JUDGE SOUTER WAS APPROPRIATELY FORTHCOMING IN HIS TESTIMONY BEFORE THE COMMITTEE A nominee coming before this Committee does have an affirmative obligation to be forthcoming and responsive, to the Committee's lines of inquiry. The nominee, however, must strike an appropriate balance between those questions he or she may appropriately answer and those that call for improper comments on cases that may come before the Court. We agrree with Senator DeConcini: I just want to say to you, Judge Souter, that I am very impressed with your presentation over the last four days and also the openness that you have come forward with, different than other nominees that we have had. Though I think you have adequately and properly protected your need to withhold answers in some areas, because of decisions before the Court ** * you took advice from a number of us that I hoped you were forthcoming. Indeed, you have been, in this Senator's judgment * * *. (Tr., 9/17/90, at 71-72.) * * * We believe that Judge Souter struck an appropriate balance in his testimony; that his testimony and the record before the Committee enabled us fully to discharge our constitutional responsibility of advice and consent; and that a requirement of greater specificity would gravely compromise the independence of the judiciary and the separation of powers. Such independence is explicitly mandated by the Constitution, by federal statute, and by the canons of judicial ethics. See U.S. Const. art. III, § 1 ("The judicial Power of the United States, shall be invested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges * ** shall hold their Offices during good Behaviour * ."); 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned"); Model Code of Judicial Conduct, Canon 3(A)(6) (“A judge should perform the duties of his office impartially *. A judge should abstain from public comment about a pending or impending proceeding in any court.") And without this independence, which is ensured by refusal to probe into the nominee's views on specific matters, there cannot be law as we understand it. Throughout the history of our Republic, Presidents, Senators, and judicial nominees have almost uniformly accepted the importance of maintaining both the appearance and the reality of judicial independence throughout the nomination and confirmation process. President Lincoln's observation is oft repeated: "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it." The late development of testimony by judicial nominees at all, and the strong resistance to that development by eminent jurists such as Justice Frankfurter, reflect this strong bipartisan respect for judicial independence and integrity. The particular attention recently given by the Committee to whether nominees have been asked to give or have given commitments to the Administration underscores the imperative for such limits upon the Committee, no less than upon the President. The relatively recent practice of testimony by nominees has required a particular measure of caution by both nominees and the Committee. Even the appearance that nominees were prepared to offer commitments to Senators to secure their votes would degrade the Supreme Court and seriously jeopardize public confidence in the administration of justice. Should such commitments actually be given, public confidence in the Senate, the Court, and the rule of law would be justifiably forfeited. Former Chief Justice Warren Burger summarized the point in characteristically pity terms. "To expect a nominee to make commitments, or even to engage in substantive discussion of a case yet unseen, borders on the preposterous," the Chief Justice wrote. "To call on a nominee for advance views as to questions that may come before the Court is really not unlike asking a potential juror how he or she will decide a particular case that the jury has not yet heard." Burger. "How Far Should the Questions Go?," Parade Magazine, Sept. 16, 1990, at 10, 14. Justice John Paul Stevens recently made the same point; "You really wouldn't want a judge who would say in advance how he or she would vote on particular issues. That's not part of the independent judiciary that's such an important part of our tradition and our history." N. Y. Times, Aug. 8, 1990, at A14, col. 1. These exceptionally serious considerations have led some observers to recommend that absent issues of personal conduct Supreme Court nominees should no longer appear as witnesses before the Committee. Without endorsing this particular approach, we share the concerns prompting its suggestion. Every recent nominee to come before the Committee has carefully reserved questions that would require him or her to opine on issues likely to come before the Court, usually-and rightly-with the support of the Committee and the Senate. Judge Souter's testimony has been widely praised from all parts of the political spectrum for its exemplary candor and propriety. He carefully struck the proper balance between the Senate's responsibility to ascertain his fitness and the absolute necessity for any nominee, but particularly a sitting federal judge, to scrupulously observe his ethical and constitutional responsibilites. He testified before the Committee for three days, responding to repeated questions from all its members. His answers were direct and thoughtful, but properly stopped short of expressing his specific views on matters likely to come before the Court. In addition to Judge Souter's testimony, the Committee received and reviewed thousands of pages of documents submitted by Judge Souter, as well as his over 200 judicial opinions. This combination of sources provided a comprehensive basis for the Committee's overwhelmingly favorable evaluation of the nominee. Judge Souter's appropriate reluctance to state in a nonjudicial forum his current views of subjects bearing on present or future legal controversies was admirable, and fully consistent with the canons of judicial ethics. Judge Souter explained his position in compelling terms: [I]f the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge the people who come before him can have a fair hearing. A fair hearing means something substantially Anything which substantially could inhibit the court's Is there anyone who has not, at some point, made up his mind on some subject and then later found reason to change or modify it? No one has failed to have that experi ence. No one has also failed to know that it is much easier to modify an opinion if one has not already stated it convincingly to someone else. With that in mind, can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all particular purposes, to the American people? You understand the compromise that would place upon the judicial capacity and that is my reason for having to draw the line. (Tr., 9/14/90, at 140-41.) Judge