[of the 14th Amendment]. Liberty is not so limited. (Tran- He added in response to questioning by Senator Grassley that it is important to recognize "rights which are implicit in the text of the Constitution itself, * * * which it is the responsibility of the judiciary to find and to state in ways that we can understand." (Transcript, Sept. 14, at 18.) Elaborating on this view, Judge Souter testified that the Ninth Amendment is "an acknowledgement that the enumeration [of rights in the Bill of Rights] was not intended to be in some sense exhaustive and in derogation of other rights retained." He added that he "do[es] not have a basis for doubting that somewhat obvious and straightforward meaning of the text." (Transcript, Sept. 13, at 108.) 2. Judge Souter supports a right to privacy enforced through the due process clause of the 14th amendment In response to my questioning, Judge Souter made clear that he also fully supports a general, unenumerated right to privacy. In the nominee's words: "I believe that the Due Process Clause of the 14th Amendment does recognize and does protect an unenumerated right to privacy." (Transcript, Sept. 13, at 103.) Judge Souter left no doubt that his constitutional anchor for such a right is the Due Process Clause, as he testified that "the concept of liberty as enforceable under the Due Process Clause is, in fact, the means by which we enforce those [unenumerated] rights." (Transcript, Sept. 13, at 110.) Elaborating on this issue in response to questioning by Senator Grassley, Judge Souter said: As I indicated to [the Chairman], I think that a fair reading of the Constitution of the United States compels the conclusion that there were values, in the case of our discussion a value of privacy, which were intended to be protected even though they were not spelled out in black-letter detail. (Transcript, Sept. 14, at 8.) 3. Judge Souter supports a right of marital privacy Judge Souter's testimony included his express support for a marital right to privacy as recognized by the Court in its landmark decision a quarter-century ago, Griswold v. Connecticut, 381 U.S. 479 (1965). While not specifically commenting per se on the decision in Griswold, Judge Souter testified that "on reliable interpretive principles there is certainly * a core of privacy which is identified as marital privacy, and I believe it can and should be regarded as fundamental." (Transcript, Sept. 13, at 112-13 (emphasis added).) He added that "my concept of an enforceable right to marital privacy would give it fundamental importance." (Transcript, Sept. 13, at 114.) In response to my question as to whether Judge Souter considered "procreation a fundamental right," the nominee responded: "I would assume that if we are going to have any core concept of marital privacy, that would certainly have to rank at its fundamental heart." (Transcript, Sept. 13, at 116.) B. JUDGE SOUTER REJECTED JUSTICE SCALIA'S VIEW THAT THE COURT MUST LOOK TO THE "MOST SPECIFIC TRADITION AVAILABLE” WHEN DETERMINING WHETHER AN ASSERTED LIBERTY INTEREST WARRANTS CONSTITUTIONAL PROTECTION A critical and emerging debate on the Supreme Court in the area of privacy and unenumerated rights is the methodology—the mode of analysis-that the Court will use when asked to identify and protect an asserted liberty interest. A core question is whether, in examining this nation's history and tradition, the Court will protect only those interests supported by a specific and longlasting tradition, or whether the Court will not so constrict its analysis. The importance of this issue was highlighted in the Court's recent decision in Michael H. v. Gerald D., 109 S. Ct. 2333 (1989). In that case, a majority of the Court concluded that a biological father does not have a constitutionally protected liberty interest in the relationship with a child conceived through an adulterous relationship. In footnote six in Michael H., Justice Scalia, joined only by Chief Justice Rehnquist, proposed a methodology for identifying liberty interests based on "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." (109 S. Ct. at 2344, n. 6.) In contrast, Justices O'Connor and Kennedy, while joining all other parts of Justice Scalia's opinion, concurred separately in order to note their express rejection of this methodology. In their view, Justice Scalia sketche[d] a mode of historical analysis to be used when I discussed this methodological issue with Judge Souter on several occasions: Chairman BIDEN. [C]ould you tell me which of the two methodologies you would employ? Judge SOUTER. I could not accept the view that, as a rule dence of great generality." (Transcript, Sept. 14, at 160 (em- Chairman BIDEN. [D]o you think we need to determine ... the narrowest application of the right asserted, or a broader application of the right asserted? Judge SOUTER. The answer is we cannot, as a matter of definition at the beginning of our inquiry, narrow the acceptable evidence to the most narrow evidence possible *. (Transcript, Sept. 14, at 161.) Furthermore, Judge Souter testified that the relevant tradition need not exist for any set length of time before it will support recognition of the protection for an asserted liberty interest. He said that it is fair to say that you look at the whole continuum for whatever evidence may be worth. I do not thing there is a point at which you can say, well, I draw the line and I will consider no evidence after this point or no evidence before this point. (Transcripts, Sept. 17, at 277-78.) 3 Justice Scalia's approach is, in my view, unduly narrow, misguided, and fundamentally at odds with the Constitution's majestic and capacious language. If a majority of the Court had adhered to it during the past 25 years, numerous decisions would have been resolved differently. For example, Justice Scalia's approach would have meant that the statute prohibiting interracial marriages struck down in Loving v. Virginia, 388 U.S. 1 (1967), would have been upheld, since there is no specific tradition recognizing the right of interracial couples to marry. On the fundamental question presented in Michael H. Then, I am encouraged by Judge Souter's express rejection of Justice Scalia's approach, and his willingness to search for "reliable evidence of great generality." C. CERTAIN ASPECTS OF JUDGE SOUTER'S TESTIMONY ARE TROUBLING AND UNSETTLING 1. Judge Souter did not acknowledge that the due process clause of the 14th amendment supports the right of unmarried individuals to use contraception A troubling aspect of Judge Souter's testimony on privacy and unenumerated rights is his refusal to acknowledge a rationale for the right of unmarried couples to use contraceptives that is grounded in the Due Process Clause, rather than the Equal Protection Clause, of the Fourteenth Amendment. 