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• The CHAIRMAN

  At 01:42
  31 seconds

  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.
  Senator Hatch.
  

• 

  Senator HATCH

  At 02:13
  1 minute

  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?
  

• 

  Judge BREYER

  At 03:44
  2 minutes

  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
  call law.
  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.
  

• 

  Senator HATCH

  At 06:39
  12 seconds

  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?
  

• 

  Judge BREYER

  At 06:51
  53 seconds

  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.
  

• 

  Senator HATCH

  At 07:44
  11 seconds

  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?
  

• 

  Judge BREYER

  At 07:55
  3 seconds

  Almost always. Almost always.
  

• 

  Senator HATCH

  At 07:58
  1 second

  Can you think of any situation
  

• 

  Judge BREYER

  At 07:59
  14 seconds

  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.
  

• 

  Senator HATCH

  At 08:13
  18 seconds

  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?
  

• 

  Judge BREYER

  At 08:31
  1 second

  Yes.
  

• 

  Senator HATCH

  At 08:32
  1 minute

  All right. Those are important issues to me and
  I think to everybody who understands or is concerned with constitutional
  law.
  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
  carefully.
  

• 

  Judge BREYER

  At 10:30
  31 seconds

  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.
  

• 

  Senator HATCH

  At 11:01
  7 seconds

  Well, good for you, Chloe. When we enacted the
  Religious Freedom Restoration Act, we were strongly supportive of
  protecting religious liberty and freedom.
  

• 

  Judge BREYER

  At 11:08
  4 seconds

  Of course.
  

• 

  Senator HATCH

  At 11:12
  1 second

  Go ahead.
  

• 

  Judge BREYER

  At 11:13
  1 minute

  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.
  

• 

  Senator HATCH

  At 12:45
  1 second

  Well, as you know
  

• 

  Judge BREYER

  At 12:46
  2 minutes

  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
  done.
  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.
  

• 

  Senator HATCH

  At 15:37
  11 seconds

  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
  

• 

  Judge BREYER

  At 15:48
  

  Yes, yes.
  

• 

  Senator HATCH [continuing]

  At 15:48
  3 seconds

  And the overwhelming vote that it
  had in both Houses of Congress.
  

• 

  Judge BREYER

  At 15:51
  

  The principle is absolutely right.
  

• 

  Senator HATCH

  At 15:51
  6 seconds

  Congress intended to give strong protections to
  religious belief and liberty.
  

• 

  Judge BREYER

  At 15:57
  

  Right.
  

• 

  Senator HATCH

  At 15:57
  2 minutes

  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
  my opinion.
  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?
  

• 

  Judge BREYER

  At 18:19
  2 minutes

  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
  remain neutral.
  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.
  

• 

  Senator HATCH

  At 20:53
  7 seconds

  At one time, you stated that, "Of course, the wall
  between church and State is not absolute."
  

• 

  Judge BREYER

  At 21:00
  35 seconds

  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
  among them.
  Those are very difficult questions.
  

• 

  Senator HATCH

  At 21:35
  8 seconds

  Well, I think, as we have seen up here on Capitol
  Hill, the word "wall" of separation is a metaphor
  

• 

  Judge BREYER

  At 21:43
  2 seconds

  Yes, absolutely. That is true.
  

• 

  Senator HATCH [continuing]

  At 21:45
  2 seconds

  And it leads to a lot of hostility.
  

• 

  Judge BREYER

  At 21:47
  

  Right.
  

• 

  Senator HATCH

  At 21:47
  4 seconds

  And there has to be some reason brought into
  the system.
  

• 

  Judge BREYER

  At 21:51
  

  There is.
  

• 

  Senator HATCH

  At 21:51
  56 seconds

  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
  clause.
  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?
  

• 

  Judge BREYER

  At 22:47
  3 seconds

  That is very specific, and I
  

• 

  Senator HATCH

  At 22:50
  4 seconds

  I am not asking you if the factor would be dispositive,
  but simply whether it would be relevant.
  

• 

  Judge BREYER

  At 22:54
  14 seconds

  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.
  

