[Senate Hearing 107-463]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-463
 
            THE JUDICIAL NOMINATION AND CONFIRMATION PROCESS
=======================================================================


                                HEARINGS

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION
                               __________

                     JUNE 26 AND SEPTEMBER 4, 2001
                               __________

                          Serial No. J-107-28
                               __________

         Printed for the use of the Committee on the Judiciary








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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                 CHARLES E. SCHUMER, New York, Chairman
PATRICK J. LEAHY, Vermont            JEFF SESSIONS, Alabama
EDWARD M. KENNEDY, Massachusetts     STROM THURMOND, South Carolina
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
RICHARD J. DURBIN, Illinois          ARLEN SPECTER, Pennsylvania
                Benjamin Lawsky, Majority Chief Counsel
                    Ed Haden, Minority Chief Counsel









                            C O N T E N T S

                              ----------                              

                         TUESDAY, JUNE 26, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    20
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    87
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    11
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   243
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    29
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   257
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    13
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.    14
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   267

                               WITNESSES

Bolick, Clint, Legislative Director, Institute for Justice, 
  Washington, D.C................................................    82
Cutler, Lloyd N., former White House Counsel, and Co-Chair, 
  Constitution Project's Courts Initiative, Washington, D.C......    22
Gray, C. Boyden, former White House Counsel, Washington, D.C.....    26
Greenberger, Marcia D., Co-President, National Women's Law 
  Center, Washington, D.C........................................    71
Presser, Stephen B., Raoul Berger Professor of Legal History, 
  Northwestern University School of Law, Chicago, Illinois.......    49
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service 
  Professor of Jurisprudence, University of Chicago Law School 
  and Department of Political Science, Chicago, Illinois.........    57
Tribe, Laurence H., Tyler Professor of Constitutional Law, 
  Harvard Law School, Cambridge, Massachusetts...................    39
Volokh, Eugene, Professor of Law, University of California at Los 
  Angeles, Los Angeles, California...............................    67

                       TUESDAY, SEPTEMBER 4, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   149
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   144
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........   157
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.   152
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   111
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   114
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................   151

                               WITNESSES

Kmiec, Douglas W., Dean and Professor of Law, Catholic University 
  of America, Washington, D.C....................................   191
Levinson, Sanford, Professor of Law, University of Texas Law 
  School, Austin, Texas..........................................   162
Resnik, Judith, Professor of Law, Yale Law School, New Haven, 
  Connecticut....................................................   179
Rotunda, Ronald D., Professor of Law, University of Illinois 
  College of Law, Champaign, Illinois............................   169
Simon, Hon. Paul, former U.S. Senator from the State of Illinois.   134
Thompson, Hon. Fred, a U.S. Senator from the State of Tennessee..   137
Tushnet, Mark, Professor of Law, Georgetown University Law 
  Center, Washington, D.C........................................   198

                                 ------                                

                         QUESTIONS AND ANSWERS

Responses of Stephen B. Presser to questions submitted by Senator 
  Thurmond.......................................................   218
Response of Cass R. Sunstein to a question submitted by Senator 
  Sessions.......................................................   219

                       SUBMISSIONS FOR THE RECORD

American Center of Law and Justice, Washington, D.C., statement..   219
BeVier, Professor of Law, University of Virginia Law School, 
  Charlottsville, VA, statement..................................   224
Boyle, Patrick, Detective, Philadelphia Police Department, 
  Philadelphia, PA, statement....................................   228
Califano, Joseph A., Jr., Washington Post, August 31, 2001, 
  article........................................................   229
Cass, Ronald A., Dean, Boston University School of Law, Boston, 
  MA, statement..................................................   230
Center for Judicial Accountability, Inc., White Plains, NY, 
  statement......................................................   235
Jipping, Thomas L., Director, Judicial Selection Monitoring 
  Project, Free Congress Research & Education Foundation, 
  Washington, D.C.:
    letter and attachment........................................   244
    article, Washington Times, June 26, 2001.....................   255
    statement....................................................   256
Litt, Robert S., former Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, DC, statement.....   258
McGinnis, John O., Professor, Benjamin N. Cardozo School of Law, 
  New York, NY, statement........................................   260
People for the American Way Foundation, Elliot M. Minchberg, 
  General Counsel and Vice-President, July 3, 2001, letter.......   264
Pilon, Roger, Vice President for Legal Affairs, Cato Institute, 
  September 4, 2001, National Review, article....................   265
Strauss, Paul, Shadow U.S. Senator for the District of Columbia, 
  statement......................................................   266
Tulis, Jeffrey K., Associate Professor, Department of Government, 
  University of Texas at Austin, Austin, Texas, June 22, 2001, 
  letter.........................................................   268
Yalof, David Alistair, Department of Political Science, 
  University of Connecticut, Storrs, CT, June 25, 2001, letter...   269
Young, Ernest A., Assistant Professor of Law, University of Texas 
  at Austin, Austin, Texas, statement............................   272










                       JUDICIAL NOMINATIONS 2001:
                        SHOULD IDEOLOGY MATTER?

                              ----------                              


                         TUESDAY, JUNE 26, 2001

                               U.S. Senate,
  Subcommittee on Administrative Oversight and the 
                                            Courts,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, Chairman of the Subcommittee, presiding.
    Present: Senators Schumer, Feingold, Durbin, Sessions, 
Hatch, Kyl, Brownback, and McConnell.

 OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Chairman Schumer. Good morning, everybody. The Subcommittee 
will come to order.
    I will make an opening statement, so will Senator Sessions 
and any other member who wishes to, and then we will go right 
into our panel.
    Today, for the first time in over a decade and for the 
first time during the Bush presidency, we are formally 
examining the judicial nominations process. This hearing is 
specifically focused on the vital question of what role 
ideology should play in the selection and confirmation of 
judges. Let me start by saying that it is our intention to hold 
a series of further hearings that will examine in detail 
several other important issues related to the judicial 
nominating process.
    At this point, we plan to hold at least three more hearings 
on the following issues: one, the proper role of the Senate in 
the judicial confirmation process. What does the Constitution 
mean by ``advise and consent,'' and historically how assertive 
has the Senate's role been?
    Two, what affirmative burdens should nominees bear in the 
confirmation process to qualify themselves for lifetime 
judicial appointments? The Senate process can be criticized for 
being a search for disqualifications. We will examine whether 
the burden should be shifted to the nominees to explain their 
qualifications and views to justify why they would be valuable 
additions to the bench.
    And, three, the significance of the Supreme Court's recent 
federalism decisions for the judicial selection process. Most 
Americans probably do not realize what these cases curtailing 
the powers of Congress mean for their everyday lives and 
futures. We will try to make these somewhat esoteric and often 
abstract decisions more real and more relevant for ordinary 
citizens.
    Today's hearing on ideology is a good place to start 
because it will touch upon all of these issues and serve as the 
beginning of the important dialog that we in the Senate should 
be having before we proceed much further with nomination 
hearings, and certainly before we embark on the consideration 
of Supreme Court nominees.
    First, I have read all the testimony submitted by our eight 
witnesses and I have to say it is just excellent. I would 
commend to every one of my colleagues who sit on this 
Subcommittee or not to read them. There is a diversity of 
opinion. It is all cross-cutting. It is not that all Democrats 
or liberals are on one side and all conservatives or 
Republicans on the other. Both sides of this issue, if it can 
be called two-sided, present alluring arguments and certainly 
underscore how difficult and how important the issue we are 
wrestling with today is.
    One thing is clear to me. The ideology of particular 
nominees often plays a significant role in the confirmation 
process. Unfortunately, knowing when and to what degree 
ideology should be a factor for the Senate is far more obscure.
    For whatever reason, possibly senatorial fears of being 
labeled partisan, legitimate considerations of ideological 
beliefs seem to have been driven underground. It is not that we 
don't consider ideology; it is just that we don't talk about it 
openly.
    Unfortunately, this unwillingness to openly examine 
ideology has sometimes led Senators who oppose a nominee to 
seek out non-ideological disqualifying factors, like small 
financial improprieties from long ago, to justify their 
opposition. This, in turn, has led to an escalating war of 
``gotcha'' politics that, in my judgment, has warped the 
Senate's confirmation process and harmed the Senate's 
reputation.
    As many of you know, this was not always the Senate's 
practice. During the first 100 years of the Republic, one out 
of every four nominees to the Supreme Court was rejected by the 
Senate, many for clear ideological reasons. George Washington's 
appointment of John Rutledge to be Chief Justice and President 
Polk's nomination of George Woodward are two early examples of 
Senate rejection of nominees on purely ideological grounds.
    The power of the Senate in the nominations process, 
however, has been accordion-like, and from 1895 to 1967 only 
one Supreme Court nominee was defeated. Since 1968, ideological 
considerations have occasionally surfaced, most notably in the 
Republican opposition to the Fortas nomination to be Chief 
Justice and in Democratic opposition to the nomination of 
Robert Bork. But since the Bork fight in 1987, ideology, while 
still an important factor for the Senate, has primarily been 
considered sub rosa, fostering a search for a nominee's 
disqualifiers that are more personal and less substantive.
    It is high time we returned to a more open and rational 
consideration of ideology when we view nominees. Let's make our 
confirmation process more honest, more clear, and hopefully 
more legitimate in the eyes of the American people, and let's 
be fair to the nominees the President selects.
    If we do this, the knotty question we face is how dominant 
factor should a nominee's ideology be in the Senate's 
consideration. Historically, the role ideology played in past 
confirmations has varied, but it seems to me that several 
factors are relevant: first, the extent to which the President 
himself makes his initial selections on the basis of a 
particular ideology; second, the composition of the courts at 
the time of the nomination; and, third, the political climate 
of the day.
    The Eisenhower presidency is instructive and shows how 
these factors affect the Senate's confirmation process. First, 
Eisenhower's selection criteria were non-ideological. He 
brought the ABA into his selection process and sought 
candidates with, as he put it, ``solid common sense,'' 
eschewing candidates with extreme legal or philosophical views.
    Second, the balance of the courts was leftward in light of 
20 years of Democratic appointments. In fact, when Eisenhower 
took office, 4 out of every 5 Federal judges were Democrats.
    Third, politically Eisenhower had a strong mandate, having 
been elected overwhelmingly by majorities in both 1952 and 
1956.
    Thus, in a time when the courts had been filled with 
Democrats, a split Senate had little cause to ideologically 
oppose the non-political picks of an overwhelmingly popular 
Republican President.
    Today, the calculus is much different. President Bush 
campaigned on a pledge to appoint judges of a particular 
stripe, like Justices Scalia and Thomas. And the balance of the 
courts, especially the Supreme Court, leans to the right.
    Politically, the American people were divided in our recent 
national elections, sending a message of moderation and 
bipartisanship. This era, perhaps more than any other before, 
calls out for collaboration between the President and the 
Senate in judicial appointments. The ``advise'' in ``advise and 
consent'' should play a new and more prominent role. It also 
certainly justifies Senate opposition to judicial nominees 
whose views fall outside the mainstream and have been selected 
in an attempt to further tilt the courts in an ideological 
direction.
    Having one or even two Justices like Scalia and Thomas 
might be legitimate because it provides the Court with a 
particular view of constitutional jurisprudence. But having 
four or five or nine Justices like them would skew the Court, 
veering it far from the core values most Americans believe in.
    The Constitution instructs the Senate to first advise the 
President as to his choice of nominees and then to review and 
decide whether to confirm the President's picks. As the 
research of some of the witnesses we will hear today, 
Professors Tribe and Sunstein, has forcefully revealed, the 
debates of the Constitutional Convention suggest a fully shared 
authority between the President and the Senate as to the 
composition of the Supreme Court.
    Let me conclude by saying that I and many of my colleagues 
see the appointment of judges as the ultimate test of 
bipartisanship. In electing two branches of our Government, the 
country was split down the middle, leaving appointments to the 
third branch as perhaps the defining indicator of the political 
direction the country will take.
    The President, of course, can choose to exercise his 
nomination power however he sees fit. But if the President 
sends countless nominees who are of particular ideological 
caste, Democrats will likely exercise their constitutionally 
given power to deny confirmation so that such nominees do not 
reorient the direction of the Federal judiciary. But if the 
President does not grossly inject ideological politics into his 
selection criteria, neither will, nor should, the Senate.
    Today, we are going to hear from two former White House 
Counsels who spent years advising and recommending candidates 
for the Federal bench in both Republican and Democratic 
administrations. We will hear also from some of the brightest 
legal academics around who have dedicated their careers to 
studying judicial nominations and the way the Senate and 
President handle them.
    The issue we are discussing is not merely academic. As 
yesterday's decision showed, there are many 5-4 splits on the 
Court right now on fundamental issues of the day, including 
most importantly the extent of power held by the Court's 
coequal and democratically elected branches of Government.
    We therefore begin this important inquiry. There will be a 
range of discussion and opinion. As I say, when you read the 
different testimonies, each view is alluring. I have laid out 
mine because I believe we should bring everything above the 
table, and I am starting right now by saying where I come from, 
although I am open to be persuaded that I might be wrong.
    Let me thank in advance our distinguished witnesses. WE are 
very interested in hearing your testimony and engaging you on 
these issues.
    I also want to thank my colleague, Senator Sessions. I am 
going to turn to him for his opening statement, but first I 
want to thank him up front for making this a fully bipartisan 
hearing, with equal numbers of witnesses chosen by each side. 
He and his staff are a pleasure to work with, and I look 
forward to holding future hearings in the same bipartisan 
manner.
    Senator Sessions?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I do appreciate 
the opportunity to be here, and thank you for working with us 
to coordinate this hearing. I think you and your staff have 
been most gracious. We have an equal number of witnesses. You 
couldn't be fairer about that, and I hope that we can make some 
progress as we discuss these issues.
    Frankly, I hadn't heard that kind of talk about evaluating 
the judges so aggressively in the last 6 years. We do have an 
evenly divided Senate, but remember just a few years ago there 
were 55 Republicans and Clinton judges were moved forward on a 
steady pace. There were 377 confirmed and only one voted down. 
There were only 41 Clinton nominees left pending when he left 
office, and unconfirmed, I think a record far superior to that 
of when President Bush left office and he had a Democratic 
Senate.
    So I think there is a myth out there that somehow Clinton 
judges were mistreated. And building on that myth is an idea 
that now is the time for either a new standard or an open, 
aggressive assault on Bush judges. I think that would be a 
mistake.
    The constitutional process of confirming judicial nominees 
is one of our important duties in the Senate. I take it 
seriously. It is part of the advice and consent process. 
Article II, section 2, clause 2 of the Constitution provides 
that the President ``shall nominate, and by and with the Advice 
and Consent of the Senate, shall appoint...Judges of the 
supreme Court, and all other Officers of the United States...'' 
The President decides who to nominate and the Senate renders 
advice and decides who to confirm.
    Using those basic ground rules, Presidents and Senates have 
worked together for over 200 years to appoint a sufficient 
number of Federal judges to try the people's cases in Federal 
courts. President Reagan, with 6 years of a Senate of his own 
party, appointed a record 382 judges. President Clinton, with 6 
years of a Senate of a party not his own, appointed the second 
greatest number, 377.
    While the President has traditionally been accorded great 
deference in selecting his nominees, the Senate is not a rubber 
stamp. Indeed, we have a duty to assess at least a nominee's 
integrity, qualifications, temperament, ability, and other 
factors that are important.
    Throughout my tenure in the Senate, I have been impressed 
with the manner in which the former Chairman of this committee, 
Senator Hatch, guided the judicial assessment process. He 
elevated the committee's judicial nominations hearings above 
partisan and personal attacks. He examined each nominee's 
integrity, qualifications, temperament, and approach to the 
law.
    While Senators sometimes disagreed on these issues, Senator 
Hatch is to be commended for not calling a series of 
nominations hearings at which panels of witnesses were called 
to attack Clinton nominees. If there was a personal issue, he 
handled it privately, thus saving the nominee and nominee's 
family much anguish. His fairness and gentlemanly demeanor were 
a credit to the Chair he held on this Committee and to the 
Senate as a whole.
    Certainly, treating nominees fairly was a goal of mine when 
I came to the Senate. I felt like the Senate could do a better 
job of being fair to nominees and respectful of nominees. If we 
disagreed with them, we inquired into the problems that we had 
a disagreement with or a concern, but it was not necessary to 
attack someone's integrity and character if you disagreed with 
them or questioned a ruling or a position or a writing they 
have taken in the past.
    So, today, we address the question of ``should ideology 
matter'' in the exercise of the Senate's advice and consent 
responsibilities. I am not sure what ``ideology'' means, but to 
answer this question I must first distinguish judicial 
philosophy, which describes a nominee's approach to the law, 
from result-oriented political ideology which describes a 
nominee's view of how he or she would like to win the case.
    In my view, the Senate may appropriately examine a 
nominee's judicial philosophy, and should do so, but should not 
assess a nominee on some results-oriented ideological or 
political basis to demand that they produce rulings that we 
might politically agree with.
    Does the nominee understand that his or her role as a judge 
is to follow the law, regardless of personal political opinion? 
Does he or she understand the role of precedent in interpreting 
the law? Can the nominee put aside political views, which may 
be appropriate as a legislator, executive or advocate, and 
interpret the law as it is written? Will the nominee keep his 
or her oath to uphold the Constitution, first and foremost? The 
Senate needs to know the answers to these important questions. 
Questions that would implicate a nominee's view on what the 
result of a particular case should be, however, should not be 
asked, in my view.
    This is important primarily because Federal judges are 
unelected. They are appointed and confirmed once, normally in a 
fairly routine manner, and then serve for life, unaccountable 
to the normal political process or to the people. Policy 
decisions, therefore, if we are to maintain our democracy, must 
be left in the hands of the political branch, those who are 
accountable to the people. Democracy is undermined in a most 
fundamental way if we assert that judges have the power to set 
public policy, because they are unaccountable to the American 
people. So this is a deep, fundamental question of great 
importance, it seems to me.
    The ultimate responsibility for legal results does not lie 
with the judge under our system, but with the people who 
elected their legislators. In our democracy, that is where the 
responsibility for making rules is supposed to lie, for this 
allows the people, if they are unsatisfied with the rules, to 
change them through the democratic process of electing new 
Federal and State legislators and through ratifying amendments 
to the Constitution.
    I have heard some talk about the need for moderate judges. 
Again, it is important to distinguish moderation in terms of 
deferring to policies embodied in the law from moderation 
seeking politically palatable results.
    On the one hand, Alexander Hamilton applauded the 
``benefits of integrity and moderation of the judiciary,'' 
whether the results of decisions were ``disappoint[ing]'' or 
the cause of ``applause.'' On the other hand, he categorically 
rejected moderation in a judge's duty to follow the law, 
concluding that ``inflexible and uniform adherence to the 
rights of the Constitution, and of individuals [is] 
indispensable in the courts of justice. . .''
    For example, in Brown v. Board of Education, the Supreme 
Court properly ruled that ``separate but equal'' public schools 
for the races violated the Equal Protection Clause of the 14th 
Amendment. The States were denying African-American students 
equal protection through the State education laws.
    The Court's ruling, however, did not evoke a moderate 
public response. Who knows what the polling data would have 
shown about that ruling? But in many instances, a hue and cry 
came from some of those who opposed the result. While this 
result may not have been moderate in a political poll sense, it 
was the proper course of legal action.
    In the exercise of its advice and consent responsibilities, 
the Senate's duty does not lie with public opinion polls, 
professors' theories, or interest groups. Instead, as Senators, 
we solemnly swear to ``support and defend the Constitution of 
the United States. . .so help [us] God.'' We should ensure to 
the best of our ability that judges do the same.
    Some may ask why judicial philosophy matters. Judicial 
philosophy matters because it determines whether results in 
real cases are consistent or not, whether you can count on the 
rules being followed every time.
    How many of you would want your right to free speech 
enforced only some of the time? How many would want your right 
to be free from unreasonable searches enforced only when a 
judge felt it would be politically popular to do so? How many 
would want your right not to be discriminated against by State 
schools based on your race enforced only if a judge liked you?
    In America, we want our rights protected every time. This 
is the only way we can be sure that our contracts will be 
enforced in our business dealings, that our neighborhoods will 
not be overrun with crime, and that our government officials 
will not abuse their power for their own advantage.
    The Founding Fathers believed that the best way to ensure 
that the laws are followed every time is to write the laws down 
and to have government officials who will follow them. We call 
this the rule of law. If the laws were unwritten, then judges 
and officials could make them up as they go. Our rights would 
depend on the whim of unelected judges.
    If the laws are written down, however, every judge and 
government official starts on the same page. This makes it more 
likely they will be consistent in their application of the laws 
to all the cases before them. Our rights depend on written laws 
in America. The people control what the laws say, and we must 
expect judges will enforce the laws as written. It is so basic.
    Activism was Senator Hatch's standard for whether or not a 
judge at the basic level should be confirmed. He defined that 
as a judge who was unwilling to follow the law. He wanted to 
know would a judge subject himself to the law. We confirmed 
overwhelmingly pro-choice judges. We confirmed many judges who 
opposed the death penalty. They were asked, will you enforce 
the law even if you do not agree with it? If they didn't say 
that they would, they would not have been confirmed. They said 
that they would and they were confirmed overwhelmingly. Only 
one judge was voted down in this last session. So activism is a 
standard that Senator Hatch set forth that is defensible. I am 
concerned about a word as vague as ``ideology.'' I am not sure 
what that would mean.
    I will just conclude and put the rest of my remarks in the 
record.
    Chairman Schumer. Without objection.
    Senator Sessions. The President and the Senate should work 
together. I believe, Mr. Chairman, that you will ask tough 
questions, and you have every right to. I believe that judges 
should be inquired of, but if they will follow the law, if they 
are men and women of good integrity, if they are men and women 
of proven accomplishment, if they have good judgment and can do 
the job in every respect, and have a proven record to that 
effect, I believe the President's nominees should be given 
great deference.
    I would be very concerned if we were to create a historical 
change here. After President Clinton's judges were given so 
much deference, really, and he was given so much support for 
those he nominated, it would be an unwise and dangerous thing 
for this Senate to now change the way we evaluate judges and 
begin to undermine the confidence that the American people have 
in law.
    My longtime concern about law in America has come about 
because some people seem to think that it is unascertainable, 
that judges can redefine words in ways that make them say 
anything they would like for them to say. This is a very 
dangerous and corroding philosophy.
    The American people believe words have meaning. They 
believe statutes bind judges and politicians and citizens. They 
believe they can be given meaning. We have afoot in America 
today a philosophy often in our law schools that suggests that 
words don't have objective meaning, that it is all politics, it 
is all power, and that truth is not ascertainable and law can't 
be consistently applied.
    I hope we don't nurture that in the way we approach the 
judicial nomination process. We need to call on people to 
follow the law, and I believe that they can, and I believe that 
when we do so the great protections and prosperity this Nation 
has enjoyed will continue.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Sessions follows:]

   Statement of Hon. Jeff Sessions, a U.S. Senator from the State of 
                                Alabama

    Mr. Chairman, I would like to thank you and your staff for working 
with me and my staff in coordinating this hearing. You have been very 
gracious in allowing us to have an equal number of witnesses. We have 
been able to put the nation's interest first in the past, and I look 
forward to working with you on this Subcommittee and on full Committee 
to do the same in the future.
    The constitutional process of confirming federal judicial nominees 
is one of the Senate's most important duties. I take it very seriously. 
It involves a Senator's view of the advice and consent process, his or 
her respect for the rule of law, and his or her views on judicial 
activism.
                           Advice and Consent
    Article II, Section 2, Clause 2 of the Constitution, provides that 
the President ``shall nominate, and by and with the Advice and Consent 
of the Senate, shall appoint . . . Judges of the supreme Court, and all 
other Officers of the United States . . . .'' The President decides who 
to nominate and the Senate renders advice and decides who to confirm.
    Using these basic ground rules, Presidents and Senates have worked 
together for over 200 years to appoint a sufficient number of federal 
judges to try the people's cases in federal courts. President Reagan, 
with six years of a Senate of his own party, appointed a record 382 
Article III judges. President Clinton, with six years of a Senate of a 
party not his own, appointed the second greatest number of judges--377. 
I voted one down.
    While the President has traditionally been accorded great deference 
in selecting his nominees, the Senate is not a rubber stamp. Indeed, we 
have the duty to assess, at least, a nominee's integrity, 
qualifications, and temperament.
    Throughout my tenure in the Senate, I have been impressed with the 
manner in which the former Chairman of the Judiciary Committee, Senator 
Hatch, guided this assessment process. He elevated the debate in the 
Committee's judicial nominations hearings above partisan personal 
attacks. He examined each nominee's integrity, qualifications, 
temperament, and approach to the law. While Senators sometimes 
disagreed on these issues, Senator Hatch is to be commended for not 
calling a series of nominations hearings at which panels of witnesses 
were called to attack judicial nominees. If there was a personal issue, 
he handled it privately, thus saving the nominee and the nominee's 
family much anguish. His fairness and gentlemanly demeanor was a credit 
to the chair he held, this Committee, and the Senate as a whole.
    Today, we address the question of ``should ideology matter'' in the 
exercise of the Senate's advice and consent responsibilities. To answer 
this question, I must first distinguish judicial philosophy, which 
describes a nominee's approach to the law, from result-oriented 
political ideology, which describes a nominee's view of who he or she 
would like to win the case. In my view, the Senate may appropriately 
examine a nominee's judicial philosophy, but should not assess a 
nominee based on some result-oriented political ideology or his 
political views.
    Does the nominee understand that his or her role as a judge is to 
follow the law regardless of personal political opinion? Does he or she 
understand the role of precedent in interpreting the law? Can the 
nominee put aside political views, which may be appropriate as a 
legislator, executive, or advocate, and interpret the law as it is 
written? Will the nominee keep his or her oath to uphold the 
Constitution? The Senate needs to know the answers to these important 
questions. Questions that would implicate a nominee's view on what the 
result of a particular case should be, however, should not be asked.
    The ultimate responsibility for the legal results, however, does 
not lie with the judge, but with the people and their elected 
legislators. In our democracy, that is where the responsibility for 
making rules is supposed to lie. For this allows the people, if they 
are unsatisfied with the rules, to change them through the democratic 
process of electing new federal and state legislators and through 
ratifying amendments to the Constitution.
    I have heard some talk about the need for ``moderate'' judges. 
Again, it is important to distinguish moderation in terms of deferring 
to the policies embodied in the law from moderation in seeking 
politically palatable results.
    On the one hand, Alexander Hamilton applauded the ``benefits of 
integrity and moderation of the judiciary'' whether the results of 
decisions were ``disappoint[ing]'' or the cause of ``applause.'' \1\ On 
the other hand, he categorically rejected moderation in a judge's duty 
to follow the law, concluding that ``inflexible and uniform adherence 
to the rights of the Constitution, and of individuals, [is] 
indispensable in the courts of justice . . . .'' \2\
---------------------------------------------------------------------------
    \1\ THE FEDERALIST No. 78, at 470 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    \2\ Id. at 470-71.
---------------------------------------------------------------------------
    For example, in Brown v. Board of Education,\3\ the Supreme Court 
properly ruled that ``separate but equal'' public schools for the races 
violated the Equal Protection Clause of the 14th Amendment. 
The States were denying African American students equal protection 
through state education laws.\4\ The Court's ruling, however, did not 
evoke a moderate public response, but a hue and cry from some who 
opposed its result. While this result may not have been moderate in a 
``political poll'' sense, it was the proper course of action because it 
followed the law.
---------------------------------------------------------------------------
    \3\ 347 U.S. 483 (1954).
    \4\ See Robert Bork, THE TEMPTING of AMERICA 74-84 (1990) 
(supporting the judgment in Brown v. Board of Educ.).
---------------------------------------------------------------------------
    In the exercise of its advice and consent responsibilities, the 
Senate's duty does not lie with public opinion polls, professors' 
theories, or interest groups. Instead, as Senators, we solemnly swear 
to ``support and defend the Constitution of the United States. . .So 
help [us] God.'' \5\ We should ensure to the best of our ability that 
judges do the same.
---------------------------------------------------------------------------
    \5\ ``I, A--, B, do solemnly swear (or affirm) that I will support 
and defend the Constitution of the United States against all enemies, 
foreign and domestic; that I will bear true faith and allegiance to the 
same; that I take this obligation freely, without any mental 
reservation or purpose of evasion; and that I will well and faithfully 
discharge the duties of the office on which I am about to enter: So 
help me God.'' 5 U.S.C. Sec. 3331 (1988); Senate Rule III.
---------------------------------------------------------------------------
                            The Rule of Law
    Some may ask, ``Why do all these words like `judicial philosophy' 
and `moderation' matter? Isn't it the results in real cases that 
count?"
    Judicial philosophy does matter because it determines whether 
results in real cases are consistent or not--whether you can count on 
the rules being followed every time. How many of you, would want your 
right to free speech \6\ enforced only some of the time? How many would 
want your right to be free from unreasonable searches \7\ enforced only 
when a judge felt it would be politically popular to do so? How many 
would want your right to not be discriminated against by state schools 
based on your race\8\ enforced only if the judge liked you?
---------------------------------------------------------------------------
    \6\ U.S. Const. amend. I.
    \7\ U.S. Const. amend. IV.
    \8\ U.S. Const. Amend. XIV, Sec. 2.
---------------------------------------------------------------------------
    In America, we want our rights protected every time. This is the 
only way we can be sure that our contracts will be enforced in our 
business dealings, that our neighborhoods will not be overrun with 
criminals, and that our government officials will not abuse their power 
for their own advantage.
    The Founding Fathers believed that the best way to ensure that the 
laws are followed every time is to write the laws down and to have 
government officials who will follow them. We call this the rule of 
law.
    If the laws are unwritten, then judges and other government 
officials can make them up as they go along. Our rights would depend on 
the whims of judges--who are unelected. If the laws are written down, 
however, every judge and government official starts from the same page. 
This makes it more likely that they will be consistent in their 
application of the laws to all the cases before them. Our rights depend 
on the written laws and, in America, the people control what the laws 
say.
                           Judicial Activism
    To ensure that federal judges will actually follow the written law, 
we give them life tenure and salary protection. It is less likely that 
judges can be pressured to vote for things that Congress likes, even if 
they violate the Constitution, because Congress cannot threaten their 
jobs. Moreover, we require judges who have a conflict of interest in a 
case to recuse themselves from that case.
    But there are other pressures that can influence a judge to not 
follow the written law--the judge's conscience, his or her desire for 
popularity, or his or her political views. Against these types of 
departures, salary protection, life tenure, and recusal requirements 
are of no help. The only safeguard we have is the President's and the 
Senate's examination of a potential judge's sense of duty to the law as 
written and as intended.
    If a nominee's record shows that he or she will not follow the law 
as written and intended, that nominee is a ``judicial activist''--
whether conservative or liberal. Indeed, if a judge does not follow the 
law as written and intended, he harms all of us in two important ways.
    First, it undermines our certainty in the protection of our rights. 
Will our contract to buy a house be enforced? Will criminals be let out 
of jail to sell drugs at schools? Will the government be allowed to 
take our property without just compensation? If the answers to these 
questions depend on the judge's personal opinion or political views, 
all of these rights are at risk.
    Second, if a judge rejects the democratic process that ratified 
that constitutional provision or enacted that statutory provision, that 
judge has nullified our votes. Instead of our elected officials making 
the rules, our unelected judges would be making the rules. Frankly, 
this is scary.
    Many have confused the issue of judicial activism by saying that it 
means a judge reaches a liberal result in a case or that it means a 
judge strikes a statute down. In my view, neither is correct. The 
dangerous sort of judicial activism occurs when a judge refuses to 
follow the law as written and intended regardless of whether the result 
is liberal or conservative, and regardless of whether the statute was 
struck down or upheld.
    This judicial activism--or failure to follow the law as written and 
intended--has real consequences to real people. Take, for example, 
Sergeant Patrick Boyle who saw a federal judge release thousands of 
prisoners in Philadelphia. The law gives a federal judge the power to 
interpret the law, not to assume the executive duties of a warden. 
Nonetheless, the judge released the prisoners and within 18 months they 
had committed hundreds of new crimes, including 79 murders.\9\ One of 
the murder victims was Sergeant Boyle's son. While the judge reached a 
liberal result in releasing the prisoners, it was judicial activism 
because she did not follow the law.
---------------------------------------------------------------------------
    \9\ Judicial Activism Defining the Problem and its Impact: Hearings 
before the Subcomm. On the Constitution Federalism and Property Rights 
of the Senate Comm. on the Judiciary, 105th Cong., 47-48 
(1997) (testimony of Patrick Boyle).
---------------------------------------------------------------------------
    And there was a judge in New York who refused to punish protestors 
who harassed patients at an abortion clinic.\10\ The F.A.C.E. Act 
requires that such harassment be punished. Nonetheless, the judge would 
not follow the law. Although I disagree with abortion, the F.A.C.E. Act 
prohibits such harassment and should have been enforced. While the 
judge reached a conservative result, it was judicial activism because 
he did not follow the law.
---------------------------------------------------------------------------
    \10\ United States v. Lynch, 952 F. Supp. 167 (1997).
---------------------------------------------------------------------------
    Further, if Congress passed a law prohibiting public speeches that 
criticized Senators, the current Supreme Court should strike it down 9-
0. This would not be judicial activism, but would be in accord with the 
clear command of the Constitution that ``Congress shall make no law . . 
. abridging the freedom of speech.'' \11\ Indeed, upholding such a law 
despite the words of the Constitution would be activism whether liberal 
or conservative speech was silenced.
---------------------------------------------------------------------------
    \11\ U.S. Const. amend. I. In contrast, in 1934, in Home Building & 
Loan Ass'n v. Blaisdell, the Supreme Court upheld a statute passed by a 
State legislature that abrogated mortgage contracts despite Article I, 
Section 10 of the Constitution which clearly provides that ``No State 
shall . . . pass any . . . Law impairing the Obligation of Contracts . 
. . .'' This was activism because the Court did not follow the clear 
command of the Constitution, but assumed the role of active policy-
maker itself.
---------------------------------------------------------------------------
    As for me, I am not willing to trade reaching politically palatable 
results in a few cases for certain application of the same rules to the 
highest government official and the most humble citizen in all cases. I 
am not willing to trade some judge's view of political justice for that 
described on the face of the Supreme Court Building--``Equal Justice 
Under Law.''
                               Conclusion
    In my view, the President and the Senate should work together to 
appoint qualified, fair judges who will follow the law. Today, while 
the Senate leaders continue to negotiate the peripheral issues of 
whether controversial nominees will receive a floor vote or whether a 
blue slip will be public, I urge Chairman Leahy to join the other 
Democratic Chairmen of the Armed Services, Banking, Veteran Affairs, 
Indian Affairs, and Foreign Relations Committees in starting to move 
forward in a bipartisan manner to hold hearings on judicial nominees. 
We now have blue slips returned and American Bar Association ratings of 
qualified or well qualified for several nominees that await a hearing. 
I am hopeful that Chairman Leahy, who appreciates and respects the 
federal judiciary and the Senate, will move promptly to provide 
judicial nominees with fair hearings.
    Thank you, Chairman Schumer. I look forward to listening to the 
statements from the other Senators here today and to hearing from our 
distinguished witnesses.

