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• 

  Judge KENNEDY

  At 00:18
  1 minute

  Washington would be
  the president.
  They trusted him, indicating that the framers
  thought there would be an evolutionary component to the presidency
  as it evolved.
  The extent to which the presidency can be controlled by the
  courts is not yet clear. We know that in the Youngstown case,
  where the president seized the steel mills, and in the Nixon tapes
  case, where the President was ordered to turn the tapes over to the
  prosecutor, there was immediate compliance by the president with
  the mandate of the Court.
  To date, the court's authority to review the acts of the president
  has not been questioned by the president. Lincoln questioned the
  authority, because of the necessity of the Civil War.
  Whether or not the courts are the appropriate body for the reconciliation
  of all of the disputes between the political branches of
  the government is a question as to which I have some doubt. In
  some disputes, it may be unclear there is a case and controversy
  which the courts can adequately and meaningfully interpret consistent
  with the case-by-case method.
  

• 

  Senator HEFLIN

  At 01:41
  10 seconds

  Have you expressed in your opinions or speeches
  or statements a position on congressional standing?
  

• 

  Judge KENNEDY

  At 01:51
  1 minute

  NO, sir, I have not. It has been an issue that has
  arisen principally in the District of Columbia circuit. It is an issue
  on which I have not expressed myself, and have no particular fixed
  views, other than, as I have indicated, to state that one of the reasons
  for a case and controversy requirement is to recognize the limitations
  of the judicial office.
  When President Truman seized the steel mills, this was an act
  that took place at a fixed time. It was like a taking under the fifth
  amendment. It was something that the court could very manageably
  work with. And they gave an important pronouncement in
  that case.
  It is a case that still has puzzles to it, but it is one of the leading
  cases on presidential power. That was a circumstance that had
  fixed boundaries, both as to time and to space, and the actions of
  the participants involved. That is the kind of case that the court
  can very manageably undertake.
  

• 

  Senator HEFLIN

  At 02:56
  8 seconds

  Thank you, Mr. Chairman. My time is up.
  

• 

  Senator KENNEDY

  At 03:04
  2 seconds

  The Senator from Iowa.
  

• 

  Senator GRASSLEY

  At 03:06
  56 seconds

  Thank you, Mr. Chairman.
  Judge Kennedy, during the committee's consideration of Supreme
  Court nominees over the past several months, it has been
  asserted several times by different people that one of the jobs of a
  judge is to find and create rights which are not in fact mentioned
  in the Constitution, but which the Judge might deem to be very
  "fundamental." Fundamental in terms of the mind of the judge
  and the judge's own abstract moral philosophy.
  Do you see any dangers with such an undefined standard as a
  foundation for constitutional analysis? In other words, how confident
  can we be that judges, fallible human beings as they are, will
  exercise that mighty power appropriately?
  

• 

  Judge KENNEDY

  At 04:02
  1 minute

  I am not sure how you can be satisfied that a
  judge will not overstep the Constitutional bounds.
  What you must
  do is, number one, examine the judge's record; document his or her
  qualifications and commitment to constitutional rule.
  As I think Mr. Justice Jackson said, judges are not there because
  they are infallible; they are infallible because they are there.
  I think that comment is somewhat inappropriate. I do not think
  judges think of themselves as infallible at any point.
  Certainly the
  history of the Supreme Court in which the Court has been willing
  to recognize its errors and to overrule its decisions, indicates that
  the justices take very conscientiously their duty to interpret the
  Constitution in the appropriate way.
  

• 

  Senator GRASSLEY

  At 05:12
  13 seconds

  If we do not recognize the dangers of judges
  using undefined standards, aren't we doomed to end up with a
  small group of unelected, unrepresentative judges making the law
  in this country?
  

• 

  Judge KENNEDY

  At 05:25
  38 seconds

  That, Senator, is one of the great concerns of
  any scholar of the Constitution. This is not the aristocracy of the
  robe.
  Judges are not to make laws; they are to enforce the laws.
  This
  is particularly true with reference to the Constitution.
  The judges must be bound by some neutral, definable, measurable
  standard in their interpretation of the Constitution.
  

