A. Judge Souter appreciates the importance of separation of powers to our form of government The Committee questioned Judge Souter on several issues relating to the proper role of the executive, legislative and judicial branches under our Constitution. Responding to a question by Senator Thurmond, Judge Souter highlighted his commitment to the constitutional principle of separate powers. I would look [among other things,] to the concept implicit in [the Constitution] and as a basis of the bedrock of the structural sense of American constitutionalism that power is divided and that that division of power even granted, is a division of power which must be protected if the entire government is to remain in the place that it was intended to have. I think the reasons then for the remarkable and blessed endurance of the American Constitution are extraordinarily pragmatic reasons. It rests upon a recognition of where its power comes from and it is structured with a recognition that power will be abused unless it is limited and divided and restrained. (Tr., 9/13/90, at 121-22.) Judge Souter's remarks gave us confidence that he will remain faithful to the Constitution, our constitutional history and the limits of judicial authority. We note that his remarks also show deep appreciation of the American principle that limited government is the hallmark of a free people. B. Judge Souter fully appreciates the importance of federalism to constitutional interpretation and the structure of our govern ment No constitutional principle was of greater moment to the Framers of the Constitution and the Bill of Rights than the principle of federalism, which they believed would provide the most important single guarantee of civil liberties. The principles that the federal government is a government only of enumerated powers and that the States possess coordinate and independent authority over critically important spheres of public responsibility are fundamental to our constitutional order. Judge Souter's career and testimony suggest an understanding of the importance to our liberties and to the continued development of our form of government of what Justice Brandeis referred to as "the laboratory of the States." As a State law enforcement official and State court judge for over two decades, Judge Souter knows from personal experience the central role that the Constitution gives the States, and the role of federalism in the separation of powers undergirding civil liberties. As the State's legal representative, Judge Souter vigorously defended the State's prerogatives against federal intrusion on a number of occasions, such as the federal government's mistaken assertion of sovereignty over Lake Winnepasaukee. He also gained firsthand experience of the difficulties that the Supreme Court's expansive criminal rights jurisprudence created for State law enforcement agencies. Later, as a State court trial and appellate judge, he showed a thorough understanding of the important and distinct roles played by both the State and the Federal Constitutions in protecting the liberties of the citizen. In his testimony before the Committee, Judge Souter also showed his appreciation of the importance of our dual system of government in protecting civil liberties: Senator THURMOND. Would you please share with the Committee your opinion as to the success of our Constitution and its distinction as the oldest existing constitution in the world today. that Judge SOUTER. * * * I would look (among other things,] That structural sense of the division of power encompasses not only what we speak of as the separation of powers doctrine within the national government, itself, but the concept of the distribution of power in a Federal system. (Tr., 9/13/90, at 121-22.) At the same time, he recognizes that the States are in part responsible for the trend towards increased federal power: Judge SOUTER. [T]he explanation for [the] erosion [of the States' authority] began with the fact that there were problems to be solved which the States simply would not address and [which] the people wanted * addressed[,] and therefore the people looked to Washington. (Tr., 9/13/ 90, at 123.) Similarly, Judge Souter has recognized that the expansion of the federal government's authority to regulate interstate commerce and the passage of the Fourteenth Amendment have both affected the respective spheres of responsibility of the federal government and the States: At the very least, two developments in our constitutional history have necessarily changed the significance of the Tenth Amendment for us. The first is the concept of the commerce power[,] which I think * has grown to a, and has been recognized as having a plenary degree which would probably have astonished the Founders. The second development which has got to be borne in mind in coming to any approach to the Tenth Amendment is simply the Fourteenth. There was, very expressly, authority given to the national Government through the Fourteenth Amendment, which again, was inconceivable to the Framers of the Tenth. (Tr., 9/13/90, at 124.) Judge Souter appropriately reserved his position on the controversial question whether the Tenth Amendment imposes substantive limitations on the authority of Congress to legislate in matters affecting the primary responsibilities of the States. (Tr., 9/13/90, at 122-26). Cf. National League of Cities v. Usery, 426 U.S. 883 (1976); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). We appreciate and endorse Judge Souter's approach to the vital constitutional principle of federalism. His approach to this area reflects an appreciation both of the important powers delegated to the central government by the Commerce Clause and the Fourteenth Amendment and of the imperative of maintaining the coordinate system of government ordained by the Framers of the Constitution to protect the liberties of the American people. PART FOUR: JUDGE SOUTER'S JUDICIAL PHILOSOPHY APPROPRIATELY RELIES ON THE TEXT AND ORIGINAL MEANING OF THE CONSTITUTION AND STATUTES Judge Souter's approach to the task of judging was the matter of greatest importance to the Committee. Judge Souter characterized his approach to decision making as a search for "original meaning." Judge Souter believes that judges must decide cases according to principles of law, not their own personal predilections or preferences. For example, in response to questioning from Senator Grassley, Judge Souter said "it is essential for us to have some idea of the criterion that we are going to employ to find values which are not simply reflections of our own feelings at the moment and our own feelings about the desirability of the claims that may be pressed before us." (Tr., 9/14/90, at 17.) Judge Souter also properly recognizes that a judge must always be on his guard lest he substitute his own views for those of the Framers of the Constitution or the Congress of the United States. Judge Souter's colloquy with Senator Grassley on this point is especially revealing and, we would add, reassuring: We have not been placed upon courts to impose our will. We have been placed upon courts to impose the Senator GRASSLEY. So when it comes to a judge's