• 

  Senator HATCH

  At 23:08
  8 seconds

  Would you consider it relevant whether the decision
  to have prayer at a graduation was made by school officials
  or students?
  

• 

  Judge BREYER

  At 23:16
  10 seconds

  Well, you bring up matters, Senator, which sound
  as if they are relevant.
  

• 

  Senator HATCH

  At 23:26
  7 seconds

  I think that is good.
  

• 

  Judge BREYER

  At 23:33
  2 seconds

  Would you repeat that, what was good?
  

• 

  Senator HATCH

  At 23:35
  14 seconds

  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.
  

• 

  Judge BREYER

  At 23:49
  

  That is true.
  

• 

  Senator HATCH

  At 23:49
  1 minute

  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
  years ago.
  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.]
  

• 

  Judge BREYER

  At 24:56
  1 second

  Senator, the reason I laugh
  

• 

  Senator HATCH

  At 24:57
  4 seconds

  HOW can you get a bigger home-run ball than
  that?
  

• 

  Judge BREYER

  At 25:01
  14 seconds

  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.
  

• 

  Senator HATCH

  At 25:15
  1 second

  Sure.
  

• 

  Judge BREYER

  At 25:16
  1 minute

  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
  was
  

• 

  Senator HATCH

  At 26:30
  1 minute

  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?
  

• 

  Judge BREYER

  At 28:25
  2 minutes

  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
  Court cases.
  

• 

  Senator HATCH

  At 30:40
  8 seconds

  I thank you. I notice that my time has just about
  expired, but I appreciate your answers. I have really enjoyed listening
  to you.
  

• 

  Judge BREYER

  At 30:48
  2 seconds

  Thank you, Senator.
  

• The CHAIRMAN

  At 30:50
  2 seconds

  Thank you very much, Senator.
  Senator Kennedy.
  

• 

  Senator KENNEDY

  At 30:52
  2 minutes

  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?
  

• 

  Judge BREYER

  At 33:50
  1 minute

  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.
  

• 

  Senator KENNEDY

  At 35:02
  2 minutes

  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
  rest.
  My question is: How do you respond to the suggestion some have
  made that you are hostile to the health and safety regulations?
  

• 

  Judge BREYER

  At 37:22
  2 minutes

  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
  environment.
  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
  of people.
  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.
  

• 

  Senator KENNEDY

  At 39:36
  1 minute

  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?
  

• 

  Judge BREYER

  At 40:45
  1 minute

  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.
  

• 

  Senator KENNEDY

  At 42:11
  53 seconds

  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
  important fisheries.
  Could you tell us about that decision and how generally your rationale
  basically would reflect your approach on environmental regulation?
  

• 

  Judge BREYER

  At 43:04
  2 minutes

  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.
  

• 

  Senator KENNEDY

  At 45:39
  1 minute

  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
  gain.
  

• The CHAIRMAN

  At 46:44
  8 seconds

  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.
  Sincerely,
  DOUGLAS I. FOY,
  Executive Director.
  

• 

  Senator KENNEDY

  At 46:52
  2 minutes

  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.
  

• 

  Judge BREYER

  At 49:00
  4 minutes

  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
  has happened.
  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.
  

• 

  Senator KENNEDY

  At 53:00
  7 seconds

  DO you want to add anything with regard to
  whether the mandatory minimums have been additive and useful
  and helpful?
  

• 

  Judge BREYER

  At 53:07
  2 seconds

  Well, what I have said publicly, Senator
  

• 

  Senator KENNEDY

  At 53:09
  2 seconds

  I was going to keep you out of controversy
  until that one.
  

• 

  Judge BREYER

  At 53:11
  14 seconds

  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.
  

• 

  Senator KENNEDY

  At 53:25
  1 minute

  I will include that excellent article as part of
  the record.
  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.
  

• 

  Judge BREYER

  At 54:57
  

  Thank you, Senator.
  

• 

  Senator KENNEDY

  At 54:57
  3 seconds

  My time is up, Mr. Chairman.
  

• The CHAIRMAN

  At 55:00
  2 minutes

  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.