. The question becomes when
have you gone too far in terms of trying to preserve a country of
many different religions where Government is basically neutral as
Those are very difficult questions.
Well, I think, as we have seen up here on Capitol
Hill, the word "wall" of separation is a metaphor
Yes, absolutely. That is true.
And it leads to a lot of hostility.
And there has to be some reason brought into
In Lee v. Weisman back in 1992, the Supreme
Court, relying on Warren Court rulings, held by a 5-to-4 vote that
a school district violated the establishment clause when it invited
a rabbi to lead a prayer at a school graduation. Now, in my view,
we have reached new depths when a nonsectarian prayer by a
rabbi at a school graduation ceremony is censored by the establishment
Notwithstanding the fact-specific language of the Court's opinion
in Lee, some have since tried to portray Lee as having invalidated
all prayer at school graduation ceremonies including, for example,
nonsectarian student-led prayer.
Would you consider it a relevant factor for purposes of the establishment
clause whether it is a member of the clergy or a student
who leads the prayer?
That is very specific, and I
I am not asking you if the factor would be dispositive,
but simply whether it would be relevant.
It sounds as if it is—as you said, it sounds as if
it is a relevant factor. And I understand the point and agree that
it is not absolute, these things, and I do think—it sounds as if it
would be a relevant factor.
Would you consider it relevant whether the decision
to have prayer at a graduation was made by school officials
Well, you bring up matters, Senator, which sound
as if they are relevant.
I think that is good.
Would you repeat that, what was good?
I say that is good, his discussion of that.
Judge Breyer, let me turn to the matter of copyright briefly, and
on a subject upon which you have written.
That is true.
I am sure you know what I am going to ask. In
1970, you wrote a Law Review article entitled '"The Uneasy Case
for Copyright." It was considered quite controversial in many quarters
because it questioned many of the basic assumptions upon
which copyright law had long been based. In addition, you strongly
argued against extending copyright to what were then new areas
of protection, such as computer programs, but that was nearly 25
Since 1970, our copyright laws, of course, have been fundamentally
altered, first by the adoption of the landmark 1976 Copyright
Act, which greatly strengthened Federal copyright, extending it
even to unpublished works; second, by the 1980 statutory recognition
of the copyright-protected status of computer software and
data bases; and, finally, by the 1988 U.S. ratification of the Berne
Convention for the protection of literary and artistic property,
which is the principal international copyright treaty.
Now, have your views on copyright changed since 1970? [Laughter.]
Senator, the reason I laugh
HOW can you get a bigger home-run ball than
The reason I laugh is that that article was awfully
important to me, because what turned on that article for me
was a job. The question was whether I would get tenure, so I put
quite a lot of effort into that article.
AS you point out, Congress has passed a statute
since then. The law has changed since then. I certainly would follow
the statute rather than views, but I cannot resist saying this:
that recently I did reread that section on the computer part, and
what I thought at that time years ago—it was 25 years ago—I
think a lot of the computer people thought that what we would all
be doing is we would have like a big electricity plant or something
in the middle of the city and everybody would be hooked up to this
thing with wires, and you would have the terminal that went up
to this big computer utility. And then, if that had been so, I said,
well, you do not really necessarily need copyright to protect the
program because the guy owning the utility, which would probably
be regulated, could just charge. You would come to the same thing.
Then I put in a paragraph and said, you know, it would be different
if what happened would be that everybody would have his
own little computer, and the programs would be made by 100 or
1,000 different companies, and they would sell them off the shelf,
and it would be really easy to copy them. And then I do not know
what we would do.
So I do not know that I have to change that view because it
OK. With regard to the takings clause, I have
to say that I find it most curious that our chairman is very protective
of rights that are not enumerated in the Constitution, as are
many on this committee, yet is, I hate to say it, Joe, somewhat disdainful
of rights that are specifically mentioned in the Constitution.
And I am very concerned, as are all Westerners and I think
people all over the country, about the unlawful taking of property,
whether by whole or by part, by Government and Government regulation,
and taking it without just compensation. So those are matters
that I just want to reemphasize a lot of us are concerned about
on the other side of that issue even though I think the chairman
makes some good points otherwise.
Various doctrines of justiciability, for example, standing, ripeness,
and mootness, operate to help confine the Federal courts
within our constitutional scheme of separation of powers, the adjudication
of live claims raised by parties who have suffered concrete
and particularized injuries that can be readdressed.
If these elements are diluted, the judicial power is expanded at
the expense of the executive and legislative branches. Are you in
agreement with the current Supreme Court case law in standing,
ripeness, and mootness? And if not, what are your areas of disagreement?
