*

the law couldn't be enforced . I was ready to do everything ! could to defend that or any State statute. But I think if we had gotten to that point, I think we would have to have admitted that there was a constitutional deficiency." (Transcript, Sept. 17, at 10203.)

Judge Souter's forthright statements about school prayer, coupled with his response to Senator Leahy, combine to alleviate our concerns in this area.

C. THE ESTABLISHMENT CLAUSE

Judge Souter's views on the Establishment Clause doctrine raise more serious questions. Senator Leahy, Senator Specter, and others asked Judge Souter about the traditional approach in this area, first declared in Everson v. Board of Education, 330 U.S. 1 (1947), which interprets the Establishment Clause as establishing a "wall of separation" between church and state.

Judge Souter replied that he had "no reason personally, in either research or philosophy, to want to reexamine the view which was expressed in Everson." (Transcript, Sept. 17, at 47.) He added: "I do not have at this time either an agenda or a personal desire to bring about a reexamination of that position." (Transcript, Sept. 17, at 27.)

Judge Souter did, however, suggest that the Court's current interpretation of the Establishment Clause, the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), raised difficult issues. He specifically noted that under that standard, the Free Exercise and Establishment Clauses might come into conflict. (See, e.g., Transcript, Sept. 14, at 43-47.) But Judge Souter did not repudiate the Lemon test. Moreover, his objections to that standard were prompted more by concern about whether it is a workable test than by a substantive desire to aid or inhibit religious practice. His comments on this point do not, therefore, by themselves, cause me to question Judge Souter's commitment to the principles underlying the Establishment Clause.

A substantially more troubling exchange occurred when Judge Souter was asked about the view that the Establishment Clause was intended to establish a much narrower principle than “neutrality" or a "wall of separation." According to this view, the Establishment Clause should be interpreted only to forbid literal state establishments and non-neutrality among Christian sects. 5

Judge Souter said that he did "not approach the Court with any inclination or agenda" to change the law in this fashion. (Transcript, Sept. 17, at 105.) He added that he would listen to the arguments for such a change but would give appropriately heavy weight to precedent. (Transcript, Sept. 17, at 105-07.)

I am very troubled by Judge Souter's refusal straightforwardly to reject such an extraordinarily narrow view of the Establishment Clause. The Establishment Clause is an extremely complex area of

5 Justice Rehnquist stated a position similar to this in Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (dissenting opinion), but did not limit the requirement of neutrality to Christian sects: ("It would seem from th[e] evidence that the Establishment Clause of the First Amendment had acquired a well-established meaning; it forbade establishment of a national religion, and forbade preference among religious sects or denominations.").

constitutional law, and few scholars-indeed, few individual Justices are satisfied with all of the Supreme Court's decisions in the area. On many issues, it would be entirely appropriate for a putative future Justice to say that he or she needs more study and reflection before finally adopting a position.

But it should not take extensive study to conclude that the Establishment Clause requires more than neutrality among Christian sects. And a Justice should be prepared to adopt that position as a matter of principle, not just as a matter of stare decisis. Judge Souter's failure to do so is disquieting.

D. THE GOOD FRIDAY LITIGATION

As Attorney General, Judge Souter defended, against an Establishment Clause challenge, a proclamation by then New Hampshire Governor Thomson that required flags on state buildings to be lowered to half-mast on Good Friday. After a district court enjoined the proclamation, Judge Souter appealed to the United States Court of Appeals for the First Circuit, which issued a stay; Judge Souter than defended the stay in the Supreme Court, which vacated it.

In his testimony, Judge Souter noted that he was not involved in the drafting of the proclamation. Judge Souter further explained that he believed that a non-frivolous argument could be made in support of the proclamation, and that as state Attorney General, he had an obligation to offer such an argument if one were available. In support of his contention that such a non-frivolous argument existed, Judge Souter pointed to the stay entered by the First Circuit and to the fact that the Supreme Court vacated that stay by a vote of only 5-4. (Transcript, Sept. 14, at 30-32.)

Judge Souter also specifically stated that had he been a judge at the time, and not Attorney General, he, too, would have issued an injunction against the proclamation. (Transcript, Sept. 14, at 33.)