• 

  Senator GRASSLEY

  At 06:03
  1 minute

  Judge Kennedy, you stated in an August 1987
  speech before the Ninth Circuit Judicial Conference that there are
  two limitations on judicial power. I hope I interpret the speech correctly.
  The first limitation is that the Constitution is a written law to
  which courts are bound when announcing constitutional doctrine.
  As you know, Judge Kennedy, the Bill of Rights and many later
  amendments are phrased in broad, spacious terms. If a judge were
  so inclined, he or she could expand the interpretation, use, and
  effect of many provisions of the Constitution.
  And I believe you to be an advocate of judicial restraint. As Chief
  Justice Marshall emphasized in Marbury v.
  Madison, judges have a
  duty to respect constitutional restraints.
  How do you apply the words of the Constitution to problems that
  the framers could not have foreseen?
  

• 

  Judge KENNEDY

  At 07:04
  2 minutes

  The framers, because they wrote a constitution,
  I think well understood that it was to apply to exigencies and circumstances
  and perhaps even crises that they could never foresee.
  So any theory which is predicated on the intent the framers had
  what they actually thought about, is just not helpful.
  Then you can go one step further on the progression and ask,
  well, should we decide the problem as if the framers had thought
  about it? But that does not seem to me to be very helpful either.
  What I do think is that we can follow the intention of the framers
  in a different sense. They did do something. They made certain
  public acts. They wrote. They used particular words. They wanted
  those words to be followed.
  We can see from history more clearly now, I think, what the
  framers intended, than if we were sitting back in 1789. I made that
  discovery when I gave the speech to the Canadian judges.
  They had just written a constitution 2 or 3 years ago. They knew
  the draftsmen. And yet, they were, it seemed to me, more at sea as
  to what it meant than we were in interpreting our own Constitution.
  We have a great benefit, Senator, in that we have had 200 years
  of history. History is not irrelevant. History teaches us that the
  framers had some very specific ideas.
  As we move further away from the framers, their ideas seem
  almost more pure, more clarified, more divorced from the partisan
  politics of their time than before.
  So a study of the intentions and the purposes and the statements
  and the ideas of the framers, it seems to me, is a necessary starting
  point for any constitutional decision.
  

• 

  Senator GRASSLEY

  At 09:37
  8 seconds

  IS there any room for a judge to apply his or
  her own values and beliefs for the purpose of interpreting the text
  of the Constitution?
  

• 

  Judge KENNEDY

  At 09:45
  18 seconds

  The judge must constantly be on guard against
  letting his or her biases or prejudices or affections enter into the
  judicial process.
  

• 

  Senator GRASSLEY

  At 10:03
  18 seconds

  Well, what other factors are there which can
  affect a judge's interpretation of the text of the Constitution?
  Can these factors be determined and applied without involving
  the personal bias of the judge?
  

• 

  Judge KENNEDY

  At 10:21
  32 seconds

  The whole idea of judicial independence, the
  whole reason that judges are not accountable to the Congress once
  they're confirmed, other than for misbehavior, the whole theory is
  that the judge is impartial; that he will apply a law, or that she
  will apply a law, that is higher than themselves. It is higher than
  their own particular predilections.
  

• 

  Senator GRASSLEY

  At 10:53
  18 seconds

  I do not disagree, but I do not know to what
  extent you mentioned other factors that can come into play to
  affect a judge's interpretation of the text of the Constitution?
  

• 

  Judge KENNEDY

  At 11:11
  56 seconds

  When a judge hears a constitutional case, a
  judge gets an understanding of the Constitution from many
  sources: from arguments of counsel; from the nature of the injuries
  and the claims asserted by the particular person; and from the
  reading of the precedents of the court, and the writings of those
  who studied the Constitution.
  All of these factors are, in essence, voices through which the
  Constitution is being heard.
  But the idea is that the Constitution is itself a law. It is a document
  that must be followed.
  

• 

  Senator GRASSLEY

  At 12:07
  28 seconds

  YOU described yourself in a February, 1984
  speech before the Sacramento Rotary Club as a "judicial conservative."
  Does this mean that you are in any way adverse to evolving interpretations
  of the Constitution that accommodate new technology
  or current trends in society?
  

• 

  Judge KENNEDY

  At 12:35
  36 seconds

  A conservative recognizes that any State must
  contain within it the ability to change in order to preserve those
  values that a conservative deems essential.
  As applied to a judge, I think that is consistent with the idea
  that constitutional values are intended to endure from generation
  to generation and from age to age.
  