    Chairman Schumer. Thank you, Senator Sessions.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I certainly 
commend you for calling this hearing on the Senate's role in 
the selection of the Federal judiciary, and particularly on the 
question of the role of ideology in the judicial selection and 
confirmation process.
    This, of course, is an extremely important topic for our 
committee, and I know that we all take our role in this process 
very seriously. I look forward to the testimony of the 
witnesses and appreciate their willingness to help us sort 
through some very difficult but absolutely crucial issues.
    Let me begin by noting, as I did earlier this year, my view 
that nominations to the Federal judiciary differ from 
nominations to the President's Cabinet. I believe that the 
Senate owes the President perhaps the most substantial 
deference in the selection of the Cabinet. This deference flows 
in large part from the language of the Constitution which 
imposes on the President the duty faithfully to execute the 
laws of the Nation.
    I believe these considerations do not apply with equal 
force in the selection of the Federal judiciary. While in the 
constitutional scheme Cabinet members and other executive 
branch officials work to carry out the will of the President, 
our Constitution intends that the Federal judiciary will act 
independently as a check and balance on the executive and 
legislative branches of the Government.
    An independent judiciary has been the hallmark of our 
constitutional system of checks and balances. The Founders knew 
well the writings of William Blackstone, who said in his 
Commentaries, ``In this distinct and separate existence of the 
judicial power consists one main preservative of the public 
liberty which cannot subsist long in any state unless the 
administration of common justice be in some degree separated 
both from the legislative and also from the executive branch.''
    The Constitution confers on the President the power to 
submit judicial nominations to the Senate, but I don't think 
the President is entitled to pack the judiciary with highly 
ideological judges. And the President is not entitled to pack 
the judiciary with judges certain to support the President's 
views on virtually all issues, such as a woman's right to 
choose, affirmative action, federalism, and church/state 
relations.
    The Federal judiciary is fundamental to protecting and 
advancing the rights of citizens and the rule of law, which 
forms the foundation of our Nation's economic and social well-
being. We on the Judiciary Committee have a responsibility to 
protect the independence of the judiciary. We serve that 
responsibility when we given a high level of scrutiny to 
judicial nominees.
    The distinguished chairman, Senator Schumer, has expressed 
three touchstones for his evaluation of judicial nominees: 
excellence, moderation, and diversity. I share his view, but 
would add at least two touchstones of my own--fairness and 
open-mindedness. In other words, I would stress the ability of 
the nominee to conduct himself or herself as a judge, as that 
term is usually understood by most Americans.
    Senator Sessions and I have served together on this 
Committee for 6 years, but we do see the recent past 
differently.
    I just saw a different picture, Senator. We get along well 
as colleagues, but I saw a very different series of events. I 
thought the Republican majority in the Senate badly mistreated 
President Clinton's judicial nominees. I, for one, believe that 
some Republicans essentially refused to recognize that 
President Clinton won reelection in 1996 and too often treated 
every year after that as an election year as they considered 
judicial nominations.
    I believe that the time has come to end this cycle of 
recrimination, if we can, but it is not up to the Senate, now 
under Democratic control, to unilaterally call a truce. The 
President must lead. I call on the President to act boldly and 
begin a new era of cooperation on judicial nominations. That 
means engaging in true and meaningful consultation with the 
Senate on his nominations, and I think it means recognizing the 
improper efforts of his party to block President Clinton's 
nominees by renominating those who received the most 
reprehensible treatment.
    If he does that, I think he will find a lot of Senators 
willing to follow his lead and it would be an historic step. If 
he does not, this Senator stands ready vigorously to exercise 
his right and responsibility to advise and consent on 
nominations. I shall resist efforts to pack the judiciary 
simply with idealogues, and I am certain in that regard, Mr. 
Chairman, I won't stand alone.
    Thank you.
    Chairman Schumer. Thank you, Senator Feingold.
    We have three members of the full committee, or two will 
soon be of the full committee, we hope, who are not members of 
the subcommittee, but this is an important hearing and I would 
recognize them for opening statements, just asking them to be a 
little mindful of the time since we have a vote at 11:30.

  STATEMENT OF HON. JON KYL, ARIZONA, A U.S. SENATOR FROM THE 
                        STATE OF ARIZONA

    Senator Kyl. Thank you. Mr. Chairman, as a member of the 
full Committee and almost the Chairman of this subcommittee, or 
now your ranking member, I appreciate the opportunity to be at 
this hearing. I kind of regret that I didn't take that 
assignment, but my colleague, Jeff Sessions, wanted it and he 
will do far better than I. In any event, I appreciate your 
courtesy in allowing us to make a brief opening statement.
    I find it interesting that the argument that a candidate's 
ideology should be a sufficient rationale for rejection is 
characterized as a bipartisan approach. I would think that 
bipartisanship would mean quite the opposite. Cooperation with 
the President on a bipartisan basis I don't think begins with a 
threat that we are going to reject your nominees, no matter how 
competent they might be, if we don't like their political 
ideology, as we interpret it to be.
    I think we should make no mistake that what is being 
suggested here is a significant departure from the way that 
nominees have traditionally been treated. Have there been 
exceptions? Quite assuredly so, but they prove the rule because 
they are exceptions to that general deference that has always 
been given to the President's nominees.
    From a bipartisan point of view, it concerns me because I 
do believe it puts us on a very dangerous path of confrontation 
and contention here within the Congress, as well as in our 
relationship with the President, and also, as Senator Sessions 
has said, creates a very bad precedent.
    I also found it interesting that the Chairman alluded to 
President Bush's campaign theme and frankly the reaction to 
that by his opponent, who made it clear that if President Bush 
were elected, he would be putting strict constructionists like 
Justice Thomas and Justice Scalia on the Supreme Court.
    That, of course, I think was a correct characterization of 
the tradition that a President does do that. A President has 
that right when he is elected, and he has been elected, by the 
way, even though it was a close election. President Bush is the 
President, and I think the Democrats who campaigned against him 
on the basis that he would try to appoint people that were 
consistent with his judicial philosophy were correct in saying 
that he would do that, that that would be the end result, 
because the Senate has always confirmed nominees more or less 
of the President elected, regardless of how close the election 
was. President Clinton, after all, never had a majority of the 
citizens of this country vote for him, but we gave significant 
deference to his nominees.
    I think that it is a difference between a judicial approach 
rather than a political ideology. If you question that, look 
only to Justice Scalia, one of President Bush's favorite 
Justices, as he said, who just recently reached a result 
consistent with his judicial philosophy that I was a little 
concerned about politically because it restricted the police's 
right to gather evidence about what was going on in someone's 
home. He very strictly construed the Fourth Amendment as, in 
his view, prohibiting the police activity to advance law 
enforcement in the Kyllo case. That is, I think, a good 
recognition of the difference between a judicial philosophy and 
political ideology.
    I will just conclude with this point. For us in the Senate, 
all political figures, to assume that we can, with blindfolds 
over our eyes, maintain a balance on the Court at any given 
time, I think, is sheer folly. Would any of us have wanted to 
retain the balance on the Court after the Dred Scott decision? 
That is not the way it works.
    I would defy my colleagues to define balance today. I just 
have three quick examples here. On a 5-4 decision in the Kyllo 
case, Scalia's majority was joined by Justices Souter, Thomas, 
Ginsburg and Breyer. Justice Stevens' dissenting decision was 
joined by Rehnquist, O'Connor and Kennedy. Now, that is an 
interesting balance. Is that the balance we want to preserve? 
If so, I defy my colleagues to figure out how to do that.
    Contrast that in the equal protection case, the so-called 
Nguyen v. INS case that Justice Kennedy wrote for the majority, 
and his majority was comprised of Rehnquist, Stevens, Scalia 
and Thomas. O'Connor wrote the dissent, joined by Ginsburg and 
Breyer. Well, that is an interesting balance. Is that the 
balance that we want to preserve here?
    Or the two flag-burning cases in which Justice Brennan's 
majority opinion--this was back in 1989--was joined by 
Marshall, Blackmun, Scalia and Kennedy, and Rehnquist, Scalia 
and White dissented. Now, that is an interesting balance. 
Should we preserve that balance?
    My point is that for us as political figures--and this is 
our milieu, politics--to try to translate our political views 
onto a Court's job and maintain balance by our confirmations, I 
think, is sheer folly. Instead, we should all revert to what 
has traditionally been our role, judging the competence of the 
candidate; the qualifications, including judicial temperament, 
the background; and also some look at judicial philosophy.
    We are going to have some differences of opinion on 
judicial philosophy, but at a minimum it should be to adhere to 
precedent, to try to interpret the Constitution as honestly and 
in conformance with the rule of law as possible, and to allow 
injection of political ideology into the process. So it seems 
to me that we are on a very slippery slope, Mr. Chairman, when 
we begin to assert that pure ideology is a basis for rejection 
of the President's nominees.
    Thank you.
    Chairman Schumer. Thank you, Senator Kyl.

  STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 
                       STATE OF KENTUCKY

    Senator McConnell. Thank you, Mr. Chairman. I first began 
to deal with the Senate's advise and consent role as a staffer 
here in 1969 and 1970 to a member of this Committee during the 
Haynesworth and Carswell nominations, and subsequently wrote 
the only law journal article I wrote as a young man on that 
subject after those contentious nominations were concluded. I 
believed then and believe now that the appropriate role of the 
Senate is largely as Senator Kyl suggested, which is to judge 
the competence and the integrity and the fitness of a judge to 
be on the bench.
    I dutifully returned, gagging occasionally, every single 
one of the blue slips I received during the Clinton years 
positively. My view then and my view now is that the President 
won the election, no matter what the margin, and is entitled 
for the most part to tilt the judiciary in the direction that 
he feels appropriate.
    As Chairman of what we have come to call around here the 
Gang of 5, the G-5 group, over the last two or 3 weeks I have 
been involved in the issue in a different way, which is to 
discuss the appropriateness of making blue slips public, 
something we should have d1 years ago, and establishing for 
this Congress, and for that matter forever, as far as I am 
concerned, if we can do it, that Supreme Court nominees will 
ultimately be voted on by the full Senate. That is the 
tradition going back to 1880 for Supreme Court nominees to be 
determined by the full Senate. Nowhere in the Constitution is 
it suggested that advise and consent means only the Senate 
Judiciary Committee. That is just a starting place. In fact, at 
the end the full Senate ought to make these determinations.
    What I fear is going on with the hearing today is trying to 
establish a new litmus test for the Senate that has not existed 
in the past. I don't understand why we are seeking to do that. 
As Senator Sessions pointed out, and I think Senator Kyl 
alluded to this as well, 377 of President Clinton's nominees 
were approved. During 75 percent of his term, there was a 
Republican Senate here. During President Reagan's years, during 
which he had during 75 percent of his tenure in office a 
sympathetic Senate, only a few more were confirmed, 382.
    So what I fear is going on here is an effort to establish a 
new standard under which nominees are judged and a litmus test 
is established that substantially is at variance with the 
majority of the American people. What appears to be happening--
and I hope this will not prove to be the case--is that some on 
the left are increasingly dedicated to shutting down the 
vibrant marketplace of ideas and replacing it with a monopoly 
of thought where the only commodity to be bought is a kind of 
liberal orthodoxy.
    Their reason is that the conservative views are not ``in 
the mainstream.'' Well, I can't see my chart over there, but I 
believe the first thing we have up is a six-point litmus test. 
What I fear is going on here is an effort to establish a litmus 
test where you have to support judicial activism, restrict 
First Amendment rights of political speech and association, 
oppose Second Amendment rights for law-abiding citizens, 
support partial-birth abortion, support racial preferences, and 
expand the Federal Government or, put another way, diminish the 
role of the States. Those are views that you have to espouse in 
order to be approved by this committee. Now, those are not the 
views out in middle America.
    The other chart that I have put up sort of illustrates 
where most of the country is. The States in red on the chart 
are commonly referred to as middle America. I would suggest 
that most of those folks are in the real mainstream, people in 
Kentucky and Kansas and Ohio. The odds are, if you are from 
those States, you will have middle American values. And if you 
do and you are nominated to the Federal bench, under what I 
think may be trying to be established here today and in the 
future, you may be unable to serve because your values are 
considered suspect or somehow outside the mainstream.
    Well, where is the mainstream, I ask you? Where is the 
mainstream? All across most of America, in most of the States, 
I think the mainstream would be quite different from what may 
be underway here today to establish as sort of acceptable views 
things that are far different from what most Americans hold.
    That is why the safest place to be and the sound place to 
be and the place where the Senate has been most of the history 
of our country is largely deferring to the President on the 
question of ideology and judging the competence and the 
integrity of the nominee.
    The President was elected, not the editorial board of the 
New York Times. And as astonishing as it may sound to some 
here, the editorial views of the New York Times are not 
mainstream values. Those are not the values of the vast 
majority of Americans.
    So I think we are going down, as Senator Kyl said, a 
slippery slope if we are trying to establish here the principle 
that this Committee should adopt the views of the New York 
Times editorial page, describe those as mainstream values, and 
anyone who doesn't hold them need not apply, and may actually 
die right here in this Committee and never even be considered 
by the full Senate of the United States.
    I doubt if the Founding Fathers were aware that there would 
be a Judiciary Committee. It probably never occurred to them. 
When they said ``advise and consent,'' I think they were 
talking about the full Senate. Certainly, the Founding Fathers 
did not envision that there would be a bunch of co-presidents 
here. They did, after all, give the power to nominate to the 
President.
    So, Mr. Chairman, I hope that that is not the ultimate goal 
of this hearing to establish values, if you will, that are far 
removed from mainstream America, and say that if you don't hold 
those values, you can't be on the Federal judiciary. I hope 
that is not the way we are headed.
    I thank you very much for the opportunity to make an 
opening statement.
    [The prepared statement of Senator McConnell follows.]

  Statement of Hon. Mitch McConnell, a U.S. Senator from the State of 
                                Kentucky

    Determining what is the exact role of the United States Senate in 
the confirmation process is an important question, and I thank the 
Chairman for convening this hearing to try to answer it. From press 
accounts I have read, I am very concerned, however, that some of my 
colleagues have a much more specific, and a much more disturbing, goal 
for this hearing. That goal is to establish that it is somehow 
constitutionally incumbent upon this body to disqualify otherwise well-
qualified judicial nominees simply because they are not on the left of 
the political spectrum. Once my colleagues and their supporters on the 
far left believe they have established this premise, I fear they will 
then work to block all judicial nominees who do not fall on the 
``correct'' side of the political spectrum, as they define it.
    This is a troubling proposition. It is one that does not bode well 
for the nomination process, nor for the rich intellectual tradition 
that has characterized our federal judiciary. One of the great 
traditions of our Republic has been the free exchange of thoughts, 
embodied in the metaphor of the ``market place of ideas,'' where 
speakers hawk their wares, bidding for the minds of men. Our judiciary 
has benefitted from what has been, up until now, our profound national 
commitment to diverse thought and rigorous debate. I cannot imagine how 
much poorer our legal tradition would be if it would have been deprived 
of the rich intellect of such different thinkers as Oliver Wendell 
Holmes, Hugo Black, William Brennan, and Antonin Scalia.
    But unfortunately it appears that some on the left are increasingly 
dedicated to shutting down this vibrant market place and replacing it 
with a monopoly of thought, where the only commodity to be bought is 
liberal orthodoxy. Their reason? That conservative views are not ``in 
the mainstream.'' Well, Mr. Chairman, I'm sorry, but the values of 
middle America are most certainly in the mainstream, and arguably 
embody it.
    All these states in red-these states, commonly known as ``middle 
America"-are ``in the mainstream.'' [See Chart With Map] Kentuckians, 
for example, are ``in the main stream.'' So too are Kansans and 
Ohioans. Odds are, if you are from these states, you will have middle-
American values. And if you do, and you are nominated to the federal 
bench, you most likely will be unable to serve, because those on the 
far left are crafting a new, six-point litmus test to bar you from the 
bench. [See Chart With Bullet-Points]
    Now, we are all familiar with litmus tests, but I'm afraid that 
some on the far left are taking it to new, disturbing levels. In their 
view, in order to serve as a federal judge, you must:

         Support Judicial Activism;
         Restrict First Amendment Rights of Political Speech 
        and Association;
         Oppose Second Amendment Rights for Law-Abiding 
        Citizens;
         Support Partial-Birth Abortion;
         Support Racial Preferences; and
         Expand the Federal Government by Diminishing the Role 
        of the States
    Under their approach, if a nominee is tripped-up by any one of 
these hurdles, he is unfit to serve. His education will not matter. His 
experience will not matter. His achievements, both personal and 
professional, will not matter, nor will the fact that he may have 
overcome numerous adversities, suffered untold hardships, and even 
received the approval of the ABA. It will not matter if he has fought 
for his country, given to his community, or sacrificed for his family. 
Because he is not the person whom the editorial board of the New York 
Times would have picked to serve on the bench, he is barred from 
service.
    Over the years, people from time to time have objected to judicial 
nominees on the ground that their legal views were extreme. But until 
now, they have saved ``Borking'' for an unlucky few. Until now, they 
have not tried to convert the usage of ``Borking'' from an exception to 
the rule itself. They have not sought to disqualify an entire class of 
nominees from public service based on their philosophy. They have not 
essentially said, until now, that ``Prolifers need not apply.''
    My colleagues, if we go down this road, we will have a meltdown in 
our nomination process. It will be mutuallyassured destruction that 
will cripple the federal judiciary. It is naive to think that such a 
dramatic escalation in partisanship will not, by necessity, be visited 
upon the next Democrat to occupy the White House. We therefore cannot 
allow ``advise and consent'' to become ``demand and dictate.'' The 
Constitution does not provide for 100--or even 51--co-Presidents. So I 
caution my colleagues to be judicious in their objections to the well-
qualified Americans who will come before them.
    Voting for nominees of another philosophical stripe can be painful, 
but both sides have always done it. Most recently, I point to President 
Clinton's near-record number of 377 judicial nominees who were 
confirmed, even though Republicans controlled the Senate for 75% of his 
term. For eight long years I voted to confirm most of President 
Clinton's nominees, although there is no way I would have nominated 
most of these people if I were President because I disagreed with their 
judicial philosophy, sometimes vigorously so. But I did not wage some 
sort of jihad to stop them because, quite frankly, it was not 
appropriate for me to do so. Nor would it be appropriate now for my 
colleagues on the other side to bow to pressure from groups on the far 
left and wage an all-out war against well-qualified Americans who seek 
to serve their country. So, in closing, I would caution my colleagues 
to be mindful of the precedent they are setting, and to be wary of what 
they wish for.
    Thank you.
    [GRAPHIC] [TIFF OMITTED] T9825.027
    
    [GRAPHIC] [TIFF OMITTED] T9825.028
    

    Chairman Schumer. Thank you, Senator McConnell, and we 
won't ask you to substitute the views of the Courier Journal 
for those of the New York Times in your statement.
    [Laughter.]
    Senator McConnell. They are indistinguishable. They simply 
rewrite them each day, one day later.
    [Laughter.]
    Chairman Schumer. The Senator from Kansas for a brief 
opening statement.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you, Mr. Chairman, and thank you 
for allowing me to participate during this reorganization 
period on the committee.
    I think a number of my colleagues have expressed a high 
degree of concern of getting into an ideological set of litmus 
tests here on considering judicial nominations, and I would 
support those concerns. I think those are proper, I think they 
are wise. I think they are the sort of philosophy and thought 
that we should consider over a long period of time, the impact 
of inserting ideology in the matter.
    I have always given the President, regardless of his 
political affiliation, a good deal of deference on his 
nominees, or her nominees in the future, to the Federal bench. 
However, I have heard some call for changes on this deference 
now because, while ideology has been discussed in the back 
rooms, now we should bring it out and openly bring it forward.
    I don't think we should be inserting ideology in these 
matters, ideology for a liberal litmus test or a conservative 
litmus test, going either way. I would just like to take, if I 
could, Mr. Chairman, a few minutes to discuss the number of 
past jurists that we have had who would not make the bench 
today if we went on an ideological test.
    Take, for example, Justice Hugo Black, a great liberal 
Justice, the architect of extending the Bill of Rights to the 
States. This Roosevelt appointee could not be confirmed under 
the new standard because he did not believe that the 
Constitution's test provided protection to contraception, and 
he did not believe that the Equal Protection Clause prohibited 
poll taxes for State elections.
    Let's look at Felix Frankfurter, a liberal intellectual who 
advocated validating New Deal legislation under the Commerce 
Clause. This Roosevelt appointee could not be confirmed under 
the new standard because he did not believe that the First 
Amendment prohibited schools from requiring students to salute 
the American flag. He did not believe that the Fourth Amendment 
required the exclusion of evidence seized by State police 
officers without a warrant. He did not agree that the Equal 
Protection Clause required reasonable apportionment among State 
voting districts.
    Justice Byron White, President Kennedy's appointee, a 
respected Yale Law graduate, could not hope for confirmation 
under the new standard. He did not believe that the 
Constitution included a right to an abortion.
    Justice Lewis Powell, a philosophically moderate president 
of the American Bar Association who worked to implement 
desegregation in Richmond's public schools, could not be 
confirmed under the new standard. He could not be confirmed 
because he believed that, while race could be considered in 
university admissions, racial quotas could not be used.
    Oliver Wendell Holmes, the great dissenter from the pre-New 
Deal Courts, couldn't be confirmed. He looked at use of 
substantive due process to strike down labor laws, and was an 
avid defender of the Free Speech Clause. He would have trouble. 
After all, he affirmed a State law providing for the 
sterilization of the mentally ill.
    Louis Brandeis, a great liberal craftsman, could be 
disqualified based on his views on federalism. He voted to 
strike down a Federal tax on child labor as invading the 
sovereignty of the States, and believed that the headlong drive 
for national power by the supporters of the New Deal threatened 
to destroy one of the great bulwarks of liberty, that being 
federalism. He later voted to strike down pieces of New Deal 
legislation as beyond Congress' commerce power and as an 
unconstitutional delegation of power.
    Finally, what about Earl Warren, the author of Brown v. 
Board of Education, a great decision in my hometown, and a 
champion of civil rights? He could have a tough confirmation 
battle under the new standards. After all, he took the 
reactionary position of not supporting extension of the First 
Amendment protection to flag-burning.
    If a Democrat President nominated such individuals, most of 
whom would be left of center, a Republican Senate would give 
them due deference, and I think it would be wise that they 
would. Likewise, if a Republican President nominated qualified 
nominees who were mostly right of center, I think a Democratic 
Senate should give them due deference as well.
    Yet, to some special interest groups, the above nominees 
would be too extreme. Perhaps the real extremism is being 
employed by those artfully using the terms ``balance'' and 
``moderation'' to set the stage for ending deference to the 
President and excluding perfectly qualified nominees.
    Mr. Chairman, I make those comments and those examples 
because I think if you take any single nominee and you pick one 
thing, two things, maybe three things out, you can find an 
ideological reason that they should be excluded. I listed some 
of the great jurists of this country's history, and would we 
exclude all of those today from serving on the Court? I would 
hope not. But I think if we start going down this road of 
saying that ideology is the litmus test that we are measuring 
on, we have the opportunity of blocking some of the great 
people that could serve on the bench and I think that would be 
a wrong step for us to take.
    Thank you.
    Chairman Schumer. I thank the Senator, and thank all of my 
colleagues for statements.
    I would just say in reference to the Senator from Kansas, 
no one is saying that a single issue should block any judge. 
The question--and we are trying to explore this question, and I 
regret that some of my colleagues seem so defensive about an 
exploration of what has been a time-honored discussion--is 
whether their views on those issues or other issues should 
enter into the discussion as we evaluate them. But evaluation 
does not equal a litmus test, and in the past, at least, it 
seems to me that we have avoided even evaluation on those 
issues and it is a very open question as to whether that should 
continue.
    We will have some great witnesses, whom we will get to 
right now, to discuss that, and so let me thank them for their 
patience and for their being here. We have two gentlemen who 
have been extremely involved, of course, in the Presidential 
part of the selection of judges and Justices, and let me call 
on both of them.
    First, Lloyd Cutler is a partner and senior counsel in the 
Washington law firm of Wilmer, Cutler and Pickering. From 1979 
to 1980 and in 1994, he served as counsel to Presidents Carter 
and Clinton. Mr. Cutler is a graduate of both Yale College and 
Yale Law School, and a founder and former co-chairman of the 
Lawyers Committee on Civil Rights under Law. He has also served 
as the co-chairman of the Committee on the Constitutional 
System, a member of the American Law Institute, and trustee of 
the Brookings Institution. He is testifying today in his 
capacity as a co-chair of the Constitution Project's bipartisan 
Courts Initiative. I want to thank Mr. Cutler for joining us.
    Immediately after him, we will hear from C. Boyden Gray. 
Mr. Gray is presently a partner in the Washington, D.C., law 
firm of Wilmer, Cutler and Pickering. Mr. Gray graduated from 
Harvard College magna cum laude, and first in his class from 
the University of North Carolina Law School, where he served as 
editor-in-chief of the UNC Law Review.
    Following graduation from law school, he clerked for Chief 
Justice Earl Warren of the U.S. Supreme Court for a year. He 
served as legal counsel to Vice President George Bush from 1981 
to 1989. Mr Gray later served as counsel to President Bush from 
1989 to 1993.
    I want to thank both of you for coming. Your entire 
statements will be inserted into the record.
    Mr. Cutler, you may proceed.

STATEMENT OF LLOYD N. CUTLER, CO-CHAIR, CONSTITUTION PROJECT'S 
COURTS INITIATIVE, AND FORMER WHITE HOUSE COUNSEL, WASHINGTON, 
                              D.C.

    Mr. Cutler. Thank you very much, Mr. Chairman and members 
of the committee. Since you referred to our law firm twice, I 
should note for the record that Boyden and I were law partners 
there before either of us became counsel to a President.
    In listening to the opening statements, I couldn't help 
noticing your differences on what I call ideology begin with 
how to pronounce it. You, Mr. Chairman, Senator Feingold and 
Senator Kyl all say ``ideology.'' Senator Sessions and I say 
``ideology.'' It seems to be a question of ``you say tomato and 
I say tomato.'' Perhaps the best answer to it all is Potter 
Stewart's famous remark about pornography that he could not 
define it, but he knew it when he saw it. Perhaps that is 
equally fair about ideology.
    I have served on these two national committees that you 
referred to, one run by the Miller Center at the University of 
Virginia, in 1999, and the other run by the Century Foundation, 
and you have just referred to that as well. There conclusions 
on this issue of ideology are set forth in their reports, and I 
want to read only one extract from the Miller Center report 
which essentially agreed to in the later 1999 report of the 
Century Foundation.
    The Miller report: ``What is most important is the 
appointment of judges who are learned in the law, who are 
conscientious in their work ethic, and who possess what lawyers 
describe as `judicial temperament.' That term, difficult to 
define, essentially has to do with a personality that is 
evenhanded, unbiased, impartial, courteous yet firm, and 
dedicated to a process, not a result. The law will be fairly 
read and applied, irrespective of the judge's personal views as 
to its wisdom; where the judge is the finder of fact, the facts 
will be fairly found.''
    ``As this Report recognizes, throughout our history the 
appointment process has been built on politics. . .The 
Commission believes it would be a tragic development if 
ideology became an increasingly important consideration in the 
future. To make ideology an issue in the confirmation process 
is to suggest that the legal process is and should be a 
political one. That is not only wrong as a matter of political 
science; it also serves to weaken public confidence in the 
courts. Just as candidates should put aside their partisan 
political views when appointed to the bench, so too should they 
put aside ideology. To retain either is to betray dedication to 
the process of impartial judging. Men and women qualified by 
training to be judges generally do not wish to and do not 
indulge in partisan or ideological approaches to their work. 
The rate exception should not be taken as the norm.''
    Now, we recognized in both commissions, and I personally 
recognize that there is a very fine between ideology and other 
considerations. Is the candidate judicious? Is he fair and 
open-minded? Are his decisions prepared and presented in a way 
that is likely to be accepted as having those qualities by the 
general public? And is his personal conduct beyond reproach? 
All of these are legitimate questions for an administration 
nominating judges and for the Senate in deciding whether to 
confirm them.
    As many of you have noted, Senators can and do reject 
candidates on the ground that they are ideological, but they 
need to ask themselves is this within the ambit of appropriate 
advice and consent? That, of course, at least in my view, is up 
to the Senators themselves to decide in the first instance.
    But just like Presidents and members of the Department of 
Justice and White House Counsel, they should be careful to 
limit their interrogations as to a candidate's stance on issues 
about to reach the court. As I said, the same thing also 
applies to the President and the Department of Justice.
    Candidates should decline to reply when efforts are made to 
find out how they would decide a particular case. And most 
important--and this has been a recent tendency at least in my 
last experience as White House Counsel--interest groups should 
eschew--a real lawyer's word--personal attacks on candidates to 
defeat those they want to keep off the bench.
    There have been cases that I know about personally in which 
an interest group who wanted to block a particular candidate 
literally tried to find some dirt, something to do with sexual 
behavior or whatever, to spread against that candidate to keep 
him off the bench.
    What seems to be the saving grace in all of this is the so-
called Good Behavior Clause, that judges should serve during 
their good behavior. Something happens to a judge when he is 
nominated, confirmed and put on the bench because of the Good 
Behavior Clause. He is no longer worried about will he get 
reappointed. He will often confound the President who appointed 
him, or even the Senators who voted in his favor.
    There is a famous story which I am sure the scholars will 
refer to about President Lincoln and Samuel P. Chase, who was 
then in the Lincoln Cabinet. This is, of course, the legal 
tender case in which the Court split evenly 4-4 on whether the 
Federal Government had the right to issue paper money as an 
emergency measure during the war.
    Lincoln wrote to a friend that ``we cannot ask the man how 
he would decide the case on reargument, and if he should answer 
us, we should despise him for it. Therefore, we must pick a 
candidate of whose views we are absolutely certain.'' And he 
went ahead and picked Secretary Chase, who had been a member of 
Lincoln's Cabinet and who had presented the legal tender bill 
to the Congress and had gotten it enacted. And in the outcome, 
Senator Chase, on rehearing, cast the deciding vote against the 
very statute he had helped to present.
    I see we are limited in time.
    Chairman Schumer. Please proceed. We will shut off the 
light.
    Mr. Cutler. Just one more quick point, and that is the 
point made by Professor Charles Black, who has been of our 
greatest students of the Supreme Court, and that is that the 
Court is the lynch pin of the whole constitutional system 
because it is the Court which validates most of the acts of the 
Executive and the Congress in a way that the public will 
accept, in a way that reassures the public.
    Of course, in the course of performing that duty, the Court 
occasionally, but only occasionally, knocks out a particular 
statute or a particular example of egregious Executive action. 
But its main function is to validate what the other two elected 
branches do, and to do it in a way that convinces the public 
that most of the actions of the Government are acceptable.
    The Court, as others have referred to--Senator Kyl, I 
think, about the Dred Scott case--has not always been the most 
popular institution in the country by far. The Dred Scott case 
itself, dealing with whether former slaves are really citizens 
within the meaning of the Fifth Amendment; the law invalidating 
the income tax--there are a number of other examples in which 
the Supreme Court was looked on as the defender of property 
rights, the upholder of the rights of the rich against those of 
the less fortunate.
    All of that changed with the Warren Court, my colleague 
Boyden Gray's distinguished Chief Justice for whom he served as 
law clerk. Ever since the days of the Warren Court, most 
members of the public have come to believe that the Court is 
the protector of the rights of all citizens, rich and poor. And 
that is the Court's most important function, and that function 
is less likely to be performed well by idealogues of the 
extreme left or the extreme right. It takes centrists to arrive 
at results which the general public will accept and feel 
reassured were confirmed by a dispassionate, law-abiding Court.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Cutler follows:]

 Statement of Lloyd N. Cutler, Co-Chair, Constitution Project's Courts 
      Initiative, and former White House Counsel, Washington, D.C.

    I have served on two national commissions dealing with how to 
improve the process of nominating and confirming federal judges. Both 
have taken up the ideological issues that are the subject of your 
hearing today. The first commission, created by The Miller Center of 
Public Affairs at the University of Virginia, filed its report in 1996. 
The second, created by the Century Foundation and called Citizens for 
Independent Courts, filed its report in 1999.
    My views on the role of ideology in the nominating and confirming 
process are set forth in these reports. They are incorporated in my 
statement. I will read a few key paragraphs from-each:
First The Miller Center report in 1996:
    ``What is most important is the appointment of judges who are 
learned in the law, who are conscientious in their work ethic, and who 
possess what lawyers describe as ``judicial temperament.'' That term, 
difficult to define, essentially has to do with a personality that is 
evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a 
process, not a result. The law will be fairly read and applied, 
irrespective of the judge's personal views as to its wisdom; where the 
judge is the finder of fact, the facts will be fairly found.''
    ``As this Report recognizes, throughout our history the appointment 
process has been built on politics. The danger of purely political 
appointees lacking the necessary competence led Attorney General 
Brownell to introduce the American Bar Association's participation in 
the process. At that time--and for some years thereafter--relatively 
few persons in the Executive Branch and the Senate or its staff worked 
on judicial appointments, and rarely were any of them, even when 
lawyers, experienced in court practices and procedures. The ABA 
Committee was designed to fill that lack and insure, insofar as the 
political process permitted, the high quality of those selected.''
    ``In addition to the growing number of appointments, the changing 
political process has had its impact on who the candidates for judicial 
office are and whether they will be nominated and confirmed. The 
increasingly ideological nature of political campaigns, the need for 
huge sums of money, the growth of dependence on contributions from 
various ideological groups, and the willingness of these groups to 
launch personal attacks on candidates they ideologically oppose, has 
the potential to affect the appointment process in unfortunate ways. 
Even putting aside the cases of Supreme Court nominees such as Robert 
Bork and Clarence Thomas, where this problem was obvious, there have 
been some signs of similar ideological controversy creeping into the 
process of nominating and confirming lower court candidates. While it 
appears that the present administration has been conscious of the 
problem and relatively successful in avoiding such ideological 
controversies, we have learned of occasional episodes where qualified 
candidates have refused to be considered or have withdrawn from fear of 
being ``Borked.''
    The Commission believes that it would be a tragic development if 
ideology became an increasingly important consideration in the future. 
To make ideology an issue in the confirmation process is to suggest 
that the legal process is and should be a political one. That is not 
only wrong as a matter of political science; it also serves to weaken 
public confidence in the courts. Just as candidates should put aside 
their partisan political views when appointed to the bench, so too 
should they put aside ideology. To retain either is to betray 
dedication to the process of impartial judging. Men and women qualified 
by training and experience to be judges generally do not wish to and do 
not indulge in partisan or ideological approaches to their work. The 
rare exception should not be taken as the norm.
    In any case, it is our view that the important process of 
appointing federal judges need not be as difficult as it now seems. The 
ultimate question is simply whether or not potential candidates have 
the qualities of integrity, good judgment and experience to become 
judicial officers of the United States. Occasional mistakes will be 
made. But no amount of bureaucratic vetting or testing for ideology 
will achieve perfection, and too complex a process can do more harm 
than good.''
Second, the Century Foundation Report in 1999:
    Recommendations for Executive and Legislative Branch Reviewers on 
Ideology in Federal Judicial Selection
    1. Candidates for judgeships should be committed to deciding cases 
based on the law and facts of particular cases, without the intrusion 
of any rigid ideological pre-commitments to certain results or 
approaches to the law.
    2. Reviewers should investigate a candidate's experience, 
qualifications, temperament, character, and general views of the law 
and of the judicial role. Selecting a federal judge is not just a 
matter of picking a legal technician, for a person's judgments may well 
reflect one's broad values and commitments.
    3. Reviewers must refrain from asking candidates for particular 
pre-commitments about unresolved cases or issues that may come before 
them as judges.
    4. The limit on questions seeking pre-commitments should be applied 
by reviewers in a common-sense fashion. In particular, this limit 
should not be allowed to prevent a fully deliberative investigation 
into the backgrounds, qualifications, and judicial philosophies of 
candidates for judgeships.
    5. The limit on questions seeking pre-commitments should be 
respected equally by the President and other executive branch reviewers 
as well as by senators and other legislative branch reviewers, despite 
differences in the roles played by the two branches in the appointment 
process.
    6. The limit on questions seeking pre-commitments should apply with 
respect to candidates for courts at all levels of the federal 
judiciary.
    7. Reviewers seeking to assess a candidate's views should exercise 
caution when evaluating a person's current or former clients, 
memberships, and writings or speeches.
    8. The value of judicial independence is consistent with pursuing 
diversity on the federal bench.
    9. The value of judicial independence is consistent with active 
involvement by bar associations in the selection process.
    Rather than read these extracts from the two reports, I will file 
them for the record. After making a few personal observations of my 
own, I will be pleased to answer your questions.

    Chairman Schumer. Thank you, Mr. Cutler.
    Mr. Gray?

   STATEMENT OF C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL, 
                        WASHINGTON, D.C.