I do not wish to question Judge Souter's conception of his role as Attorney General. But it is far from clear that there was a substantial legal argument in support of the position Judge Souter took. Although Judge Souter's statement about how he would have ruled on the case as a judge diminishes our concerns, I am concerned that this episode reveals a degree of insensitivity to the principles underlying the Establishment Clause.

In summary, I believe that Judge Souter's approach to Free Exercise Clause questions is commendable, but I am left with serious reservations about the principles he would apply to Establishment Clause issues. Standing alone, Judge Souter's Establishment Clause record would give me the gravest concerns in this area. Taken together with the Free Exercise record, however, my concerns are sufficiently allayed so that I can consent to Judge Souter's confir

mation.

PART SIX: JUDGE SOUTER'S VIEWS ON FREEDOM OF SPEECH

I questioned Judge Souter's on three core areas relating to freedom of speech under the First Amendment. In each area, the nomi

nee supported the doctrines developed by the Supreme Court, and showed a strong dedication to the key principles at issue in this

area.

A. JUDGE SOUTER EXPRESSED SUPPORT FOR AND AGREEMENT WITH THE SUPREME COURT'S PRIOR RESTRAINT DOCTRINE

The first free speech doctrine I discussed with Judge Souter related to prior restraints. I asked the nominee whether he "agreed[d] with the principles enunicated by the Court in the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713 (1971)] with respect to the First Amendment doctrine of prior restraint?" Judge Souter responded: "Yes, the principle being you have got to prove your harm, and the burden of proof is the highest known in our constitutional law." (Transcript, Sept. 17, at 188.)

B. JUDGE SOUTER EXPRESSED SUPPORT FOR AND AGREEMENT WITH THE SUPREME COURT'S CORE LIBEL DOCTRINE

I next discussed the libel doctrine with the nominee, asking: "[D]o you agree with the level of protection that the Court accorded the press in its decison in New York Times v. Sullivan [376 U.S. 254 (1964)]?" Judge Souter responded:

I think that level of protection reflects the significance of libel laws in modern society. I take that decision as a judgment by the Court that that was the only appropriate way to effect freedom of the press, given the economies of the modern society that the First Amendment protects. And I have no reason to gainsay that or second-guess it. (Transcript, Sept. 17, at 190.)

C. JUDGE SOUTER EXPRESSED SUPPORT FOR AND AGREEMENT WITH SUPREME COURT'S DECISION POLITICAL SPEECH DOCTRINE

Lastly, I asked Judge Souter about the core First Amendment doctrine relating to speech advocating law-breaking or violencethe doctrine first enunciated by Justices Holmes and Brandeis in their landmark dissents in Abrams v. United States, 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925). Their dissenting view-that the Constitution allows political speech to be stopped only when there is a "clear and present danger" of violence or law-breaking-began to be adopted by the Supreme Court in the 1950s, and a similar but somewhat more stringent test eventually was accpeted by a unanimous Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969). The Court held in Brandenburg that speech calling for violence or law-breaking could be forbidden only if such speech called for, and would probably produce, “imminent lawless action."

I had the following colloquy on this principle:

Chairman BIDEN. [D]o you agree or disagree with the free speech principles articulated by the Supreme Court in Brandenburg and at an earlier time the dissent articulated by Justices Holmes and Brandeis in the 1920s?

Judge SOUTER. Yes, I have no reason to call them into question. (Transcript, Sept. 17, at 193.)

PART SEVEN: JUDGE SOUTER'S VIEWS ON CRIMINAL LAW

Judge Souter's testimony in the area of criminal law was generally thoughtful and well-reasoned.

For example, Judge Souter broadly described the Warren Court's decisions in the criminal law area as "pragmatic implementing decisions." (Transcript, Sept. 17, at 50.) More specifically, when discussing the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), Judge Souter testified:

Whether one initially agreed or did not agree with Miranda, the point of Mirando was to produce a practical means to avoid what seemed to be unduly time-consuming and sometimes intractable problems encountered in the Federal courts in dealing with claims that confessions were inadmissible on grounds of their involuntariness *. Mirando was a practical case on how to deal with it. (Transcript, Sept. 13, at 137.)

He added that "I personally have looked at Mirando as a pragmatic decision intended to protect a right ..." (Transcript, Sept. 17,

at 52.)