own Judge SOUTER. He has got to guard constantly against substituting his values for the values which he is sworn to uphold. (Tr., 9/14/90, at 7.) Judge Souter's account of the correctness of Brown v. Board of Education as an original matter is one widely shared by practitioners of the original meaning approach. He explained that the Equal Protection Clause, in requiring that every State give every person the equal protection of the laws, defines a general principle of racial equality. That principle, according to Judge Souter, was inconsistent with segregated public schools when the amendment was adopted in 1868 and when Brown was decided in 1954. As Judge Souter said, "I would like to think, and I do believe, that the principle of equal protection was there and that in the time intervening we have gotten better at seeing what is before our noses." (Tr., 9/17/90, at 197.) We also respectfully disagree with the suggestion in Senator Biden's Additional Views that there is some inconsistency, or at least a tension, between Judge Souter's approach to Brown and his dissent in Estate of Dionee, in which he maintained that the New Hampshire Constitution's ban on the sale of justice referred to bribery, not user fees for judicial services. In Dionne, Judge Souter relied on historical evidence-in that instance reaching back to Magna Carta-in order to understand the meaning of a constitutional provision that descended from Magna Carta. As Judge Souter explained to this Committee, the principle contained in the New Hampshire Constitution was in his view a fairly narrow one. He therefore believed that the New Hampshire Supreme Court had no power to broaden it, replacing the Constitution's principle with its own. Whatever the historical merits of Judge Souter's explication of the text in that case, we must agree with him that the court's responsibility was to apply the original principle. PART FIVE: JUDGE SOUTER DEMONSTRATED AN APPROPRIATE RESPECT FOR PRECEDENT Judge Souter has an obvious and keen respect for the value of precedent in our judicial system, often referred to as the principle of stare decisis. He described this principle as a "bedrock necessity if we are going to have in our judicial systems anything that can be called 'the rule of law' as opposed simply to random decisions on a case-by-case basis." (Tr., 9/13/90, at 135.) Judge Souter as a New Hampshire judge joined the majority opinion in two cases that he believed were controlled by precedent. He is not, however, blindly committed to all precedents, regardless how incorrect. If the holding of a case is clearly incorrect, then it is Judge Souter's view that that case is subject to reconsideration. In deciding whether to overrule that case, Judge Souter explained that a court should consider, among other things, whether the public, the courts and the legislatures have relied on this precedent before overruling it. (Id. at 137-38.) As Judge Souter indicated in his dissent in Appeal of Portsmouth Savings Bank Corporators, the reliance of the public on a precedent is an important consideration weighing against reversal of that precedent. In his opinions and in his testimony, we believe that Judge Souter has struck an appropriate balance between respect for precedent and the recognition that precedents must sometimes be reconsidered. PART SIX: JUDGE SOUTER RECOGNIZES A RIGHT OF PRIVACY PROTECTED BY THE CONSTITUTION We were equally impressed with Judge Souter's responses to questions of substantive law that were of most interest to the Committee during the hearings. While we do not believe that a nominee's responses to questions of this sort should be determinative of the Committee's decision to recommend confirmation, we discuss these issues because of their importance to other members of the Committee. Judge Souter testified that he believes that there is a fundamental right to marital privacy. In defining that right, he acknowledged that the right of a married couple to procreate is at the "fun 9 damental heart" of the right to marital privacy. (Tr., 9/13/90, at 116.) He further acknowledged that "there is a core set of family values which, in the general understanding and the traditional understanding of the American people, are protected." (Tr., 9/14/90, at 108.) We share his abiding respect for these values, which are unmistakably an essential part of the fabric of our society. At the same time, in stating his views with respect to a more generalized right to privacy as well as unenumerated rights generally, Judge Souter demonstrated his adherence to principles of judicial restraint. In response to questining by Senator Grassley, Judge Souter described the process by which a judge must evaluate a claim that any form of conduct is protected under the Constitution as a fundamental right. He described the "difficulty of finding a disciplined process for giving content to what we call the unenumerated rights" and said that "it is essential for us to have some idea of the criterion that we are going to employ to find values which are not simply reflections of our own feelings at the moment and our own feelings about the desirability of the claims that may be pressed before us." (Tr., 9/14/90, at 8-9, 17.) In these comments is a recognition of the profound difficulty in identifying those rights which are so fundamental as to be accorded special protection. The Additional Views describe as "worrisome" Judge Souter's refusal to commit himself on the issue of whether unmarried persons have a fundamental privacy right to use contraceptives, suggesting that this is a settled question under Supreme Court case law. We disagree. The Supreme Court held in Eisenstadt v. Baird, 405 U.S. 438 (1972), that unmarried persons have a right to use contraceptives as a matter of equal protection. It did not hold that they have such a right as a matter of substantive due process. Judge Souter correctly described this as an "open question" (Tr., 9/17/90 at 230), and we believe his respectful declination to answer this particular question was entirely appropriate, in light of pending cases that have implications in this area. PART SEVEN: JUDGE SOUTER'S POSITIONS ON CIRMINAL LAW ISSUES REFLECT THE CONSTITUTION'S BALANCE BETWEEN THE IMPORTANT RIGHTS ACCORDED TO DEFENDANTS AND SOCIETY'S INTEREST IN THE PUNISHMENT OF CRIME It is clear to us that Judge Souter is a strong law and order judge, who also is concerned to see that the rights of defendants are protected. He understands that society has a vital interest in seeing criminals apprehended and punished and that the police ought not to be hampered in their vital work by unnecessary procedural impediments. He has resisted the undue expansion of procedural protections for criminal defendants while recognizing the important oversight role of the courts in the criminal justice system. As Senator Hatch observed, Judge Souter's record reveals "a judge who is tough on crime but also fair when it comes to balancing the competing interests of the public and criminal defendants." (Tr., 9/ 17/90, at 8.) Judge Souter's views in the criminal law area obviously are influenced both by his considerable experience as a public law en |