    Mr. Gray. Thank you, Mr. Chairman. Even though Lloyd and I 
come from the same law firm, we didn't cook up this testimony 
together. I am happy to see that we are not that far apart on 
this issue, although on others we do, of course, differ.
    I would like to just summarize three points from my 
testimony quickly. I think it is entirely appropriate to ask 
questions about the general philosophy of a candidate in terms 
of how he views his role as a judge and the role of the 
judiciary, but I think it is very inappropriate to ask about 
specific cases or specific issues.
    I remember very vividly as though it were yesterday coming 
down to the Senate in the beginning of the first Bush 
administration, meeting with Senators Hatch and Thurmond. The 
meeting was called by the chairman, Senator Biden, and Senator 
Kennedy was there. And we were told in no uncertain terms that 
if they caught us asking any potential nominee any questions 
about specific cases that that nominee would be flatly 
rejected.
    We took that to heart, and I think that is reflected today 
in the Senate Committee questionnaire which asks, ``Has anyone 
involved in the process of selecting you as a judicial nominee 
discussed with you any specific case, legal issue, or question 
in a manner that could reasonably be interpreted as asking or 
seeking a commitment as to how you would rule on such a case, 
issue or question?''
    I would add that this is a bipartisan approach, and remind 
the Committee of what Senator Kennedy said in 1981 in defending 
Justice O'Connor's refusal to answer questions on abortion. He 
said, ``It is offensive to suggest that a potential Justice of 
the Supreme Court must pass some presumed test of judicial 
philosophy.''
    The reason why targeting such issues as federalism for 
potential reversal is precisely because it challenges the 
independence of the judiciary and the Supreme Court, which 
independence is the cornerstone of our constitutional system.
    The second point I want to make is that ideology or litmus 
tests have, in fact, never been the rule of application by the 
Senate. Many facts and numbers have been thrown out this 
morning by members of the committee. I won't belabor the point, 
but in the last 20 or so years the Senate has changed hands 
several times, and yet nominees have been approved at the clip 
of about 190 per 4-year term.
    In the Reagan-Bush period, the Senate was held by the 
Democrats for 6 of the 12 years and by Republicans in the other 
6. I don't think there was any basic difference in how those 
nominees were treated by the Senate, and the same I think is 
true in the Clinton period, about 190 per 4-year term.
    Finally, party affiliation and perceived ideology--I 
question whether they are very good predictors of how judges 
will at the end of the day vote. Seven of the current members 
of the Supreme Court were appointed by Republicans. Yet, two of 
those seven are among the most liberal judges of the last 
period, and no one would say with certainty that they could 
have predicted how they would have voted, how their pattern of 
votes has emerged, at the time of their selection.
    One of the most famous examples of a nominee not going 
along with the program of the President who appointed him is 
Oliver Wendell Holmes. Their relationship was strained as a 
result. I think they remained friends until the end, but it was 
not something which President Roosevelt took a lot of joy in.
    The person for whom I clerked, the Chief Justice of the 
United States, Earl Warren, was viewed reputedly from the 
history books by President Eisenhower as a big mistake because 
he was thought to be so liberal. Yet, toward the end of his 
career he issued some opinions in areas of federalism which I 
think today would look conservative. His views on pornography, 
I think, today would be viewed as outright reactionary.
    The point is that I don't know how you apply a litmus test 
fairly without creating the perception, if not in fact the 
reality, of again threatening the very independence of the 
judiciary, which is such a central building block of our 
constitutional system.
    Thank you very much.
    [The prepared statement of Mr. Gray follows:]

 Statement of C. Boyden Gray, Former White House Counsel, Washington, 
                                  D.C.

    Good morning, Mr. Chairman. Thank you for this opportunity to 
appear today. If the goal of today's hearing is to answer the question, 
``Should ideology matter?'' I can answer in one word: No. The only 
legitimate question on this subject--from the White House, the Senate, 
the Judiciary Committee, or an individual Senator--pertains to the 
proper Constitutional role of a federal judge. The question is very 
simple: ``What is the proper role of a federal judge, or of the federal 
judiciary?'' If the nominee's answer is ``to interpret and apply the 
law,'' or words to that effect, then you have a nominee who understands 
the limited role of a judge. If, on the other hand, a nominee views the 
judiciary as a vehicle for favoring particular interest groups or 
particular outcomes, then the nominee is unfit to be a judge and should 
consider running for legislative office instead.
    Historically, judicial nominees have not been asked about their 
views. There simply were no hearings on judicial nominees until 1925. 
Even then, the hearings were perfunctory affairs for decades. When 
Byron White was nominated to the Supreme Court in 1962, the Judiciary 
Committee asked him eight questions and the hearing lasted 15 minutes.
    In 1981, Senator Kennedy defended Sandra Day O'Connor's refusal to 
answer questions about her views on abortion. He said, ``It is 
offensive to suggest that a potential justice of the Supreme Court must 
pass some presumed test of judicial philosophy.''
    As I said earlier, I think there is one legitimate test of judicial 
philosophy. But if the Senate--or the White House--asks overly specific 
questions, they threaten the independence of the federal judiciary by 
seeking advance commitments to rule certain ways in particular cases. 
In fact, the questionnaire that the Judiciary Committee sends to 
judicial nominees before its hearings makes clear that this is an 
unacceptable practice. The questionnaire asks, ``Has anyone involved in 
the process of selecting you as a judicial nominee discussed with you 
any specific case, legal issue or question in a manner that could 
reasonably be interpreted as asking or seeking a commitment as to how 
you would rule on such case, issue or question? If so, please explain 
fully.''
    Very early in the first Bush administration, when I was White House 
Counsel, I met with Judiciary Committee Chairman Biden and Senators 
Kennedy, Hatch and Thurmond. Senators Biden and Kennedy made it very 
clear, with Senators Hatch and Thurmond nodding in agreement, that a 
nominee would not be confirmed if the White House were caught asking 
questions about specific issues or cases.
    Both Republicans and Democrats have been accused of using unfair, 
politically driven litmus tests in nominating or confirming judges. The 
criterion I have outlined is the closest thing to a proper litmus test 
because it only considers whether the nominee understands the proper 
Constitutional role of an unelected federal judge, which in turn 
indicates whether he or she understands the American system of self-
government. In our democracy, decisions on major political issues 
should be made by the people and their elected representatives, not by 
unelected judges. This has been the prevailing and respectable point of 
view since our nation's founding. The alternative view--that judges can 
make decisions freely, without being constrained by the language of the 
Constitution or statutes--is an extreme position shared by almost no 
one. That's the view that should be described as extremist, because it 
lets judges do whatever they want, regardless of what the law says, and 
that should frighten Americans on both ends of the political spectrum. 
As Thomas Jefferson cautioned, if judges were allowed to interpret the 
law to be what they wish, the Constitution would be ``a mere thing of 
wax in the hands of the Judiciary, which they may twist and shape into 
any form they please.''
    Some organizations and individuals have urged the Senate to just 
say no to judges nominated by a President of the other party. Before 
President George W. Bush was even inaugurated, before a single judge 
had been named or nominated, one group said it would fight so hard 
against his judicial nominees that ``it will be scorched earth. We 
won't give one lousy inch.'' That hasn't been the historical approach, 
and I urge you to reject this political warfare. It threatens judicial 
independence at its most vulnerable and fundamental core.
    During the twelve years of the Reagan-Bush era, Democrats 
controlled the Senate half the time. Yet the Senate confirmed 382 of 
President Reagan's judicial nominees and 191 of President Bush's 
nominees. During Clinton's presidency, Republicans controlled the 
Senate for six out of eight years, but they confirmed 377 of President 
Clinton's judicial nominees. It's safe to say that Republicans 
disagreed with the political preferences of many of these judges, but 
they voted down only one judge. And that is appropriate; rejections 
should be rare. Alexander Hamilton said in The Federalist Papers that 
judicial nominees should be rejected only for ``special and strong 
reasons.''
    Ideology and party identification have never been very good 
benchmarks for ascertaining how a judge will decide future cases in 
controversial areas. There are seven Republican appointees on the 
current Supreme Court. Two of them are among the most liberal justices 
of the century, and most of them have supported the Court's decisions 
upholding Roe and striking down state partial birth abortion statutes. 
One such appointee--Chief Justice Rehnquist--supported the Miranda 
decision, and at least two conservative members of the bench render 
broad definitions of the procedural protections under the Fourth 
Amendment and are inclined to support greater judicial scrutiny of 
administrative agency action. Presidents, no doubt, try to identify 
nominees who will defend the White House's prerogatives, but history 
proves that such efforts are often pointless. Justice Oliver Wendell 
Holmes, for example, ended up thwarting the antitrust policies of the 
president who nominated him--Theodore Roosevelt. And, finally, justices 
do not always live up to the ``label'' they receive. Toward the end of 
his career, the justice for whom I clerked--Chief Justice Earl Warren--
invoked federalism principles that might be considered ``conservative'' 
today.
    But even if you reject the proposition that idelogy is not a good 
gauge, ideological inquiries are perilous because of the message they 
send to the public at large. If Senators focus on the results or 
outcomes in particular, people will simply view the judiciary as 
another political institution. Under this setting, law is just politics 
by other means.
    One commentator recently has suggested that the country needs some 
activist judges on the bench to maintain some balance. After all, the 
last election was close, so the courts should ``reflect the nation's 
profound ambivalence.'' Well, I don't know if we want to appoint 
profoundly ambivalent judges. After all, it's not uncommon for the 
White House and the Senate to be in the hands of different political 
parties, and we've never apportioned judicial seats on the breakdown of 
the vote in the last election. The Constitution assigns the appointment 
power to the President, and I think it's clear that the advise and 
consent role of the Senate does not include a pre-nomination function.
    In conclusion, Mr. Chairman, the key criterion for judging a 
potential judge is not ideological, but philosophical and 
Constitutional: Does the nominee have the integrity to recognize the 
limited role of a judge and leave legislating to the legislators?
    Thank you.

    Chairman Schumer. Thank you, Mr. Gray.
    Now, we will go to questions. We are going to have votes at 
11:30 and we would like to finish this panel before then, so I 
am going to stick strictly to the 5-minute rule, if we might.
    Senator Hatch. Mr. Chairman, could I ask a special 
privilege here, since I have to leave, if I could just make a 
short opening statement?
    Chairman Schumer. We will take that as your 5 minutes of 
questions. Go ahead, go ahead.
    Senator Hatch. I would appreciate it if you would.
    Chairman Schumer. The Ranking Member of the committee, who 
has always treated us fairly, please.

STATEMENT OF HON ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman.
    I want to welcome all of our witnesses here this morning. 
You are all eminent lawyers, all eminent people at your 
respective bars.
    I want to thank Chairman Schumer for permitting me to say a 
few words on the important question of what role ideology 
should play in the judicial nominations process.
    The shift of power in the Senate has focused a great deal 
of attention on the Judiciary Committee and how it will handle 
the confirmation of President Bush's judicial nominees. I hope 
that the heightened focus proves to be unwarranted and that the 
new Democratic majority will fairly treat President Bush's 
nominees to our Federal courts. In particular, fair treatment 
includes maintaining the committee's longstanding policy 
against injecting political ideology into the judicial 
confirmation process, and thus into the Federal judiciary.
    There are myriad reasons why political ideology has not 
been and is not an appropriate measure of judicial 
qualifications. Fundamentally, the Senate's responsibility to 
provide advice and consent does not include an ideological 
litmus test, because a nominee's personal opinions are largely 
irrelevant so long as the nominee can set those opinions aside 
and follow the law fairly and impartially as a judge.
    In our constitutional scheme, it is the members of the 
legislative branch, elected by the people and accountable to 
the people, who make our laws. When the voters do not like 
these laws, they can, and as we all know too well, they do vote 
their elected representatives out of office. This is what makes 
our system a representative democracy, founded on our faith in 
self-government.
    Federal judges, by contrast, are unelected, have life 
tenure, and by design are not accountable to the people. Their 
power is nonetheless justified, indeed indispensable, to the 
extent it is only exercised by interpreting the written, duly 
enacted law. The role of Federal judges is quite simply to 
apply the written law, be it the Constitution or enacted 
legislation, to the case before them.
    But when Federal judges deviate from the written law and 
decide cases based upon their own policy preferences or views 
of what is right and wrong, they in effect make up laws of 
their own, despite the lack of legitimate authority for doing 
so. When judges twist the language of legislation to enact the 
policies they prefer, they usurp the role of the legislature 
and destabilize the balance of power.
    Even worse, when they read their own preferences and 
political agenda into the Constitution, judges directly thwart 
the will of the people, and voters have no recourse. As a 
result, entire spheres of policymaking are, in effect, ruled 
off limits from the people's elected officials and instead are 
usurped by imperial judges--all-knowing guardians of justice. 
This is what we call judicial activism and it represents a 
direct attack on the democratic principles that are central to 
our constitutional system, and it is wrong whether it comes 
from the left or from the right.
    These are reasons why the Senate's appropriate role is not 
to probe the political ideology of nominees, but rather to make 
sure that the nominees will follow the law, not personal 
conviction, when deciding cases. When I discharge my 
responsibilities as a U.S. Senator to advise and consent, that 
is the test I apply, not political affiliation or views on any 
particular issue, but philosophy on a judge's limited role in 
our constitutional system of checks and balances.
    Now that I have explained why we must keep political 
ideology out of the confirmation process, I would like to 
discuss some recent attempts to reinvent history by repeating 
the convenient myth that I, as chairman, blocked President 
Clinton's judicial nominees on the basis of political ideology.
    At the outset, I must note that the confirmation statistics 
from the past 6 years demonstrate that the Republican-led 
Senate appropriately put aside the politics of judicial 
nominees. During President Clinton's two administrations, the 
Senate confirmed 377 judicial nominees. This is only five fewer 
than the number confirmed under President Reagan, who holds the 
all-time record. There would have been three more than 
President Reagan had it not been for objections by Democrats to 
their own judges on the floor for various reasons.
    This comparison is particularly relevant to the question of 
political ideology when you consider that President Reagan 
enjoyed 6 years of Senate controlled by his own party, while 
President Clinton faced 6 years of a Republican-controlled 
Senate. The overall rate of confirmation speaks for itself: the 
Senate confirmed 90 percent of President Clinton's judicial 
nominees. If Republicans had based their votes on partisanship 
or litmus test issues, there would have been but a few Clinton 
judges sitting on the Federal bench today, not a near record.
    How did we accomplish the confirmation of 377 Clinton 
judicial nominees? Well, for one thing, I held prompt hearings 
on many nominees. For example, 20 Clinton judicial nominees 
received a hearing within 2 weeks of their nomination, 34 
Clinton judicial nominees received a hearing within 3 weeks of 
their nomination, and 66 Clinton judicial nominees received a 
hearing within a month of their nomination.
    In many months, I also held multiple confirmation hearings. 
For instance, in 1997 we held 3 hearings in September, 3 in 
October, and 3 in November. We often held hearings for more 
than 10 nominees in a month, and in other months as many as 15 
or 16 nominees received a hearing. As a result, 377 of 
President Clinton's nominees are sitting judges on the Federal 
bench today, many of whom have political philosophies 
completely at odds with my own and other Republicans on the 
committee, in general.
    Given this committee's recent track record, it is clear 
that the real question posed by this hearing is not the role of 
political ideology in past confirmations, but rather whether 
the Committee should now begin injecting political ideology 
into the process.
    Mr. Chairman, I read press reports on a Farmington, 
Pennsylvania retreat that 42 Democratic Senators attended in 
late April. According to the reports, a panel discussed the 
need to scrutinize judicial nominees more closely than ever. 
One person who attended was quoted by the New York Times as 
reporting that ``they said it was important for the Senate to 
change the ground rules and there was no obligation to confirm 
someone just because they are scholarly or erudite.'' It 
appears that today's hearing may represent the first step in a 
troubling attempt to accomplish the goal of changing the ground 
rules by altering the longstanding practice of avoiding any 
examination of political ideology beyond the question of 
whether nominees could put such ideology aside.
    President Bush has indicated that he will not use social 
policy litmus tests in selecting judicial nominees, including 
nominees for the Supreme Court. Rather, he is focusing on 
qualifications, temperament, integrity, and a commitment to the 
rule of law. I believe this is consistent with the approach 
that our Founding Fathers envisioned and that Americans expect. 
I hope that my colleagues in the Senate will follow the same 
principles in their advice and consent role in confirming 
nominees.
    Mr. Chairman, can I have just a few more minutes? I 
apologize to you, and I will get out of your hair the minute I 
finish. Is that OK?
    Chairman Schumer. As long as you keep the second part of 
the promise for a long period of time, we will go with the 
first one.
    [Laughter.]
    Senator Hatch. It is my nature to not get in your hair.
    In addition to the philosophical importance of judicial 
restraint in our system of Government and to the wide public 
support for an independent judiciary, there is also a very 
practical reason to keep politics out of the confirmation 
process. No one quite knows how to assess politics in this 
context.
    Take, for example, the hearing held in 1990 concerning the 
nomination of then-Judge David Souter for the Supreme Court. At 
that hearing, Kate Michelman, Executive Director of the 
National Abortion Rights Action League, testified that ``the 
Supreme Court is on the very brink of taking away an 
established fundamental constitutional right'' and that ``we 
are just one vote away from losing our right to choose.''
    Ms. Michelman said that she had ``conducted a thorough and 
searching examination of his record'' and concluded that she 
was ``intensely concerned that, if confirmed, Judge Souter 
would destroy 17 years of precedent and cast the deciding vote 
to overrule Roe v. Wade.'' I argued that Judge Souter would be 
fair and would follow precedent. As everyone knows, the holding 
in Roe has been upheld since then and Justice Souter has proven 
to be a very reliable vote for the pro-choice position.
    I respect Ms. Michelman and she has a right to believe what 
she wants. She is certainly not alone in being unable to use a 
nominee's political views, or perceived political views, to 
predict how that nominee will rule on future cases once 
confirmed to the bench. Indeed, history is replete with 
examples of judges who surprised even the very Presidents who 
appointed them.
    President Eisenhower nominated liberal icons Earl Warren 
and William J. Brennan, Jr. If I recall correctly, President 
Eisenhower said he only made two mistakes in his presidency and 
they are both sitting on the Supreme Court. Now, that may have 
been his point of view. I don't know, but I happen to respect 
both of them. I may not have agreed with a number of their 
opinions, but they were both excellent jurists.
    President Nixon nominated Harry A. Blackmun, the author and 
defender of Roe. And President Ford nominated John Paul 
Stevens, whom some consider to be the Court's most liberal 
Justice. Two of President Reagan's nominees, Sandra Day 
O'Connor and Anthony M. Kennedy, have voted repeatedly with 
Justice Souter to uphold Roe v. Wade.
    It is even problematic to characterize the Court itself. It 
is fashionable in some circles to refer to the current Supreme 
Court as ``conservative'' and to conclude, despite the 
evidence, that the change of one Justice will inevitably result 
in a seismic shift in the Court's decisions.
    But a thorough review of the cases demonstrates that the 
Rehnquist Court defies labeling and is marked instead by 
shifting and often unpredictable coalitions. In fact, while 
many conservatives expected that Reagan and Bush nominees would 
turn back Warren-era precedents, the reality is that those 
major precedents have not been overturned.
    Even the Washington Post noted in an article after last 
summer's major decisions were handed down that the Court 
``mixes its high-profile messages.'' What this illustrates is 
that history often proves wrong those who seek to label the 
political ideology of individual judicial nominees as well as 
courts as a whole.
    In sum, Mr. Chairman, the change of power in the Senate has 
focused media attention on the judicial confirmation process, 
as well it should. At the same time, the Democratic Senate 
leaders, despite a few intemperate comments by some members, 
have recently pledged to treat President Bush's judicial 
nominees fairly, and I personally honor and appreciate those 
sentiments.
    This would be a particularly bad time to make the historic 
misstep of injecting political ideology into the confirmation 
process. Instead, we ought to renew our traditional focus of 
evaluating competence, fairness, integrity, and above all a 
commitment to enforcing to the Constitution and laws of this 
country as promulgated through our constitutional democracy.
    Mr. Chairman, I also ask that a book review I wrote in 1986 
in the Harvard Law Review on this subject, which commented on 
my good friend Professor Tribe's book, be made part of the 
record.
    Chairman Schumer. Without objection.
    Senator Hatch. I want to thank you again for holding this 
hearing. In spite of my views here, this is an important 
hearing and this matter should be discussed and it should be 
considered. But I want people to understand that President 
Clinton did not suffer by this committee. There were 41 
holdovers left at the end of his 8 years. Nine of those were 
appointed within a short time before the end of the 
Congressional session, knowing that there was not enough time 
to process them. Of the 31 more, there were some problems with 
some, and some I just couldn't get through.
    Contrast that with when the Bush Congress ended and the 
Committee was controlled by Democrats. There were 97 vacancies, 
there were 54 holdovers, and I think 6 of those were nominated 
within a short enough time that they could not have been 
considered. But that still left 48 holdovers, compared to our 
31.
    Now, the point I am trying to make is this: President 
Clinton won his first election with 43 percent of the vote. Did 
that mean that we as Republicans should have said he did not 
have the right really to appoint judges that he felt were very 
competent and important to be appointed to the bench and to the 
Supreme Court? No. I think he won his second election with less 
than 50 percent of the vote.
    This last election was a close vote, but does that mean 
that President Bush should not be given fair consideration on 
all of our judgeship nominees, especially if he really is 
trying to do what I have just outlined here as his intent? The 
answer is no. We should treat whoever is the President fairly 
and we should not allow ideological concerns, if they are 
otherwise qualified, to interfere with the confirmation 
process, even though I know that there are always some in the 
Senate who have voted on pure ideological bases.
    So I wanted to make these points because I have been very 
concerned about the judicial confirmation process throughout my 
25 years in the Senate and on this committee. I really feel 
deeply about it, and I hope that we can accord respect to 
President Bush's nominees just as we have, I think, to 
President Clinton's nominees.
    I want to thank you so much, Mr. Chairman. You are 
wonderful to let me take this time.
    Chairman Schumer. Thank you, Orrin. Let me just say first 
that this is not a hearing on who delayed who. There are 
different views about that, but you are not on any kind of 
trial here in any way. I mean, we have stayed away from that 
issue.
    What we want to do is try and figure out, given the fact 
that there has been such discontent with how hearings and 
nominations have proceeded forward to have a thorough 
examination--as you see here from the list of witnesses, you 
have a Democratic counsel and a Republican counsel agreeing on 
this question. You will hear some tremendous testimony from 
other witnesses, some of whom agree, both on the left and right 
that ideology should be part of the process, some of whom 
disagree. That is a very important issue. That is not a litmus 
test. That is not rejecting a nominee because of one particular 
view.
    I have been surprised at the defensive tone of some of my 
colleagues here. This is a fair-minded attempt to explore where 
we go, and the Constitution, if you read the Federalist Papers 
nd others--and our witnesses will address that--show that there 
has been a great deal of disagreement on this all along.
    I would just ask one question because we do want to finish 
this panel, in fairness to the schedules of others, before the 
vote, and we will submit others for the record.
    My question goes primarily to Mr. Gray, but I would be 
happy to hear Mr. Cutler answer it. Both of you have argued 
that ideology should not play a role in the process, that we 
should go for the qualifications of the judge, the intellectual 
excellence. As Senator Feingold mentioned, I have had three 
qualities for judges which many of my colleagues have adopted 
that I have chosen to bring forward. They were legal 
excellence, which we all agree with. The second was moderation. 
I don't like judges too far left or too far right. And the 
third was diversity. I don't think we should have a bench of 
all white males.
    I don't think we have too much disagreement on No. 1 or No. 
3. We may not even have disagreement on No. 2 in terms of 
everybody agreeing. I think somebody here mentioned that 
moderation is a good idea, but how do you find that moderation 
and how do you measure that moderation?
    Now, let's just assume for the sake of argument--and I 
would ask this of Mr. Gray--that the White House, the 
President, whether it be Democratic or Republican, insists on 
ideology, that the nominees they send for the Supreme Court and 
for the bench by and large seem to have one consistent judicial 
philosophy which would be regarded by a Senator as clearly out 
of the mainstream.
    Should Senators then have the right, the ability, the 
obligation to question that nominee on not simply their legal 
competence, not simply would they uphold the Constitution, but 
what their judicial philosophy is, which you would agree with, 
and where it takes them? That is the question.
    During the Eisenhower era, as clearly mentioned by my 
colleagues, and even during the Nixon and Ford eras, there 
seemed to be much less of an ideological prism by which judges 
were submitted. Excellence was the governing criteria.
    It seems to some of us, by the preliminary renderings, by 
what the President said in his campaign, and by his initial 
nominations that ideology is playing a far greater role, 
whether or not they were asked specific questions about 
specific cases. I think that is a strawman in terms of the 
nomination.
    How do we respond if, just assuming arguendo, that the 
White House is setting up much more of an ideological prism as 
to whom they would nominate?
    Mr. Gray. I can't really accept your premise that this 
current White House is doing something new in terms of 
ideology. I don't accept----
    Chairman Schumer. Let me just read you a quote from 
yourself in the Wall Street Journal and you can interpret. You 
said, ``If you think you have a legislative legacy and you 
didn't take care of the judicial side, you could lose it in the 
courts. I wouldn't think President Bush would trim his sails to 
accommodate the new majority in the Senate.'' That seems to me 
to be logical, practical and----
    Mr. Gray. Well, he shouldn't apply a reverse litmus test. 
He should do what he thinks is right, and if the Senate is 
going to start imposing a litmus test, then I think there is a 
problem. And I don't think there is any sign so far that I know 
of that suggests that the nominations that have already been 
made are somehow qualitatively, intellectually, ideologically 
different than any prior President. I just don't think that 
that case can be made.
    Certainly, there are ways of ascertaining a person's 
approach toward the law. And the basic question, I suppose, 
would be, which I say in my testimony is perfectly legitimate, 
do you think that we ought to interpret law and not make them. 
A lot of nominees over the years have published lots of 
writings and you can inquire as to those in the hearings, and 
you will and you should and you have in the past.
    I think if there were to emerge a candidate who really did 
have offbeat, extreme views, not about a specific case but 
about a general approach to life, I think that that would 
emerge and that would become clear. To paraphrase my partner, 
Lloyd, who paraphrased Justice Stewart, I think you would know 
it when you saw it. But I don't think, going in, you can set a 
standard for that, and it probably will happen very, very 
rarely.
    I would say, of the ones that I know have been nominated by 
the current White House, I don't think there is an unusual 
individual in the group that has been nominated so far. I 
really don't think so.
    Chairman Schumer. So again for the sake of argument, the 
White House has a strict guideline, whether it be left or 
right, not a litmus test, which tends to mean one issue, but 
they are just nominating people of a particular ideological 
caste.
    Mr. Gray. Well, that is not----
    Chairman Schumer. Well, let's just assume it for the sake 
of argument. I quoted your quote here and many of us think that 
may be happening in the White House now, but let's not debate 
that. That is not the purpose here.
    Let's just assume it was. Would it be appropriate for the 
Senate to ask questions about that and have that enter into 
their consideration as to nominations, or should the Senate, as 
long as they were legally excellent, just approve them? That is 
the fundamental question we face here.
    Mr. Gray. I think it is inappropriate to ask questions 
about specific cases and about specific areas of the law, such 
as federalism, such as Federal-State relations, such as church/
state, because that would be to suggest that you are asking for 
a pre-commitment. The White House doesn't do this. No White 
House has done it in the past. I do not believe the current 
White House is doing it.
    You have a right to ask them, if they are doing it. And if 
they are doing it, I think you have a right to say you are 
asking for a commitment yourself. I don't think you are going 
to find that to be the case, but I do think it is a legitimate 
inquiry. Your questionnaire asks the very same question.
    Chairman Schumer. So you would say just to, for instance, 
ask a nominee their general philosophy of church/state would be 
inappropriate? That is what you just said.
    Mr. Gray. Well, you can get into questions of degree and we 
can sit here and argue about----
    Chairman Schumer. I am not asking about a specific case.
    Mr. Gray. But asking about anything that begins to trench 
on a specific case, I think, would be inappropriate.
    Chairman Schumer. Let's say it didn't.
    Mr. Gray. Then I think it is OK.
    Chairman Schumer. Mr. Cutler?
    Mr. Cutler. I just want to add one word, and that is more 
by accident than design we have a Supreme Court today that 
satisfies most of your criteria. And to the extent that it is 
design, it is the design of the Constitution itself and the 
political system, at least once we adopted the two-term 
amendment.
    Just in the nature of politics in the country and a two-
party system, power shifts from one party to the other, and 
often the party in the White House has to leave it after 4 
years or 8 years, or maybe in the Reagan-Bush case 12 years. If 
it were a matter of serving 10 terms as President, one party in 
control, I think there would be very serious question. By 
design, the composition of the Supreme Court could change in a 
left direction or a right direction, in what we have been 
calling an ideological direction.
    Chairman Schumer. Thank you. I am going to submit other 
questions for the record in the interest of time.
    I would ask my colleagues, because we have about 10 minutes 
to the vote, if we could wrap up between the two of you in 6, 7 
minutes and then go vote.
    Senator Sessions. Thank you, Mr. Chairman. I think it is 
important that we go ahead and talk about this. There has been 
so much talk outside about it. If there is any concern on the 
Republican side about where we are going, I think it would 
arise from the fact that most of us felt that the Bork hearings 
and the Rehnquist and Thomas hearings were unfair, that it 
consisted of panels attacking nominees in ways that I don't 
believe were justified and were really unseemly in many ways. 
Then we had earlier this Congress when the Democrats were in 
the majority the Ashcroft hearing which followed that same 
pattern. I was really disturbed about that.
    But back to the subject, I am very much impressed, Mr. 
Cutler, with your comments and the fact that you have been on 
two national commissions that have dealt with this. I practiced 
before Federal judges full-time for 15 years when I was a 
United States Attorney and Assistant United States Attorney. I 
had to go before them everyday. I have been before State 
judges, and Federal judges are better, in my opinion, in 
general. You get the law ruled on. If you are right on the law 
and you have got your brief and the evidence should go in, the 
evidence goes in. It is less certain of that in most State 
courts, in my view. I have criticized Federal judges, but, in 
fact, I respect them to the greatest degree.
    I want to pursue a little bit the Miller Report you 
referred to and the comments that you made. As a practitioner 
of the law, I think this is so close to being correct about 
what we should think about. The report said, and this was 1996, 
``What is most important is the appointment of judges who are 
learned in the law, who are conscientious in their work 
ethic''--it is hard work to be a Federal judge today; if it 
wasn't in the past, it is today--``and who possess what lawyers 
describe as `judicial temperament.' That term, difficult to 
define, essentially has to do with a personality that is 
evenhanded, unbiased, impartial, courteous yet firm, and 
dedicated to a process, not a result. The law will be fairly 
read and applied, irrespective of the judge's personal views as 
to its wisdom. Where the judge is a finder of fact, the facts 
will be fairly found.''
    That is a good one, too, because are given power to find 
facts and then they go up on appeal, and some judges are known 
to doctor the facts, making it difficult to get a fair review. 
Those are the kinds of people I think we want, and I believe 
your remarks--and I was reading from your remarks and from the 
report--are right on point.
    I would want to mention something else you said in your 
remarks. You quoted the Commission: ``The Commission believes 
that it would be a tragic development if ideology became an 
increasingly important consideration in the future. To make 
ideology an issue in the confirmation process is to suggest 
that the legal process is and should be a political one. That 
is not only wrong as a matter of political science; it also 
serves to weaken public confidence in courts.''
    I am quoting: ``Just as candidates should put aside their 
partisan political views when appointed to the bench, so too 
should they put aside ideology. To retain either is to betray 
dedication to the process of impartial judging. Men and women 
qualified by training and experience to be judges generally do 
not wish to and do not indulge in partisan or ideological 
approaches to their work.''
    Mr. Cutler, that is coming awfully close to what I think 
would be a good evaluation process. I take it you are concerned 
if we were to raise the profile of ideology in the process.
    Mr. Cutler. Well, I think it is your absolute right as 
Senators in confirmation to withhold or deny consent to the 
appointment on whatever you think is important. I do believe it 
is remarkable, despite the gauntlets that we ask nominees for 
the bench to run--the intrusiveness about the financial 
questions, the efforts to get dirt on their personal conduct, 
and so forth--that we have as many very good, judicious, 
temperamentally of the right disposition on our Federal bench. 
It is really remarkable when you consider the level of the 
salaries that are paid and the intrusiveness of the vetting 
process today.
    Senator Sessions. Thank you very much. Our time is short.
    Chairman Schumer. Thank you.
    Mr. Kyl?
    Senator Kyl. Thank you, Mr. Chairman. I appreciate your 
courtesies to me. I thank both of these witnesses. I compliment 
you both on your testimony. I agree with both of you and I 
sense that both of you are in substantial agreement.
    I would just close, Mr. Chairman, by noting that on one of 
your subsequent panels you have a very erudite professor who 
ideologically is not in sync with my ideological views, and yet 
has brought profound erudition to a subject on which I am very 
committed and has contributed significantly in a way that is 
consistent with my ideology. I have in mind Dr. Tribe. 
Professor Tribe and I probably wouldn't end up in the same area 
on the court on some issues, and yet I know at least on one 
issue we would be very much together.
    So I just raise this to suggest that in trying to create 
these delicate balances we had better be a little careful 
because there are so many different kinds of issues that come 
before us, it is a little difficult for us as politicians, I 
think, to make those judgments in advance.
    Thank you very much again for your courtesy.
    Chairman Schumer. Thank you, and I appreciate moving along.
    We are going to vote. We are going to start with the second 
panel, with Professor Tribe, and I will be back in 10 minutes 
to start that. We will do the two votes quickly. I want to 
thank Mr. Cutler and Mr. Gray for being here.
    Thank you.
    [The Subcommittee stood in recess from 11:45 a.m. to 12:13 
p.m.]
    Chairman Schumer. I want to thank the witnesses for 
indulging us. We have finished our votes and I think we can 
move right forward. I just have two little bits of 
housekeeping.
    The first is unanimous consent to put Senator Grassley's 
statement in the record, without objection.
    Second, just a question that I have been asked by some: 
what do we mean by ideology? I am sure some here will discuss 
it. What it means is your views on not just broadly that you 
would support the Constitution, but what is your view of 
privacy, what is your view of how broadly or narrowly the First 
or Second Amendments should be interpreted, what is your view 
of federalism and the amendments that relate to the 
relationship between the State and the Federal Government. And 
there is also, in my judgment, nothing wrong with asking about 
decided cases, such as Roe v. Wade, such as Lopez, such as so 
many of the others that have come up.
    Again, I was sort of surprised at the defensive tone that 
some of my colleagues had here. To equate asking about ideology 
and then saying that would be a litmus test is a stretch, a far 
stretch. I am just wondering why they are so worried about 
ideology being brought up.
    We will hear from, as I say, a wide variety of witnesses 
here who have different views on that issue. I am not going to 
read all the introductions at once, since there are so many of 
you, so I will wait and do each one at a time.
    So our first witness is Professor Laurence Tribe. Professor 
Tribe is well-known here. He is presently the Ralph S. Tyler, 
Jr. Professor of Constitutional Law at Harvard Law School. He 
graduated summa cum laude from Harvard College, magna cum laude 
from Harvard Law School, was clerk for Justice Potter Stewart 
of the Supreme Court, and has authored many books, including 
American Constitutional Law, Constitutional Choices, God Save 
This Honorable Court: How the Choice of Supreme Court Justices 
Shapes our History, not to mention many other scholarly 
articles. He has been the lead counsel in over 25 cases before 
the Supreme Court, including this past year Bush v. Gore. Other 
cases have included AT&T v. Iowa Utilities Board, Baker v. 
General Motors, Vacco v. Quill, and Rust v. Sullivan.
    Mr. Tribe, thank you for coming today. I look forward to 
your testimony. Since we have a large panel, we have asked each 
witness to try and stay within 7 minutes, but it is such an 
important issue and your testimonies are all so good, I am not 
going to just shut you down at the end of that. Maybe after 
eight, I will.
    Professor Tribe?