• 

  Senator GRASSLEY

  At 13:11
  36 seconds

  In that August, 1987 speech before the Ninth
  Circuit Judicial Conference—which I previously mentioned—you
  stated that the doctrine of original intent is best conceived of as an
  "objective" rather than a "methodology."
  I would like to have you explain the difference between using the
  doctrine of original intent as an "objective," and using it as a
  "methodology"; and why that is a better practice?
  

• 

  Judge KENNEDY

  At 13:47
  1 minute

  I think what I had in mind there was to indicate
  that the doctrine of original intent is not necessarily helpful
  as a way to proceed in evaluating a case; but that really it is one of
  the things that we want to know.
  The doctrine of original intent does not tell us how to decide a
  case. Intention, though, is one of the objectives of our inquiry.
  If we know what the framers intended in the broad sense that I
  have described, then we have a key to the meaning of the document.
  I just did not think that original intent was very helpful as a
  methodology, as a way of proceeding, because it just restates the
  question.
  

• 

  Senator GRASSLEY

  At 14:47
  23 seconds

  Well, when the objective of original intent is
  not met, do you reevaluate your result and underlying analysis? Or
  do you accept the result despite not obtaining the objective?
  

• 

  Judge KENNEDY

  At 15:10
  7 seconds

  Let me see if I—if you cannot find the original
  intent, is that your point?
  

• 

  Senator GRASSLEY

  At 15:17
  8 seconds

  Yes, when the objective of original intent is
  not met.
  Judge KENNEDY, IS not met?
  Yes.
  

• 

  Judge KENNEDY

  At 15:25
  50 seconds

  Original intent, broadly conceived as I have described
  it, is extant in far more cases than we give it credit for.
  I think that in very many cases, the ideas, the values, the principles,
  the rules set forth by the framers, are a guide to the decision.
  And I think they are a guide that is sufficiently sure that the
  public and the people accept the decisions of the court as being
  valid for that reason.
  If there is not some historical link to the ideas of the framers,
  then the constitutional decision, it seems to me, is in some doubt.
  

• 

  Senator GRASSLEY

  At 16:15
  23 seconds

  Well, in your role as a judge—and I do not
  question your statement that original intent is more often met
  than we may realize—but if it is not met, do you then at that point
  reevaluate your result and underlying analysis?
  Or do you accept the result, despite not attaining the objective?
  

• 

  Judge KENNEDY

  At 16:38
  47 seconds

  Well, I do not wish to resist your line of questioning,
  because I think it is very important; it goes to the judicial
  method.
  But I think that in almost all cases there is an intent, at least
  broadly stated; the question is whether it is narrow enough to
  decide the particular case.
  It is, I think, an imperative that a judge who announces a constitutional
  rule be quite confident, be quite confident, that it has an
  adequate basis in our system of constitutional rule; and that means
  an adequate basis in the intention of the Constitution.
  

• 

  Senator GRASSLEY

  At 17:25
  29 seconds

  Over the past few months, it has been suggested
  that the broad and spacious terms of the Constitution are
  best utilized by the courts to relieve the political branches of their
  responsibility to determine what some might consider to be the attributes
  of a just society.
  What is your opinion of the current perception in our society
  that only the courts, rather than the political branches of government,
  should address constitutional problems?
  

• 

  Judge KENNEDY

  At 17:54
  1 minute

  I resist that idea as a proper constitutional approach.
  In my view, it is the duty of the legislative and of the executive
  to act in a constitutional manner, and to make a constitutional
  judgment as to the validity of each and every one of their actions.
  We have a rule in the courts that we presume that a statute is
  constitutional. If the legislature says, well, it is simply up to the
  courts, the basis for that presumption is not there. If the legislature
  does not take the responsibility of making a constitutional determination
  that its actions are justified, then the presumption of
  constitutionality should be destroyed. I do not think that would be
  consistent with our political system.
  

• 

  Senator GRASSLEY

  At 18:54
  27 seconds

  Judge Kennedy, do you believe that one of the
  consequences of this deference to the judicial branch that I have
  just described is the judicial activism the Supreme Court has practiced
  over the last 20 or 30 years, and that a good way to alleviate
  this problem would be for the Court to begin practicing a greater
  degree of judicial restraint?
  