The basic principles arise really out of article III.
Article III of the Constitution says the judicial powers shall extend
to all cases. It talks about cases, and it talks about controversies.
And some of the rules that you mention are really designed to
make certain that the courts decide real .cases and real controversies.
I think that those are principles that people agree upon.
I think there is another principle that they agree upon, and that
is when you in Congress pass a statute, there are certain groups
of people whom that statute means to protect. And there are also
a lot of people, when your statute is unclear in this respect, that
might argue their way into protection.
Now, any of those people, if they are really hurt, should be able
to bring a lawsuit, because those are people that you mean to protect,
or at least arguably you mean to protect them, from the very
kind of injury that you are worried about in that statute. I think
most people would agree with that.
Then there are areas of what I would call gray areas in the law
about whether the Court is pushing a little bit more this way or
a little bit more that way in respect to how we go about making
a little more concrete what I have just said generally. On those
matters, I think I should like to reserve judgment, because I think
that those are matters that are very much at issue in Supreme
I thank you. I notice that my time has just about
expired, but I appreciate your answers. I have really enjoyed listening
Thank you, Senator.
Thank you very much, Senator.
Thank you, Mr. Chairman.
Judge Breyer, the Preamble to the Constitution makes it clear
the purpose of our system of law is to enhance the lives of every
American; in the Framers' words, "to secure the blessings of liberty
to ourselves and our posterity." And at the White House ceremony,
when you were nominated, you said quite eloquently that your goal
as a Justice was to help make the Constitution and laws work for
real people. So I would like to discuss with you several areas where
your work made an impact on real people, on the rights of working
women, on the safety of medications, on the quality of our environment,
and also on the security of Americans from the threat of
crime in our homes and on the streets in our communities.
Let's begin with the area of gender discrimination on the job, and
one of your decisions, in particular, is a classic case involving two
working women in the town of Peabody, MA, which illustrates
what the law can mean in real human terms to the people involved.
The case I am referring to is Stathos v. Bowden.
The plaintiffs, Stella Stathos and Gloria Bailey, worked in clerical
jobs at the Peabody Municipal Lighting Commission. Both
women devoted their entire working lives to the city agency, starting
when they finished high school and continuing until they
reached the retirement age. Ms. Stathos worked there 36 years before
she retired in 1985; Mrs. Bailey worked there 41 years until
she retired just last year.
In 1977, the Lighting Commission reorganized the plant where
the women worked and drew up an organization chart which made
it clear for the first time that men holding the positions equivalent
to those held by Ms. Stathos and Mrs. Bailey were being paid
about $12,000 more than the two women were receiving, and the
women repeatedly asked for a pay increase to eliminate the disparity,
and their requests were denied. They filed suit under two Federal
antidiscrimination laws, and I am sure it took a lot of courage
to sue their employer. It really was fighting city hall then. But in
the end, they prevailed, and they won a jury verdict in their favor,
requiring the employer to raise their pay and pay them damages.
And when the city appealed, you wrote an opinion upholding the
trial court on several points of law and affirmed the award.
One line in your opinion seems to me to be particularly revealing
on how you viewed the case. The defendants had argued that they
were entitled to upset the verdict because the jury had not been
asked to consider whether the defendants had acted in good faith.
And in rejecting the claim, you wrote, and I quote, "We do not see
how anyone could think that paying women less just because they
were women would not constitute unlawful discrimination."
Can you tell us how this case is a reflection of your attitude toward
equality, equal opportunity for women, and about your approach
in interpreting the laws against sex discrimination?
Some things seem fairly obvious to me, Senator,
and I think that was one of them. I suppose I was restrained in
that. I guess it is fairly obvious, isn't it, that you are not going to
pay a woman less for doing the same job as a man? What is very
easy to me is I think of Chloe and I think of Nell, and they are
going to be in the workplace. And, my goodness, I should come
back and somebody should have to tell somebody that a woman is
going to make less money for doing the same thing or is going to
have some other onerous condition that a man would not have?
I mean, you try to explain that to Chloe or to Nell or to any other
woman in the workplace. There is no explanation. And I would
think in 1994 that that is rather clear to people. I would think it
is rather difficult to make a defense saying, oh, dear, I did not
know that. What else is there to say?
You see, I start with certain things that I assume is fairly obvious.
Well, I think there are many of us that would
certainly agree with both your analysis and conclusion, but I think
we also understand the reality in terms of the American workforce
that too often that is not the case, and it is a real issue that is out
there. Your response to that injustice I think was very well received.