      STATEMENT OF LAURENCE H. TRIBE, TYLER PROFESSOR OF 
      CONSTITUTIONAL LAW, HARVARD LAW SCHOOL, CAMBRIDGE, 
                         MASSACHUSETTS

    Mr. Tribe. Thank you, Mr. Chairman. It is an honor to 
testify before this subcommittee. I won't repeat what is in my 
prepared statement. I assume it will be part of the record. In 
the few minutes that I have, I would like to touch on what I 
think are the highlights and I would like to begin with some 
observations arising out of the testimony this morning, 
hopefully to puncture a couple of balloons or myths.
    First of all, I don't think anyone here, at least certainly 
not me, is suggesting that ideology, whatever it might mean, 
suddenly be injected into the process. I think you have been 
wise, Mr. Chairman, to stress that you are talking about 
surfacing and making a specific matter of inquiry out of 
something that is otherwise shadowy and in the closet and sub 
rosa that is ordinarily on everyone's mind, but not necessarily 
on everyone's lips, that is often an excuse for character 
assassination, for digging around for some irrelevant dirt 
about someone's personal past, when what you really object to 
is her view of federalism or the fact that he believes that 
everything in the Constitution is written down except States' 
rights, which can be protected even though they are not 
enumerated.
    Secondly, this is not a matter of payback for what the 
Republican Senate may or may not have done to Clinton nominees. 
I saw that as an overwhelming subtext this morning. This has 
nothing to do with that. I think we would be here even if no 
one had any complaint about the way the Republicans treated the 
nominees.
    I do want to say as an aside, because I just can't resist 
the illogic of what I have heard, the record of the Senate's 
confirmation of some 377 Clinton nominees tells you absolutely 
nothing. When powerful Senators, members of this committee, say 
to other Democratic Senators you tell the White House they 
better not send us any liberals or they are dead, you can 
expect the group of people who come out of the White House to 
be moderates and to be easily confirmed and to be non-
controversial, especially when we had a President who didn't 
make a very big deal of using the judiciary to advance his 
agenda.
    I also want to say that when most of us refer to ideology, 
we are not talking about political philosophy or political 
views. I have spent 32 years as a law professor battling the 
claim of the critical legal studies people that law is just 
politics by another name. I don't believe it. I believe that 
there is such a thing as law and legal thought, and that it 
does make sense to ask what someone's approach to legal issues 
is, but not in terms of these ludicrous platitudes. If I, with 
all respect may say it: would you follow the law? Duh.
    [Laughter.]
    Mr. Tribe. Will you upheld your oath? Of course. Do you 
believe in precedent? Yes, I have seen some. But a question 
like, how will you go about deciding which precedents should be 
overturned and which shouldn't, what approach do you think 
justified overturning Plessy and Brown, what would it take to 
make it justifiable to overrule Roe v. Wade, and when a nominee 
says, oops, I can't talk about that because that might have 
something to do with what I will do as a judge, it seems to me 
at that point you ought to really scratch your head and say, of 
course it would have something to do with what you would do as 
a judge; I wouldn't be asking you otherwise. But it doesn't 
follow that you compromise your independence or your integrity 
by sharing your thought process.
    After all, the people who are now sitting on the Supreme 
Court are already on record as having voted on a lot of these 
issues. We don't say that fatally compromises their integrity; 
they had better recuse themselves next time an issue about Roe 
v. Wade comes along.
    The next point I want to make is that paying attention to 
ideology does not mean quizzing people on specific cases or 
making up a litmus list of some kind of orthodoxy. In 
particular, I was interested in the litmus test that Senator 
McConnell put up in his prepared remarks on the board over 
there, the six-point list which he offered as an only slightly 
caricatured version of what he perceived as liberal orthodoxy.
    I looked at it and I concluded it would certainly filter me 
out. I would flunk on at least three of them, on the First 
Amendment part, the Second Amendment part, and the racial quota 
part. I think the real litmus test that people like me flunk is 
the litmus test that most Republican Presidents have used, but 
have kept in their vest pocket, and have tried, not always with 
success--witness David Souter--to implement in their choice of 
Justices. And for this Committee to engage in unilateral 
disarmament and to say you can do it, but we can't, or at least 
we can't talk about it, is really insanity, it seems to me.
    Now, let me turn just to a couple of other things. I think 
it should be clear that we are not talking about anything new. 
The structure and the history of the Constitution, as I think 
you have emphasized and as Senator Feingold emphasized, 
contemplates a double-barreled check on the powers of the 
politically unaccountable third branch of Government; that is, 
a check through the President with his power to nominate judges 
and through the Senate with the power to advise and consent or 
to withhold its consent.
    The Senate's role in that process has historically, from 
the Framing, been a proactive role, not limited to checking 
intellect and integrity. In fact, in the Constitutional 
Convention of 1787, the power of appointment was nearly given 
to the Senate, appointment of Supreme Court Justices, until the 
more practically minded of the Framers recognized that to give 
a hydra-headed body like the Senate the requirement of agreeing 
on a first choice would be impractical. So that was given to 
the President, but the Senate was not reduced to a potted 
plant. The Senate was to have an active role in advice and 
consent, and that active Senate role, despite myth to the 
contrary, has served the Nation well.
    Mr. Chairman, you used the example, and I think it should 
be underscored, that our first President, George Washington, 
named John Rutledge to be Chief Justice. The Senate, for 
reasons that were fundamentally ideological, indeed more 
ideological in the political sense that I am advocating, 
rejected his nomination. The result was hardly a disaster. John 
Marshall, the great Chief Justice, was the one who took that 
seat.
    I cannot resist saying something about the episode with 
Robert Bork. I think that the Right has succeeded in revising 
history on that matter. It has succeeded indeed in creating a 
word, to ``Bork.''
    I will just go on for a moment, Senator.
    Chairman Schumer. Please. That says that you still have 2 
minutes left and I am willing to give each of the witnesses 
more than that.
    Mr. Tribe. OK, thanks.
    The new word, to ``Bork,'' which sort of means unfairly to 
attack through slander about character--that is not what 
happened to Robert Bork. One could agree or disagree with the 
way the Senate went, but ultimately the Senate rejected him 
because it thought that he didn't believe in privacy as an 
element of the Constitution. He believed in a Scalia-like way 
of reading the document. His views were what many Senators 
would have regarded as an unacceptable part of the spectrum, 
and they were right.
    His post-rejection writings make clear he was even more 
conservative than the Senators who rejected him thought. The 
result was we got Justice Kennedy. He may not be a Justice 
Brennan, but he is not a Justice Scalia, and I think that helps 
balance the Court.
    The other large point that I think I really want to make is 
how contextual all of this is. During the periods of our 
history when the President and Senate have been of largely one 
mind--Lyndon Johnson and the Senate he had for a period, and 
Reagan and part of what he had to work with--the Senate can 
afford to relax its independent role. It checks to see that 
certain qualifications of character and integrity and intellect 
are met, but it doesn't have to really worry about point of 
view.
    But when the President has a powerful ideological program 
which is hardly that of the Senate, especially when he is put 
in power by a closely divided vote of a Court exercising its 
disdain for democracy, a disdain of the very sort that it 
exercises when it invalidates one after another act of 
Congress, then vigilance is called for, and that is the final 
point I want to make.
    It is simply not true that activism is a characteristic 
only of liberal courts. We now have the most activist Court, by 
any objective measure, like the number of acts of Congress 
invalidated per month, on average, in at least 55 years. And 
they don't just strike down these acts of Congress; they give 
them the back of their hand.
    You have elaborate findings about the need to protect the 
elderly or the disabled or religious freedom, and the Court 
says it is not our view, it is just anecdotal. It is utterly 
contemptuous. Now, that is a kind of activism which does not 
square with my idea of what it means not to legislate from the 
bench, and it just shows how empty the platitudes are and how 
important it is to get beneath the platitudes.
    Given a Court that undeferential to Congress, that willing 
that lightly to invalidate acts of Congress, to end an 
election, to upset democracy, it would be, I think, an abject 
abdication of the Senate's constitutional responsibility for it 
not to bring ideology, in the sense of legal point if view, 
very much to the surface, not as a litmus test but as a way of 
deciding will this nominee on the whole--and each Senator has 
to decide that for him or herself--endanger what I think the 
Constitution is all about. That I think is your role.
    [The prepared statement of Mr. Tribe follows:]
    [Additional material is being retained in the Committee 
files.]

Statement of Laurence H. Tribe, Tyler Professor of Constitutional Law, 
                          Harvard Law School*

    I am honored to have been invited to appear before this 
Subcommittee of the Senate Judiciary Committee to shed whatever light I 
can on the extremely important, and hopefully not too timely, topic of 
the Senate's role in the consideration of presidential nominations to 
the Supreme Court of the United States. I say ``hopefully not too 
timely'' because I think it wise of the Senate, with such guidance as 
the Senate Judiciary Committee through the agency of this Subcommittee 
can provide, to focus its attention now--not when a vacancy arises or a 
name is put forward--on the criteria to be applied in the confirmation 
process, and particularly on the role of ideology in that process.
---------------------------------------------------------------------------
    * For identification purposes only.
---------------------------------------------------------------------------
    There is a difficult trade-off here, to be sure. In Washington, as 
elsewhere, the squeaky wheel gets the grease. Focusing meaningful 
attention on an issue before it becomes a problem, much less a crisis, 
is difficult in the best of circumstances. Doing so when the issue is 
as abstract and complex as that of confirmation criteria for Supreme 
Court justices is more difficult still. Yet waiting until the matter is 
upon us, complete with a name or a short list of names, with interest 
groups and spinmeisters formidably arrayed on both sides, assures that 
the discussion will resemble a shouting match more than a civil 
conversation, and that every remark will be filtered through agenda 
detectors tuned to the highest pitch. On balance, I believe that 
addressing the question of the Senate's proper role under a veil of 
ignorance--ignorance as to precisely when a vacancy will first arise, 
which of the sitting justices will be the first to depart, and which 
name or names will be brought forth by The White House--seems likeliest 
to lead to fruitful reflection on how to proceed when the veil is 
lifted and we are all confronted with the stark reality of specific 
names and all that they might portend for the republic.
    It is understandable that, partly because of the seemingly abstract 
and speculative character of such a discussion in the absence of any 
actual nominee, and partly because the more immediate question actually 
facing the Senate Judiciary Committee is how best to evaluate a group 
of nominees already put forward by the President to fill various 
vacancies in the federal courts of appeals, this Subcommittee has 
chosen to cast its inquiry more broadly than a focus on Supreme Court 
nominations would indicate and has decided to include in its charge the 
question of what role ideology should play in considering federal 
judicial nominations generally. For that reason, at the conclusion of 
my observations about my principal topic that of Supreme Court 
nominations I will offer a few thoughts about the broader question that 
is of interest to the Subcommittee. But because I want to preserve to 
the degree possible the distinct advantages of separating the general 
question of criteria from any particular nominee or set of nominees, I 
will carefully avoid saying anything about any pending nomination and 
will, until the end of my remarks, discuss only the matter of 
nominations to the Supreme Court.
    When my book ``God Save This Honorable Court'' was published in 
1985 defending an active role for the Senate in the appointment of 
Supreme Court Justices, the Court was delicately balanced, with 
liberals like William Brennan and Thurgood Marshall offsetting 
conservatives like William Rehnquist and Antonin Scalia. Yet, on the 
inevitable book tour, I found quite a few otherwise well informed 
people wondering why the composition of the Supreme Court was all that 
big a deal, and why it shouldn't suffice for the Senate simply to make 
sure that the President wasn't packing the Court with cronies and with 
mediocrities. Having satisfied itself of the professional 
qualifications and character of the President's nominee, some people 
wondered, why should the Senate be concerned with that nominee's 
philosophical leanings or ideological predispositions?
    People seemed to view things differently when they were exposed to 
the historical background showing that the Framers contemplated a much 
more central role for the Senate in this process, and when they learned 
that it was mostly the unwieldiness of having a collective body like 
the Senate make the initial nomination that led the Framers, at the 
last minute in the drafting process, to entrust the nomination to the 
President and to leave the Senate with the task of deciding whether to 
confirm or reject; that, even in the final version of the Constitution 
as ratified in 1789, the Senate's task was not left wholly passive 
(deciding between a thumbs-up and a thumbs-down) but was cast as the 
role of giving its ``advice and consent;'' and that, with the exception 
of an uncharacteristic lull in the last century, the Senate has 
traditionally exercised its advice and consent function with respect to 
the Supreme Court in a lively and engaged manner, concerning itself not 
simply with the intellect and integrity of the nominee but with the 
nominee's overall approach to the task of judging, and often with the 
nominee's substantive views on the burning legal and constitutional 
issues of the day. Those who initially assumed the Senate need not 
concern itself with a nominee's ideology tended to view the matter in a 
new light when reminded that, both in the formative days of our 
nation's history, under presidents as early as George Washington, and 
in recent decades, there has been a venerable tradition in which the 
Senate has played anything but a deferential role on Supreme Court 
nominations.
    All of that registered with people back in 1985, but it wasn't 
until the 1987 resignation of Lewis Powell and the confirmation battle 
later that year over Robert Bork that the concrete stakes in this 
otherwise abstract controversy came to life for the great majority of 
the American public. In retrospect, although one can lament the ways in 
which some interest groups and politicians--on both sides of the 
question, frankly--exaggerated the record bearing on Judge Bork's views 
and bearing on what kind of Supreme Court Justice he would have made, 
the fact is that his confirmation hearings represented an important 
education for large segments of the public on such fundamental matters 
as the meaning of the due process and liberty guarantees of the Fifth 
and Fourteenth Amendments to the Constitution, the relevance and limits 
of the Ninth Amendment's reference to unenumerated rights, the 
connection between various ways of approaching the Constitution's text 
and history and such particular unenumerated rights as personal privacy 
and reproductive freedom, the relationship between a tightly 
constrained and literalist reading of the Constitution in matters of 
personal rights and a more open-textured and fluid reading of the 
Constitution in matters bearing on state's rights, and a host of other 
topics of enduring significance.
    For my own part, as one of the expert witnesses called to testify 
about Judge Bork's constitutional philosophy and about the consequences 
for the nation were he to gain an opportunity to implement that 
philosophy as a Supreme Court Justice, I make no apology for anything I 
said at the time. Knowing full well that my testimony would put me on 
the enemies' lists of some extremely powerful people with very long 
memories, I felt it my duty to testify to the truth as I understood it. 
I would do the same thing again today. When the Senate finally rejected 
the nomination of Robert Bork, many of his allies cried ``foul'' and 
have since practiced decades of payback politics. Indeed, they have 
even succeeded, with the aid of some revisionist history, in adding to 
the vocabulary the highly misleading new verb, ``to Bork''--meaning, 
``to smear a nominee with distorted accusations about his or her record 
and views''--as though the predictions of the sort of justice Robert 
Bork would have become were in some way misleading or otherwise unfair. 
But the truth, as Judge Bork's post-rejection writings made amply 
clear, was just as his critics had indicated. Unless being confirmed 
would have caused him to undergo a radical conversion--something on 
which the nation has a right not to gamble--his rejection, and the 
subsequent confirmation of Justice Kennedy in his stead, meant one less 
member on the far right wing of the Court and left Justice Scalia 
(later with Justice Thomas) holding down the starboard alone. The 
nation had held a referendum on the Borkian approach to reading the 
Constitution of the United States, and the Borkian approach had 
decisively lost. And, lest it be supposed that I review this history 
simply to reprise a political episode that was painful for all 
concerned, I should make plain that my purpose is altogether different. 
It is to remove the fangs from the verb ``to Bork'' and to restore some 
perspective, lest anyone be misled into beginning the debate over the 
Senate's proper role with the erroneous premise that the Senate should 
be less than proud of the last instance in which it rejected a Supreme 
Court nominee on ideological grounds.
    Today, it takes very little effort to persuade any informed citizen 
that the identity of who serves on the Supreme Court of the United 
States matters enormously--matters not simply to the resolution of 
these large questions of how the Constitution is to be approached and 
how its multiple ambiguities are to be addressed, but as well in the 
disposition of the most mundane, and yet basic, questions of how we 
lead our lives as Americans. Whether laws enacted for the benefit of 
the elderly or the disabled are to be rendered virtually unenforceable 
in circumstances where the violator is a state agency and the victim 
cannot obtain meaningful redress without going to federal court; 
whether people stopped in their cars for minor offenses like failing to 
have a seatbelt properly attached to a child's car seat may be 
handcuffed and taken by force to the police station where they are 
arrested and booked and held overnight; whether police may use sense-
enhancing technologies like special heat detectors to peer through the 
walls of our homes in order to detect the details of what we do there; 
whether, having recognized that everything we do in the privacy of our 
homes counts as an intimate detail when it comes to protecting us from 
various kinds of search and surveillance, judges will nonetheless 
continue to let state legislatures regulate the most intimate sexual 
details of what we do behind closed doors with those we love; whether 
government may forbid the kind of research that might prove essential 
to the prevention and cure of devastating degenerative diseases 
whenever that research uses stem cells or other tissues from embryos 
created in clinics for infertile couples--embryos that would otherwise 
be discarded without making such life-generating new knowledge 
possible; what kinds of campaign finance restrictions are to be 
permitted when the broad values of democracy seem pitted against the 
specific rights of individuals and corporations to use their wealth to 
purchase as much media time as money can buy; who is to be the next 
President of the United States--these are just some of the questions 
whose answers have come to turn on a single vote of a single Supreme 
Court Justice.
    The battle that was fought over the nomination of Judge Bork to 
become Justice Bork was fought because the general approach to 
constitutional interpretation that he seemed to represent attracted him 
to some but frightened an even larger number. Most dramatic among the 
anticipated consequences of his confirmation would have been the 
addition of his vote and voice to the far right wing of the Court on 
such issues as reproductive freedom, which the Constitution of course 
never mentions in so many words. His confirmation, people came to 
recognize despite his avowals of open-mindedness on all such matters, 
would have meant the certain demise of Roe v. Wade, a decision whose 
most recent application, in last year's ``partial birth abortion'' case 
from Nebraska, was, after all these years, still 5 to 4--as are a large 
number of crucial decisions about personal privacy, gender 
discrimination, sexual orientation, race-based affirmative action, 
legislative apportionment, church-state separation, police behavior, 
and a host of other basic issues.
    After the Supreme Court's highly controversial and I believe 
profoundly misguided performance last December in the case of Bush v. 
Gore--in which I should acknowledge I played a role as author of the 
briefs for Vice President Gore and as oral advocate in the first of the 
two Supreme Court arguments in the case--it's difficult to find anyone 
who any longer questions why it matters so much who serves on the 
Court. The significance of Bush v. Gore in this setting doesn't depend 
on anybody's prediction of who would have won the vote-count in Florida 
had the counting gone on without the Supreme Court's dramatic and 
sudden interruption on December 9, 2000, or of who would have been 
chosen the next President by Congress this January 6 if the Supreme 
Court had let the constitutional processes operate as designed and if 
competing electoral slates had been sent from Tallahassee, Florida to 
Washington, D.C. The great significance of the case is to underscore 
that, by a margin of a single vote, the branch of our government that 
is least politically accountable-wisely and designedly so, when matters 
of individual and minority rights or of basic government structure are 
at stake--treated the American electorate and the electoral process 
with a disdain that a differently composed Court would have found 
unthinkable. So it was that, when push came to shove, and the Supreme 
Court's faith in democracy was tested, the Supreme Court blinked. It 
distrusted the people who were doing the counting, it distrusted the 
state judges, it distrusted the members of Congress to whom the dispute 
might have been thrown if it hadn't pulled down the curtain. And the 
Court could get away with it, partly because nobody in the House or 
Senate, to be brutally honest, relished the thought of discharging the 
constitutional responsibility of deciding which electoral votes to 
count and then facing his or her own constituents--and because the 
people were growing weary of the no longer very sexy or novel topic of 
dimpled ballots and hanging chads, and Christmas was just around the 
corner, and, after all, everyone knew that the election was basically 
too close to call anyway. Lost for some in all of that realism, I fear, 
was the high price our democracy paid for the convenience of a Court 
that was willing--no, not just willing, positively eager--to take those 
burdens from our shoulders and simply decree a result. Among the 
results is an unprecedented degree of political polarization in the 
Court's favorability rating with the public--a rating that now stands 
roughly twice as high among Republicans as among Democrats, surely an 
ominous gap for the one institution to which we look for action 
transcending politics.
    This isn't the time or place to debate the details of Bush v. Gore, 
a subject about which I have written elsewhere; I stress the case 
because it shows at least as dramatically as any case possibly could 
just how much may depend on the composition of the Court; how basic are 
the questions that the Court at times decides by the closest possible 
margins; and how absurd are the pretensions and slogans of those who 
have for years gotten away with saying, and perhaps have deceived even 
themselves by saying, that the kinds of judges they want on the Court, 
the ``restrained'' rather than ``activist'' kinds of judges, the kinds 
of judges who don't ``legislate from the bench,'' are the kinds 
exemplified by today's supposedly ``conservative'' wing of the Court, 
led by Chief Justice Rehnquist and supported in area after area by 
Justices O'Connor, Scalia, Kennedy, and Thomas. Those are, of course, 
the five justices who decided the presidential election of 2000. They 
are, as well, the five justices who have struck down one Act of 
Congress after another--invalidating federal legislation at a faster 
clip than has any other Supreme Court since before the New Deal--on the 
basis that the Court and the Court alone is entitled to decide what 
kinds of state action might threaten religious liberty, might 
discriminate invidiously against the elderly or the disabled, or might 
otherwise warrant action by Congress in the discharge of its solemn 
constitutional power under Section 5 of the Fourteenth Amendment to 
determine what legislation is necessary and appropriate to protect 
liberty and equality in America.
    Some might be tempted, after watching the Court perform so poorly 
in the pit of presidential politics, and after witnessing it substitute 
its policy judgments for those of Congress in one legislative arena 
after another, to imagine that, if we could only wave a magic wand and 
remove all ideological considerations from judicial selection--both on 
the part of the President in making nominations and on the part of the 
Senate in the confirmation process--somehow the Olympian ideal of a 
federal judiciary once again above politics and beyond partisan 
reproach could be restored. For several reasons, that is a dangerous 
illusion. First, there's no way for the Senate to prevent the President 
from doing what Presidents from the beginning of the republic have 
asserted the right to do, and what some Presidents have done more 
successfully than others: pick nominees who will mirror the President's 
preferred approach to the Constitution's vast areas of ambiguity. 
Second, in dealing with those areas of ambiguity, there may or may not 
be any right answers, but there most assuredly are no unique or 
uncontroversial answers; invariably, in choosing one Supreme Court 
nominee rather than another, one is making a choice among those 
answers, and among the approaches that generate them. And third, with a 
Supreme Court that is already so dramatically tilted in a rightward 
direction, anything less than a concerted effort to set the balance 
straight would mean perpetuating the imbalance that gave us not only 
Bush v. Gore but the myriad decisions in the preceding half-dozen years 
in which the Court thumbed its nose at Congress and thus at the 
American people.
    In an accompanying memorandum that I prepared for distribution this 
April to a number of members of the Senate, I explore in greater detail 
how these recent Supreme Court encroachments on congressional authority 
have come about and what they signify. For purposes of my statement 
today, suffice it to say that such encroachments are the antithesis of 
judicial restraint or modesty; that the justices who have engineered 
them are the most activist in our history; that holding them up as 
exemplars of jurists who would never dream of ``legislating from the 
bench'' is, to put it mildly, an exercise in dramatic license; and that 
the judgments the Senate will have to make about the inclinations and 
proclivities of prospective members of the Supreme Court must be 
considerably more nuanced than the stereotypical slogans and bumper 
stickers about activism vs. restraint, and even liberalism vs. 
conservatism, can possibly accommodate.
    Some scholars, including most prominently University of Chicago Law 
Professor Cass Sunstein, who will also be testifying before you at this 
hearing, have powerfully argued that an active, nondeferential, role 
for the Senate in evaluating Supreme Court nominees is called for, 
quite independent of Bush v. Gore, by the way in which the federal 
judiciary in general, and the Supreme Court in particular, have been 
systematically stacked over the past few decades in a particular 
ideological direction- a direction hostile, for example, to the 
enactment ofprotective congressional legislation under Section 5 of the 
Fourteenth Amendment, and hostile as well to other ostensibly 
``liberal'' or ``progressive'' judicial positions, on topics ranging 
from privacy to affirmative action, from states' rights to law 
enforcement. For Professor Sunstein, who will of course speak most 
accurately and fully for himself, the active role the Senate ought to 
play is exactly as it would have been had Bush v. Gore never been 
decided.
    Other scholars, most prominently Yale University Law Professor 
Bruce Ackerman, argue that Bush v. Gore has thrown the process of 
judicial appointment into what Professor Ackerman calls 
``constitutional disequilibrium,'' so that, instead of two independent 
structural checks on a necessarily unrepresentative and politically 
unaccountable Supreme Court, we are now down to just one. Because, in 
his view, the current Court must be acknowledged to have ``mediated'' 
the ``President's relationship to the citizenry''--by helping put him 
in office by a 5 to 4 vote--``only the Senate retains a normal 
connection to the electorate,'' and this demands of that body, as 
Professor Ackerman sees it, that it shoulder an unusually heavy share 
of the burden of democratic control, by the people acting through the 
political branches, of the judicial branch to which we ordinarily look 
to hold the balance true. Translated into an operational prescription, 
the Ackerman position would recommend that the Senate simply refuse to 
confirm any new justices to the Court before President Bush, as 
Professor Ackerman puts it, ``win[s] the 2004 election fair and square, 
without the Court's help.'' As a fallback, Professor Ackerman would 
urge the Senate to consider any nominations President Bush might make 
to the Court during his current term on their own merits, but without 
what Ackerman describes as ``the deference accorded ordinary 
presidents.''
    Although I am intrigued by Professor Ackerman's suggestion, it 
seems to me the wrong way to go, either in its strongest form or in its 
fallback version. The strongest form would make sense, I think, only if 
we were convinced that the justices who voted with the majority in Bush 
v. Gore acted in a manner so corrupt and illegitimate, so devoid of 
legal justification, that one could say they essentially installed 
George W. Bush as president in a bloodless but lawless coup. But if we 
believed that, then the remedy of not letting the leaders of that coup 
profit from their own wrong of denying them the solace of like-minded 
successors as they depart the scene--would be far too mild. If we 
thought the Bush majority guilty of a coup, we should have to conclude 
that they were guilty of treason to the Constitution, and that they 
should be impeached, convicted, and removed from office.
    Believing that what the Bush v. Gore majority did was gravely wrong 
but not that it amounted to a coup or indeed anything like it--
believing that the majority justices acted not to install their 
favorite candidate but out of a misguided sense that the nation was in 
grave and imminent peril unless they stopped the election at once--one 
would have to look to the Ackerman fallback position. But all it tells 
us is something that I argued was the case anyway as early as 1985--
that the Senate should not accord any special deference to nominations 
made by any President to the Supreme Court. Indeed, I go further than 
does Professor Sunstein in this respect. As I understand his position, 
he would have the Senate withhold such deference for reasons peculiar 
to the recent history of the nation and of appointments to the federal 
bench and especially to the Supreme Court over the past few decades. 
Had we not lived through a time of Republican Presidents insistent on, 
and adept at, naming justices who would carry on their ideological 
program in judicial form, sandwiching Democratic Presidents 
uninterested in, or inept at, naming justices similarly attuned to 
their substantive missions, Professor Sunstein would apparently urge 
that the Senate give the President his head in these matters and serve 
only in a backseat capacity, to prevent rogues and fools, more or less, 
from being elevated to the High Court.
    In a world in which each position on the Supreme Court might be 
given to some idealized version of the wisest lawyer in the land--the 
most far-sighted and scholarly, the most capable of clearly explaining 
the Constitution's language and mission, the most adept at generating 
consensus in support of originally unpopular positions that come to be 
seen as crucial to the defense of human rights--perhaps we could afford 
in normal times to accept a posture of Senatorial deference, with 
exceptions made in special historical periods of the sort some believe 
we have been living through. But if we ever lived in a world where such 
a universal paragon of justice could be imagined, and in which the 
kinds of issues resolved by Supreme Court Justices were not invariably 
contested, often bitterly so, between competing visions of the right, 
that day has long since passed.
    Today, regardless of whether past Presidents have acted or failed 
to act so as to produce a Supreme Court bench leaning lopsidedly in a 
rightward direction, and regardless of whether a majority of the 
current Court has acted in such a way as to render the President whom 
it helped to elect less entitled to deference than usual in naming the 
successors of the Court's current members, the inescapable fact is that 
the President will name prospective justices about whom he knows a 
great deal more than the Senate can hope to learn -justices whose paper 
trail, if the President is skillful about it, will reveal much less to 
the Senate than the President thinks he knows. Given his allies and 
those to whom he owes his political victory, as well as those on whom 
he will need to depend for his re-election, the incumbent President, if 
those constituencies expect him to leave his mark and therefore theirs 
upon the Court, will try to name justices who will fulfill the agenda 
of those constituencies--in the case of President Bush, the agenda of 
the right--without seeming by their published statements or their 
records as jurists to be as committed to that agenda as the President 
will privately believe them to be. Presumably, the incumbent President 
will look for such nominees among the ranks of Hispanic jurists, or 
women, or both, in order to distract the opposition and make resistance 
more painful. And certainly this President, like any other in modern 
times, will select nominees who have already mastered or can be coached 
in the none too difficult game of answering questions thoughtfully and 
without overt deception but in ways calculated to offend no-one and 
reveal nothing.
    In this circumstance, to say that the burden is on those who hold 
the power of advice and consent to show that there is something 
disqualifying about the nominee, that there is a smoking gun in the 
record or a wildly intemperate publication in the bibliography or some 
other fatal flaw that can justify a rallying cry of opposition, is to 
guarantee that the President will have the Court of his dreams without 
the Senate playing any meaningful role whatsoever. Therefore, if the 
Senate's role is to be what the Framers contemplated, what history 
confirms, and what a sound appreciation for the realities of American 
politics demands, the burden must instead be on the nominee and, 
indeed, on the President. That burden must be to persuade each 
Senator--for, in the end, this is a duty each Senator must discharge in 
accord with his or her own conscience--that the nominee's experience, 
writings, speeches, decisions, and actions affirmatively demonstrate 
not only the exceptional intellect and wisdom and integrity that 
greatness as a judge demands but also the understanding of and 
commitment to those constitutional rights and values and ideals that 
the Senator regards as important for the republic to uphold.
    On this standard, stealth nominees should have a particularly hard 
time winning confirmation. For proving on the basis of a blank slate 
the kinds of qualities that the Senate ought to demand, with a record 
that is unblemished because it is without content, ought to be 
exceedingly difficult. Testimony alone, however eloquent and 
reassuring, ought rarely to suffice where its genuineness is not 
confirmed by a history of action in accord with the beliefs professed. 
And testimony, in any event, is bound to be clouded by understandable 
reservations about compromising judicial independence by asking the 
nominee to commit himself or herself too specifically in advance to how 
he or she would vote on particular cases that might, in one variant or 
another, come before the Court. Interestingly, we do not regard sitting 
justices as having compromised their independence by having written 
about, and voted on, many of the issues they must confront year in and 
year out; the talk about compromising judicial independence by asking 
about such issues sometimes reflects unthinking reflex more than 
considered judgment. But on the assumption that old habits die hard, 
and that members of the Senate Judiciary Committee will continue to be 
rather easily cowed into backing away from asking probing questions 
about specific issues that might arise during the nominee's service on 
the Court, it should still be possible to formulate questions for any 
nominee, including tough follow-up questions, at a level of generality 
just high enough so that the easy retreat into ``I'm sorry, Senator, I 
can't answer that question because the matter might come before me,'' 
will be unavailing. And, to the extent such slightly more general 
questions yield information too meager for informed judgment, the 
burden must be on the nominee to satisfy his or her interlocutors that 
the concern underlying the thwarted line of questioning is one that 
ought not to disturb the Senator. That satisfaction can be provided 
only from a life lived in the law that exemplifies, rather than 
eschewing, a real engagement with problems of justice, with challenges 
of human rights, and with the practical realities of making law 
relevant to people's needs. When a nominee cannot provide that 
satisfaction -when the nominee is but a fancy resume in an empty suit 
or a vacant dress, perhaps adorned with a touching story of a hard-luck 
background or of ethnic roots--any Senator who takes his or her oath of 
office as seriously as I know, deep down, all of you do, should simply 
say, ``No thanks, Mr. President. Send us another nominee.''
    What this adds up to is, of course, a substantial role for ideology 
in the consideration of any Supreme Court nominee. It would be naive to 
the point of foolhardiness to imagine that the President will be tone-
deaf to signals of ideological compatibility or incompatibility with 
his view of the ideal Supreme Court justice; ideology will invariably 
matter to any President and must therefore matter to any Senator who is 
not willing simply to hand over to The White House his or her proxy for 
the discharge of the solemn duty to offer advise and consent.
    As a postscript on the distinct subject of circuit court nominees, 
it seems worth noting that, although such nominees are of course 
strictly bound by Supreme Court precedents and remain subject to 
correction by that Court, and although there might therefore seem to be 
much less reason for the Senate to be ideologically vigilant than in 
the case of the Supreme Court, three factors militate in favor of at 
least a degree of ideological oversight even at the circuit court 
level.
    First, well under 1% of the decisions of the circuit courts are 
actually reviewed by the Supreme Court, which avowedly declines to 
review even clearly erroneous decisions unless they present some 
special circumstance such as a circuit conflict. Especially if the 
circuit courts tend toward a homogeneity that mirrors the ideological 
complexion of the Supreme Court, that tribunal is exceedingly unlikely 
to use its discretionary power of review on certiorari to police lower 
federal courts that stray from the reservation in one direction or 
another; it will instead focus its firepower on bringing the state 
courts into line and resolving intolerable conflicts among the lower 
courts, state and federal.
    Second, there are a great many gray areas in which Supreme Court 
precedents leave the circuit courts a wide berth within which to 
maneuver without straying into a danger zone wherein further review 
becomes a likely prospect. Even though no individual circuit court 
judge is very likely to use that elbow room in order to move the law 
significantly in one direction or another without a check from the 
Supreme Court, the overall balance and composition of the circuit court 
bench can have a considerable effect, in momentum if nothing else, on 
the options realistically open to the Supreme Court and thus to the 
country.
    Third, in the past few decades, the circuit courts have 
increasingly served as a kind of ``farm team'' for Supreme Court 
nominations. On the Court that decided Brown v. Board of Education in 
1954 there sat not a single justice who, prior to his appointment to 
the Supreme Court, had ever served in a judicial capacity. Governors, 
Senators, distinguished members of the bar, but no former judges. 
Today, however, rare is the nominee who has not previously served in a 
judicial capacity, most frequently on a federal circuit court. On the 
current Court, only the Chief Justice lacked prior judicial experience 
when he was first named a justice; and, of the other eight justices, 
all except Justice O'Connor, who had served as a state court judge, 
were serving on federal circuit courts when appointed to the Court. The 
reasons for this change are many; they include, most prominently, the 
growing recognition that ideology matters and that service on a lower 
court may be one way of detecting a prospective nominee's particular 
ideological leanings. Whatever the reasons, the reality has independent 
significance, for it means that any time the Senate confirms someone to 
serve on a circuit court, it may be making a record that, in the event 
the judge should later be nominated to the Supreme Court, will come 
back to haunt it. ``But you had no trouble confirming Judge X to the 
court of appeals for the Y circuit,'' supporters of Supreme Court 
nominee X are likely to intone. Keeping that in mind will require the 
Senate to give fuller consideration to matters of ideology at the 
circuit court level than it otherwise might.
    The primary ideological issue at the circuit court level, however, 
should probably remain the overall tilt of the federal bench rather 
than the particular leanings of any given nominee viewed in isolation. 
In a bench already tilted overwhelmingly in one direction--today, the 
right--a group of nominees whose ideological center of gravity is such 
as to exacerbate rather than correct that tilt should be a matter of 
concern to any Senator who does not regard the existing tilt as 
altogether healthy.
    And one needn't be particularly liberal to have concerns about the 
existing tilt. Just as a liberal who recognizes that people who share 
his views might not have all the right answers ought to be distressed 
by a federal bench composed overwhelmingly of jurists reminiscent of 
William J. Brennan, Jr. or William O. Douglas--or even by a federal 
bench composed almost entirely of liberals and moderates and few 
conservatives--and just as such a liberal should doubt the wisdom, in 
confronting such a bench, of adding a group of judges who would 
essentially replicate that slant, so too a conservative who is humble 
enough to recognize that people who share her views might not have a 
lock on the truth should feel dismayed by a federal bench composed 
overwhelmingly of jurists in the mold of Antonin Scalia or Clarence 
Thomas--or even by a federal bench composed almost entirely of 
conservatives and moderates and few liberals--and ought to doubt the 
wisdom, in dealing with such a bench, of adding many more judges cut 
from that same cloth. The fundamental truth that ought to unite people 
across the ideological spectrum, and that only those who are far too 
sure of themselves to be comfortable in a democracy should find 
difficult to accept, is that the federal judiciary in general, and the 
Supreme Court in particular, ought in principle to reflect and 
represent a wide range of viewpoints and perspectives rather than being 
clustered toward any single point on the ideological spectrum.
    Indeed, even those who feel utterly persuaded of the rightness of 
their own particular point of view should, in the end, recognize that 
their arguments can only be sharpened and strengthened by being tested 
against the strongest of opposing views. Liberals and conservatives 
alike can be lulled into sloppy and slothful smugness and self-
satisfaction unless they are fairly matched on the bench by the 
worthiest of opponents. It may even be that the astonishing weakness 
and vulnerability of the Court's majority opinion in Bush v. Gore, and 
of the majority opinions in a number of the other democracy-defying 
decisions in whose mold it was cast, are functions in part of the 
uniquely narrow spectrum of views--narrower, I think, than at any other 
time in our history--covered by the membership of the current Court--a 
spectrum which, on most issues, essentially runs the gamut from A 
through C. On a Court with four justices distinctly on the right, two 
moderate conservatives, a conservative moderate, two moderates, and no 
liberals, it's easy for the dominant faction to grow lazy and to issue 
opinions that, preaching solely to the converted, ring hollow to a 
degree that ill serves both the Court as an institution and the legal 
system it is supposed to lead. It is thus in the vital interest of the 
nation as a whole, and not simply in the interest of those values that 
liberals and progressives hold dear, that the ideological imbalance of 
the current Supreme Court and of the federal bench as a whole not be 
permitted to persist, and that the Senate take ideology intelligently 
into account throughout the judicial confirmation process with a view 
to gradually redressing what all should come to see as a genuinely 
dangerous disequilibrium.

