In response to a question from the Chairman, Judge Souter said: I could not accept the view that, as a rule always to be applied, the most specific evidence is the only valid evidence. [I]t seems to me that the quest for the kind of evidence that we are after should be a quest not for evidence which, as a matter of definition or a matter of absolute necessity has either got to be of narrow compass or of general compass, rather, it has got to be a quest for reliable evidence, and there may be reliable evidence of great generality. (Transcript, Sept. 14, at 160).

My decision to consent to Judge Souter's nomination was a difficult one. I, like other members of this Committee, did not get all of the response to which I believe the Senate is entitled-either in content or in breadth.

I remain troubled by Judge Souter's reticence in answering questions on the scope of fundamental privacy rights. In response to my question about whether Roe v. Wade, 410 U.S. 113 (1973), is settled law, Judge Souter declined to respond, saying he drew "a fine line' at Griswold v. Connecticut, 381 U.S. 479 (1965):

Senator LEAHY. [T]o whatever degree you consider privacy in Griswold settled-to whatever extent that is-you don't have in your own mind the same sense of settlement on Roe v. Wade. Is that correct?

Judge SOUTER. Well, with respect, sir, I think that is a question that I should not answer because I think to get into that kind of a comparison is to start down the road on an analysis of one of the strands of thought upon which the Roe v. Wade decision either would or would not stand. So, with respect, I will ask not to be asked to answer that. Senator LEAHY. But you don't feel the same compunction against answering the question** regarding Griswold?

Judge SOUTER. Well, I have drawn a fine line on Griswold. I have said that I believe there is, in fact, a marital right to privacy which is at the core of any privacy doctrine. I have not endorsed the Griswold decision as such. It is a fine line to draw, Senator. (Transcript, Sept. 17, at 111-112.)

In my view, that line was the wrong line. Although we do not expect a judicial nominee to comment on a specific case before the court, the public we represent should know how the nominee regards fundamental rights. The right to privacy is a fundamental liberty. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Bellotti v. Baird, 443 Ù.S. 622 (1979); Colautti v. Franklin, 439 U.S. 370 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Loving v. Virginia, 388U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

While he refused to comment on Roe v. Wade, Judge Souter assured us that he would not approach challenges to this important case with any agenda or preconceived ideas about the results:

I have not got any agenda on what should be done with Roe v. Wade, if that case were brought before me. I will listen to both sides of that case. I have not made up my mind and I do not go on the Court saying I must go one way or I must go another way. (Transcript, Sept. 14, at 128.)

The majority of Americans expect that David Souter will share their view that decisions about reproduction are best left to the individual. This one realm of life where the state has little interest or right to interfere.

During the hearing, Judge Souter spoke movingly about an incident in which he counseled a young woman who was contemplating a self-induced abortion. I hope Judge Souter learned that day that while abortion decisions are traumatic under any circumstances, abortions in the pre-Roe era were dangerous, beyond the means of most women, and often life-threatening. American women cannot be plunged into those dark ages ever again.

I wish there would never be the need for another abortion, but that is a decision for a woman, not for a legislature or a court. During the hearing, I reminded Judge Souter of my own experience with illegal, pre-Roe abortion. As a prosecutor in Vermont, I received a call from the police. It was the middle of the night and a woman in the emergency room of the local hospital had nearly died from a botched abortion.

I prosecuted the man who arranged for this and other women to travel from Burlington, Vermont to Montreal for abortions performed by a nurse who learned her trade from the SS at Auschwitz. This nurse's botched abortion nearly killed a young woman, who although she did not die, ended up sterile. Unfortunately, this woman was not the only victim.

Abortion is not an easy question, but none of us wants women to endure this pain and exploitation again. Let us be realistic-if abortion is outlawed, women will retreat to back alleys and back rooms where they will be vulnerable to the kind of person I prosecuted in Vermont.

Judge Souter and I discussed this incident during the hearing. I hope he will not forget its message.

I questioned Judge Souter extensively about his views on the Establishment Clause of the First Amendment and remain troubled that he would not commit himself to Jefferson's idea of "a wall of separation between Church and State." (16 The Writings of Thomas Jefferson 288 (Washington Library ed., 1904)).

As the Chairman indicates in his views, Judge Souter did suggest that the Court's current interpretation of the Establishment Clause raises difficult issues. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court articulated a three-part test for determining whether a government statute or action violates the Establishment Clause:

First, the statute must have a secular legislative purpose; second its principle or primary effect must be one

that neither advances nor inhibits religion

finally,

the statute must not foster "an excessive government entanglement with religion.'

Judge Souter specifically noted that under this standard, the Free Exercise and Establishment Clauses might come into conflict. (Transcript, Sept. 17, at 43-47.)

As the Chairman points out, Judge Soluter 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.

I asked Judge Souter about the school of thought that says the Establishment Clause was originally intended to have a very narrow scope which only prevented the literal establishment of a State religion or prevented Government from favoring one Christian sect over another. (See Wallace v. Jaffree, 472 U.S. 38 (1985) (Rehnquist, J., dissenting)). The same school of thought says that we should not require Government neutrality on religious matters that Government action should be permitted as long as it does not tend to create a State religion or coerce people into accepting a specific view. (County of Allegheny v. American Civil Liberties Union, 109 S.Ct. 3086 (1989) (Kennedy, J., dissenting)).