• 

  Judge KENNEDY

  At 19:21
  19 seconds

  I think judicial restraint is important in any
  era. It is especially important if the political branches for some
  reason think that they can delegate or have delegated the power to
  make constitutional decisions entirely to the courts.
  

• 

  Senator GRASSLEY

  At 19:40
  2 seconds

  Your answer is yes, then?
  

• 

  Judge KENNEDY

  At 19:42
  

  Yes.
  

• 

  Senator GRASSLEY

  At 19:42
  27 seconds

  Judge, I am sure that you will agree with me,
  that there have been many unpopular, and in many cases, even
  "bad" laws enacted in the history of our country.
  However, many of these laws, no matter how unpopular, were, or
  are, constitutional. What is the court's role when faced with a bad
  or unpopular law which is nonetheless constitutional?
  

• 

  Judge KENNEDY

  At 20:09
  21 seconds

  It is very clear. The court's role is to sustain
  and to enforce that law.
  

• 

  Senator GRASSLEY

  At 20:30
  13 seconds

  IS it your judgment, then, that it is the responsibility
  of the political branches of government to deal with an
  unpopular law?
  

• 

  Judge KENNEDY

  At 20:43
  16 seconds

  Absolutely, Senator. The essence of the democratic
  process is that the legislature protects citizens against unjust
  laws, and acts promptly to repeal them.
  

• 

  Senator GRASSLEY

  At 20:59
  21 seconds

  DO you think it is within the jurisdiction of
  the Court to address these laws, or is this an example of what you
  called, in your July 1986 address to the Canadian Institute for Advanced
  Legal Studies the "unrestrained exercise of judicial power"?
  

• 

  Judge KENNEDY

  At 21:20
  11 seconds

  If a law is wrong-headed, or a bad, or an ill-conceived
  law, but is nevertheless constitutional, the court has no
  choice but to enforce it.
  

• 

  Senator GRASSLEY

  At 21:31
  7 seconds

  What exactly is—using your words—the "unrestrained
  exercise of judicial power"?
  

• 

  Judge KENNEDY

  At 21:38
  10 seconds

  The unrestrained exercise of judicial power is to
  declare laws unconstitutional merely because of a disagreement
  with their wisdom.
  

• 

  Senator GRASSLEY

  At 21:48
  11 seconds

  The second limitation of judicial power which
  you discussed in your August 1987 speech before the Ninth Circuit
  Judicial Conference is the constitutional requirement of "case or
  controversy." Correct?
  

• 

  Judge KENNEDY

  At 21:59
  

  Yes.
  

• 

  Senator GRASSLEY

  At 21:59
  14 seconds

  However, you suggested that this requirement
  is not as effective as it once was. Why do you think that this is so?
  In other words, how did j'ou come to this conclusion?
  

• 

  Judge KENNEDY

  At 22:13
  1 minute

  The underpinning for the doctrine of Marbury
  v. Madison is that the court pronounces on the Constitution because
  it has no other choice. It is faced with a case, and it must
  decide the case one way or the other. It cannot avoid that responsibility,
  and so the constitutional question is necessarily presented to
  it. Chief Justice Marshall says that very clearly. He said we do not
  have the responsibility, or the institutional capability, or the constitutional
  obligation, to pronounce on the Constitution, except as
  we must in order to decide a case.
  Now I had long thought that the case or controversy requirement
  therefore was an important limit on the court's jurisdiction. The
  court would not decide cases or issues that should be properly addressed
  by the political branches in the first instance.
  But the case or controversy rules are changing. The Court has
  relaxed rules of standing in some of its own decisions. The Congress
  has done the same. We have class actions. We have remedial
  relief. Courts have entered the 20th century in order to make their
  judgments efficient, which they must do, and their systems efficient,
  which they must do.
  All of this has meant that what was once a selection process has
  now really diminished in its importance and its significance. The
  courts are more and more confronted with cases that involve the
  great, current public issues of our time.
  Therefore, judicial restraint is all the more an imperative.
  

• 

  Senator GRASSLEY

  At 24:07
  20 seconds

  Could it in any way be said that part of the
  blame for the ineffectiveness of the "case or controversy" requirement
  must lie with Congress and its historic deference towards regulating
  the courts?
  In other words, should Congress consider removing federal court
  jurisdiction over certain controversies?
  