    Chairman Schumer. Thank you, Professor Tribe, for excellent 
and truncated testimony. And I would recommend everybody read 
yours and all the other testimonies here.
    Our next witness is Professor Stephen B. Presser. Professor 
Presser's primary post is the Raoul Berger Professor of Legal 
History at the Northwestern University School of Law. He 
received his undergraduate and law degrees from Harvard 
University and clerked on the United States Court of Appeals 
for the D.C. Circuit. He is a Fulbright Senior Scholar at the 
University College in London and serves as a professor in the 
Kellogg School of Business, where he teaches some of the 
Nation's leading executives in the Executive Master's of 
Business Administration Program. He has also published numerous 
books and articles on constitutional law.
    Professor Presser, thank you.

  STATEMENT OF STEPHEN B. PRESSER, RAOUL BERGER PROFESSOR OF 
LEGAL HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, CHICAGO, 
                            ILLINOIS

    Mr. Presser. Thank you, Mr. Chairman. It is an honor to be 
here and a delight to appear before my own home State Senator 
up there on the panel.
    We are here really because of then-Governor Bush's campaign 
promise that he would appoint judges who would interpret the 
law rather than make it, and his statement that his judicial 
models were Justices Scalia and Thomas. These two are the 
Justices most closely associated with the interpretive 
philosophy of effectuating the original understanding of the 
meaning of the Constitution, and these two are those who most 
consistently demonstrate the judicial philosophy Hamilton 
outlined in Federalist No. 78.
    Now, there have been suggestions that more judges like 
Scalia and Thomas would be a danger to our Republic, that they 
have some sort of far-right-wing agenda, that they are 
undemocratic, that they are judicial activists who would, if 
multiplied, threaten our civil rights. Nothing, I think, could 
be further from the truth. There can be no danger posed by men 
and women who conceive of the judicial role as Hamilton 
conceived it, as implementing the will of the sovereign people.
    President Bush more recently indicated, ``Every judge I 
appoint will be a person who clearly understands the role of a 
judge is to interpret the law, not to legislate from the 
bench,'' as Senator Sessions and others pointed out a little 
bit earlier. Paraphrasing from the Federalist, Bush stated that 
``the courts exist to exercise not the will of men, but the 
judgment of law. My judicial nominees will know the 
difference.''
    If this is the ideology of President Bush's likely 
appointments, there is no terror in it. This is the traditional 
manner of interpreting the Constitution and laws, and it is all 
that Scalia and Thomas and most other Federal judges have had 
as a judicial philosophy. In this ideology, there is no danger 
unless one fears fidelity to the rule of law itself. And it 
should be emphasized, in our Republic the rule of law is 
nothing more than the formally expressed will of the people.
    Hamilton wrote that it took a person of fit character to be 
a Federal judge, and that such people could not be found in 
great numbers. They had to have not only great knowledge of the 
law, but also to have the courage of their convictions and the 
ability to resist popular pressure that might lead them to 
ignore their constitutional duties.
    This Senate, exercising its constitutional advise and 
consent function, must constantly be on guard against those who 
would seek to influence the judiciary for particular partisan 
purposes and who would seek to move the judiciary from its 
constitutional role as a neutral arbiter of the laws and the 
Constitution, the last point that Professor Tribe made, and I 
agree completely.
    Unfortunately, many comments, even some made here, seem 
calculated politically to manipulate the judicial selection 
process. It is important to understand just how the Framers 
conceived of the senatorial role in advising and consenting on 
judicial nominees. There was an important role to play, but the 
Senate was not, has never been, and should not be co-
nominators.
    The Senate's role is discussed by Hamilton in Federalist 
No. 76, where he makes clear that in the appointments process 
the Senate should be concerned primarily with the virtue and 
honor of candidates. Hamilton states that the concurrence of 
the Senate is required in order to be an excellent check upon a 
spirit of favoritism in the President, and to prevent the 
appointment of unfit characters from state prejudice, from 
family connection, from personal attachment, or from a view to 
popularity.
    Hamilton also notes that the scheme of Senate approval will 
reduce the chance that appointments will be made by the 
President simply on the basis of ``his private inclinations and 
interests.'' No one has suggested that these are President 
Bush's motives, and it is impossible to understand how a pledge 
to appoint judges who will operate pursuant to a judicial 
philosophy that implements popular sovereignty and the rule of 
law could be the abuse of Presidential power Hamilton had in 
mind.
    Now, of course, the Senate does have a very important role 
to play in ascertaining that those appointed to the judiciary 
are fit characters and persons of integrity, honor and virtue. 
But Hamilton's comments mean that the Senate should not use its 
own preferences for the production of particular results in the 
courts, as opposed to the following of proper procedures for 
determining the law as a litmus test for judicial appointments.
    The Senate should not use partisan political ideology to 
select judges. Instead, the Senate should insist on proper 
judicial philosophy for nominees. Indeed, the genius of the 
separation of powers in America is that law is different from 
politics, and liberty and rights in this country are best 
protected by maintaining that separation. It is difficult, but 
it is enormously important, and Professor Tribe referred to the 
problem as well.
    Really, the issue here is not left or right, radical or 
reactionary, or even liberal or conservative. The issue is the 
separation of powers under the Constitution and whether a 
nominee adheres to it or not. I urge this Subcommittee and the 
Senate to preserve what Judge Learned Hand called our common 
venture, the exercise of sovereignty by the American people and 
their right to make their own laws and Constitution. The 
philosophy of judging outlined by President Bush is no danger 
to that popular sovereignty. It is the only means of 
implementing it and the rule of law itself.
    Thank you.
    [The prepared statement of Mr. Presser follows:]

     Stephen B. Presser, Raoul Berger Professor of Legal History, 
                 Northwestern University School of Law

    My name is Stephen Presser, and I am the Raoul Berger Professor of 
legal History at Northwestern University School of Law. I hold a joint 
appointment with the Kellogg Graduate School of Management at 
Northwestern University, and I also teach in Northwestern's Weinberg 
College of Arts and Sciences, in the History Department. I have been 
teaching and writing about American legal history for the last twenty 
seven years, I am the senior author of a casebook on American Legal 
History and the coauthor of a casebook on Constitutional Law, as well 
as a book on Supreme Court Justice Samuel Chase and one on 
Constitutional Law theory. I have been privileged to testify before 
many committees of the House and Senate on Constitutional issues. I 
appear before you today, at the invitation of the Committee, to help 
you consider the role of ideology in the judicial selection process.
                    Ideology and Judicial Philosophy
    we should first try to understand what is meant by ``ideology'' in 
the context of these hearings. The word has a variety of definitions, 
but I will adopt one simple one from the dictionary, ``a systematic 
body of concepts, especially about human life or culture.'' \1\ It 
might also be helpful, initially, to draw a distinction between what we 
might describe as an ideology of substance or results, and an ideology 
of process. An ideology of results might be an appropriate means of 
evaluating the elected officials in a government, particularly those in 
the executive and the legislature, but an ideology of process would be 
a more important means of evaluating the behavior of the judiciary. We 
speak about such an ideology of process when we discuss what we more 
commonly refer to as ``judicial philosophy,'' and it is that we are 
really concerned with in these hearings.
---------------------------------------------------------------------------
    \1\ Merriam Webster's Collegiate Dictionary 575 (10th 
ed. 1996).
---------------------------------------------------------------------------
    The question of the appropriate judicial philosophy for our country 
is one of the most crucial concerns for determining the fate of our 
republic, and thus I regard this hearing as among the most important I 
have been invited to attend. You have heard and will be hearing from a 
variety of witnesses from the academy, from practice, and from the 
political arena, and perhaps I can best serve you by sticking primarily 
with the perspective of the Framers, which is that I know best.
    The Framers believed that it was important, from time to time, to 
return to first principles, and that is what we are doing this morning. 
The two basic principles of the American political system are the 
sovereignty of the people and the rule of law, and both figure 
intimately in the question of judicial philosophy. As I understand it, 
there is only one judicial philosophy of which the Framers' approved, 
and that is to be found in Federalist 78, the famous justification for 
judicial review written by Alexander Hamilton, in 1788.\2\
---------------------------------------------------------------------------
    \2\ James Madison, Alexander Hamilton, and John Jay, The Federalist 
Papers 436 (First published 1788, Penguin Books Reprint, 1987, Isaac 
Kramnick, editor)
---------------------------------------------------------------------------
          The Judicial Philosophy Suggested in the Federalist
    Hamilton had to respond to critics of the proposed federal 
constitution who were concerned that it gave too powerful a role to 
federal judges, and that, in particular, federal judges might use their 
great power to impose their own view of what the law should be on the 
American people. The critics of the Constitution were particularly 
worried that federal judges might obliterate the authority of the state 
courts and the state governments, and replace the recently achieved 
independent role of the states as primary domestic lawmakers with an 
all-powerful central government.\3\
---------------------------------------------------------------------------
    \3\ For a collection of the contemporary arguments for and against 
the Constitution, see generally Bernard Bailyn, editor, The Debate on 
the Constitution (New York: Library of America, 1993) (In two volumes).
---------------------------------------------------------------------------
    Hamilton responded to this criticism by emphasizing that it was not 
the job of judges to make law, that their role under the Constitution 
was simply to enforce the Constitution and laws as they were written, 
according to their original understanding. By doing so, Hamilton 
explained, federal judges would be acting as agents of the sovereign 
people themselves, and would do their part in implementing the rule of 
law. It was true that judges might sometimes be called upon to declare 
statutes invalid because of the dictates of the Constitution, that is, 
to declare, in the words we use today, that particular laws were 
``unconstitutional,'' but their role in implementing the will of the 
people as set forth in the Constitution required no less. The 
Constitution itself set certain limits on what legislatures could do, 
Hamilton explained, and when the legislatures exceeded those limits 
they ceased to act pursuant to the will of the people. Instead of being 
the agents of the people, as the Constitution dictated, in such 
circumstances the legislature would wrongly be exercising greater power 
than was authorized. It was then the job of the people's other agents, 
the Courts, to reign in the legislatures.\4\
---------------------------------------------------------------------------
    \4\ Federalist 78, supra note 2, at 437-440.
---------------------------------------------------------------------------
    When that kind of judicial review was done, Hamilton explained, the 
courts would not be exercising ``will,'' but merely ``judgment.'' \5\ 
The only will that was important was the ``will'' of the sovereign 
people themselves as set forth in the Constitution, or laws passed 
pursuant to the Constitution, and the only job of judges was to enforce 
that expression of the will of the people. Hamilton's justification for 
judicial review, based on the sovereignty of the people, also 
implemented another important political ideal of the constitution's 
framers, the separation of powers. It was well understood, pursuant to 
the theories of the Baron de Montesquieu, as valid then as they are 
today, that liberty could not be preserved unless judges were barred 
from legislating, law-making was left to the legislature and the people 
themselves, and the executive did no more than carry out the directives 
of the legislature and the Constitution. As Hamilton wrote in 
Federalist 78, quoting Montesquieu's Spirit of Laws, ``there is no 
liberty if the power of judging be not separated from the legislative 
and executive powers.'' \6\
---------------------------------------------------------------------------
    \5\ Id., at 440.
    \6\ Id., at 437.
---------------------------------------------------------------------------
             President Bush's Proposed Judicial Philosophy
    Considering what Hamilton had to say in Federalist 78, and 
considering what Montesquieu wrote, we are in a better position to 
understand the questions that are before this subcommittee today. We 
are here, basically, because of certain campaign promises that then 
Governor Bush made when he was running for the office he now holds. He 
explained that he wanted to appoint judges who would interpret the law 
rather than make it, and he further explained that his models for the 
type of judge he would appoint were the current Supreme Court Justices 
Antonin Scalia and Clarence Thomas.\7\ These two are the Justices on 
the court who have been most closely associated with the interpretive 
philosophy of effectuating the original understanding of the meaning of 
the Constitution, and these two, it would seem, are those who come 
closest to most consistently demonstrating the judicial philosophy 
Hamilton limned in Federalist 78.\8\
---------------------------------------------------------------------------
    \7\ See, e.g. David L. Greene and Thomas Healy, ``Bush Sends Judge 
List to the Senate,'' Baltimore Sun, May 10, 2001, p. 1A (Indicating 
that the judges the President ``admires most'' are Antonin Scalia and 
Clarence Thomas.)
    \8\ For Scalia's statement of his judicial philosophy, see Antonin 
Scalia, A Matter of Interpretation (Princeton University Press, 1997), 
and for Thomas's judicial philosophy see Scott Douglas Gerber, First 
Principles: The Jurisprudence of Clarence Thomas (New York University 
Press, 1999).
---------------------------------------------------------------------------
    There have been suggestions in the press, and it is likely that 
there will be testimony offered to you, that more judges like Scalia 
and Thomas would somehow represent a danger to our Republic, that they 
have some sort of ``far right wing'' agenda, that they are dangerous 
judicial activists who would, if multiplied, pose a fundamental danger 
to our civil rights as Americans. Nothing could be further from the 
truth. There can be no danger posed by men and women who conceive of 
the judicial role as Hamilton conceived it, as implementing the will of 
the sovereign people. George W. Bush summed up his perspective on 
judicial appointments when he indicated, ``Every judge I appoint will 
be a person who clearly understands the role of a judge is to interpret 
the law, not to legislate from the bench. Paraphrasing from The 
Federalist, Bush stated that ``the courts exist to exercise not the 
will of men, but the judgment of law. My judicial nominees will know 
the difference.'' \9\
---------------------------------------------------------------------------
    \9\ Volume 37, Number 19, Public Papers of the Presidents (Remarks 
of President George W. Bush Announcing Nominations for the Federal 
Judiciary, May 14, 2001).
---------------------------------------------------------------------------
    If this is the judicial philosophy, or the ideology of President 
Bush's likely appointments, surely there is no terror in it. This is 
the traditional manner of interpreting the Constitution and laws, and 
it is all that Scalia and Thomas, and, indeed, many other federal 
judges past and present have had as a judicial philosophy. In this 
philosophy or ideology there is no danger, unless one fears fidelity to 
the rule of law itself. And, it should be emphasized, in our republic 
the rule of law is nothing more than the demonstrated will of the 
people. Hamilton stressed that it took a person of ``fit character'' to 
be a federal judge, and that such people could not be found in great 
numbers. They had to possess not only great knowledge of the law but 
also to possess the courage of their convictions and the ability to 
resist popular pressures that might lead them to ignore their 
Constitutional duties. Indeed, it is important for us to remember here 
that the Framers were well aware that judging in a manner consistent 
with the rights guaranteed by the constitution could be an unpopular 
course when passions were aroused, and thus Hamilton believed that 
steps were necessary to make federal judges as independent as possible. 
That's what lifetime good behavior tenure was designed to ensure, and 
that's why the provision against reducing judicial salaries was placed 
in the Constitution.
        Advising and Consenting with Regard to Judicial Nominees
    This hallowed legislative body, the United States Senate, 
exercising its Constitutional advice and consent function, must 
constantly be on guard against those who would seek to influence the 
judiciary for particular partisan purposes, and who would seek to move 
the judiciary from its constitutional role as a neutral arbiter of the 
laws and the Constitution. Unfortunately, many comments, even some made 
in these hearings, seem calculated politically to manipulate the 
judicial selection process, and seem designed to frustrate the 
appointment of judges who might refuse to follow a politically popular 
course when the Constitution and laws might provide otherwise.
    It is important to understand just how the Framers conceived of the 
Senatorial role in advising and consenting on judicial nominees. This 
is discussed by Alexander Hamilton in Federalist 76, where he indicates 
that the scheme of delegated power under the constitution rests upon 
the implication ``that there is a portion of virtue and honor among 
mankind which may be a reasonable foundation of confidence'' in public 
officials.\10\ Making even clearer that in the appointments process the 
Senate should be concerned primarily with the virtue and honor of 
candidates, Hamilton explicitly indicates that the concurrence of the 
Senate is required for appointments under the Constitution in order to 
be ``an excellent check upon a spirit of favoritism in the President, 
and to tend greatly to prevent the appointment of unfit characters from 
State prejudice, from family connection, from personal attachment, or 
from a view to popularity.'' \11\
---------------------------------------------------------------------------
    \10\ Federalist 76, in Madison, Hamilton, and Jay, supra note 2, at 
431.
    \11\ `` Id., at 430.
---------------------------------------------------------------------------
    Hamilton also notes that the scheme of Senate approval will reduce 
the chance that appointments will be made by the President simply on 
the basis of ``his private inclinations and interests.'' \12\ As far as 
I know no one has suggested that these are President Bush's motives, 
and I find it impossible to understand how a pledge to appoint judges 
who will operate pursuant to a judicial philosophy that implements 
popular sovereignty and the rule of law could be the abuse of 
Presidential power Hamilton had in mind. Indeed, judges faithful to the 
Constitution and laws, of a kind that President Bush proposes, are the 
possessors of the kind of wisdom, honor and integrity Hamilton thought 
crucial in nominees.
---------------------------------------------------------------------------
    \12\ Ibid.
---------------------------------------------------------------------------
    The Senate has a role to play in ascertaining that those appointed 
to the judiciary are ``fit characters,'' and persons of integrity, 
honor, and virtue. But if Hamilton's comments in Federalists 76 and 78 
mean anything, they mean that the Senate should not use its own 
partisan political preferences for the production of particular results 
in the courts, as opposed to the following of proper procedures for 
determining the law, as a litmus test for judicial appointments. The 
Senate should not use partisan political ideology to select judges, 
instead the Senate should insist on proper judicial philosophy for 
nominees. Indeed, the genius of the separation of powers in America, I 
have come to understand over three decades of practicing and teaching 
law, is that law is supposed to be different from politics, and liberty 
and rights in this country are best protected by maintaining that 
separation.
    It worries me, then, when I read, in the press, suggestions that 
the Senate should be on its guard against Bush's judicial nominees 
because they are ``right wing ideologues'' or ``judicial activists'' 
who would present a danger to the enforcement of our precious 
constitutional heritage, or our civil rights.\13\ It is common for 
Democrats to accuse Republicans of being tools of the ``far right,'' 
and for Republicans to regard Democrats as ``left wing'' extremists, 
but these political terms of excoriation obscure rather than illuminate 
what is at stake when judicial appointments are being discussed.
---------------------------------------------------------------------------
    \13\ Even my friend and fellow-witness at this hearing, University 
of Chicago Law Professor Cass Sunstein, has been quoted as stating that 
``There is a danger the federal judiciary could be dominated by right-
wing ideologues.'' M.E. Sprengelmeyer, ``Judge Nominee Called 
Extremist,'' Rocky Mountain News, May 10, 2001, page 24A.
---------------------------------------------------------------------------
    Alas, even though some Senators have tried to suggest that what 
they want to see is ``moderates'' appointed as judges, I don't think 
even that term is useful here.\14\ The idea of judicial ``moderates'' 
is not merely obfuscatory because in politics the ``moderates'' are 
always you or the people you agree with, while your opponents are 
always ``extremists.'' The real problem is that judicial ``moderation'' 
in implementing the will of the people may not be a virtue. The issue 
here is not left or right, radical or reactionary, or even liberal or 
conservative, the issue is the separation of powers under the 
Constitution, and whether a nominee adheres to it or not. One who 
believes in adherence to the constitution, is of course, in a sense a 
conservative, since he or she is conserving constitutional values. 
Still, one who conserves constitutional values and the separation of 
powers, as Montesquieu pointed out, is also a liberal because he or she 
is preserving the liberty that can only exist where judges do not 
legislate.
---------------------------------------------------------------------------
    \14\ For example, the Chair of this subcommittee, Senator Schumer, 
has been quoted as stating, ``Judges [nominated by the President] will 
have to be moderate.'' See, e.g., Ron Fourier, ``Switch Tarnishes 
Bush's Image,'' Chattanooga Times/ Chattanooga Free Press, May 25, 
2001, pg. A1 (AP Wire Story).
---------------------------------------------------------------------------
   There is Nothing to Fear from the President's Judicial Philosophy
    It cannot be denied that there are substantive elements involved in 
the current struggle over judicial appointments. We all understand, I 
think, that there is a partisan divide over issues that could well be 
described as ideological, even if the proper judicial philosophy should 
not be a subject of partisan rancor. The fear of those who now seek to 
block President Bush's appointments is that if he is permitted to 
nominate judges of a philosophical bent close to those of Thomas and 
Scalia, they will participate in decisions that will bar affirmative 
action, interfere with the separation of church and state, and outlaw 
abortion. I understand those fears, but I do not share them for two 
reasons. First, I think that Thomas and Scalia's perspective on these 
issues is in accord with the original understanding of the 
constitution, and, second, I think that any new judicial appointments 
on the lower federal courts, or even on the United States Supreme 
Court, would be unlikely significantly to alter the law regarding these 
topics.
    With-regard to the first point, Thomas and Scalia have indicated 
what appears to be a belief in a color-blind constitution, an 
understanding that any governmental discrimination on the basis of race 
ought to be prohibited. This, I think, is the perspective of Dr. Martin 
Luther King, who believed that we should judge persons by the ``content 
of their character,'' and not ``the color of their skin,'' \15\ and, 
indeed, that was the goal of the Fourteenth Amendment itself. The 
Fourteenth Amendment after all, is couched in terms of ``equal 
protection of the laws'' not special advantage. This is not a radical 
or reactionary perspective, it is simple equality, or, perhaps, 
``Simple Justice.'' \16\
---------------------------------------------------------------------------
    \15\ The famous words are from Dr. King's ``I have a Dream'' 
speech, delivered at the Lincoln Memorial, in Washington, on August 28, 
1963. See, e.g., Deborah Gillan Straub, African American Voices 211 
(1996).
    \16\ See, e.g., Richard Kluger, Simple Justice: The History of 
Brown v. Board of Education and Black America's Struggle for Equality 
(Random House, paperback edition, 1977).
---------------------------------------------------------------------------
    Thomas and Scalia have been reluctant to follow some of their 
brethren in broadly construing the establishment clause to bar all 
official involvement with religion, as they did, for example, when they 
dissented from a 1992 ruling that barred non-sectarian prayer at a 
middle school graduations \17\ and from a more recent ruling regarding 
student prayer at a high school football game.\18\ In doing so, of 
course, Thomas and Scalia were merely following centuries of American 
tradition, which emphasized the role of the sacred in undergirding 
American government and life. More importantly, they were emphasizing 
that in matters of religion, the Constitutional scheme barred the 
federal government from establishing a national sect, but left the 
state and local governments free to promote the policies they deemed 
proper.
---------------------------------------------------------------------------
    \17\ Lee v. Weisman, 505 U.S. 577 (1992).
    \18\ Santa Fe Independent School District v. Doe, 530 U.S. 290 
(2000).
---------------------------------------------------------------------------
    This was the same perspective that animated and animates Scalia and 
Thomas's positions on the issue of abortion. They believe that this is 
not a question that the federal constitution addresses, and that the 
matter is best left in the hands of state governments, where the 
Constitution originally placed it.\19\
---------------------------------------------------------------------------
    \19\ See, e.g. Planned Parenthood c. Casey, 505 U.S. 833, 1002 
(Scalia, J., dissenting) (``We should get out of this area, where we 
have no right to be, and where we do neither ourselves nor the country 
any good by remaining.'')
---------------------------------------------------------------------------
    This last set of concerns may also help us understand what causes 
the anxiety over the President's potential nominees. For most of the 
past sixty-four years there has been a tendency on the part of the 
federal government to extend its regulatory reach, and for the federal 
courts to support such expanded federal power. We have seen, in recent 
years, some signs of willingness on the part of the Supreme Court to 
once again remind us that the powers of the federal government are 
limited and enumerated, and to manifest this willingness by declaring 
some federal statutes unconstitutional on the grounds that they 
exercise powers not granted to Congress.\20\ Because I believe that the 
original constitutional scheme was to make the state and local 
governments the primary exercisers of legislative power I don't find 
this worrisome, but those who believe that the federal government ought 
to be the exclusive guarantor of our rights might disagree. I can't 
sympathize with that view, because I believe, as the Framers did, that 
the most important right of the people is to legislate for themselves, 
and I believe that this is best done by the governments closest to the 
people, except in matters of clearly national concern.
---------------------------------------------------------------------------
    \20\ See, e.g. U.S. v. Lopez, 514 U.S. 549 (1994) (Holding 
unconstitutional the Federal Gun-Free School Zones Act, on the grounds 
that it was unauthorized by the Constitution's commerce clause), U.S. 
v. Morrison, 529 U.S. 598 (2000) (Holding, inter alia, that portions of 
the federal Violence Against Women Act failed to pass constitutional 
muster under the commerce clause).
---------------------------------------------------------------------------
    This right of the people to legislate for themselves, is, of 
course, the same thing that is involved in the Constitution's mandating 
of the separation of powers, and in the wish of President Bush that 
judges not-legislate. But to return to the reasons not to fear the Bush 
nominees. Even if the President were to be successful in getting 
through the Senate precisely those nominees of his choosing, and the 
nominees most committed to the original understanding and the belief 
that judges should not legislate, it is by no means clear that any, 
much less all of the Constitutional principles said to be endangered 
would be overturned.
    The first point that needs to be made in this regard is that 
predictions of what people will do when they ascend the bench are 
notoriously inaccurate. President Madison appointed Joseph Story, 
thought to be a firm Jeffersonian, who turned out to be Marshall's 
staunchest ally on the Supreme Court bench, and, for all practical 
purposes, a committed nationalist.\21\ President Eisenhower was 
frequently quoted as saying that he only made two mistakes as President 
and that they were both sitting on the United States Supreme Court. He 
was referring to his appointments to the court of William Brennan and 
Earl Warren, because they proceeded to decide cases in a manner with 
which he apparently thoroughly disagreed.\22\ Most recently Justice 
Souter seems to have evolved a constitutional jurisprudence clearly at 
odds with the first President Bush's asserted preferences for judges 
would interpret the Constitution according to the original 
understanding. It is for this reason--the unpredictability of judicial 
performance--that the safest course is probably to focus on the 
competence, integrity, virtue and honor of nominees, since these seem 
to be qualities least subject to change over time, and least affected 
by becoming judges.
---------------------------------------------------------------------------
    \21\ For Story's career, see, e.g., R. Kent Newmyer, Supreme Court 
Justice Joseph Story: Statesman of the Old Republic (Paperback ed., 
1986).
    \22\ See, e.g. Lawrence Baum, The Supreme Court 41 (3d ed. 1989).
---------------------------------------------------------------------------
    The second point regarding the lack of danger posed by Bush 
nominees to current Constitutional doctrines is related somewhat to the 
first, and is the difficulty of judges of any stripe in overruling 
established law. It is perhaps significant that the Supreme Court's 
1992 ruling, in Planned Parenthood c. Casey,\23\ which upheld Roe v. 
Wade,\24\ the case finding in the 14th Amendment an unenumerated right 
under some circumstances for termination of pregnancies, was made by a 
Court that included 8 Republican appointments, and the five-person 
majority in that case were all Republican nominees. Indeed, most 
recently, the Supreme Court, which, at this writing has seven 
Republican nominees and two Justices nominated by a Democratic 
President, found that a state statute banning partial-birth abortion 
failed to pass Constitutional muster.\25\ The empirical case that 
Republican appointees are a danger to the legality of abortion simply 
has not been made. Similarly composed Supreme Court majorities have 
upheld decisions involving affirmative action and applying the First 
Amendment strictly to separate state and local government from 
religion, though narrow majorities have also sought to give religious 
organizations the same free-exercise of speech rights as secular 
organizations, but this should hardly be cause for worry by the friends 
of free expression.
---------------------------------------------------------------------------
    \23\ 505 U.S. 833 (1992).
    \24\ 410 U.S. 113 (1973).
    \25\ Stenberg v. Carhart, 530 U.S. 914 (2000).
---------------------------------------------------------------------------
    A final point to be made about the limited power of potential Bush 
nominees is that judges adhering to the original understanding, or 
those committed to exercising judgment rather than will, or those who 
know that it is the job of a judge to interpret rather than to make 
law, if placed on lower federal courts will follow the dictates of the 
United States Supreme Court. There is no more basic principle of our 
federal judicial system then that that binds the Courts of Appeals and 
the District Courts to follow the interpretations laid down by the 
Supreme Court. As long as that Court adheres to current doctrines 
regarding abortion, race, or religion, Bush nominees to the lower 
courts will follow them.
        Conclusion: Preserving Learned Hand's ``Common Venture''
    I do not suggest that the law or even the Constitution should not 
change over time, as the needs of the American people shift with 
economic, political, or social development. Such change, however, in 
our system, is supposed to come from legislatures or from 
Constitutional Amendment; and not through judges acting as legislators. 
As Learned Hand, perhaps the greatest judge never to sit on the Supreme 
Court, remarked, inveighing against the notion that members of that 
Court should make law:

        For myself it would be most irksome to be ruled by a bevy of 
        Platonic Guardians, even if I knew how to choose them, which I 
        assuredly do not. If they were in charge, I should miss the 
        stimulus of living in a society where I have, at least 
        theoretically, some part in the direction of public affairs. Of 
        course, I know how illusory would be the belief that my vote 
        determined anything; but nevertheless when I go to the polls I 
        have a satisfaction in the sense that we are all engaged in a 
        common venture.\26\

    \26\ Learned Hand, The Bill of Rights 73-74 (Harvard University 
Press, 1958).
---------------------------------------------------------------------------
    I urge this subcommittee and the Senate as a whole to preserve that 
``common venture,'' the exercise of sovereignty by the American people, 
and their right to make their own laws and Constitutions. The 
philosophy of judging outlined by President Bush is no danger to that 
popular sovereignty. It is the only means of implementing it and the 
rule of law itself.

    Chairman Schumer. Thank you, Professor Presser.
    Our next witness is Professor Cass Sunstein. He is also 
from the State of Illinois, so you might want to say hello to 
him, Senator Durbin.
    Professor Sunstein is presently a member of the University 
of Chicago's Department of Political Science, as well as the 
law school. He graduated in 1975 from Harvard College, and in 
1978 from Harvard Law School magna cum laude. He clerked for 
Justice Thurgood Marshall, and before joining the faculty of 
the University of Chicago Law School he served as an attorney-
adviser in the Office of Legal Counsel in the U.S. Department 
of Justice.
    He is the author of many articles and books, including 
After the Rights Revolution: Reconceiving the Regulatory State, 
Constitutional Law, The Partial Constitution, Administrative 
Law and Regulatory Policy, and the recently released One Case 
at a Time: Judicial Minimalism on the Supreme Court. He is now 
working on various projects involving the relationship between 
law and human behavior.
    Professor Sunstein, thank you for coming and we look 
forward to your testimony.

STATEMENT OF CASS R. SUNSTEIN, KARL N. LLEWELLYN DISTINGUISHED 
SERVICE PROFESSOR OF JURISPRUDENCE, UNIVERSITY OF CHICAGO, LAW 
 SCHOOL AND DEPARTMENT OF POLITICAL SCIENCE, CHICAGO, ILLINOIS

    Mr. Sunstein. Thank you, Mr. Chairman. It is an honor to be 
here, and I am going to try in these remarks to be as specific 
as I can because it is easy to get kind of tangled up in 
abstractions on this issue.
    If we step back a bit, I think everybody agrees that 
ideology, in the sense of general approach or likely pattern of 
decisions, matters. There is no disagreement about that. If 
there was a nominee who thought that the Bill of Rights didn't 
apply to the States, or the Constitution didn't protect private 
property, or that segregation was acceptable at the hands of 
the State or Federal Government, almost everyone would agree 
that that nominee shouldn't be confirmed.
    The President and the Senate are in accord on the 
importance of ideology. Republicans and Democrats agree with 
that. Political ideology, of course, doesn't matter. It doesn't 
matter who you voted for. The general approach to the 
Constitution and laws, of course, matters. That is not a 
disputed question.
    Under current conditions, I suggest it is perfectly 
appropriate for independents, Republicans and Democrats to 
attempt to ensure a deferential judiciary that respects 
Congressional prerogatives. The current Federal judiciary, I 
suggest, is all too willing to invalidate Federal enactments. 
This is an issue that has gotten no attention thus far today, 
zero. It is the most important development within the last 10 
years on the Federal judiciary; that is, we have a Supreme 
Court and lower Federal court judges who are willing to limit 
Congressional power in a way unprecedented in the sense that we 
haven't seen it in the last 50 years.
    We could deal a fair bit with numbers, and I think I am not 
going to give you numbers, but just to suggest that the Court 
has invalidated legislation that has commanded astonishing 
bipartisan support with the very recent past. The Violence 
Against Women Act, the Religious Freedom Restoration Act, the 
Age Discrimination in Employment Act, and the Americans with 
Disabilities Act--all of these in whole or in significant part 
have been invalidated by a Supreme Court and a lower Federal 
judiciary that is suffering on occasion from the vice of 
hubris.
    My remarks will come in three parts. I will say a little 
bit about the constitutional role of the Senate, a little bit 
about the current Federal judiciary, and then a little bit 
about the appropriate Senate rule under current conditions; 
that is, conditions of the year 2001 as opposed to 1970.
    With respect to the Constitution, the text, understood in 
its context, clearly contemplates an aggressive role for the 
Senate in looking at ideology, understood as general approach. 
federalism was a disputed issue at the time, of course, and the 
advice and consent function is no mere rubber stamp. The idea 
is that the Senate has a role in giving or denying consent, and 
also in advising, if it chooses and if the President chooses to 
listen, the President as well. This is not just a matter of 
paper; this is an important constitutional function.
    With respect to the structure of the Constitution, there is 
a further point. There is all the difference in the world 
between the Senate's role in advising and consenting to 
Presidential appointments in the executive branch and 
Presidential appointments in the judicial branch.
    I will suggest that I believe the Senate was entirely 
correct to confirm two honorable men, Attorney General Ashcroft 
and Solicitor General Olson, notwithstanding the controversy 
over their points of view. These are disputed issues and the 
President was entitled to have a wide berth there. I would 
submit the same thing with respect to other currently disputed 
Presidential nominees within the executive branch. President 
Bush is entitled to a great deal of room to maneuver.
    The Federal judiciary is a whole different ball of wax, not 
least because the Federal judiciary often acts as an arbiter of 
controversies between Congress and the President, an issue 
which may come up again with respect to the area of campaign 
finance reform, where the Congress and the President may have a 
different view. Where the Federal judiciary has this arbitral 
role, the ordinary presumption of very strong deference just 
doesn't apply.
    The original history of the Constitution strongly confirms 
this view. The word used by the Framers was ``security.'' That 
is what the role of advice and consent was intended to give. 
Alexander Hamilton was a very great man. He was also probably 
the strongest defender of Presidential prerogatives at the time 
of the Framing. What he said is important, but it should be 
taken with many grains of salt.
    In any case, the Nation's practice over the last 200-plus 
years has converged on a role for ideology. If President 
Clinton had nominated someone who believed that the 
Constitution doesn't protect private property or the 
Constitution guarantees a right to marry for homosexuals, there 
is no question there would have been an outcry. And to make 
those sorts of issues a basis for an outcry would have been 
entirely acceptable. Senator Hatch would have done that and he 
would have been within his constitutional domain to do that.
    We now have a Federal judiciary that is very different from 
the Federal judiciary of 30 years ago. At that point, it would 
have been appropriate to complain about liberal judicial 
activism--a Supreme Court that had on it Justices Brennan, 
Marshall and Blackmun, all of whom were liberals; a lower 
Federal judiciary that had people in the mold of Brennan, 
Marshall and Blackmun.
    These are in many ways distinguished people, Brennan, 
Marshall and Blackmun. I clerked for Justice Marshall. I 
disagree strongly with their view about the appropriate 
approach to the Supreme Court. I believe they were rightly 
criticized as liberal judicial activists.
    Right now, we have a Supreme Court that has a heavy right 
wing, a heavy center, and no left at all. We don't have a 
single Justice who marches to the same tune as that set by 
Brennan, Marshall and Blackmun. Even for those who disagree 
with that tune or don't think it sounds quite right, this is a 
loss for the country.
    The two characteristics of the Federal judiciary now, 
signaled maybe most prominently by the federalism cases, are, 
first, that it is quite willing to strike down Federal 
statutes, in some ways extraordinarily willing to do that, and 
it is willing to strike down Federal statutes from a particular 
direction; that is, the most prominent new departures by the 
Court, when it isn't just respecting old precedent, are 
departures in the direction set by, let's just call it the 
conservative right.
    Indeed, I read the Republican Party platforms back to 1980 
on the plane here and there is an eery resemblance between the 
directions being marked out by the most conservative Justices 
on our Supreme Court and our most conservative judges on the 
lower courts and the statements in the Republican Party 
platform.
    It would be just too happy a coincidence if it turned out 
that the Republican Party platform perfectly tracked the 
original understanding of the Framers of the Constitution, and 
that coincidence I will just say in shorthand can't be 
vindicated by reference to history.
    The re-molding of the Federal judiciary from the last 30 
years has been deliberate and self-conscious. President Reagan 
was very concerned to ensure a restructured Federal judiciary 
and succeeded in that. He was self-conscious and effective.
    President Clinton, by contrast, was concerned to work with 
the Republican Senate partly just because of his self-interest, 
and he appointed centrists, not liberals. Justice Breyer and 
Justice Ginsburg are extremely distinguished nominees. They are 
not at all like Brennan and Marshall or Blackmun. They have a 
very different approach to the law and the Constitution. It is 
an approach that I personally approve of.
    I can't think of a single nominee by President Clinton to 
the lower Federal courts who genuinely counts as a liberal. He 
appointed centrists, not liberals. That is to his credit, I 
believe, but it involved a re-molding of the Federal judiciary.
    Of course, it is right that the current Senate owes the 
President a large measure of respect and a measure of 
deference. But if we look at the trend lines own the Federal 
judiciary and what is likely to happen if President Bush is 
allowed to do whatever he wants, I don't think that Republicans 
are going to like that very much either.
    Many Republicans don't like affirmative action programs and 
campaign finance reform. Most Republicans who don't like those 
things don't believe that the future of affirmative action 
programs and campaign finance reform should be set by the 
Federal judiciary.
    Many Republicans believe that commercial advertising 
shouldn't be regulated by the state, that it is none of the 
state's business. Few Republicans believe that the Constitution 
of the United States forbids State legislatures from regulating 
commercial advertising. Justices Scalia and Thomas have 
signaled their strong desire to strike down affirmative action 
programs, campaign finance, and regulation of commercial 
advertising.
    There is no question that their directions would draw into 
question, as they have just done, the Clean Water Act and the 
Endangered Species Act, and certain provisions at least of the 
Clean Air Act. This is objectionable not because the results 
are objectionable, but because it is an inappropriate role for 
the Supreme Court in our constitutional system.
    Justice Scalia, I should say, my former colleague at the 
University of Chicago, is probably the best writer on the Court 
since Justice Jackson, and the Nation is much better off with 
his voice than without his voice. The same can be said for 
Justice Thomas, who has added a great deal to the Supreme Court 
partly because he has points of view and arguments, like 
Justice Scalia, that are very different from those of anyone 
else on the Court.
    What is desirable is not a litmus test or an exclusion of 
people with particular points of view, but respect for 
intellectual diversity. And I fear that my fellow Illinoisan 
and friend, Professor Presser, is suggesting that his 
particular approach to the Constitution has a kind of unique 
claim to validity, as if the Federal judiciary should be 
monopolized by a particular interpretive approach. That is not 
the way a Federal judiciary operates in a democracy and it is 
appropriate for the Senate to assure that it doesn't happen.
    To end, let me suggest that in this particular era we need 
a form of mutual accommodation between the Senate and the 
President to ensure not a litmus test for anyone in particular, 
but an appropriate degree of diversity, not racial or ethnic or 
based on gender, but intellectual diversity so that the Federal 
courts are not monopolizes by any particular interpretive 
approach.
    We need, even more than that, a deferential judiciary that 
is humble and cautious and respectful of the prerogatives of 
the democratic branches of Government. The idea that the 
Supreme Court should interpret law and not make it is correct. 
That idea ought not to be used by those who believe that the 
Constitution, fairly interpreted, is a kind of weapon to be 
wielded against the elected branches of Government.
    [The prepared statement of Mr. Sunstein follows:]