I took the opportunity to call last night, I called Stella Stathos
and Gloria Bailey, who still live up there in Peabody, and they said
interesting things. They told us that after they won the case, the
Lighting Commission accepted the outcome and showed them no
animosity, which I thought was somewhat hopeful. And they also
told me how proud they are that their case may open up the doors
for other women in the same situation.
I asked each of them what they thought about you, which is
rather an opening, and Mrs. Bailey said, "Did he ever do it the
right way." And Mrs. Stathos said, "He really stood up for all of
us," and I think that says it all.
You have been one of the leading scholarly commentators on administrative
law and regulations, and while obviously these subject
matters seem dry and arcane, they can be of enormous importance
to every American. Americans have a right to expect that the food
they eat and the water they drink and the medications they take
and the air they breathe and the place where they work will be
safe and free from dangerous substances or machinery. Congress
passes the laws that set the broad standards in these and other
areas, but it is up to the administrative agencies like the EPA and
the Occupational Safety and Health Administration and the FDA
to adopt the regulations that spell out the standards to apply them
in particular situations to protect health and safety.
This is an important work of administrative agencies, and a
great deal has been written about your views on these subjects.
Most of what has been written has been complimentary, but I
would like to give you the opportunity to respond to some of the
My question is: How do you respond to the suggestion some have
made that you are hostile to the health and safety regulations?
I have said in my book that I think regulation is
necessary in those areas. I guess if you wanted a simple statement,
a simple statement, I wrote a book review not too long ago in which
I tried—because it was written about the economics of AIDS. And
I wanted to explain in that book what I saw as an important difference,
as you have said, actually, an important difference between
what you might call classical economic regulation, like airlines
or trucks, and the regulation involving health, safety, and the
I said as to the first, trucking, airlines, it is not really surprising
that economics may help. It is not the whole story, but it tells a
significant amount of the story because our object there is to get
low prices for consumers. And maybe economics can help us.
When you start talking about health, safety, and the environment,
the role is much more limited because, there, no one would
think that economics is going to tell you how you ought to spend
helping the life of another person. If, in fact, people want to spend
a lot of money to help save earthquake victims in California, who
could say that was wrong? And what I ended up there saying is
that in this kind of area, it is probably John Donne, the poet, who
has more to tell us about what to do than Adam Smith, the economist.
That is a decision for Congress to make reflecting the values
So I tried to draw that distinction, and that does not mean all
those areas work perfectly either. Everyone can have a lot of criticisms
about every area, but, nonetheless, there is a difference in
the way economics feeds into the enterprise. And that is what I
have tried to spell out in that review.
Well, in two of the areas—one in the area of
FDA and the other in the environment—you have not written
many decisions on the FDA, but there is one that in particular you
decided, U.S. v. 50 Boxes More or Less. You voted to uphold the
FDA's right to seize prescription drugs because the manufacturer
had not presented adequate and well-controlled studies to demonstrate
its safety and effectiveness and the conditions for which
it would be prescribed.
What is significant about your opinion in this case is that you
upheld the district court's grant of summary judgment to the FDA,
even though the drug in question has successfully been on the market
35 years. But the manufacturer had not met the strict regulatory
standards for proving the safety and effectiveness of the
drug, and you upheld the drug seizure by the FDA.
It seems to me that that opinion could hardly have been written
by someone who is hostile to health and safety regulations. My
question is: Would you spell out the reasons for reaching that decision?
That decision reflected an administrative agency's
rules and regulations that had evolved slowly over time. Those
rules and regulations followed from a statute that Congress enacted.
They might not have been perfect, but basically it was the
administrative agency's job and the courts over time had ratified
that job to work out a system that would remove dangerous drugs
from the market.
The particular drug in question fell within that system, and I
thought there—and I think now, and I think the law reflects that—
that it is risky for courts to start monkeying around with a caseby-
case deviation from a regulatory system that has been thoughtfully
worked out over the years. You cannot say never with anything.
But you have to remember that the basic statute designed
to protect people has been worked out in Congress, delegated to the
agency, and when that works fairly well over the course of time,
it is not surprising that the law says follow what the agency says.
That is what I think was basically going on there.
Your opinions in the environmental cases
have earned high marks from the environmentalists in New England.
One was very important in Massachusetts involving George's
Bank, which is one of the most productive fishing areas. You
upheld a district court ruling that former Interior Secretary James
Watt could not auction off the rights to drill for oil in that fishing
area because the Interior Department had not done an adequate
environmental impact statement on the effect of drilling on those
Could you tell us about that decision and how generally your rationale
basically would reflect your approach on environmental regulation?