• 

  Judge KENNEDY

  At 24:27
  1 minute

  Well, that is a very delicate question, Senator.
  The authority of the Congress to reduce the jurisdiction of the federal
  courts in a particular class of cases presents a very difficult,
  and, I think, a significant constitutional question.
  It presents a question that goes perhaps to the verge of the congressional
  power. Before the Congress would enact such a rule, I
  would submit that it would have to have the most serious and the
  most compelling of reasons, and even after that any such attempt
  would present a serious constitutional issue for the Court itself to
  decide.
  

• 

  Senator GRASSLEY

  At 25:30
  17 seconds

  Well, should the Supreme Court try to find
  some way to make more effective the "case or controversy" requirement?
  

• 

  Judge KENNEDY

  At 25:47
  16 seconds

  Case or controversy is requisite in the Constitution
  and I agree that the Court should be very, very careful to
  insure that that requirement is met in every case, and I think it
  should pay very, very close attention to that.
  

• 

  Senator GRASSLEY

  At 26:03
  32 seconds

  I was asking my question based upon your
  statement that in modern times there have been ways of getting
  around the "case or controversy" requirement; that it is not as effective
  as it once was.
  Is there some answer here? I sense that you seem to feel that
  this is an area in which Congress ought not to operate in, or at
  least you seem to indicate that it is a very controversial area. I
  think you have indicated that there is a problem; is there some
  answer to the problem?
  

• 

  Judge KENNEDY

  At 26:35
  15 seconds

  I may also have misinterpreted your earlier
  question. Congress certainly can relax the rules of standing, or
  tighten the rules of standing, in order to give more content to the
  case or controversy rule without
  

• 

  Senator GRASSLEY

  At 26:50
  8 seconds

  Well, of course Congress has had some deference
  toward regulating the courts to any great extent.
  

• 

  Judge KENNEDY

  At 26:58
  

  Yes.
  

• 

  Senator GRASSLEY

  At 26:58
  58 seconds

  Would it be unfair to say that another reason
  for the failure of the "case or controversy" requirement is the philosophy
  of judicial activism which the Court has applied over the
  last 20 or 30 years? In other words, because the Court has so often
  extended its holdings to issues not directly presented in the cases
  before it, do you think litigants and attorneys are more inclined to
  go to court with attenuated, rather than direct, injuries, expecting
  relief, nonetheless?
  

• 

  Judge KENNEDY

  At 27:56
  22 seconds

  I would not quarrel with that characterization.
  I might be a little bit hard-put to give you a specific example, but
  there seems to be a thrust in favor of the courts reaching out to
  decide the issues.
  

• 

  Senator GRASSLEY

  At 28:18
  39 seconds

  The previous nominee before this committee
  to fill this vacancy on the Supreme Court was a strong advocate of
  the belief that rationale was more important than results.
  He criticized what he called result-oriented jurisprudence in
  which the rationale was made secondary to the actual result
  reached.
  He was admittedly taken to task for his position on this matter,
  especially before this committee.
  What is your position regarding this so-called result-oriented jurisprudence,
  and when, if ever, is it justified?
  

• 

  Judge KENNEDY

  At 28:57
  1 minute

  I think if a judge decides a case because he or
  she is committed to a result, it destroys confidence in the legal
  system.
  Senators and Representatives are completely free to vote for a
  particular bill because it favors labor, or because it favors business.
  That is the way politics works, and that is your prerogative. To
  identify such an interest, it seems to me, is very candid.
  That is improper for a court. The court must base its decision on
  neutral principles applicable to all parties. That is inconsistent, in
  my view, with deciding a case because it reaches a particular
  result.
  Now we all know that the way we make our judgments in everyday
  life is to look quickly at a result and act accordingly if the
  result seems instinctively correct.
  I think sometimes judges do that initially when they hear a case.
  They say well, this case is just wrong, or this case is just right. But
  the point of the judicial method is that after the judge identifies
  the result, he or she must go back and make sure that that result
  is reachable because the law requires the result, and not otherwise.
  

• 

  Senator GRASSLEY

  At 30:19
  13 seconds

  I think I liked the first half of your answer.
  On the second half, are you in the middle between "results" versus
  "rationale"?
  