Statement of Cass R. Sunstein, Karl N. Llewellyn Distinguished Service 
   Professor of Jurisprudence University of Chicago, Law School and 
                    Department of Political Science

    Mr. Chairman and Members of the Subcommittee:
    I am grateful to have the opportunity to appear before you today to 
discuss the issue whether ``ideology'' should matter in the process of 
appointing and confirming federal judges.
    My basic conclusion is simple. ``Ideology'' should certainly 
matter, both for the President and for the Senate. At least this is so 
if ``ideology'' means the expected approach, and general patterns of 
votes, of a potential judge. Almost everyone would agree that the 
President should not nominate, and the Senate should not confirm, 
someone who thinks that the Constitution does not protect private 
property, or permits schools to be segregated on the basis of race, or 
allows government to suppress political dissent. Because of his unique 
constitutional position, the President's choices are certainly due a 
large measure of deference. But it is perfectly appropriate for the 
Senate to ask whether a nominee's general approach, or likely pattern 
of votes, fits within the acceptable range of views, given the current 
nature of the federal judiciary, and existing trends within the federal 
courts as a whole.
    To offer somewhat more detail: In as era in which the federal 
judiciary is dominated by left-wing judges, interpreting the 
Constitution to fit with their own views of public policy, it would be 
perfectly appropriate for Senators to insist that the President appoint 
people who will have a more modest view of the judges' role in the 
constitutional order. In an era in which the federal judiciary has a 
good deal of diversity, is respectful of its own limitations, and has 
no particular ``tilt,'' it would be appropriate for the Senate to allow 
the President to appoint the judges he prefers, so long as they are 
competent and have views that do not go beyond the pale. But in an era, 
like our own, in which the federal judiciary is showing too little 
respect for the prerogatives of Congress, an excessive willingness to 
intrude into democratic processes, and a tendency toward conservative 
judicial activism, it is fully appropriate for the Senate to try to 
assure more balance, and more moderation, within the federal courts.
    My testimony will come in three parts. Part I briefly discusses the 
constitutional background. Part II discusses the nature of the federal 
judiciary. Part III discusses the appropriate posture, from the Senate, 
toward nominees by President Bush.
                  I. The Constitutional Background \1\
    The Constitution fully contemplates an independent role for the 
Senate in the selection of Supreme Court Justices. That independent 
role certainly authorizes the Senate to consider the general approach, 
and likely pattern of votes, of potential judges.
---------------------------------------------------------------------------
    \1\ This section borrows heavily, and often verbatim, from David A 
Strauss and Cass R Sunstein, The Senate, the Constitution, and the 
Confirmation Process, 101 Yale LJ 1491 (1992). In order to promote 
readability, I have not included footnotes, which can be found in that 
essay, attached as an appendix to my testimony.
---------------------------------------------------------------------------
    Article II, Section 2 provides that the President ``shall nominate, 
and by and with the Advice and Consent of the Senate, shall appoint . . 
. Judges of the supreme Court.'' A first glance, these words assign two 
distinct roles to the Senate--an advisory role before the nomination 
has occurred and a reviewing function after the fact. The consent 
requirement, if the Senate takes it seriously, places pressure on the 
President to give weight to senatorial advice as well. At the same 
time, the advisory function makes consent more likely. The clause seems 
to envision a genuinely consultative relationship between the Senate 
and the President. It seems to create a deliberative process, jointly 
conducted, concerning the composition of the Court.
    In the particular context of judicial appointments, there is an 
additional and highly compelling concern, one that stems from 
constitutional structure. It may be granted that the Senate ought 
generally to be deferential to Presidential nominations involving the 
operation of the executive branch. For the most part, executive branch 
nominees must work closely with or under the President. The President 
is entitled to insist that those nominees are people with whom he is 
comfortable, both personally and in terms of basic commitments and 
values. It is for this reason, among others, that the Senate's 
decisions to confirm Attorney General John Ashcroft and Solicitor 
General Theodore Olson seem to be entirely correct.
    The case is quite different, however, when the President is 
appointing members of a third branch. The judiciary is supposed to be 
independent of the President, not allied with him. It hardly needs 
emphasis that the judiciary is not intended to work under the 
President. This point is of special importance in light of the fact 
that many of the Court's decisions resolve conflicts between Congress 
and the President. A Presidential monopoly on the appointment of 
Supreme Court Justices thus threatens to unsettle the constitutional 
plan of checks and balances.
    History supports this view of the text and structure. The 
Convention had four basic options of where to vest the appointment 
power: it could have placed the power (1) in the President alone, (2) 
in Congress alone, (3) in the President with congressional advice and 
consent, or (4) in Congress with Presidential advice and consent. Some 
version of each of these options received serious consideration.
    The ultimate decision to vest the appointment power in the 
President stemmed from a belief that he was uniquely capable of 
providing the requisite ``responsibility.'' A single person would be 
distinctly accountable for his acts. At the same time, however, the 
Framers greatly feared a Presidential monopoly of the process. They 
worried that such a monopoly might lead to a lack of qualified and 
``diffused'' appointees, and to patronage and corruption. The Framers 
also feared insufficient attentiveness to the interests of different 
groups affected by the Court. The compromise that emerged-the system of 
advice and consent-was designed to counteract all of these various 
fears.
          a. the early agreement on congressional appointment
    It is important to understand that during almost all of the 
Convention, the Framers agreed that the Senate alone or the legislature 
as a whole would appoint the judges. The current institutional 
arrangement emerged in the last days of the process. On June 5, 1787, 
the standing provision required ``that the national Judiciary be 
[chosen] by the National Legislature.'' James Wilson spoke against this 
provision and in favor of Presidential appointment. He claimed that 
``intrigue, partiality, and concealment'' would result from legislative 
appointment, and that the President was uniquely ``responsible.'' John 
Rutledge responded that he ``was by no means disposed to grant so great 
a power to any single person. The-people will think we are leaning too 
much towards Monarchy.''
    James Madison agreed with Wilson's concerns about legislative 
``intrigue and partiality,'' but he ``was not satisfied with referring 
the appointment to the Executive.'' Instead, he proposed to place the 
power of appointment in the Senate, ``as numerous eno' to be confided 
in-as not so numerous as to be governed by the motives of the other 
branch; and as being sufficiently stable and independent to follow 
their deliberative judgments.'' Thus, on June 5, by a vote of nine to 
two, the Convention accepted the vesting of the appointment power in 
the Senate.
    On June 13, Charles Pinckney and Roger Sherman tried to restore the 
original provision for appointment of the Supreme Court by the entire 
Congress. Madison renewed his argument and the motion was withdrawn.
    The issue reemerged on July 18. Nathaniel Ghorum claimed that even 
the Senate was ``too numerous, and too little personally responsible, 
to ensure a good choice.'' He suggested, for the first time, that the 
President should appoint the Justices, with the advice and consent of 
the Senate- following the model set by Massachusetts. Wilson responded 
that the President should be able to make appointments on his own, but 
that the Ghorum proposals were an acceptable second best. Martin and 
Sherman endorsed appointments by the Senate, arguing that the Senate 
would have greater information anda point of special relevance here-
that ``the Judges ought to be diffused,'' something that ``would be 
more likely to be attended to by the 2d. branch, than by the 
Executive.'' Edmund Randolph echoed this view.
    In the end, the Ghorum proposal was rejected by a vote of six to 
two. At that point, Ghorum suggested, as an alternative, that the 
President should nominate and appoint judges with the advice and 
consent of the Senate. On this the vote was evenly divided, four to 
four.
    Madison then proposed Presidential nomination with an opportunity 
for Senate rejection, by a two-thirds vote, within a specified number 
of days. Changing his earlier position, Madison urged that the 
executive would be more likely ``to select fit characters,'' and that 
``in case of any flagrant partiality or error, in the nomination, it 
might be fairly presumed that \2/3\ of the 2d. branch would join in 
putting a negative on it.'' Pinckney spoke against this proposal, as 
did George Mason, who argued: `` Appointment by the Executive is a 
dangerous prerogative. It might even give him an influence over the 
Judiciary department itself.''
    The motion was defeated by six to three. By the same vote, the 
earlier Madison proposal, in which the Senate would appoint the 
Justices, was accepted.
    The issue next arose on August 23. Morris argued against the 
appointment of officers by the Senate, considering ``the body as too 
numerous for the purpose; as subject to cabal; and as devoid of 
responsibility.'' But it was not until September 4 that the provision 
appeared in its current form. Morris made the only recorded 
pronouncements on the new arrangement and seemed to speak for the 
entire, now unanimous assembly. Morris said, ``As the President was to 
nominate, there would be responsibility, and as the Senate was to 
concur, there would be security.'' The Convention accepted the 
provision with this understanding.
b. the meaning of the shift to presidential appointment with advice and 
                         consent by the senate
    There is no evidence of a general agreement that the President 
should have plenary power over the appointments process. On the 
contrary, the ultimate design mandated a strong role for the Senate in 
the form of the advice and consent function. In this way, it carried 
forward the major themes of the debates. With respect to the need for a 
Presidential role, the new system ensured ``responsibility'' and 
guarded against the risk of partiality in the Senate. With respect to 
resistance to absolute Presidential prerogative, the principal concerns 
included (1) a fear of ``monarchy'' in the form of exclusive 
Presidential appointment; (2) a concern for ``deliberative judgments"; 
(3) a belief that ``the Judges ought to be diffused,'' that is, diverse 
in terms of their basic commitments and alliances; (4) a fear of 
executive ``influence over the Judiciary department itself"; and (5) a 
desire for the ``security'' that a senatorial role would provide. It is 
clear that these concerns reflected a belief that the Senate could 
consider what we would now call ``ideology.''
    As several of the comments suggest, the Senate's role was to be a 
major one, allowing the Senate to be as intrusive as it chose. Even 
Hamilton, perhaps the strongest defender of Presidential power, 
emphasized that the President ``was bound to submit the propriety of 
his choice to the discussion and determination of a different and 
independent body.'' Of course, the President retained the power to 
continue to offer nominees of his selection, even after an initial 
rejection. He could continue to name people at his discretion. 
Crucially, however, the Senate was granted the authority to continue to 
refuse to confirm. It also received the authority to ``advise.''
    These simultaneous powers would bring about a healthy form of 
checks and balances, permitting each branch to counter the other. That 
system was part and parcel of general deliberation about Supreme Court 
membership. The Convention debates afford no basis for the view that 
the Senate's role was designed to be meager. On the contrary, they 
suggest a fully shared authority over the composition of the Court. 
That shared authority was to include all matters that the Senate deemed 
relevant, including the nominee's point of view.
                         c. the early practice
    The practice of the Senate in the early days of the republic and 
thereafter attests to the same conclusion. George Washington's 
nomination of John Rutledge, then Chief Justice of South Carolina, as 
Chief Justice of the United States is a revealing case in point. 
Rutledge's challenge to the Jay Treaty, negotiated by Washington with 
Great Britain, played a pivotal role in the confirmation process. The 
Jay Treaty was challenged by the Republicans as a concession to Britain 
but approved by the Federalists as a way of keeping the peace. Rutledge 
attacked the treaty in a prominent speech in Charleston. The 
Federalists sought to block the Rutledge appointment on 
straightforwardly political grounds. Hamilton, a leader of the support 
for the Jay Treaty, led the opposition to Rutledge. The Senate 
ultimately rejected Rutledge in part for political reasons, by a vote 
of fourteen to ten.
    Nor was the Rutledge rejection unique. In 1811, the Senate rejected 
Madison's appointment of Alexander Wolcott, partly on the basis of 
political considerations. In 1826, President Adams' appointment of 
Robert Trimble was nearly rejected on political grounds. The 1828 
nomination of John Crittenden, a Whig, was ultimately prevented through 
postponement, and squarely on ideological grounds. Similar episodes 
occurred in the first half of the nineteenth century. In fact, during 
the nineteenth century, the Senate blocked one of every four nominees 
for the Court, frequently on political grounds.
    The Senate has at times insisted on the ``advice'' segment of its 
constitutional mandate. In 1869, President Grant nominated Edwin 
Stanton after receiving a petition to that effect signed by a majority 
of the Senate and the House. In 1932, the Chair of the Judiciary 
Committee, George W. Norris, insisted on the appointment of a liberal 
Justice to replace Oliver Wendell Holmes. Greatly influenced by a 
meeting with Senator William Borah, President Hoover eventually 
appointed Benjamin Cardozo to the Court. The Senator persuaded 
President Hoover to move Cardozo, then at the bottom of the President's 
list of preferred nominees, to the top.
    More recently, the ``ideology'' of judges has played a role in the 
Senate's consideration of many Supreme Court nominees, including David 
Souter, Robert Bork, Clarence Thomas, Ruth Bader Ginsburg, Stephen 
Breyer, Anthony Kennedy, and others. Both Republicans and Democrats 
have considered the general approach and likely pattern of votes of 
Presidential nominees, including nominees for the lower courts. It 
would not be excessive to say that in the last twenty years, a 
bipartisan consensus has emerged on the relevance of ``ideology,'' so 
much so that no Senator, and no outside observer, has seriously argued 
that it does not matter.
    Constitutional text, history, and structure strongly suggest that 
the Senate is entitled to assume a substantial role. There are 
analogies to proposed legislation and treaties, and to the Presidential 
veto. No one thinks that the Senate must accept whatever bill or treaty 
the President suggests simply because it is a ``competent'' proposal; 
it would be odd indeed to claim that the President must sign every bill 
before looking closely at the merits. Under the Constitution, the role 
of the Senate in the confirmation process should be approached 
similarly.
                 II. The Contemporary Federal Judiciary
    None of the foregoing discussion suggests that in all periods, the 
Senate should give careful consideration to the ``ideology'' of 
prospective judges. If the federal judiciary were appropriately 
diverse, and if it were showing appropriate respect for the 
prerogatives of the elected branches of government, there would be 
great reason to defer to presidential choices. If the Court were left-
of-center, and pressing its own will in the guise of constitutional 
interpretation, the Senate should certainly respect any presidential 
efforts to redress the balance. But we are in the midst of a different 
and quite unusual situation. This is a period of conservative judicial 
activism, in which federal judges appear far from reluctant to reject 
the judgments of other branches of government. The Supreme Court is 
leading this unfortunate tendency, but the lower federal courts are 
entirely willing to strike down acts of Congress as well.
    Because this is a period of conservative judicial activism, it is 
very different from other eras. For example, the period from 1935 to 
1950 was generally one of judicial caution, in which the Court tended 
to uphold whatever the elected branches did. The period from 1958 to 
1968 saw a great deal of left-wing judicial activism. We might even say 
that the Rehnquist Court is the conservative counterpart to the Warren 
Court, showing an even greater willingness to strike down legislation.
    In terms of sheer competence, no one should doubt that the current 
Supreme Court is unusually distinguished. But there are two disturbing 
facts about the current Court and indeed the current federal judiciary 
as a whole. First, it does not defer to democratically elected 
branches. Second, it shows a distinctive ideological tilt. It is fair 
to say that it has a heavy right wing, a heavy center, but no left at 
all. Let me take these points in sequence.
    The simplest fact about the Rehnquist Court is that it has struck 
down more federal laws per year than any other Supreme Court in the 
last half century. Indeed, the Rehnquist Court has been significantly 
more aggressive in invalidating federal statutes that the Warren Court 
itself. Because the Supreme Court struck down only one federal statute 
between the founding and 1856, there is a good chance that the 
Rehnquist Court is the all-time national champion, in terms of its 
sheer willingness to strike down federal statutes.\2\ Many of the 
statutes invalidated by the Court have had strong bipartisan support 
within Congress, and in many of the relevant cases, there was a 
powerful argument on behalf of constitutionality.
---------------------------------------------------------------------------
    \2\ Of course the raw numbers do not tell us everything we have to 
know. Perhaps the Court was correct to invalidate a good deal of 
federal legislation; perhaps Congress has been, in the relevant period, 
enacting a number of unconstitutional statutes. To evaluate these 
claims, we need to go behind the numbers. But I believe a careful 
inspection of the cases shows that too much of the time, this Court is 
far from respectful of democratic prerogatives.
---------------------------------------------------------------------------
Consider a few simple illustrations:
         The Rehnquist Court has reinvigorated the commerce 
        clause as a serious limitation on congressional power, for the 
        first time since the New Deal itself.\3\ As a result, a number 
        of existing federal statutes have been thrown into 
        constitutional doubt.
---------------------------------------------------------------------------
    \3\ US v. Lopez, 514 US 549 (1995); US v. Morrison, 120 S Ct 1740 
(2000).
---------------------------------------------------------------------------
         The Rehnquist Court has sharply limited congressional 
        authority under section 5 of the fourteenth amendment, in the 
        process striking down key provisions of the Americans With 
        Disabilities Act, the Religious Freedom Restoration Act,\4\ and 
        the Violence Against Women Act,\5\ all of which received 
        bipartisan support. In fact section 5 of the fourteenth 
        amendment has a narrower reach than at any time in the nation's 
        history, because of the Rehnquist Court's decisions.
---------------------------------------------------------------------------
    \4\ City of Boerne v. Flores, 521 US 507 (1997).
    \5\ US v. Morrison, 120 S Ct 1740 (2000).
---------------------------------------------------------------------------
         The Rehnquist Court has imposed serious barriers to 
        campaign finance legislation \6\--with Justices Scalia and 
        Thomas suggesting that they would be prepared to strike down 
        almost all legislation limiting campaign contributions and 
        expenditures.\7\ Many people do not believe that campaign 
        finance legislation is a good idea. But many of those who would 
        question it in principle (as I do) also believe that this is 
        not a subject to be settled by federal judges.
---------------------------------------------------------------------------
    \6\ FEC v. National Conservative PAC, 470 US 480 (1985).
    \7\ See Nixon v. Shrink Missouri Government PAC, 120 S Ct 897 
(2000) (Thomas, J., joined by Scalia, J., dissenting).
---------------------------------------------------------------------------
         The Rehnquist Court has thrown affirmative action 
        programs into extremely serious doubt,\8\ raising the 
        possibility that public employers, public schools, and public 
        universities will not be able to operate such programs. Many 
        people reasonably doubt the sense, wisdom, and fairness of 
        affirmative action programs. But those who have these doubts 
        usually do not believe that the issue should be resolved by 
        federal judges, as it now threatens to be.
---------------------------------------------------------------------------
    \8\ Adarand Constructors v. Pena, 515 US 200 (1995); Metro 
Broadcasting v. FCC, 497 US 547 (1990).
---------------------------------------------------------------------------
         The Rehnquist Court has given heightened protection to 
        commercial advertising, to the point where advertising does not 
        have much less constitutional protection than political 
        dissent.\9\
---------------------------------------------------------------------------
    \9\ See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 US 484 
(1996).
---------------------------------------------------------------------------
         In many cases, the Rehnquist Court has interpreted 
        regulatory statutes extremely narrowly, choosing the 
        interpretation that gives as little as possible to victims of 
        discrimination, pollution, and other misconduct.

    On the basis of all this, there can be no doubt that this is a 
quite activist Court-activist in the sense that it does not have a 
modest conception of its role in the constitutional design.\10\
---------------------------------------------------------------------------
    \10\ The idea of ``judicial activism'' is an unusually vexed one, 
above all because any claim that the judges are ``activist'' seems to 
depend on accepting a certain theory of legitimate interpretation. If 
originalism is the right approach to constitutional law, then Justice 
Scalia is no activist. If democracy-reinforcement is the right approach 
to interpretation, then Earl Warren was hardly an activist. Here is the 
problem: If we need to agree on a theory of interpretation in order to 
know whether judges are activist, discussion of the topic of 
``activism'' will become extremely difficult and in a way pointless. A 
disagreement about whether judges are activist will really be a 
disagreement about how judges should be approaching the Constitution; 
and the notions of activism and restraint will have added nothing. 
Following Judge Richard Posner, I am using a neutral definition here. A 
court is activist when and to the extent that it is willing to strike 
down legislation or other acts and decisions by other branches of 
government. On this view, to call a court activist is not necessarily 
to condemn it. It is on this view that the Rehnquist Court counts as 
the most activist in the nation's history, simply because and to the 
extent that it has struck down more federal laws, on an annual basis, 
than of its predecessor courts. To be sure, this statistic does not 
tell us everything we need to know. But it is highly suggestive about 
current tendencies and trends.
---------------------------------------------------------------------------
    Now to the issue of ``tilt.'' It is notable that the Supreme Court 
has moderates but no liberals--no one who stands as a jurisprudential 
successor to Justices William Brennan and Thurgood Marshall. The so-
called ``liberal wing'' actually consists of two moderate, precedent-
respecting Republicans (John Paul Stevens and David Souter) and two 
moderate Democrats who are respectful of precedent and represent 
centrist thinking (Ruth Bader Ginsburg and Stephen Breyer). The Court 
has no liberals in the sense that none of its members would follow in 
the path set by Brennan and Marshall.\11\
---------------------------------------------------------------------------
    \11\ This is lamentable not because I believe that this is the 
correct path (in fact I strongly disagree with the path marked out by 
Justices Brennan and Marshall), but because a Court that lacks anyone 
committed to it is missing something important--just as a Court lacking 
the views of Scalia and Thomas would be missing something important.
---------------------------------------------------------------------------
    If we put the Court's activist inclinations together with its tilt, 
we reach a simple conclusion: The Court is all too willing to federal 
statutes, and the statutes that it is willing to strike down are 
usually those that diverge from a conservative orthodoxy. It is 
unsettling but true to find a considerable overlap between the general 
directions charted by the current Court and the general directions 
charted by Republican Party platforms over the last two decades. There 
can be no doubt that the transformation in the federal judiciary, 
produced over the last twenty years, has been a product of political 
forces, and in particular of a self-conscious effort, by Republicans in 
the White House and the Senate, to ensure a judiciary of a certain 
stripe. This effort to transform the federal judiciary has been quite 
successful--in part because President Clinton, to his credit, generally 
made centrist appointments, on the Supreme Court and on the lower 
courts. In fact it is hard to think of any non-centrist appointment by 
President Clinton within his eight years in the White House. By 
contrast, President Bush and particularly President Reagan made a 
sustained effort to appoint young, conservative judges, many of whom 
continue to have a dominant influence on the lower courts, charting its 
basic directions.
                     III. The Senate's Current Role
    If President Bush follows the path set by his predecessors, and if 
the Senate remains passive, what might the future look like' We could 
easily imagine a situation in which federal judges

         strike down affirmative action programs, perhaps 
        eliminating such programs entirely;
         strike down campaign finance reform;
         invalidate portions of the Endangered Species Act and 
        the Clean Water Act;
         reinvigorate a controversial understanding of the 
        Second Amendment, so as to disable Congress and the states from 
        enacting gun control legislation;
         elevate commercial advertising to the same basic 
        status as political speech, thus preventing controls on 
        commercials by tobacco companies (among others);
         further reduce congressional power under the commerce 
        clause;
         generally limit democratic efforts to prevent disabled 
        people, women and the elderly from various forms of 
        discrimination;
         significantly extend the reach of the ``takings'' 
        clause, thus limiting environmental and other regulatory 
        legislation;
         ban Congress from allowing citizens to sue to ensure 
        enforcement of the law;
         and much more.

    From the constitutional point of view, what would be most 
troublesome about such a future would not be the results. It would be 
the large transfer of power from democratic branches to the federal 
judiciary. For people of varying political commitments, this transfer 
of power should be quite troublesome. The conservative attack on 
``liberal judicial activism'' is now out of date, but it had a great 
deal of merit. Conservative judicial activism is not better.
    Should anything be done about the situation? In an ideal world, 
neither Democrats and Republicans would have to think, most of the 
time, about the political convictions of judicial nominees. In such a 
world, both Republicans and Democrats would insist on high-quality 
judges who would decide cases based on legal grounds that could be 
accepted by people with diverse views. As I have suggested, rule by 
left-wing judges is as bad as rule by right-wing judges. In the 1970's, 
I believe that Republicans were right to attack undemocratic, overly 
ambitious rulings of the Warren Court. Yet by focusing so carefully on 
judicial appointments, recent officials have also produced undemocratic 
judiciary, one with far too little respect for the prerogatives of the 
elected branches.
    If President Bush seeks judges with political missions, there is 
only one remedy. As a minimal step, the Senate should be prepared to 
block any effort by Mr. Bush to fill the courts with people of a 
particular ideological stripe. Of course the Senate has the power to 
refuse to consent to a presidential appointment; and the Senate should 
deny its consent to nominees who cannot demonstrate that they have a 
healthy respect for democratic prerogatives, and will refuse to 
participate in any general effort to engraft new constitutional 
limitations on congressional power. Justices Scalia and Thomas have 
been distinguished members of the Court, and their voices deserve to be 
heard. But a federal judiciary that follows their lead would make 
unacceptable inroads on democratic self government. The Senate should 
not permit this to happen.
    Under the Constitution, the Senate also has power to provide 
``advice'' to the president. As we have seen, the Constitution's 
framers intended the Senate's ``advice and consent'' role to provide 
security against what they greatly feared: an overreaching president 
willing to dominate the judiciary. The Senate should reclaim its 
advisory role,collaborating to ensure the creation of a modest, and 
properly balanced, federal judiciary. The Senate would be well within 
its rights to insist on a role in ``advising'' the President about the 
appropriate mix of federal judges, on the lower courts as well as the 
Supreme Court. It would be most surprising if mutual agreeable 
accommodations could not be worked out.
    A clarification: If the Court lacked anyone with Justice Scalia's 
views, and if it was tilted to the left, it would be appropriate to 
confirm someone like Justice Scalia, and perhaps even appropriate to 
insist on someone like Justice Scalia. A successful effort by 
Democrats, to create a left-wing judiciary with similar hubris, would 
properly meet with an aggressive Republican response.
                               Conclusion
    In the context of the judiciary, the idea of ``ideology'' is a 
complicated one. Some people seem to think that they really know how to 
interpret the Constitution, and speak and write as if everyone who 
disagrees has an ``ideology.'' But it is better to think that there are 
several reasonable approaches to interpreting the Constitution, and 
that in a democratic society, it is desirable to ensure a reasonable 
mix.
    No one really doubts that ``ideology,'' in terms of general 
approach, or patterns of likely votes, is relevant to the nomination 
and confirmation of federal judges. Everyone would consider certain 
views out of bounds. In the present circumstances, it is appropriate 
for the Senate to impose a high burden of proof on presidential 
nominees, in order to ensure that the federal judiciary has an 
appropriate mix of views, and does not accelerate the current trend 
toward an unacceptably aggressive role for federal judges in the 
constitutional order.

    Chairman Schumer. Thank you, Professor Sunstein, for 
excellent testimony once again.
    Our next witness is Professor Eugene Volokh. Professor 
Volokh now serves as professor of law at the University of 
California at Los Angeles. He teaches and has widely published 
on constitutional law, including religious freedom, civil 
rights, and freedom of speech. Professor Volokh received his 
undergraduate and law degrees from UCLA, and after clerking on 
the Ninth Circuit Court of Appeals he clerked for Associate 
Justice Sandra Day O'Connor on the Supreme Court of the United 
States.
    Professor Volokh?

  STATEMENT OF EUGENE VOLOKH, PROFESSOR OF LAW, UNIVERSITY OF 
       CALIFORNIA AT LOS ANGELES, LOS ANGELES, CALIFORNIA

    Mr. Volokh. Thank you very much. It is great pleasure to be 
here.
    I wanted to make a few points, all of which converge on my 
basic point, which is that the Supreme Court as it is today is 
a fundamentally mainstream institution with mainstream views. 
And the conservatives, such as they are called, on the Supreme 
Court are also mainstream in their views, albeit, of course, as 
one might gather, somewhat toward the conservative side of the 
mainstream.
    This, in fact, echoes something that I think Mr. Cutler had 
said earlier that, in fact, the Supreme Court today does 
exhibit the virtues of moderation that people been asking for. 
And let me try to support this with particular facts about the 
Court's recent record.
    The Constitution is indeed a shield to be used by the 
people against the Government. At the same time, it is an 
empowering of the Government, it is a creation of the 
Government. There is no doubt that both the Federal Government 
and the State governments are properly the repositories of 
great power. There is equally no doubt the Constitution 
constrains them, and that the courts in our system of 
government enforce some of those constraints.
    Those constraints come from the Bill of Rights and those 
constraints come from the structural provisions of the 
Constitution. It is quite clear that the text of the 
Constitution was intended to impose some pretty serious 
structural constraints in the name of shielding the people 
against the Federal Government on the Federal Government. That 
is clear from the text, from the original meaning, and it has 
been pretty much a fundamental part of our constitutional 
structure.
    The Supreme Court enforces both the Bill of Rights and the 
structural constraints. It enforces them against the Federal 
Government and against the State governments. In recent years, 
it has struck down at a somewhat higher rate Federal laws than 
before. I think at a somewhat lower rate has it struck down 
State courts than, say, the Warren Court had. But it is 
certainly supposed to enforce the constraints against both 
kinds of government.
    It is interesting if you look at Federal statutes held 
unconstitutional by the Rehnquist Court, not including this 
term just because they weren't included in this last, there 
have been about 30. Fifteen of them have involved Bill of 
Rights protections, and the Supreme Court concluded, often in a 
way that cut across political lines, that certain Federal laws 
violated those rights.
    Ten of the 15 involved the First Amendment. In fact, 
Justice Kennedy, for example, who is a conservative on the 
Court in many respects, has taken a rather broad view of free 
speech. Justice Breyer has taken a rather narrow view of free 
speech. Chief Justice Rehnquist and Justice O'Connor have also 
taken a fairly narrow view, whereas Justices Souter and Thomas 
have a somewhat broader view.
    So in those areas I think we will all agree--we may 
disagree as to the particular decisions that were rendered, but 
I think we will all agree that it is quite proper for the Court 
to enforce the constitutional constraints against both the 
Federal Government and State governments. That is its role in 
our system.
    Likewise, I would say that it is proper for the Court to 
enforce the indubitable structural constraints that the 
Constitution imposes on the Federal Government. Of the 30 
cases, about 5 have involved separation of powers provisions, 
things like the Export-Import Clause and such, and about 10 of 
them have involved the question of substantive Federal power.
    These are, in some respects, the most controversial ones. 
But, again, my first point is that the restraints on Federal 
power are part of the Constitution. They were clearly 
understood by the Framers. They, in fact, believed they were to 
be the most important part of the shield that the Constitution 
erects in order to protect against the Federal Government. And 
I think it would be improperly activist for the Court to 
ignore, to willfully set aside these clear constitutional 
constraints, although, of course, there can be debate about the 
proper definition of the scope of those constraints.
    My second point is that if you look at the Court today, it 
is composed of two wings with questions of Federal power, 
setting aside the Bill of Rights provisions, but substantive 
power. One wing would say that the Federal Government has 
pretty much 100 percent of the power, and the other one would 
say the Government has pretty much 95 percent of the power.
    Now, there have been some pretty prominent debates 
naturally in the course of litigation, especially cases that 
come before the Supreme Court, they are going to be at the 
cusp, at the boundary, at the place of debate just by the 
nature of the way the cases come before the Supreme Court. But 
the remaining 95 percent of the stuff is almost never debated. 
It is quite clear that the Federal Government has substantial 
powers over manufacture of goods, over commerce in goods, 
interstate and intrastate commerce in goods, much broader power 
than was generally understood throughout American history. But 
probably it is proper that it now has this broader power 
because, in fact, the scope of commerce has expanded so much.
    The question is does it have all the power. Do those 
provisions of the Constitution that constrain Federal power, 
the enumerated powers provisions--are they, in fact, a nullity? 
Should they just be completed ignored or should they be given a 
certain degree of meaning?
    Now, the way I have framed this issue, you probably have 
some sense of where I probably would come out on this, but I 
would quite acknowledge that the view of the four liberals on 
the Court of the 100-percent Federal power provision, I think, 
is a mainstream position. There are arguments in favor of that. 
The view of the other side is also eminently a mainstream 
position.
    It does involve the striking down of certain Federal 
statutes, and that is not something that the Court should ever 
do lightly. Nonetheless, it seems to me that it is something 
that is well within the mainstream, well within the 
understanding of the Framers of the Constitution, as well as 
the understanding of American constitutional tradition.
    Let me just mention a couple of specific points on this. 
First of all, if you look at the cases which involve the 
conclusion that the Federal Government just lacks certain 
enumerated powers--the Lopez case involving the Gun-Free School 
Zones Act, the Morrison case involving the Violence Against 
Women Act, the City of Boerne case involving the Religious 
Freedom Restoration Act--all of them involved actually really 
quite substantial recent expansions of the asserted claims of 
Federal power.
    Historically, the Court has rarely struck down 
Congressional acts because Congress has generally been very 
careful to really pay attention to things that involve 
interstate commerce, or at least commerce. When you are talking 
about the regulation of non-commercial activity that has been 
traditionally part of the scope of State power rather than 
Federal power, it makes sense that the Court would look to the 
Constitution and conclude that there are certain restraints on 
the Federal Government there.
    It is interesting, by the way, to note that one of those 
decisions, the Boerne decision, was, on the question of Federal 
powers, 7-0. Two Justices didn't reach it, and of the seven 
Justices, Justices Stevens and Ginsburg took the view that 
Congress had exceeded its powers.
    Sovereign immunity decisions rest on somewhat different 
issues. I think that there are much more serious criticisms 
that could be leveled against them, as well as defenses. But 
they also come from a tradition of over 100 years of explicit 
judicial understanding and substantial Framing-era evidence 
that, rightly or wrongly -and by the way, I am no fan as a 
policy matter of sovereign immunity--the Framers understood the 
state as retaining certain limited immunities against damages 
remedies under Federal statutes. So, again, these are very 
mainstream decisions.
    Likewise, some of the decisions on the Bill of Rights side 
that Professor Sunstein criticizes are also very mainstream 
decisions. In fact, the notion that the Constitution has 
something to say about restrictions on speech and association, 
even if enacted in the name of campaign finance reform, the 
notion that it has something to say about commercial 
advertising, and the notion that it has something to say about 
affirmative action and racial preferences hardly is 
controversial or outside the mainstream notion.
    On commercial advertising, Justice Stevens, alongside of 
Justice Thomas, have been serious advocates of the notion that 
freedom of speech includes the freedom of speech that is aimed 
to persuade people to buy products. On campaign finance speech 
restrictions and association restrictions, likewise there have 
been strong voices on both the left and the right in favor of 
the notion that the First Amendment does protect those rights; 
likewise with regard to racial preferences and affirmative 
action.
    So it seems to me one can agree or disagree as a policy 
matter with some of the things the Court has been saying, but 
this is an eminently mainstream Court. It is mainstream in the 
sense that it takes seriously the notion of using the 
Constitution as a shield, a modest shield, but still as a 
shield against government power, both Federal and State.
    It is mainstream in the fact that it acknowledges the 
Federal Government has tremendous powers, powers that are much 
greater than had been understood many times in the past, but at 
the same time powers that are in some measure limited. So it 
seems to me whatever one might say about this, this is a 
mainstream Court and the conservative wing of the Court is also 
firmly part of the mainstream.
    [The prepared statement of Mr. Volokh follows:]

Statement of Eugene Volokh, Professor of Law, University of California, 
                              Los Angeles

    Mr. Chairman, Senator Sessions, thank you for inviting me to 
address this very important topic. My name is Eugene Volokh, and I'm a 
professor of law at the University of California at Los Angeles.
    The chief point I'd like to make today is that the Supreme Court's 
recent jurisprudence, including the views of the Court's more 
conservative members, has been firmly within the mainstream of American 
constitutional thought. One may agree or disagree with this 
jurisprudence, but one has to acknowledge that it's entirely 
mainstream.
    The substantive federal power decisions (United States v. Lopez, 
514 U.S. 549 (1995), City of Boerne v. Lopez, 521 U.S. 507 (1997), and 
United States v. Morrison, 529 U.S. 598 (2000)) are excellent examples 
of this sort of mainstream, eminently justifiable constitutional 
decisionmaking. The Constitution clearly sets up a federal government 
of enumerated powers-this is one of the fundamentals of James Madison's 
scheme. That's clear from the text of the document, and from all the 
contemporaneous historical evidence.
    By very mildly reining in federal power, the Supreme Court has 
simply reaffirmed this fundamental constitutional principle. In fact, 
in one of these cases, Boerne, even Justices Stevens and Ginsburg 
agreed that the Congress had overreached its enumerated powers. And in 
Jones v. United States, 529 U.S. 848 (2000), all nine Justices (in an 
opinion written by Justice Ginsburg) took the view that applying a 
federal arson statute to ``traditionally local criminal conduct'' with 
no connection to commercial activity would at least pose a very serious 
constitutional problem.
    Moreover, even in Lopez and Morrison, the debate was between the 
more liberal Justices' position that Congress has powers that are 100% 
unlimited (except by the Bill of Rights), and the more conservative 
Justices' position that Congress has powers that are 95% unlimited. 
Congress still has tremendous powers, even in areas of traditional 
state influence. The Court simply recognized that at some point even 
Congress's great powers go too far. The decisions are important, but 
they are mostly symbolic constraints. They do not seriously interfere 
with Congress's power to legislate.
    Likewise, the state sovereign immunity decisions are part of a 
tradition that goes back a century and a half. There's a contentious 
historical debate about how the Constitution should be interpreted on 
this question; I don't know which side is right on this matter. But 
though as a policy matter I do not like sovereign immunity, it's clear 
to me that the Court's decisions follow a longstanding tradition, and 
are consistent with the great majority of the precedents.
    Though the Rehnquist Court has not tried to transfigure the legal 
system by overturning state laws anywhere nearly as much as the Warren 
Court did, it has been striking down federal laws more often than past 
courts have. But this is largely because there are now more federal 
laws than in the past, especially in constitutionally sensitive areas.
    Before the advent of the Internet, most speech restrictions (except 
in the specialized area of radio and television broadcasting) were 
imposed by states. Congress had never passed the Book Decency Act or 
the Movie Decency Act. But when Congress stepped in to restrict speech 
in the new nationwide (and international) medium of the Internet, 
naturally the Court stepped in, and imposed on Congress the same rules 
that it had long imposed on the states.
    Until recent years, violent crime-except in the context of clearly 
interstate transactions-was largely seen as a state matter. But when 
Congress enacted laws such as the Gun-Free School Zones Act or the 
Violence Against Women Act, the Supreme Court had to step in and 
consider whether Congress had overreached the constitutional 
boundaries. That is the Court's job, and the further Congress tries to 
reach, the more likelihood there will be that there is indeed 
overreaching.