I think that decision, again, reflects the need for
courts to go back to the underlying intent of Congress, and I think
it reflects our own court's view of what that intent was in respect
to environmental impact statements. Basically, there had been an
environmental impact statement that was going to permit—the Interior
Department wanted to drill for oil off George's Bank. But between
the time they first looked at it and the time it came up to
our court, everybody had changed his mind about how much oil
was likely to be there. They first thought billions of barrels. They
second thought hardly any.
The question was: Do they have to go prepare a new environmental
impact statement if they still want to drill? They did still
want to drill. Our court said if you do, you better prepare a new
statement. Why? Because there has been such a big change. You
might want to hurt the environment if you are going to get billions
of barrels, but, really, do you really want to hurt the environment
for a little bit?
Now, what had been argued on the other side of that case was:
Well, we will do the statement; just let us go forward with our auction
in the meantime. But we said no, that is not the purpose of
the environmental impact statement. The purpose of that state130
ment is to make this great bureaucracy think about this hard before
the gears start in motion.
So do not go let out the bids and everything and then write the
statement, because once the agency is committed to the action, it
is too late to write statements.
The very purpose of the law, to protect the environment in this
area, is to get the statement written before the agency becomes bureaucratically
committed to a course of action that could hurt the
environment. And that is what was going on in that opinion.
Well, it is a good example of how sound environmental
regulation can protect the public interest.
I would like to introduce into the record a letter, Mr. Chairman,
from Douglas Foy, who is the executive director of the Conservation
Law Foundation, certainly the leading public interest environmental
law group in New England. Mr. Foy writes in part:
Stephen Breyer has fashioned a remarkable record on environmental matters that
have come before the First Circuit Court of Appeals. His opinions reflect an unusual
sensitivity to natural resource concerns, whether in matters involving air and water
pollution, off-shore oil and gas drilling, the clean-up of Boston Harbor, or protection
of the Cape Cod National Seashore.
Judge Breyer brings a New Englander's common sense to natural resource matters,
and couples that common sense with an impressive understanding of administrative
procedure and agency foibles. My only regret is that Judge Breyer cannot
sit on the Supreme Court and the First Circuit at the same time.
To which I can add that the first circuit's loss is the Nation's
Without objection, it will be placed in the record.
CONSERVATION LAW FOUNDATION,
Boston, MA, June 30, 1994.
To WHOM IT MAY CONCERN: Stephen Breyer has fashioned a remarkable record
on environmental matters that have come before the First Circuit Court of Appeals.
His opinions reflect an unusual sensitivity to natural resource concerns, whether in
matters involving air and water pollution, off-shore oil and gas drilling, the cleanup
of Boston Harbor, or protection of the Cape Cod National Seashore. The Court's
line of decisions on the obligations imposed by NEPA are leading precedents, reflecting
a penetrating understanding of the law's requirements and of agencies' cavalier
efforts to avoid its application.
Judge Breyer brings a New Englander's common sense to natural resource matters,
and couples that common sense with an impressive understanding of administrative
procedure and agency foibles. Much of the development of environmental law
in the next decade will revolve around the application and enforcement of pivotal
federal laws (such as the Clean Air Act, National Energy Act, Magnuson Act, and
ISTEA), by agencies, in the states and regions. Stephen Breyer is precisely the kind
of judge to whom we should entrust review of agency compliance with those laws.
My only regret is that Judge Breyer cannot sit on the Supreme Court and the First
Circuit at the same time.
DOUGLAS I. FOY,
Turning to another area involving the criminal
justice system, as you know, Senator Thurmond and I worked
for many years with Chairman Biden to pass the Sentencing Reform
Act of 1984, the law that abolished the Federal parole and
created a sentencing guidelines system in the Federal courts. And
with all the talk about truth in sentencing, it is important to remember
that we created truth in sentencing at the Federal level
10 years ago.
Before that time, the sentencing system was a matter of law
without order; judges in two different courtrooms sentencing two
equally culpable defendants might hand down two completely different
sentences. One defendant might get 10 years, another might
get probation, and there was nothing the prosecutors could do
about it. And because of parole, the sentence imposed by the judge
had little to do with the time the defendant actually served, and
many criminals served only a third of their sentences even in cases
involving violent crimes.
This system led people to lose faith in the ability of the legal system
to do justice and protect the interests of victims of crime. So
we abolished parole in the Federal system and created a commission
to write sentencing guidelines so that criminals who commit
similar crimes will get similar sentences and actually serve the
time they get.
You served as one of the first members of the commission. You
helped forge the key agreements that got the job done. These
guidelines provide for tough, no-nonsense sentences, increasing the
time served by violent criminals and by white-collar corporate
criminals who used to get special treatment in the Federal courts.