* *

Judge Souter also expressed agreement with the Court's decision in United States v. Leon, 468 U.S. 897 (1984), in which the Court recognized a good-faith exception to the exclusionary rule. (Transcript, Sept. 14, at 167-68.)

Over-all, Judge Souter's views on criminal law appeared reasonable and balanced, and well within the prevailing view of the current Supreme Court.

PART EIGHT: JUDGE SOUTER'S VIEWS ON STARE DECISIS

The doctrine of stare decisis-"to stand by things decided"-protects and promotes the stability, efficiency and legitimacy of the legal system. Judge Souter's record on the New Hampshire Supreme Court, as well as his testimony before the committee, suggest that the nominee has a healthy respect for precedent, and that he would exercise caution and prudence when asked to reverse existing doctrine.

A. WHILE A MEMBER OF THE NEW HAMPSHIRE SUPREME COURT, JUDGE SOUTER SHOWED GREAT DEFERENCE TO PRECEDENT

Judge Souter's opinions on the New Hampshire Supreme Court suggest a strong attachment to the doctrine of stare decisis, at least in the context of statutory interpretation.

For example, in two cases, he joined a majority opinion because he thought the issue was controlled by existing precedent, even though he disagreed with that precedent. (See State v. Meister, 480 A.2d 200, 205 (N.H. 1984) (concurring opinion); Cacavas v. Maine Bonding and Casualty Co., 512 A.2d 423, 426 (N.H. 1986) (concurring opinion).) Furthermore, in one of those cases, the controlling precedent was a case that reversed a ruling Judge Souter had made as a trial judge; there was little doubt, therefore, that he disagreed with the precedent. (State v. Meister, supra.) In other cases, Judge Souter wrote a concurrence to emphasize that he could reach a result solely on the basis of precedent and did not have to

engage in the extended analysis that the majority had used. (See, e.g., Coffey v. Bresnahan, 506 A.2d 310, 315 (N.H. 1986).)

It is true, of course, that these are statutory cases. As such, they are not necessarily indicative of how Judge Souter would apply stare decisis in constitutional cases, in which the Supreme Court has historically showed less deference to precedent. Nonetheless, Judge Souter's opinions on the New Hampshire Supreme Court demonstrate a strong respect for precedent in statutory cases, and suggest a deference to precedent generally. They can be read to illustrate that he will not simply disregard that respect when confronted with challenges to prior decisions interpreting the Constitution.

B. JUDGE SOUTER'S TESTIMONY ALSO EVINCES A STRONG RESPECT FOR PRECEDENT

Under questioning by Senator Thurmond, Judge Souter articulated his theory of stare decisis and the "series of considerations which courts should bear in mind in deciding whether a prior precedent should be followed or should not be." (Transcript, September 13, at 135.)

The first question to be addressed, Judge Souter testified, is whether the court concludes that the precedent was correct when originally decided. He stated that if a determination is made that the case was not correctly decided, several factors must then be evaluated."

The first factor listed by Judge Souter was the "degree and the kind of reliance that has been placed upon" the precedent. Elaborating on this "reliance," Judge Souter said:

We ask in some context[s] whether private citizens in their lives have relied upon [the precedent] in their own planning to such a degree that, in fact, it would be a great hardship in overruling it now. (Transcript, Sept. 13, at 137 (emphasis added).)

In response to questioning by Senator Specter about the kinds of cases to which this factor would be relevant, Judge Souter made clear that "I can certainly tell you that the issue of reliance is not an issue which is limited to commercial cases." (Transcript, Sept. 17, at 247.) While Judge Souter did not elaborate on the non-commercial cases to which this factor would apply, it is encouraging that he explicitly rejected limiting this factor to the commercial

context.

The second factor identified by Judge Souter is "whether legislatures have relied upon [the precedent], in legislation which assumes the correctness of that precedent." (Transcript, Sept. 13, at 137.)

The third factor he identified is "whether the court in question or other courts have relied upon it, in developing a body of doctrine." Elaborating on this factor, Judge Souter said:

The significance of this should not be taken lightly. See Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989).

7 While not asked specifically, Judge Souter inferred that if the Court concludes that the precedent in question was originally decided correctly, the factors he articulated would not be relevant and the precedent would be followed.