    Chairman Schumer. Thank you, Professor Volokh.
    Our next witness is Marcia Greenberger. She is the founder 
and co-president of the National Women's Law Center. She is a 
recognized expert on sex discrimination and the law, and has 
participated in the development of key legislative initiatives 
and litigation protecting women's rights, particularly in the 
areas of education, employment and health. She has been counsel 
in landmark litigation establishing new legal precedents for 
women and the enforcement of laws prohibiting discrimination in 
employment, education, athletics and health, and is the author 
of numerous published articles, including a chapter on key 
legal and policy issues in one of the first medical texts on 
women's health published in 1998.
    She received her B.A. with honors in 1967 and her J.D. cum 
laude in 1970 from the University of Pennsylvania. In 1972, she 
started and became the director of the Women's Rights Project 
at the Center for Law and Social Policy, which became the 
National Women's Law Center in 1981.
    Thank you very much, Ms. Greenberger, for coming.

  STATEMENT OF MARCIA D. GREENBERGER, CO-PRESIDENT, NATIONAL 
              WOMEN'S LAW CENTER, WASHINGTON, D.C.

    Ms. Greenberger. Thank you, Senator Schumer. I appreciate 
the invitation of the Committee to testify today.
    As you said, I come as co-president of the National Women's 
Law Center, which has since 1972 been integrally involved in 
the major efforts to secure and defend women's legal rights. 
With me is Judith Appelbaum, the Center's vice president and 
director of employment opportunities.
    We cannot imagine a more important topic, of course, for 
the rights of women, their very health and safety, and for all 
people in this country. I have a fuller written statement that 
I would appreciate being submitted to the record.
    Chairman Schumer. Without objection, it is in the record.
    Ms. Greenberger. Thank you.
    Well, in answering the question, should ideology matter, 
let me begin with illustrations of the real people behind some 
of those cases and principles that have been discussed earlier 
and the way those actual peoples' lives have been affected by 
the judicial philosophy of the Justices who have ruled on their 
fate.
    Let me say, first of all, in recent years, often by 5-4 
decisions and with vigorous dissents, we have seen the judicial 
philosophy of Justices take away key rights and the very 
authority of Congress to protect those rights for countless 
Americans.
    Take Patricia Garrett, a registered nurse who was demoted 
by the hospital she worked for after missing work in order to 
receive radiation and chemotherapy treatments for breast 
cancer. Five Justices on the Supreme Court denied her the 
ability to hold her employer accountable under the Americans 
with Disabilities Act. These five Justices said Congress' 
effort in passing that Act to protect her and other disabled 
Americans like her was unconstitutional.
    Or take Christy Brancala, a young woman who was sexually 
assaulted on her college campus. The same five-member majority 
of the Supreme Court, again with four Justices bitterly 
dissenting, denied her the right to sue her attackers, a right 
that Congress had wanted her to have under the Violence Against 
Women Act it passed.
    The witness just preceding me talked about these positions 
as being well within the mainstream. Sometimes, of course, the 
mainstream is in the eye of the beholder, and if the courts are 
filled with judges and justices who take one particular 
position, perhaps that turns that position more into a 
mainstream position than one might have ever expected in the 
past.
    But certainly for the women across the country who worked 
their hearts out to get the Violence Against Women Act passed, 
and their male allies in Congress and across the country who 
recognized the dramatic effect that violence against women has 
on women's ability to move freely across this land, to engage 
in work, to effect interstate commerce, and the mountains of 
legislative history that this Senate and the House amassed when 
it passed the Violence Against Women Act, they were shocked to 
find five Justices saying that Congress had no constitutional 
authority to make those findings, could not see the effect of 
violence against women and its dramatic connection to the 
Commerce Clause, let alone the kind of discrimination that 
women faced in courts in trying to assert their rights that 
many State attorneys general presented to the Supreme Court in 
support of the constitutionality of the Violence Against Women 
Act.
    That same razor-slim majority has denied others, women and 
men, the ability to hold their employers accountable for age 
discrimination in the workplace, if they happen to work for a 
State agency. The judicial philosophy driving these five judges 
could be extended, I fear, to limit the rights of our citizens 
under many other bedrock laws. And I will say again these are 
laws that women fought for, with men, laws like the Equal Pay 
Act and the Family Medical Leave Act, to name just two.
    Individual rights, our most fundamental rights, are at 
risk. If the Supreme Court has a shift of even one key Justice 
and if lower courts are filled with judges who are antagonistic 
to Roe v. Wade, millions of women could see their health and 
even their lives placed at risk.
    Clean air and clean water have been mentioned. I want to 
add to the list medical privacy. Statute after statute have 
been narrowed. Employment discrimination rights, education 
opportunities--these are all things that we thought Congress 
had passed, intending to protect all of us, and we have seen 
judges, and especially now also the Supreme Court narrowing 
those rights.
    So does judicial philosophy and ideology on the courts 
matter? Of course it matters in the most fundamental way to 
each of us, to our children, no matter where we live all across 
the country.
    As has been discussed, taking judicial philosophy account 
in judicial confirmations is nothing new. It is obviously 
nothing new in terms of the history of our country and the role 
of the Senate. It is certainly nothing new with respect to the 
President in his selection of those nominees.
    We now, as has also been discussed, have a President who 
has said in a very straightforward way that he is looking at 
judicial philosophy in selecting his own nominees. Mr. Cutler 
described earlier a time that he would like to harken back to, 
a time when President Eisenhower did not look at judicial 
philosophy as the touchstone of his selections.
    He, as some have pointed out, may have regretted the fact 
that he didn't look at judicial philosophy and give it more 
weight, since it has been described as his saying it was some 
of the biggest mistakes that he made. But that obviously also 
affected the role that the Senate chose to play, not the 
constitutional prerogatives that the Senate could have asserted 
if the times were different, as they so clearly are now.
    I want to also refer to another scholar who had been 
mentioned earlier today, Professor Charles Black. He said the 
Constitution permits, if it does not compel, the taking of a 
second opinion from a body just as responsible to the 
electorate and just as close to the electorate as is the 
President. And this second opinion, as Professor Black and many 
others have shown, should be formed independently. As has also 
been discussed, the judiciary is our third and independent 
branch, independent from the executive and from the 
legislature, and it should not be the province of either one.
    I want to make a couple of other points, given how critical 
the issues are today, and that is in the scrutiny that the 
Senate owes the American people for the nominees for lifetime 
appointment to the judicial branch of Government, it is of 
critical importance that any doubts that a Senator may harbor 
about a nominee's judicial philosophy in the critical areas 
that have been outlined today and many others must be resolved 
in favor, as Senator Byrd has said, of the interests of our 
country and its future.
    No individual person has a right to a lifetime appointment 
to our bench, but the American people have a right to expect 
that their elected representatives will protect their 
constitutional and legal protections that have been at the core 
of what has made this country the democracy that it is.
    As a part of the record, I have asked that a report that 
the National Women's Law Center presented, ``The Supreme Court 
and Women's Rights: Fundamental Protections Hang in the 
Balance,'' be included in the record. That goes into much 
greater detail about some of these rights that are hanging in 
the balance.
    I do want to just say a couple of other quick things about 
the scrutiny. When nominees come before the Senate, it is, as 
we have heard in most dramatic detail today, so clear that 
people mean very different things when they talk about not 
wanting to see an activist Court or respecting precedent.
    We have heard generalized statements about being in the 
mainstream or following precedent, but we see just by the 
testimony that preceded me how differently individuals 
interpret those very general phrases. It is essential that in 
these hearings the judicial philosophy, as distinct from 
positions on specific cases to come before those judges if they 
are confirmed, be explored.
    I want to say that in looking at and taking the measure of 
a nominee, some key lessons must be learned from the past. 
First, a nominee's previous writings and statements should be 
taken seriously. Confirmation conversions where nominees claim 
that they did not mean what they said or they said it just to 
be provocative should be viewed with strict and most skeptical 
scrutiny.
    Moreover, if a nominee has little or no record on relevant 
issues, that nominee bears the burden of assuring the Senate 
that his or her judicial philosophy is acceptable. This is 
particularly important when, as now, the President has made 
clear that he is looking for judicial nominees who fit a 
particular mold.
    The White House and the Justice Department have the 
opportunity and ability to thoroughly vet the judicial 
philosophy of the potential nominees, and it is important that 
the Senate do the same. Thus, a judicial nominee who appears in 
his or her confirmation hearing to be a blank slate is likely 
to have revealed him or herself to administration vettors to be 
nothing of the kind.
    As one legal scholar put it, ``No judge is a blank slate. 
Every judge has views on important issues before assuming the 
bench, and those preexisting beliefs influence decisions. 
Whether stated or not, the views still exist. Thus, a judicial 
candidate's refusal to answer questions does not communicate 
open-mindedness, just secrecy.''
    I hope that time does permit a review of some of the 
discussion of what happened in the judicial nomination and 
confirmation hearings of Judge Bork, and ultimately Clarence 
Thomas as well, and especially in the context of Clarence 
Thomas, where his very generalized answers about not having 
positions on key issues such as Roe v. Wade and coming to the 
Court with a completely open mind and having never even 
discussed Roe v. Wade at any point that he could remember, even 
though that decision had come down when he was in law school, 
played a very prominent role in his confirmation.
    He assured this Senate he did not have an ideology to take 
to the Court, and 8 months after being on the Supreme Court 
voted to overturn Roe v. Wade and has repeatedly and 
consistently said that he thinks that Roe was wrongly decided. 
Reporters have since cited sources saying that in their work 
with Clarence Thomas to prepare for the confirmation hearings, 
he was directed to say nothing about his views on Roe v. Wade, 
lest if he were more open with the Senate it would have 
interfered with his ultimate confirmation.
    It is essential that risks, in short, and the concerns of 
potential nominees be placed not at the feet of the American 
public to bear, but rather that the burden be on the nominee to 
assure the Senate that they belong and earn and deserve that 
lifetime appointment.
    Thank you.
    [The prepared statement of Ms. Greenberger follows:]
    [Additional material is being retained in the Committee 
files.]

Statement of Marcia D. Greenberger, Co-President, National Women's Law 
                                 Center

    My name is Marcia Greenberger, and I appreciate your invitation to 
testify today. I am Co-President of the National Women's Law Center, 
which since 1972 has been at the forefront of virtually every major 
effort to secure and defend women's legal rights. With me is Judith 
Appelbaum, the Center's Vice President and Director of Employment 
Opportunities.\1\
---------------------------------------------------------------------------
    \1\ I would also like to acknowledge the assistance of two Center 
legal fellows, Nicole Deddens and Susannah Voigt, in the preparation of 
this testimony.
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    I. Introduction: Why the Senate's Confirmation Role Is Critical
    The issue that is before the Subcommittee today is one that is of 
central importance to the American people. What is at stake is nothing 
less than the composition, for decades to come, of one of the three 
separate and equal branches of our government. While more public 
attention is generally focused on the process of selecting the 
occupants of the other two branches--through the Presidential and 
Congressional elections--the judiciary has at least as much impact on 
the lives of citizens, through its role in interpreting and applying 
the laws of the land that govern us, including the fundamental rights 
and liberties protected by the Constitution. Moreover, because members 
of the judicial branch are appointed with lifetime tenure, the scrutiny 
that they receive during the nomination and confirmation process is the 
only form of accountability for them that our system provides, short of 
the extreme--and extremely rare--remedy of impeachment. That is why the 
way in which the Senate carries out its constitutional role in the 
confirmation of judges is of such paramount importance of all 
Americans.
    For women, and the fact for all Americans, over the last 30 years 
the federal courts have allowed important advances to be made in the 
elimination of barriers to equal opportunity for all. Through their 
interpretations of the equal protection and privacy guarantees of the 
Constitution and of federal statutes aimed at eradicating sex 
discrimination and arbitrary barriers to the advancement of women, 
minorities, the disabled and older Americans, the federal courts have 
given life to the protections our laws provide for important rights and 
liberties--including the right to equal opportunity in the workplace, 
in education, and indeed in all facets of society, as well as a woman's 
right to choose to terminate a pregnancy. The role of the Supreme Court 
in protecting women's rights, with some barely surviving by 5 to 4 
margins, and the ways in which many hard-fought gains have been 
weakened by slim majorities of the Court in recent years, are the 
subject of a National Women's Law Center report entitle The Supreme 
Court and Women's Rights: Fundamental Protections Hang in the Balance, 
which is attached to this testimony and which I would like to submit 
for the record. This report documents in detail how a shift of even 
just one vote on the Court could turn back the clock for women's core 
legal rights.
    While our report focuses on the Supreme Court, it important to 
recognize the enormous power that lower federal courts, especially the 
Courts of Appeals, also wield over these and other critical issues. The 
vast majority of cases in the federal system are never accepted for 
review by the Supreme Court, and the highest level of review available 
is a Court of Appeals.\2\ Indeed, the number of cases heard by the high 
court has declined in recent years.\3\ Moreover, while some have 
suggested that lower court nominations require less scrutiny because 
these courts are constrained by Supreme Court precedents, the Supreme 
Court's jurisprudence in many areas leaves a great deal of latitude for 
lower courts. For example, the Supreme Court's decision in Planned 
Parenthood v. Casey, 505 U.S. 833 (1992), adopted a highly subjective 
standard that allows states to impose restrictions on abortion as long 
as they do not place an ``undue burden'' on a woman who seeks to 
terminate her pregnancy. When is a burden ``undue''? The Supreme Court 
gave little guidance, and some lower court judges decided that even 
substantial obstacles placed in a woman's path were not ``undue. `` A 
full eight years elapsed between the time the Supreme Court established 
the standard and the time it first reviewed any lower court's 
application of it in 2000, and countless women had their right to 
choose irrevocably lost by erroneous lower court rulings in the 
meantime. On other issues, some judges have gone so far as to disregard 
precedents of the Supreme Court altogether.\4\
---------------------------------------------------------------------------
    \2\ While 54,088 cases were acted on in 1999 by the 12 Courts of 
Appeals, only 83 cases were argued before the Supreme Court in 1999. 
See, SUPREME COURT OF THE UNITED STATES, 2000 YEAR END REPORT ON THE 
FEDERAL JUDICIARY, ; JUDICIAL BUSINESS OF THE UNITED STATES 
COURTS: 2000 ANNUAL REPORT OF THE DIRECTOR, ; See also, Edward A. Purcell, Jr. 
Reconsidering the Frankfurtian Paradigm: Reflections on Histories of 
Lower Federal Courts, 24 L. & SOC. INQUIRY 679, 722 (1999) (citing 
statistics that suggest that over 95% of decisions by the court of 
appeals are final); Ashutosh Bhagwat, Separate But Equal? The Supreme 
Court, The Lower Federal Courts, and the Nature of the ``Judicial 
Power,'' 80 B.U.L.REV. 967, 984-5 (2000) (demonstrating that as a 
practical matter federal courts are not and have not been under the 
close supervision of the Supreme Court since ``the threat of review by 
the Supreme Court is extremely limited, given practically and 
voluntarily adopted constraints on the Court's docket, and the huge 
volume of federal litigation '').
    \3\ See, e.g., Arthur D. Hellman, The Shrunken Docket of the 
Rehnquist Court, 1996 S. CT. REV. 403; David M. O'Brien, Join-3 Votes, 
the Rule of Four, the Cert. Pool, and the Supreme Court's Shrinking 
Plenary Docket, 13 J.L. & POL. 779, 807 (1997); ADMINISTRATIVE OFFICE 
OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES 71 (2001).
    \4\ See, e.g., Hopwood v. State of Texas, 78 F.3d 932 (1996), in 
which a panel of the Fifth Circuit, explicitly declining to follow the 
Supreme Court's ruling in Regents of Univ. of Cal. v. Bakke, 438.S. 265 
(1978), held that race-based affirmative action can never be used to 
further diversity in institutions of higher education, id. at 944; 
United States v. Dickerson, 166 F.3d 667, 692 (4th Cir. 
1999), rev'd 120 S.Ct. 2326 (2000) where the appeals court held that, 
contrary to 30 years of precedent, the Court's decision in Miranda v. 
Arizona, 384 U.S. 436 (1966), was not binding in federal courts. The 
Supreme Court subsequently reversed this decision by a 7-2 vote. 
Dickerson v. United States, 120 S.Ct. 2326 (2000).
---------------------------------------------------------------------------
    Lower court appointments also take on particular significance in 
light of the current composition of many of those composition of many 
of those courts. A majority of the Courts of Appeals are comprised of 
majorities that reflect a conservative judicial philosophy. And the 
extreme views of some Circuits, especially the Fourth, on the 
fundamental legal issues of the day have been the subject of extensive 
commentary.\5\ A tilt to the right has been exacerbated by the Senate's 
refusal to confirm an inordinately high number of qualified nominees--
some 36 in all--to the Courts of Appeals during the last eight years, 
thus disrupting the balancing process that normally takes place over 
time as Administrations change. There are now over 30 open seats on the 
Courts of Appeals. If these seats are filled with conservatives who 
make it thought the Federalist Society screening process, and who fit 
the mold of Justices Scalia and Thomas (whom President Bush has cited 
as appropriate judicial role models), the overall ideological tilt of 
the federal judiciary will shift even further to the right, with 
serious repercussions for all those who look to the courts for the 
protection of civil rights, women's rights, individual liberties, and 
other fundamental values of our society. We will see even fewer of the 
splits among the Circuits that normally trigger Supreme Court review, 
and less of the kind of debate among different judicial perspectives 
within panels of Circuit judges that can affect the outcome of cases 
and the development of the country's jurisprudence.
---------------------------------------------------------------------------
    \5\ See e.g., Brooke A Masters, Battle Brewing Over 4th 
Circuit Nominees, The Washington Post, May 5, 2001, A1 (``Considered 
the nation's most conservative appeals court, the 4th 
Circuit has drawn national attention for its decisions limiting federal 
power, upholding death sentences and narrowing the rights of citizens 
to file environmental and civil rights law suits.''); Associated Press, 
Helms Set to Back Nominee, Richmond Times-Dispatch, May 3, 2001, B4 
(noting that the 4th Circuit is ``the nation's most 
conservative appeals court'').
---------------------------------------------------------------------------
    Moreover, the very ability of Congress to protect the American 
people is on the line. When the courts take an unduly narrow view of 
the constitutional authority of Congress to pass legislation--as the 
Supreme Court has done, to cite just a few examples, in striking down 
the civil rights remedy in the Violence Against Women Act,\6\ 
invalidating the right of plaintiffs under the Americans with 
Disabilities Act \7\ and the Age Discrimination in Employment Act \8\ 
to hold state employers accountable for their discrimination, and 
striking down the Gun-Free School Zones Act \9\--they wipe away years 
of hard legislative effort, ignore what often amounts to ``mountains'' 
of legislative history,\10\ substitute their judgment for that of 
Congress (prompting Justice Breyer, in one dissent, to protest, ``The 
Congress of the United States is not a lower court'' \11\). and, 
because such rulings are based on the Constitution, leave little 
opportunity for Congress to repair the damage. And while Congress can 
and does enact ``restoration acts'' to undo the damage when the Court 
misconstrues the language and intent of its statutes, as it has had to 
do repeatedly for Title VII of the Civil Rights Act (prohibiting 
discrimination in employment on the basis of race, sex, religion or 
national origin), Title IX of the Higher Education Amendments 
(prohibiting sex discrimination in education), as well as the laws 
prohibiting discrimination on the basis of race, national origin, age 
and disability, these legislative battles--as Members of this Committee 
know all too well--consumer enormous amounts of time and energy that 
could be better spent on moving forward a positive agenda for the 
American people.
---------------------------------------------------------------------------
    \6\ U.S. v. Morrison, 529 U.S. 598 (2000).
    \7\ Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 
(2001).
    \8\ Kimel v. Fla. Bd. of Regents, 528 U.S. 61 (2000).
    \9\ U.S. v. Lopez, 514 U.S. 549 (1995).
    \10\ U.S v. Morrison, 529 U.S. 598, at 628 (2000) (Souter, J., 
dissenting).
    \11\ Bd. of Trustees of Univ. of Ala. v. Garrett, 121 S.Ct 955, at 
973 (2001) (Breyer, J., dissenting).
---------------------------------------------------------------------------
    For all of these reasons, with all that is at stake, the framers of 
the Constitution wisely lodged the responsibility to appoint federal 
judges not exclusively with the President, but with the Senate as well. 
And having had that heavy responsibility conferred on this body, each 
member of the Senate must carry out his or her ``advise and consent'' 
duty in a way that will protect and defend our most precious rights and 
principles. It is to that subject that I now turn.
            II. The Senate's Role in Judicial Confirmations
               a. the senate's co-equal, independent role
    The ``advise and consent'' language of the Constitution itself, and 
the history of the framers' adoption of this formulation, make it clear 
that the Constitution creates and independent role and set of 
responsibilities for the Senate in the confirmation process.\12\ And, 
as in so many other ways, the framers of the Constitution were right. 
The judiciary, after all, is independent from the Executive and 
Legislative branches, and indeed is sometimes called upon to resolve 
disputes between the two. If the President were given a superior role 
in judicial appointments, it would upset the neutrality of the 
judiciary and the system of checks and balances of which it is a part. 
Unlike Cabinet members or other appointments to the Executive branch, 
judges do not work for the President or serve at the pleasure of the 
President only while he (or someday, she) is in office. So while it may 
be appropriate for Senators to give deference to a President's choices 
of the personnel who will work for him and implement his policies in 
the departments and agencies of the federal government--and even then, 
deference is not a blank check--it would be entirely inappropriate to 
give deference to the President's selection of judicial candidates.
---------------------------------------------------------------------------
    \12\ See e.g., Donald E. Lively, The Supreme Court Appointment 
Process: In Search of Constitutional Roles and Responsibilities, 59 
S.CAL. L. REV. 551, 552-556 (1986); Henry Paul Monaghan, The 
Confirmation Process: Law or Politics?, 101 HARV. L. REV. 1202, 1204 
(1988); Gary J. Simson, Thomas's Supreme Unfitness--A Letter to the 
Senate on Advise and Consent, 78 CORNELL L. REV. 619, 648-49 (1993); 
David A. Strauss & Cass R. Sunstein, The Senate, The Constitution, and 
the Confirmation Process, 101 YALE L.J. 1491, 1494-1501 (1992). See 
generally, Charles L. Black, Jr., A Note on Senatorial Consideration of 
Supreme Court Nominees, 79 YALE L.J. 657 (1970); Richard D. Freer, 
Advice? Consent? Senatorial Immaturity and the Judicial Selection 
Process, 101 W. VA. L. REV. 495; Albert P. Melone, The Senate's 
Confirmation Role in Supreme Court Nominations and the Politics of 
Ideology Versus Impartiality, 75 JUDICATURE 68 (1991); William G. Ross, 
The Functions, Roles, and Duties of the Senate in the Supreme Court 
Appointment Process, 28 WILLIAM & MARY LAW REVIEW 633 (1987); .
---------------------------------------------------------------------------
    The late Charles L. Black, Jr., said it well in an article in the 
Yale Law Journal in 1970. After arguing that a Senator should let the 
President have wide latitude in filling executive branch posts (``These 
are his people; they are to work with him''), Professor Black 
continues:

        Just the reverse, just exactly the reverse, is true of the 
        judiciary. The judges are not the President's People. God 
        forbid! They are not to work with him or for him. They are to 
        be as independent of him as they are of the Senate, neither 
        more nor less.\13\

    \13\ Charles Black, A Note on Senatorial Consideration of Supreme 
Court Nominees, 79 Yale L.J. 657, at 660 (1970) (emphasis in original).
---------------------------------------------------------------------------
    At bottom, no judicial nominee enjoys a presumption in favor of 
confirmation. Rather, as numerous legal scholars have shown, it is the 
nominee who carries the burden of convincing the Senate that he or she 
should be confirmed, and any doubts should be resolved against 
confirmation.\14\ Articulating this shared view, Professor Chemerinsky 
has written:

    \14\ See e.g., Charles L. Black, Jr., A Note on Senatorial 
Consideration of Supreme Court Nominees, 79 Yale L.J. 657 (12970); 
Erwin Chemerinsky, October Tragedy, 65 S. CAL. L. REV. 1497 (1992); 
Henry P. Monaghan, The Confirmation Process: Law or Politics?, 101 
HARV. L. REV. 1202 (1988) David A. Strauss & Cass R. Sunstein, The 
Senate, The Constitution, and the Confirmation Process, 101 YALE L.J. 
(1992).
---------------------------------------------------------------------------
        Under the Constitution there is no reason why a President's 
        nominees for Supreme Court are entitled to any presumption of 
        confirmation. The Constitution simply says that the President 
        shall appoint federal court judges with the advice and consent 
        of the Senate. The Senate is fully entitled to begin with a 
        presumption against the nominee and confirm only if persuaded 
        that the individual is worthy of a lifelong seat on the Supreme 
        Court.\15\

    \15\ Erwin Chemerinsky, October Tragedy, 65 S. CAL. L. REV, 1497, 
1509 (1992)
---------------------------------------------------------------------------
    No person has an entitlement to a lifetime seat on the federal 
bench, and if a nominee cannot clearly satisfy the Senate that he or 
she meets all of the criteria for confirmation, the American people 
should not be asked to bear the risk of entrusting that individual with 
the reigns of judicial power. As Senator Robert Byrd said in the debate 
over the elevation of Justice Rehnquist to Chief Justice, ``The benefit 
of any doubt should be resolved in favor of the people of the States.'' 
\16\ He elaborated in the debate over the nomination of Clarence Thomas 
to the Court: ``If there is a cloud of doubt, this is the last chance . 
. . . if there is a doubt, I say resolve it in the interest of our 
country and its future, and in the interest of the Court.'' \17\
---------------------------------------------------------------------------
    \16\ 132 Cong. Rec. S12,784 (1986) (statement of Senator Byrd).
    \17\ 137 Cong. Rec. S14,633-44 (1991) (statement of Senator Byrd).
---------------------------------------------------------------------------
    The history of Supreme Court confirmations reflects the Senate's 
own understanding of its proper role as an independent--indeed, 
assertive--partner in the confirmation process. During its first 
hundred years, between 1789 and 1900, 20 of 85 Supreme Court nominees 
did not make it to the bench--they were rejected, withdrawn, or not 
acted upon.\18\ Between 1895 and 1969, during a period in which many 
Administrations did not use judicial philosophy as a driving selection 
criterion, just one nominee was rejected.\19\ But in the last 30 years, 
there has been a return to the original pattern, as five Supreme Court 
nominations have failed, with an additional two prevailing only after 
intense battles in the Senate.\20\
---------------------------------------------------------------------------
    \18\ JOHN MASSARO, SUPREMELY POLITICAL: THE ROLE OF IDEOLOGY AND 
PRESIDENTIAL MANAGEMENT IN UNSUCCESSFUL SUPREME COURT NOMINATIONS iX-X 
(1990)
    \19\ See id.; Richard D. Freer, Advice? Consent? Senatorial 
Immaturity and the Judicial Selection Process, 101 W. VA. L. REV. 495, 
498 (noting that President Hoover's 1930 nomination of Chief Judge John 
J. Parker of the Fourth Circuit was the only Supreme Court nomination 
rejected by the Senate between 1896 and 1969).
    \20\ Richard D. Freer, Advice? Consent? Senatorial Immaturity and 
the Judicial Selection Process, 101 W. VA. L. REV. 495, 498.
---------------------------------------------------------------------------
                 b. the standards senators should apply
    In light of all that is at stake, and the Senate's constitutional 
responsibility to determine who will be entrusted with life tenure on 
the bench, the Senate must scrutinize the fitness of Judicial nominees 
with extraordinary care. In addition to meeting the necessary 
requirements of honesty, integrity, character, temperament and 
intellect, to be confirmed to a federal judgeship a nominee should be 
required to demonstrate a commitment to protecting the rights of 
ordinary American citizens and the progress that has been made on civil 
rights and individual liberties, including those core constitutional 
principles that protect women's legal rights under the Equal Protection 
Clause and the right to privacy (which includes contraception and 
abortion) as well ass the statutory provisions that protect women's 
legal rights in such fundamental areas as education, employment, and 
health and safety.\21\
---------------------------------------------------------------------------
    \21\ As articulated by some 200 law professors in a May 8, 2001 
letter to the Senate, attached hereto, the Senate should evaluate every 
judicial nominee to ensure that he or she is found to: have an 
exemplary record in the law; bring an open mind to decision-making, 
with an understanding of the real-world consequences of their 
decisions; demonstrate a commitment to protecting the rights of 
ordinary Americans and not place the interests of the powerful over 
those of individual citizens; have fulfilled the professional 
obligation to work on behalf of the disadvantaged; have a record of 
commitment to the constitutional role Congress plays in promoting these 
rights and health and safety protections, and ensuring recourse when 
these rights are breached.
---------------------------------------------------------------------------
    There is widespread agreement among scholars and commentators that 
it is absolutely appropriate, and indeed necessary, for Senators to 
inquire into, and base their confirmation votes on, judicial nominees' 
positions and views on these and other substantive areas of law.\22\
---------------------------------------------------------------------------
    \22\ See e.g., Charles L. Black, Jr., A Note on Senatorial 
Consideration of Supreme Court Nominees, 79 YALE L.J. 657 (1970); Erwin 
Chemerinsky, October Tragedy, 65, S. CAL. L. REV. 1497 (1992); James E. 
Gauch, Comment, The Intended Role of the Senate in Supreme Court 
Appointments, 56 U. Chi. L. Rev. 337 (1989); Constitutional Roles and 
Responsibilities, 59 S. CAL L. REV. 551 (1986); Albert P. Melone, The 
Senate's Confirmation Role in Supreme Court Nominations and the 
Politics of Ideology Versus Impartiality, 75 JUDICATURE 68 (1991); 
William Rehnquist, The Making of a Supreme Court Justice, HARV. L. 
REC., Oct. 8, 1959; William G. Ross, The Functions, Roles, and Duties 
of the Senate in the Supreme Court Appointment Process, 28 WILLIAM & 
MARY LAW REVIEW 633 (1987); David A. Strauss & Cass R. Sunstein, The 
Senate, the Constitution, and the Confirmation Process, 101 YALE L.J. 
1491 (1992).
---------------------------------------------------------------------------
    Professor Charles Black, reasoning that a judge's judicial work is 
necessarily ``influenced and formed by his whole lifeview, by his 
economic and political comprehensions, and by his sense, sharp or 
vague, of where justice lies in respect of the great questions of his 
time,'' concludes that a nominee's ``policy orientations are material--
and. . .can no longer be regarded as immaterial by anybody who wants to 
be taken seriously, and are certainly not regarded as immaterial by the 
President--it is just as important the Senate think them not harmful as 
that the President think them not harmful.'' He summariezes:

        The Constitution certainly permits, if it does not compel, the 
        taking of a second opinion on this crucial question, from a 
        body just as responsible to the electorate, and just as close 
        to the electorate, as is the President. It is not wisdom to 
        take the second opinion in all fullness of scope? \23\
---------------------------------------------------------------------------
    \23\ Charles L. Black, Jr., A Note on Senatorial Consideration of 
Supreme Court Nominees, 79 YALE L.J. 657, 658 (1970).