Judge Souter responded 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, "I will listen to that argument if it is made before me and I will listen respectfully as I would to any argument that is made before me." (Transcript, Sept. 17, at 105.)

I am concerned that Judge Souter would not reject Justice Kennedy's narrow interpretation of the Establishment Clause. That constricted view would erode the barriers between church and state that the American people have come to rely upon.

I trust that if Judge Souter is confirmed and called upon to consider the Establishment Clause, he will keep in mind our discussion of the poignant experiences of his friends Warren Rudman and Tom Rath or the similar experience that my friend from Vermont, Jerry Diamond, described in his apprearance before the Cornmittee.

I trust Judge Souter will understand that government has no business flying flags at half-mast on Good Friday (see Complaint in Brown v. Thomson, No. 78-92 (D.N.H. filed March 20, 1978)), and will recognize that the moral and religious beliefs of Americans, even small minorities, must not be disparaged by the state as mere "whimsy." (see Wooley v. Maynard, No. 75-1453, Appellants' Jurisdictional Statement in U.S. Supreme Court.)

The First Amendment has made this nation tolerant, united and strong. I do not believe that Judge Souter will view this legacy lightly.

I questioned Judge Souter, as well, about his role as New Hampshire Attorney General when 1414 protesters were arrested at the site of the Seabrook nuclear power plant in 1977. I was concerned with the state's establishment of a private fund to help finance its costs and even more alarmed that the utility donated $74,000 to

the Fund, while the prosecutions were pending. It evoked "rent-aprosecutor" images:

Senator LEAHY. [A]s a former prosecutor, I get very concerned if prosecutors do anything that appears that they are in a position of not being impartial when they bring charges, or when they decide they will drop charges, or carry the charges on, or what they might seek for sentences.

You were very active in the prosecution My concern is that if a private company was paying for part of the prosecution does that private company become your client rather than the people of New Hampshire?

*

*

*

Judge SOUTER. Well, that private company did not become my client. The difficulty that has to be faced is there is a question raised. Hence the appearance of justice is an independent value in its own right. (Transcript, Sept. 17, at 99-100.)

As the chief law enforcement officer in charge of the prosecutions, Attorney General Souter should have prevented an interested party from influencing the judicial process. I welcome Judge Souter's remarks that he now understands he should have opposed the Fund.

CONCLUSION

Judge Souter did not answer all of my questions, but he did demonstrate a belief in the Constitution and a willingness to approach issues fairly. He is not an idealogue. Most importantly, David Souter testified that as a judge he learned that every decision he makes has an impact on an individual. That is a valuable lesson. If the majority of the Senate joins us in offering our consent to the president's nominee, Judge Souter will be entrusted with awesome responsibility. As a Supreme Court Justice, David Souter will serve as the guardian of the liberty and cherished freedoms of all Americans. It is for that reason that our constituents have the right to expect fair and thorough questioning of any nominee.

Through us, the American people are bestowing their faith in Judge Souter's ability to preserve the essence of the American tradition. My consent to this nomination represents my faith that he is a nominee worthy of that trust.

ADDITIONAL VIEWS OF MESSRS. THURMOND, SIMPSON, GRASSLEY, AND HUMPHREY REGARDING THE NOMINATION OF JUDGE DAVID H. SOUTER, TO BE AN ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT

On July 25, 1990, President Bush nominated Judge David H. Souter, who currently serves on the United States Court of Appeals for the First Circuit, to be an Associate Justice of the United States Supreme Court. Following the nomination, the Senate Judiciary Committee engaged in an extensive investigation of Judge Souter's personal background and suitability for a position on the Nation's highest court, the Supreme Court. The results of the investigation demonstrate that Judge Souter is eminently qualified to be an Associate Justice of the Supreme Court.

Judge Souter's professional experience has been varied and extensive. In 1968, he left the private practice of law to begin what has proven to be a remarkable career of public service. Judge Souter served for ten years in the Office of the Attorney General of the State of New Hampshire; from 1976 to 1978 he was Attorney General of that State. In 1978 he was appointed to the New Hampshire State bench, serving until 1983 as a trial judge and from 1983 to 1990 as a justice of the New Hampshire Supreme Court. Prior to his nomination, Judge Souter had been selected by President Bush on January 24, 1990, and confirmed by the United States Senate on April 27, 1990, for his current position as a judge on the United States Court of Appeals for the First Circuit.

Judge Souter earned the American Bar Association's highest rating of "well qualified" for both his appointment to the First Circuit and his nomination to the United States Supreme Court.

Judge Souter's vast experience in the New Hampshire Attorney General's office, trial court and appellate court provided him extensive exposure to matters affecting every aspect of Americans' lives. Judge Souter's record demonstrates both his professional acumen and personal integrity. The American Bar Association, which testified before the Committee, rendered a report which indicated that lawyers who appeared before him during his judicial tenure repeatedly described Judge Souter as "very honorable and fair."" The President of the New Hampshire Bar Association, John Broderick, testified that "(t)hose of us who have witnessed Judge Souter's judicial performance first-hand can, in good conscience, report to this committee that he possessess a first-rate legal mind, a flexible and curious appetite for the law, an unbiased ear for argument, an uncommon civility and a quiet compassion."

In addition to Judge Souter's vast judicial experience, he will bring to the court an abiding commitment to the rule of law. Judge Souter's record illustrates that he believes that judges ought to interpret the law as written, and not impose their own values in an attempt to reshape society. He applauds the importance of judicial