• 

  Judge KENNEDY

  At 30:32
  2 minutes

  I insist that a result is irrelevant. I just have to
  tell you that many judges have an instinctive feeling for a case,
  and sometimes you reason backwards.
  Sometimes you say the case ought to come out this way and you
  begin to write it, and to prepare an opinion for your colleagues,
  and it just is not working, and then you know that the result is
  wrong.
  That is the nature of the judicial method. That is why we write.
  We do not write because it is easy to read, or because we think
  people enjoy reading it. We write because it is a discipline on our
  own process.
  Senator GRASSLEY- Judge, as we become more familiar with you
  and as we study those opinions that you have written, I sense that
  you are very adept at addressing the narrow question at hand without
  expanding into unnecessary discussions of the law.
  Can you think of any situation where it is appropriate for a Supreme
  Court Justice to depart from the issue at hand, and announce
  broad, sweeping constitutional doctrine?
  I think that the constitutional doctrine that is
  announced should be no broader than necessary to decide the case
  at hand.
  I do have to tell you this, Senator, and it was touched on earlier.
  When the Supreme Court has only 150 cases a year, and it is
  charged with the responsibility of supervising the lower courts, it
  has to write with a somewhat broader brush, in order to indicate
  what its reasons are.
  This does not mean, however, that it is free to go beyond the
  facts of the particular case, or that it is free to embellish upon the
  constitutional standard.
  

• 

  Senator GRASSLEY

  At 32:32
  5 seconds

  Mr. Chairman, thank you. Judge Kennedy,
  thank you.
  

• 

  Judge KENNEDY

  At 32:37
  

  Thank you, sir.
  

• 

  The CHAIRMAN

  At 32:37
  24 seconds

  Thank you. Judge, we do not have time to get
  another round in and keep the commitment to get out of here by 6
  which I told my colleagues, and we have four Senators who have
  yet to ask a first round. I do not know how many will have a
  second.
  Judge, would you mind coming in at 9:30 tomorrow instead of 10,
  so we can start a little bit earlier?
  

• 

  Judge KENNEDY

  At 33:01
  2 seconds

  Not at all. I am here at the pleasure of the committee,
  Senator.
  

• 

  The CHAIRMAN

  At 33:03
  25 seconds

  All right. Why don't we start at 9:30. We will
  probably start with Senator Specter at 9:30 and Senator Metzenbaum
  at 10, unless Senator Metzenbaum is here, and we would
  alternate. But otherwise, I had told him he would probably start at
  10, and I do not know whether he will be able to be back by 9:30. I
  do not know if he will get the message.
  So if you are prepared to go at 9:30, or at 10:00, if not 9:30, 10
  o'clock would be the time we would start.
  

• 

  Senator SPECTER

  At 33:28
  2 seconds

  That is fine, Mr. Chairman. I very much appreciate
  that.
  

• 

  The CHAIRMAN

  At 33:30
  42 seconds

  And Judge, I appreciate your being so forthcoming
  today and we look forward to another day, and it is my hope
  that tomorrow we can finish with your testimony.
  I know several Senators will have a second round of questions,
  and we will plan on going from 9:30 until noon, and break for an
  hour again, and hopefully go until we finish, and then Wednesday
  morning begin the public witnesses with, if all goes well, with the
  American Bar Association, Judge Tyler coming before the committee
  with the recommendation of the ABA.
  The Senator from South Carolina.
  

• 

  Senator THURMOND

  At 34:12
  17 seconds

  Thank you, Mr. Chairman. I just want to
  say that Judge Kennedy has handled himself in an exemplary
  manner, and I feel that we stand a chance that we might be able to
  finish his testimony tomorrow.
  

• 

  The CHAIRMAN

  At 34:29
  9 seconds

  The best measure of how exemplary the manner
  is, is every Senator who has spoken so far has indicated they do not
  fully agree with you. You have a lot going for you.
  

• 

  Judge KENNEDY

  At 34:38
  3 seconds

  Thank you very much, Senator.
  

• 

  The CHAIRMAN

  At 34:41
  1 minute

  Seriously, Judge, I appreciate you being so forthcoming.
  The hearing will recess until tomorrow at 9:30.