Could you briefly describe how the guideline system achieves
truth in sentencing and why you think that truth in sentencing is
an important goal.
I think that you decided, Senator, and the other
Senators on this committee decided, at that time correctly, that the
public was very confused about sentencing. A judge would sentence
a robber to 6 years in jail, but the robber would be out after 2.
Sometimes, the judge would sentence him to 18 years for a violent
robbery, and he would be out after 6. Sometimes, the judge would
sentence him to 8, and he would not be out until after 7. No one
knew what in fact was happening, and the public's cynicism grew.
Therefore, you and this committee and the Congress decided that
under the new Federal sentencing system, the sentence given by
the judge would be the sentence that was served—not completely;
there is 15 percent good time that could be awarded—but basically,
the sentence given would be the sentence served, and that is what
The second basic objective that you had, which I think still is a
worthy objective, I could describe like this: Many judges in the first
circuit have a lot of experience in sentencing, and they do it well.
Judge Toro, the chief judge in Massachusetts, across the hall, for
many years would describe to me how he sentenced people, and it
seemed very sensible. But then, a different judge in Los Angeles,
let us say, an equally good judge, an outstanding judge, would sentence
the same kind of person for the same kind of crime, and the
results would be dramatically different.
So what you said is that the sentence should not depend on who
the judge is.
In New York, they would have a wheel and assign
judges by lottery.
Well, why would you need a wheel, unless people
thought that the personality of the judge was playing a role in the
sentence? Well, that should not be. And so you set up the Sentencing
Commission to try to even that out. That is a hard job.
I think the Sentencing Commission has come up with guidelines
that do tend to even that out. The basic philosophy of the statute,
the basic philosophy of the guidelines, is that they will write guidelines
that apply to specific types of crimes and specific types of
criminals, and judge, when you are sentencing a person for a particular
kind of crime, a particular kind of person, you follow the
guidelines. That gives you very little leeway—if you have an ordinary
case. Judge, if you have an unusual case, you may depart
from the guidelines. Use your own judgment there. But you have
to give your reason, and it will be reviewable in a court of appeals.
Now, that is the basic theory. Guidelines, I know, are controversial.
I know that these guidelines have not worked perfectly. But
it does seem to me to be a step in the right direction toward more
uniform justice and toward more uniform justice and toward more
understandable justice so that people will understand that punishments
are uniformly applied, and the punishment announced is the
punishment that will be given.
DO you want to add anything with regard to
whether the mandatory minimums have been additive and useful
Well, what I have said publicly, Senator
I was going to keep you out of controversy
until that one.
This is a legislative matter. This is a legislative
matter, and I think that Congress will in its wisdom determine
that political matter. I have expressed in my writings sometimes
some criticism of that.
I will include that excellent article as part of
My time is almost up, Judge Breyer, but I
want to offer a brief comment about your extraordinary career of
public service, and that is that throughout your life, you have dedicated
yourself to the public interest. You have served as a law clerk
to Justice Goldberg; from there, you went to the Justice Department,
where you developed creative ways to use the antitrust laws
and fight housing discrimination. When you became a professor at
Harvard Law School, you did not retreat into an ivory tower; you
focused on the tough problems of economic regulation and making
government work better. And whenever the call to public service
was heard, you answered, helping Archibald Cox to investigate Watergate,
helping the Senate address complex regulatory matters,
and serving with great distinction as chief counsel of this committee.
And when you became an appeals court judge, your commitment
to the administration of justice did not stop there; you took on the
different task of adopting tough, fair sentencing guidelines, and
you continued to teach law to young people and to analyze the
toughest problems of the day.
That kind of work is not glamorous. It does not get you a lot of
publicity or honors. But it is the kind of work that helps real people,
and it is the kind of work that will make you a first-rate Justice
on the Supreme Court, where you will enhance the lives of
Americans for years to come.
Thank you, Senator.
My time is up, Mr. Chairman.
Thank you, Senator. It is also the kind of work
that allows me as chairman to get some of the first-rate minds like
the two professors sitting behind me to come and work for little or
nothing because people like you end up on the Supreme Court. So
I thank you for that, for saving the taxpayers a lot of money by
getting first-rate staffpersons to take cuts in salaries to come and
work with us.
Judge, I thank you for this morning, and as I indicated, what we
will do now, since we have a very important vote that will take
place on the floor of the Senate at 2:30, we will wait and reconvene
at 2:45, at which time, the first order of questioning will be Senator
Thurmond and then Senator Metzenbaum.
We are recessed until 2:45.