Souter's deep-seated respect for the rules of judicial conduct and his concern for preserving judicial independence are in the best tradition of the Court and its nominees. His "willingness to listen" was never compromised by inappropriate responses or commitments. CONCLUSION We believe that Judge Souter is acutely aware of the awesome task which faces him on the Supreme Court once confirmed. Judge Souter testified that he is prepared "to undertake the greatest responsibility that any judge in our republic can undertake: the responsibility to join with eight other people, to make the promises of the Constitution a reality for our time, and to preserve that Constitution for the generations that will follow us after we are gone from here." We believe that Judge Souter possesses the competency, dedication, courage, integrity, and fairness to serve as a Justice of the Supreme Court of the United States. ADDITIONAL VIEWS OF SENATOR HATCH Judge Souter's excellent educational and legal background and his demonstrated knowledge of the law at the hearing all attest to his competence and ability. I believe he will join the Supreme Court with an independent mind, willing to consider different points of view on the cases which will come before him. I also believe that he will seek to interpret and apply the law according to its original meaning. I do not believe that he will impose his own policy preferences on the American people in the guise of judging. The role of the judicial branch is to enforce the provisions of the Constitution and the laws we enact in Congress as their meaning was originally intended by their framers. That meaning must then be applied to the facts and circumstances before the judge-facts and circumstances perhaps never contemplated by the framers of the legal provision being applied. But the meaning—the underlying principle of the provision-does not change. In my view, Judge Souter's judicial philosophy is best expressed in his dissenting opinion in the 1986 New Hampshire Supreme Court case of In re Estate of Dionne and his 1990 remarks to a Massachusetts law journal. In the Dionne case, he wrote "that "the language of the [state] constitution is to be understood in the sense in which it was used at the time of its adoption . . .' The Court's interpretive task is therefore to determine the meaning of the [Constitutional provision] as it was understood when the framers proposed it and the people ratified it as part of the original constitutional text that took effect in June of 1784." In the May 28, 1990, Massachusetts Lawyers Weekly, Judge Souter was quoted as saying: "On constitutional matters, I am of the interpretist school. We're not looking for the original application, we're looking for meaning here. That's a very different thing." Judge Souter never departed from this view in his testimony. I note that I don't know whether I will always agree with Judge Souter's conclusion about the original meaning of a particular statute or constitutional provision or with his application of the provision in a given case. I have read that some people are drawing some rather firm conclusions as to how Judge Souter might have ruled or will rule in the future on some kinds of cases-whether religious liberty cases or cases involving Congressionally mandated racial preferences. The record is clear, however, that Judge Souter did not commit as to how he would rule in those areas or almost any other area. And where he may have been more forthcoming, he is entitled to change his mind after reading the briefs and hearing oral arguments, as he has done in his judicial career thus far. I mention this to record my view that if, in a case, Judge Souter's opinion seems to be a variance with how one of us anticipated he would rule, no one should claim he misled us. Moreover, I would hope no one would then claim we ought to probe the next nominee even further than the committee probed Judge Souter. While I have often said a senator has the right to ask a nominee any questions he wishes, a nominee is not obligated to answer all questions. I believe in some circumstances he was pressed too far and said more than a nominee should have to say at a confirmation hearing. While some may claim that so long as the nominee is not asked how he will rule in a specific case, he should answer all questions. But asking a nominee whether he endorses a very specific legal or constitutional principle, where respectable arguments can be made both for and against that principle, can in many instances be tantamount to asking how he would rule in particular cases. It clearly asks a nominee, in effect, to prejudge many specific issues. Some questions were even case-specific. As one random example, the nominee was asked whether he believed Roe v. Wade was settled law. He declined to answer. There is no practical difference between asking that question and asking how he will rule in a specific case, when the issue addressed in Roe so clearly remains an issue which can come before the Supreme Court. Judges should feel free to rule as they see fit on the bench and not as others anticipated they would rule. The trend begun in this committee in the mid-1950s of probing the nominee's views on controversial issues seems to have accelerated in recent years. If the trend continues, that is something I will have to bear in mind if I am here when a member of the other party sends us a Supreme Court nominee. Finally, I want to address this issue of litmus tests that some groups are seeking to have the Senate impose on nominees, for example, on the issue of abortion. Some urge us to reject Judge Souter because he did not commit himself to uphold Roe v. Wade. But what would happen if different senators impose litmus tests on a variety of issues-could any nominee ever be confirmed? Some people would make a very strong case that religious liberty issues, discrimination issues, federalism issues and other issues are so crucial that we must demand to know in advance how a nominee will rule. Ben Wattenberg, a Democrat who is a senior fellow at the American Enterprise Institute, says that quotas should be the litmus test. He criticized a 5-4 decision from June permitting racial setasides in the FCC's award of television and radio licenses. Suppose 20 senators apply that litmus test, and 15 other senators apply a church/state litmus test seeking to reverse the school prayer decisions, and 15 other Senators impose a litmus test on reversing the Miranda decision and Mapp v. Ohio imposing the exclusionary rule on the states. How can any nominee be confirmed if we viewed our role this way? A President may one day send us a nominee supported by proabortion groups. How would they feel if other senators and I took up Ben Wattenberg's cue on imposing a limus test on reverse discrimi |