3 Along these same lines, Judge Souter parted with a methodology linked to a concept of "ordered liberty," noting that he, like Justice Harlan, would "make a search somewhat further afield than that." (Transcript, Sept. 14, at 9-10.) Elaborating on this view, he added: I am convinced that Justice Harlan .. was, in effect, asking for a broader inquiry than we might be engaging in if we limited ourselves to the concept of ordered liberty, because, as was demonstrated in many other cases, there are many limitations upon what we regard as almost garden variety constitutional rights which still could be found in a society which we would not say was fundamentally unjust. (Transcript, Sept. 14, at 22.) In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Supreme Court addressed the question of whether unmarried individuals have a constitutional right to use contraception. When I asked Judge Scouter About Eisenstadt, the nominee correctly noted that the case had been analyzed on equal protection, and not on due process, grounds, and he indicated his support for the Court's equal protection analysis. (Transcript, Sept. 13, at 111-12.) Despite repeated questioning by Senator Metzenbaum, Senator Leahy, and I, Judge Souter refused to acknowledge support for a rationale grounded in the Due Process Clause of the Fourteenth Amendment. In his view: The case has not been decided and the privacy analysis that would be its first step simply has not been done That is an open question. (Transcript, Sept. 17, at 230; emphasis added.) Judge Souter's approach to this question is worrisome. Indeed, while Judge Souter correctly noted that the specific holding of the Court in Eisenstadt was predicated on the Equal Protection Clause of the Fourteenth Amendment, he ignored the Court's oft-repeated statement regarding the privacy rights of individuals: It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the married couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (Eisenstadt, 405 U.S. at 453 (emphasis added).) Thus, I believe that the right of single individuals to use contraception-far from being an "open question"-is indeed quite settled, as the Supreme Court's case law during the past 18 years has illustrated. Nonetheless, I find some encouragement in Judge Souter's testimony in the context of discussing the Michael H. case. There, he testified that the appropriate inquiry in identifying and protecting liberty interests under the Due Process Clause of the Fourteenth Amendment was not to look for the most specific tradition available but to look instead for more general traditions, and that "there may be reliable evidence of great generality." (Transcript, Sept. 14, at 160.) Such an inquiry, were Judge Souter to undertake it, could support a finding by the nominee that unmarried individuals have a fundamental right to use contraceptives. 2. Judge Souter refused to testify in any respect about issues pertaining to reproductive freedom Judge Souter refused to answer questions pertaining to reproductive freedom that, in my view, he could have answered without compromising his judicial independence or indicating how he would vote on a request to overrule Roe v. Wade, 410 U.S. 113 (1973)— particularly given his willingness to testify quite specifically about issues that are currently pending before the Court or are at least unresolved. To understand my belief that Judge Souter could have answered a number of questions pertaining to reproductive freedom, it is necessary to review the Supreme Court's method of analysis in this area. In analyzing unenumerated rights under the Due Process Clause of the Fourteenth Amendment, the Supreme Court examines two operative questions. First, does the claimant have a protected liberty interest with which a governmental body is interfering? Second, assuming there is some interference with a protected liberty interest, does the government has sufficient justification for doing so? If, in answering the first inquiry, the Court determines that a "fundamental right" is at stake, it will apply "strict scrutiny" to the challenged law or regulation; the Court will ask whether the law or regulation is narrowly tailored to advance a compelling state interest. If, on the other hand, the Court determines that a "ordinary right" is at stake, it will evaluate the challenged law or regulation under the "rational basis" standard-asking whether there is any plausible reason for that law or regulation. During the hearing, I described this two-part analysis in this way: [First] is the value placed upon the liberty interest that In questioning Judge Souter on reproductive freedom, I focused on the first part of this analysis, asking Judge Souter to weigh the value of a woman's liberty interest not to remain pregnant. Judge Souter repeatedly refused to comment on whether he believes a woman's liberty interest to choose not to remain pregnant is an "ordinary right" or a "fundamental right," even though responding to such questioning in no way indicated, much less suggested, how he would rule on a case challenging the Supreme Court's 1973 decision in Roe v. Wade. uses Illustrative is the following exchange I had with Judge Souter: Chairman BIDEN. [L]et us say that a woman and/or her mate a birth control device and it fails. Does she still have a constitutional right to choose not to become pregnant? Judge SOUTER. Senator, that is the point at which I will have to exercise the prerogative * *[not to answer]. I think for me to start answering that question, in effect, is for me to start discussing the concept of Roe v. Wade. (Transcript, Sept. 13, at 117.) Judge Souter could have answered this question without indicating in any way how he would rule on a challenge to Roe v. Wade, the specific issue on which, commendably, he did not want to comment. As I explained: [I]f you are willing to discuss whether or not this fun damental right of privacy of a married woman regarding pro |