    Before he was a member of the Court, Chief Justice Rehnquist 
reprimanded the Senate for its passive role in Supreme Court 
confirmation proceedings in an article published in Harvard Law Record 
in 1959. He quoted with approval a speech made by Senator Borah on the 
Senate floor during the confirmation debate on John J. Parker in which 
---------------------------------------------------------------------------
the Senator Said:

        They (the Supreme Court Justices) pass upon what we do. 
        Therefore, it is exceedingly important that we pass upon them 
        before they decide upon these matters. I say this is great 
        sincerity. We declare a national policy. They reject it. I feel 
        I am well justified in inquiring of men on their way to the 
        Supreme Court something of their views on these questions.\24\
---------------------------------------------------------------------------
    \24\ William Rehnquist, The Making of a Supreme Court Justice, 
HARV. L. REC., 7-10 (Oct. 8, 1959).

    This is nothing new; there is ample historical precedent for the 
Senate to consider ideology, policy views, and judicial philosophy in 
considering judicial nominations--dating back to George Washington's 
nomination of John Rutledge as Chief Justice in 1795 and his rejection 
by the Senate on the basis of his views on the Jay Treaty.\25\ When 
President Wilson nominated Louis Brandies to the Court, in 1916, strong 
opposition was expressed based on his history of fighting for the 
regulation of factories and other progressive economic causes.\26\ When 
President Lyndon Johnson proposed to elevate justice Abe Fortas to 
Chief Justice in 1968, his confirmation proceedings focused heavily on 
his prior rulings (and those of the Warren Court majority) that 
strengthened the rights of the accused and First Amendment protection 
of obscenity, and a filibuster blocked his elevation to Chief 
Justice.\27\ It is worth noting that during the Fortas debate, Senator 
Thurmond made the following remarks:
---------------------------------------------------------------------------
    \25\ James E. Gauch, Comment, The Intended Role of the Senate in 
Supreme Court Appointments, 56 U. CHI. L. REV. 337, 358-363 (1989).
    \26\ Paul A. Freund, Appointment of Justices: Some Historical 
Perspectives, 101 HARV. L. REV. 1146, 1151-1152.
    \27\ ROBERT A. KATSMAN, CONGRESS AND THE COURTS 24-25 (1997). 
Questions about Fortas' financial dealings, which led to his 
resignation from the Court, were not raised until later, in 1969. HENRY 
ABRAHAM, JUSTICE PRESIDENTS AND SENATORS: A HISTORY OF THE U.S. SUPREME 
COURT APPOINTMENTS FROM WASHINGTON TO CLINTON 219 (1999)

        It is my opinion further, that if the Senate will turn down 
        this nomination we will thus indicate to the President and 
        future Presidents that we recognize our responsibility as 
        senators. After all, this a dull responsibility. The President 
        merely picks or selects or chooses the individual for a 
        position of this kind and the Senate or chooses the individual 
        for a position of this kind background, into his character and 
        integrity, and into his philosophy, and determining whether or 
        not he is a properly qualified person fill the particular 
        position under consideration at the time.\28\
---------------------------------------------------------------------------
    \28\ 114Cong. Rec. 28774 (1968) (statement of Sen. Thurmond) 
(emphasis added).

    A number of other prominent Senators, of both parties, also have 
expressed the view that the philosophy of a nominee is an appropriate 
subject of Senate inquiry and an appropriate basis for a Senator's 
---------------------------------------------------------------------------
vote. For instance, Senator Robert Byrd has said,

        [I] is asserted that Senate inquiries into a nominee's fitness 
        for office [are] limited to qualifications, but that others 
        areas of obvious concern, notable his or her personal 
        philosophy or ideology, are off limits to Senate scrutiny. It 
        is a corollary of proponents of this view that the Senate is 
        obligated to place its stamp of approval on a nominee so long 
        as he or she can demonstrate the requisite minimum 
        qualifications for the office in question. All of these 
        assertions have been made time out of memory but, unlike love 
        they do not become better or truer the second or third time 
        around. Indeed, if anything, their repetition offends propriety 
        because they are transparent appeals to political expediency 
        and opportunism and intended to deter the responsible exercise 
        of the advice and consent function.\29\
---------------------------------------------------------------------------
    \29\ 133 Cong. Rec. S10,829-01 (daily ed. July 29, 1987) (statement 
of Sen. Byrd).

---------------------------------------------------------------------------
    Similarly, Senator Lott has said:

        We should look not only at their education, background, and 
        qualifications, but also--particularly when it comes to circuit 
        judges--what is their philosophy with regard to the judiciary 
        and how they may be ruling. We have a legitimate responsibility 
        to ask those questions. . .again these are not insignificant. 
        There are big time, lifetime, high paid jobs that are going to 
        affect our lives, and if we do not know who they are, if we do 
        not ask questions, then we will be shirking our 
        responsibilities.\30\
---------------------------------------------------------------------------
    \30\ 142 Cong. Rec. S9,418 (daily ed. Aug. 1, 1996) (statement of 
Sen. Lott).

    Senators therefore have a duty to study a nominee's record and to 
probe during the confirmation hearing in order to form a judgment about 
what kind of jurist the nominee will be, based on judicial philosophy 
and the nominee's views on what Professor Black called ``the large 
issues of the day.'' This does not mean asking a nominee for his or her 
personal views on questions of religion or morality or how he or she 
has voted on ballot measures in the privacy of the voting booth. It 
does mean, as reflected in past practice, probing into a nominee's 
views on the correctness of important Supreme Court precedents 
establishing the right to privacy and its application in Roe v. Wade, 
or the appropriate standard of scrutiny under the Equal Protection 
Clause for sex- or race-based classifications, or the scope of 
Congress' authority under the Commerce Clause or the Fourteenth 
Amendment to enact civil rights protections. It also means that a 
nominee's writings or statements should be taken seriously. 
Confirmation conversions should be viewed with ``strict scrutiny.''
    Carrying out the Senate's responsibility also means that if a 
nominee has little or no relevant record, he or she bears the burden of 
assuring the Senate of his or her commitment on key issues and 
principles. This is particularly important when, as is currently the 
case, there is a President in office who has made clear that he is 
looking for judicial nominees of a particular type, in this case those 
in the mold of Justices Thomas and Scalia. The White House and Justice 
Department have the opportunity and ability to thoroughly vet potential 
nominees, before they are sent to the Senate, to ensure that those 
nominees do indeed fit the President's judicial philosophy 
requirements. Thus, it is fair to assume that a judicial candidate who 
appears in his or her confirmation hearing to be a blank slate has 
revealed him- or herself to Administration vetters to be nothing of the 
kind. The Senate, then, must satisfy itself as to the nominee's views 
on critical issues. As one scholar put it:

        No judge is a blank slate; every judge has views on important 
        issues before assuming the bench and those preexisting beliefs 
        influence decisions. Whether stated or not, the views still 
        exist. Thus, a judicial candidate's refusal to answer questions 
        does not communicate open-mindedness, just secrecy.\31\
---------------------------------------------------------------------------
    \31\ Erwin Chemerinsky, October Tragedy, 65 S. CAL. L. REV. 1497, 
1506 (1992).

    Nominees who refuse to provide insights into their judicial 
philosophy have failed to meet their burden.
    These points can be illustrated with a brief look at the 
confirmation hearings of Clarence Thomas to the Supreme Court (before 
Anita Hill's allegations of sexual harassment surfaced), and 
specifically what happened when he was asked about his views on Roe v. 
Wade. Then-Judge Thomas had a prior written record of his views on Roe 
but attempted to explain them away during his hearing. Asked about his 
enthusiastic praise of an anti-abortion polemic by the Heritage 
Foundation's Lewis Lehrman (Justice Thomas had called it ``splendid 
''), he explained that he had merely skimmed the article and was 
praising it for a different reason. Asked about a report of a White 
House Working Group on the Family that he had signed, which was highly 
critical of the Supreme Court's protection of privacy and which had 
pronounced Roe ``fatally flawed,'' Justice Thomas said that he had 
signed the report but had never read it.\32\ Other anti-Roe writings he 
disowned by explaining that he wasn't a Supreme Court Justice when he 
wrote them, so they had no relevance to what he would do on the 
Court.\33\
---------------------------------------------------------------------------
    \32\ Nomination of Judge Clarence Thomas to be Associate Justice of 
the Supreme Court of the United States: Hearings before the Senate 
Comm. on the Judiciary, 102nd Cong. 129-30 (1991) 
[hereinafter Thomas Hearings].
    \33\ Thomas Hearings at 231-2, 264-67.
---------------------------------------------------------------------------
    At the same time, Justice Thomas repeatedly insisted that he had no 
ideological agenda on the right to choose and had a completely open 
mind. ``I have no agenda,'' ``I don't have an ideology to take to the 
Court,'' and ``I retain an open mind,'' he said when asked about Roe 
and the right to choose.\34\ Asked by Senator Biden whether the right 
to privacy a woman's right to terminate a pregnancy, Justice Thomas 
said he could not comment without undermining his impartiality.\35\ 
Others pressed him again and again, and he simply refused to say what 
he thought. And many recall the exchange with Senator Leahy in which 
Justice Thomas claimed he had never discussed Roe with anyone, even 
though the decision came down when he was in law school.\36\
---------------------------------------------------------------------------
    \34\ Thomas Hearings at 180, 296
    \35\ Thomas Hearings at 127.
    \36\ Thomas Hearings at 222-23.
---------------------------------------------------------------------------
    In the face of all of these assurances of a completely open mind, a 
mere eight months after this testimony Justice Thomas he joined 
Justices Rehnquist, Scalia, and White in a Rehnquist opinion that said, 
``We believe that Roe was wrongly decided, and that it can and should 
be overruled consistent with our traditional approach to stare decided 
in constitutional cases.'' Casey at 944 (emphasis added). And he has 
not wavered from this view. Just last year Justice Thomas wrote that 
Roe was ``grievously wrong.'' \37\
---------------------------------------------------------------------------
    \37\ Stenberg v. Carhart, 530 U.S. 914, 980 (2000) (Thomas, J., 
disenting).
---------------------------------------------------------------------------
    Reporters have subsequently documented that prior to Justice 
Thomas' confirmation hearing, the White House had made a firm decision 
that Justice Thomas must disclose nothing harmful at the hearing, and 
specifically that he must not indicate hie opposition to Roe v. Wade 
because it could jeopardize his confirmation. One of his handlers 
conceded, on the record, that this was a calculated strategy.\38\
---------------------------------------------------------------------------
    \38\ JANE MAYER & JILL ABRAMSON, STRANGE JUSTICE: THE SELLING OF 
CLARENCE THOMAS 210 (1994).
---------------------------------------------------------------------------
    I hope that Senators will bear this experience in mind as future 
nominees, both to the high court and to the lower federal courts, come 
before the Senate. The stakes are too high--especially on such a 
closely-divided Supreme Court, and Courts of Appeals that already 
reflect an imbalance to the right--to allow nominees to walk away from 
their past or to shield their views and ideology from Senate and public 
scrutiny.
                            III. Conclusion
    As Senators, you hold the tremendous power and responsibility to 
``advise and consent'' on federal judicial nominees. How you exercise 
that power and responsibility--the degree to which you are demanding 
and thorough in examining the records and views of the nominees that 
come before you, and the extent to which you are willing to assert you 
Constitutional prerogative to say ``no'' when appropriate-- will have a 
tremendous impact on the lives of American citizens for many years to 
come.

    Chairman Schumer. Thank you, Ms. Greenberger.
    Our final witness is Mr. Clint Bolick. Mr. Bolick currently 
serves as vice president and director of litigation at the 
Institute for Justice, which he cofounded in 1991. Mr. Bolick 
received his law degree from UC-Davis and his undergraduate 
degree from Drew University. In addition to publishing a book 
and numerous articles on constitutional law topics, Mr. Bolick 
has successfully litigated on behalf of school choice programs 
and inner-city businesses.
    Mr. Bolick, your entire statement will be put in the 
record, and proceed as you wish.

 STATEMENT OF CLINT BOLICK, LITIGATION DIRECTOR, INSTITUTE FOR 
                   JUSTICE, WASHINGTON, D.C.

    Mr. Bolick. Thank you for the honor of testifying today. I 
can't claim to be from any of your States, but we do try to 
file lawsuits there as often as possible.
    Chairman Schumer. Don't we know it.
    [Laughter.]
    Mr. Bolick. The dangers of using ideology as a sole 
criterion to evaluate judicial nominees can be illustrated in 
the cases of two sitting Supreme Court Justices. When one was 
nominated, he was opposed by left-wing special interest groups 
who vilified him for being anti-women and insufficiently 
supportive of civil rights. Another nominee, a former law 
professor, was opposed by consumer groups who believed he would 
vote consistently to uphold business interests.
    Those judicial nominees who were opposed for being too 
right-wing were, of course, Justices David Souter and Stephen 
Breyer. Now, in hindsight, those Justices have shown themselves 
to be so liberal that perhaps in those two cases only we should 
have listened to those groups and opposed the nominations.
    But the point is that it is a hazardous enterprise to try 
to extrapolate judicial philosophy from scattered academic 
writings or lower court rulings. It is even more hazardous for 
the Senate to take its cue from ideological organizations that 
themselves are so far outside the mainstream that they could 
ever have considered David Souter and Stephen Breyer to be too 
conservative.
    That is especially true for the overwhelming bulk of this 
committee's work in the area of the judiciary, which is, of 
course, not Supreme Court nominations but appointments to 
district and appellate courts. This Committee and the Senate 
are being called upon by special interest groups to create what 
amounts to a judicial blockade, elevating ideological 
considerations to an unprecedented veto role in the 
confirmation process.
    These groups have voiced wholesale opposition not to a 
specific nominee, but to an entire group of highly qualified 
judicial nominees solely on ideological grounds. If they 
succeed, it will plunge this Nation into a judicial crisis of 
historic proportions.
    I fear that this hearing is an attempt to place an academic 
fig leaf on this campaign of judicial obstructionism. That 
would jettison 200 years of Senate practice whereby judicial 
nominees for lower courts consistently have been greeted with a 
presumption of confirmation, even in times of divided 
Government.
    Some are now saying that the Senate should abandon any 
pretense of bipartisanship and play tit for tat, or as the 
Chairman used the term before, and I prefer that one, 
``gotcha'' politics. The last Senate, like previous Senates, 
slowed confirmations in the President's last year, but it seems 
that the level of statesmanship descends to a new low each 
time.
    Now, the slowdown is threatened to occur not in the 
President's final year but in his first year. That is exactly 
the type of brazen partisanship that the American people 
dislike. And I assure that if it persists, they will know about 
it and will respond.
    Why should lower court nominees not be judged solely on the 
basis of ideology? For a simple reason, because renegade judges 
can and are reined in by higher courts. A lower court judge 
cannot overturn Roe v. Wade or uphold prayer in the schools or 
overturn Miranda rights. Occasionally, they have tried, and the 
Supreme Court, this supposedly conservative, activist Supreme 
Court, has rejected such efforts.
    That is why Senators like Joe Biden have declined to invoke 
ideological litmus tests for lower court judgeships, focusing 
on qualifications and an assurance that nominees are not so 
ideologically driven that they cannot faithfully apply the 
Constitution and precedents of the U.S. Supreme Court. The 
Senate should not heed the demands of special interest groups 
to jettison those time-honored standards.
    We find ourselves today paradoxically in a time of both 
quietude and crisis regarding the judiciary, quietude because 
the majority of Americans are satisfied with our courts. Unlike 
in times past when the people perceived the courts as straying 
too far to the left or right, attempts to make the judiciary an 
issue in the last election proved unavailing. A recent New York 
Times poll found that a majority of Americans think that Bush 
nominees will be about right, though 14 percent, I might add, 
think they will be too liberal.
    The reason for this quietude is that the courts are doing a 
good job. Gone are the days when courts routinely took over 
school and prison systems, assumed the tax power, created 
welfare rights, and let criminals out on technicalities.
    Our current Supreme Court defies easy categorization. This 
supposedly conservative, activist Court struck down a law 
banning flag desecration. It placed Roe v. Wade on firmer 
jurisprudential ground. It invalidated efforts to restrict gay 
rights ordinances. It struck down Virginia Military Institute's 
ban on women, and just yesterday it once again upheld campaign 
finance reform. Conservatives were among the majority in every 
single one of those cases.
    Just this month, the Court struck down thermal imaging 
searches by a slender 5-4 majority. Thankfully, Justices Thomas 
and Scalia were on the Court to provide the vital swing votes 
to reach that decision. Our report on the ``State of the 
Supreme Court 2000'' finds this Court to be one of the 
consistently most pro-individual liberty Courts in the past 
century. Moreover, the courts are in balance. Roughly half of 
our Federal judges were appointed by Democrats, the other half 
by Republicans, and mostly Reagan and Bush judges are retiring.
    But we are also in crisis. The number of vacancies is over 
100, with roughly one-third classified as judicial emergencies. 
The operative number in terms of resolving that crisis is zero, 
which is the number of hearings and confirmations so far during 
this administration----
    Chairman Schumer. Are you complaining about Senator Hatch?
    Mr. Bolick. Yes, Senator Hatch did try to move things 
along.
    --despite the administration's alacrity in nominating 
judges and the fact that the American Bar Association has found 
each nominee that it has evaluated so far either qualified or 
well qualified.
    The bipartisan task force on which Lloyd Cutler served on 
judicial selection issued a report last year, before it knew 
which party would occupy the White House, with recommendations 
to solve this judicial crisis. It decried the use of blue slips 
which, in its words, ``undermine collective decisionmaking in 
an open, deliberative process,'' and it urged confirmation 
votes by the full Senate within 60 days of nomination.
    In 1997, Senate Patrick Leahy declared, and again I quote, 
``Those who delay or prevent the filling of judicial vacancies 
must understand that they are delaying or preventing the 
administration of justice.'' Those are words for the Senate to 
live by.
    My group has always believed in a rigorous advice and 
consent role for the Senate. At the same time, we did not 
oppose a single judicial nominee in the Clinton administration, 
not because they weren't liberal, which many of them were, but 
because for the system to work requires self-restraint and, for 
our group to maintain its integrity, requires us to choose our 
battles judiciously.
    Now, the Senate's credibility is on the line. I implore 
this body to place statesmanship over partisanship in the 
confirmation of judges. Please do not allow yourselves to be 
enlisted in an unprincipled campaign of judicial 
obstructionism.
    Thank you.
    [The prepared statement of Mr. Bolick follows:]

 Statement of Clint Bolick, Litigation Director, Institute for Justice

    I offer this statement on behalf of the Institute for Justice, a 
libertarian public interest law firm that litigates nationally in 
support of individual liberties and limited government.
    We have always asserted, in Democratic and Republican 
administrations alike, that the Senate's advice and consent role should 
be both robust and principled. At the same time, the President is 
constitutionally entrusted with the authority to nominate judges; and 
in past administrations, the Senate has accorded due deference to the 
President to nominate judges who reflect his philosophy. To preserve 
the independence of the judiciary and to keep the confirmation process 
moving, the Senate has focused primarily on the qualifications and 
judicial temperament of nominees to district and appellate judgeships, 
confining questions about ideology to nominees' ability and willingness 
to abide the constitutional oath and adhere to the rule of law.
    What we are now seeing is an effort by left-wing advocacy groups 
like People for the American Way and the Alliance for Justice to 
elevate ideology to an unprecedented level of consideration. They seek 
to manipulate the Senate into abandoning its traditional role and 
bringing the judicial confirmation process to the halt, solely on the 
grounds that the President is nominating highly qualified judges who 
share his philosophy. And I fear that this hearing, far from exploring 
important philosophical issues, is really a an attempt to place an 
academic fig-leaf on a partisan and fiercely ideological campaign of 
judicial obstructionism.
    Although my organization is keenly interested in the composition of 
the judiciary, I want to state at the outset that the Institute for 
Justice did not oppose a single judicial nominee during the eight years 
of the Clinton Administration. That is emphatically not because the 
Clinton Administration nominated only moderate judges-to the contrary, 
Clinton's judicial appointees as a whole, and especially his appointees 
to the U.S. Supreme Court, have been demonstrably more liberal than the 
judges appointed by Presidents Reagan and Bush.
    Rather, the reason that we refrained from opposing Clinton judicial 
nominees is selfrestraint. We believe that it is essential to the 
integrity of our organization to choose our battles carefully. For 
nominees to judgeships in district courts and courts of appeals-whose 
decisions are subject to review by higher courts-our touchstone is 
whether a judicial nominee is so extreme that his or her willingness 
and ability to enforce the rule of law is seriously called into 
question.
    That is not just our touchstone-it reflects the same approach that 
the U.S. Senate has traditionally taken toward lower court judgeships 
for 200 hundred years. The approach was summed up in 1994 by Sen. 
Joseph Biden, who articulated three attributes that he would consider 
for nominees to district courts and courts of appeals:

        First, that the nominee has the capacity, competence, and 
        temperament to be on the court of appeals or a trial court.
        Second, is the nominee of good character and free of conflict 
        of interest?
        Third, would the nominee faithfully apply the Constitution and 
        the precedents of the Supreme Court?
        If they meet those three tests, assuming they are not on the 
        ideological fringe and they are not someone who is so out of 
        the mainstream that you either question their competence, you 
        question their character, you question their temperament. . ., 
        then it seems to me they should be given an opportunity to 
        fulfill the seat for which they have been named.

    This approach reflects well the respective constitutional roles 
given to the President to make nominations and for the Senate to advise 
and consent. At a time of divided government, the system would grind to 
a halt if the Senate refused to confirm nominations based on mere 
philosophical differences. Historically, and continuing in recent 
years, Republican Senates have confirmed the vast majority of 
Democratic administration judicial nominees and vice-versa. If we are 
contemplating a sea-change where the Senate delays or denies 
confirmation to wellqualified, mainstream judicial nominees on 
differences of philosophy-or, more egregiously, to the ideological 
whims of a single Senator withholding a ``blue slip''--we had better 
contemplate the serious consequences. As Senator Patrick Leahy declared 
in 1997, ``Those who delay or prevent the filling of [judicial] 
vacancies must understand that they are delaying or preventing the 
administration of justice.''
    Not only will such tactics paralyze the confirmation process-
creating or exacerbating a judicial crisis-but it will create an 
entirely new rule for future confirmations. Democrats have accuse epu 
scans o holding up judicial confirmations during the Clinton 
ministration, notwithstanding that about 375 judges (almost half the 
federal judiciary) were confirmed during that time. The point is that 
judicial confirmations have taken longer in each succeeding 
administration, leading us to the point of judicial crisis. Adding 
greater ideological scrutiny to the process will slow it down even 
further.
    That comes, remarkably, at a time of relative public quietude 
regarding the federal judiciary. Americans seem satisfied with their 
courts. And for good reason: the era in which activist judges were 
taking over school and prison systems, imposing judicially created 
taxes, creating welfare rights, and letting criminals out on 
technicalities seems largely behind us. Whenever the public perceives 
that the judiciary is straying too far from the public consensuswhether 
in the heydey of the Warren Court or when the Rehnquist Court seemed 
poised to overturn Roe v. Wade-it can and usually does produce a 
democratic correction. In the past election, Vice President Gore tried 
gamely to make an issue of judges, but to little avail. To the 
contrary, the New York Times recently found that a majority of 
Americans believe that President Bush will appoint judicial nominees 
who are about right. (Some think his nominees will be too liberal!)
    And indeed, President Bush's record so far is remarkably good. His 
first group may comprise the most highly qualified group of judicial 
nominees ever put forward at a single time. They are a bipartisan group 
and richly experienced as judges or attorneys. The American Bar 
Association-whose ratings have been referred to by several Democratic 
senators as the ``gold standard''-have given ``qualified'' or ``well-
qualified'' ratings to every nominee evaluated so far. In terms of 
judicial philosophy, several of the nominees have argued numerous cases 
in the Supreme Court and compiled stellar winning records, 
demonstrating that they are well within the mainstream of American 
jurisprudence.
    Nor will the nominees significantly alter the balance in the 
judiciary. Roughly half the federal judiciary are Republicans and half 
are Democrats. Most of the current retirements are from Republican 
judges.
    But balance is not what the left-wing advocacy groups are after. 
They want to post a sign outside the door of the federal courthouse 
reading, ``No conservatives need apply.'' They want this Senate to do 
their bidding, denying confirmation to anyone who does not share their 
activist agenda. That these groups are themselves anywhere near the 
``mainstream'' of public opinion is laughable. The Senate should not 
take its lead from such groups.
    Nor should it seek to do so indirectly by attempting to clothe 
judicial obstructionism with an academic veneer. With due and 
tremendous respect to Professor Tribe and Professor Sunstein, their 
writings have not been aimed at greater objectivity or balance in 
judicial confirmations, but at creating a more liberal judiciary in 
accord with their own philosophical predilections.
    Their real complaint is with the U.S. Supreme Court, which they 
characterize as an activist conservative court. They do not disdain 
judicial activism in general-surely they applaud many of the activist 
cases of the Warren era-but they dislike a Court that will rein in 
other branches of government to vindicate principles such as 
federalism, equality under law, and private property rights. Of course, 
the Court cannot rein in government if government itself is not testing 
the boundaries of activism; and it is precisely the role of the 
judiciary, articulated most eloquently in The Federalist No. 78, to 
ensure that the other branches of government do not overstep their 
constitutional boundaries. Moreover, we need to keep all this in 
perspective: after all, this is the Court that struck down laws 
prohibiting flag desecration; that invalidated Virginia Military 
Institute's ban on female students; that struck down Colorado's 
initiative prohibiting gay rights ordinances; and that placed the right 
to an abortion on firmer constitutional ground. These are not hallmarks 
of a ``right-wing'' Court-although conservative justices voted with the 
majority in all of those decisions.\1\
---------------------------------------------------------------------------
    \1\ Our report, ``State of the Supreme Court 2000,'' can be found 
on the Institute for Justice website at www.ij.or.g. We find that the 
Rehnquist Court has compiled an excellent overall record on protecting 
individual liberties.
---------------------------------------------------------------------------
    The bottom line, though, is that the academics' advice is a recipe 
for partisan and ideological gridlock. Sometimes gridlock is good, but 
not when it paralyzes the judiciary, whose role in protecting 
fundamental individual liberties is central to our constitutional 
system. Presently, there are over 100 judicial vacancies. About one-
third of them have been classified as judicial emergencies. As each day 
passes, the specter of judicial obstructionism becomes evergreater a 
populist issue, with an appropriate threat of popular backlash.
    Facing the threat of gridlock, last year a Task Force on Federal 
Judicial Selection issued a report entitled ``Justice Held Hostage: 
Politics and Selecting Federal Judges.'' The Task Force was remarkably 
bipartisan, including such liberal luminaries as Professor Norman 
Dorsen and Elliot Mincberg of People for the American Way. Among other 
things, the Task Force finds that the Senate ``should make it a high 
priority to take final actions on nominees in a more expeditious 
manner.'' It specifically decries the blue-slip process, which ``should 
not be allowed to undermine collective decision-making in an open, 
deliberative process.'' It urges nominations within 180 days of 
vacancies and confirmations within 60 days of nominations. By moving 
nominations to a prompt vote by the full Senate we can have a robust 
and open debate about ideology in judicial nominations and about 
individual nominees' philosophies. And, in the end, I am confident that 
we will have the vast majority of judges confirmed.
    But so far the operative number is zero, which is the number of 
hearings scheduled and confirmations made so far. Instead of having 
hearings on the role of ideology in judicial nominations, this 
Committee should be moving forward and applying the same rules and 
principles it has applied for two centuries.
    In the coming days, my organization will remind Senators, and the 
public, of comments that Senators made about the judicial crisis, and 
the proper role of the Senate, during the previous Administration. We 
will work to alert the public to the existence of a de-facto judicial 
blockade if one is imposed by this Committee. And, of course, we will 
make our most reasoned and passionate arguments in support of nominees 
who have manifested a commitment to the rule of law and the principles 
of a free society.
    In the meantime, we will see what emerges in the Senate. Will this 
be a time of statesmanship? Or will senators act as marionettes in a 
tableau of judicial obstructionism choreographed by left-wing special 
interest groups? Our nation desperately needs statesmanship. I hope 
that this hearing will lead us in that direction, but I fear it is a 
step in the direction of ever more-rancorous partisanship.

    Chairman Schumer. Thank you, Mr. Bolick.
    What I am going to do--I checked with Jeff--is call on 
Senator Durbin, who hasn't had his chance and has to be going 
on, and then we will have a whole series of questions after 
that.
    Senator Durbin?

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman, for this important 
hearing which I believe will be a precursor for a national 
debate which will ensue over the next several years.
    Congressmen, Senators and Presidents come and go. Supreme 
Court Justices hang around forever. The hand of Richard Nixon, 
who has been gone from this city in an official role, is still 
on the Supreme Court 25 years later.
    I believe that our Attorney General was able to muster 58 
votes in the Senate because he sought the refuge of ``settled 
law.'' I don't believe that Supreme Court Justices, even 
circuit court judges, can expect the same treatment if they 
come before the Judiciary Committee. More penetrating questions 
will be asked.
    I would like to say to Ms. Greenberger, I think you make an 
excellent point when it comes to Clarence Thomas' testimony. 
That kind of evasion I don't believe is going to be successful 
in the future. People have to be more honest in terms of what 
they really believe if they expect to be treated in a 
professional manner.
    Now, I have watched this Committee since I have been in the 
Senate over the last several years and even before, and it was 
curious to be on the Judiciary Committee during the years of 
the Clinton presidency and watch the grilling that many of his 
judicial candidates faced. These candidates had to go through a 
``Manchurian Candidate'' drill where they had to parrot their 
disdain for judicial activism, in all works and all its pomps, 
if they had a chance before this committee.
    Then it was interesting to watch as people tried to explain 
what judicial activism was. I guess it came down to the fact 
that judges had to pledge that they would take a law and 
interpret it within its four corners. They would be passive and 
reactive and not add a thing to it. That seemed to be the 
standard the Republican majority applied.
    I don't think anybody anticipated what this Supreme Court 
has done, as Professor Sunstein said, which took their disdain 
for judicial activism and proceeded to strike down more Federal 
laws per year than any Supreme Court in the last half century, 
as you have testified.
    So it leaves us in an interesting situation, and I would 
like to ask Professor Presser if he would address this. He said 
in his testimony that we must maintain a separation between law 
and politics on the Court. Was that separation breached by the 
Supreme Court in either the Brown v. Board of Education 
decision or Roe v. Wade, where we had important national issues 
that were clearly unresolved by either Congress or the State 
legislatures?
    Mr. Pressman. Do you want me to answer that now?
    Senator Durbin. Sure.
    Mr. Pressman. I would separate the two. It seems to me that 
the Brown decision is quite supportable under the 14th 
Amendment, maybe not under the grounds that the Warren Court 
used, but broadly under the notion of a color-blind 
Constitution. Yes, I think that decision was very much a 
separation of law and politics.
    Roe v. Wade I am not so sure about. I think that is an 
issue that belongs within the States. I think Scalia is right 
about that. It is important to understand that you can protect 
women's rights through other means than the Federal courts and 
the Federal Government. That is what your State governments--
and you were a State government official for quite some time, 
if I remember correctly. That is the job of State governments, 
as well as others, local governments too.
    Some don't belong in the Federal sphere. Roe v. Wade I 
think is one of those cases, but Roe v. Wade is the law of the 
land, at least as interpreted in Planned Parenthood v. Casey. 
And I don't know of any proposed Federal lower court nominees 
who would ever be in a position to overrule that, and the 
Supreme Court has made pretty clear that it doesn't intend to 
either.Senator Durbin. Professor Tribe, would you address this 
issue of judicial activism and whether or not liberal courts 
and conservative courts cross that line?
    Mr. Tribe. Certainly, Senator Durbin. As I started to say 
in my principal testimony, I very much think--and I have 
submitted a memorandum to the Senate on this subject--that the 
current Court has been the most activist, as measured by either 
the statistical frequency of its invalidation of duly enacted 
laws passed by Congress or, more sensitively, as measured by 
its lack of deference to either Congress' fact-finding 
abilities in areas where under the approach of McCulloch v. 
Maryland there would be no second-guessing of Congress' 
determination about, for example, the connection between 
violence against women and the economy and commerce, or in 
terms of the ability of Congress to take a somewhat more 
generous view of certain rights than those that for 
institutional reasons the Court is bound to take.
    The Religious Freedom Restoration Act is a perfect example. 
Almost unanimously, the House and Senate concluded that the 
Supreme Court, in Justice Scalia's opinion in Employment 
Division v. Smith, had trampled on religious freedom by 
stripping it of its historic protection under earlier Supreme 
Court decisions, protection from severe burdens imposed by 
neutral rules of general applicability.
    And Congress dared, in the name of section 5 of the 14th 
Amendment, to say we believe that the religious liberty that is 
protected by the 14th Amendment against the state is broader 
than what the Court thinks it is. And then it proceeded to 
reinstate, in effect, the standards the Court had used before.
    But the preamble of the law, in effect, dared the Court to 
defend its prerogatives by daring to criticize the Court's 
decision in Smith, and the Court lashed back in a decision that 
has rightly been described as enlisting the support even of 
Justices Breyer and Ginsburg. That didn't make it right. I 
think it was an outrageous decision, without any real warrant 
in the separation of powers.
    I could give examples of age discrimination and 
discrimination against the disabled. Marcia Greenberger nicely 
humanized them by talking about the individuals involved. It is 
no answer in those cases to say, with Professor Volokh, that as 
a matter of form the Court was acting within the bounds of the 
separation of powers because, after all, it was simply 
vindicating the structural limits.
    Well, you can call it that, but the question is what 
content does that concept have. And even when the Congress does 
not stray from the organization chart, as the Court has set it 
up, but simply decides to go a little further than the Court 
thinks is necessary in the Patent Clarification Act, in Florida 
Prepaid and College Savings--these are not all just civil 
liberties cases--over and over and over again this Court seems 
to think that it is its job to--let's coin a phrase--legislate 
from the bench perhaps. Now, it seems to me that is not right 
and it is not made right.
    Senator Durbin. Or perhaps veto from the bench.
    Mr. Tribe. Or veto legislation. Of course, liberal courts 
do it as well.
    In my view, Roe v. Wade was an entirely justifiable 
protection of the fundamental human liberty of women. I know it 
is controversial, but to say women can get protected by the 
States is really like relegating them to the back of the bus.
    I think Lincoln was right when he said the Nation can't 
exist half slave and half free, and on certain fundamentals 
like this there has got to be a coherent approach. The approach 
might be to protect the fetus, although that is not really my 
view. It might be to protect the woman, and that is really 
where the Court has come out. But one way or the other, the 
Constitution speaks to these fundamental questions, and you as 
a Senate need to know how a prospective judge or justice would 
listen to what the Constitution says, how would that person 
understand and approach the great silences and ambiguities of 
the Constitution.Senator Durbin. I appreciate that, and I would 
just say to Professor Bolick, as well as Professor Sunstein, I 
think it is naive to believe that any Judiciary Committee is 
going to ignore the ideology of any candidate or any nominee 
for the Supreme Court.
    I think some of the quotes in Ms. Greenberger's 
presentation about Senator Borah and others in the past have 
made it clear that it would be naive to believe that we have 
faith in the laws that we enact and yet don't care how the men 
or women serving on the Court view them. I think that is bound 
to be a question of inquiry.
    Professor Sunstein, you come to the conclusion that we need 
intellectual diversity. One branch of Government should respect 
the other branch of Government. I think as a model or a goal, 
that is certainly praiseworthy. It is hard to imagine President 
Bush saying, you know, on balance, I guess the Supreme Court is 
a little conservative, I had better put a liberal on there. I 
just can't see that. I doubt that that is going to occur.
    It is more likely that he is going to draw from his own 
political will to find somebody to put on the Supreme Court, 
which then is going to challenge us. Some have said this Court 
is a few centrists and a lot of people on the right. It is 
going to challenge us to ask whether there is this intellectual 
diversity that you have asked for.
    So does this put a burden on us to seek balance and 
diversity where it may not currently exist?
    Mr. Sunstein. Yes. I would distinguish between the Supreme 
Court and the lower Federal courts. It would be perfectly 
appropriate for the White House and the Senate to work together 
to ensure that there is a breadth of opinion within the lower 
Federal courts, and that would be very desirable for the 
country.
    With respect to the Supreme Court of the United States, 
President Bush is within his rights to nominate a conservative, 
and I don't believe that the Senate should insist that he not 
do that. There are two different sorts of conservatives, and it 
is important to underline this point because this is something 
on which Republican and Democratic Senators really might be 
able to agree.
    Some conservatives believe that the Court should be very 
cautious before it strikes down an act of Congress. Chief 
Justice Rehnquist, especially in his early days, really 
insisted on that, that it is very important for the Supreme 
Court to respect Congress' prerogatives. And much of President 
Reagan's rhetoric was really like that. That is a form of 
thinking that really cuts across liberal and conservative 
lines. It is a deferential, respectful Supreme Court.
    There is another kind of conservative who believes that 
they have access to what the Constitution really means as 
originally understood, and that Constitution protects 
commercial advertising, forbids affirmative action programs, 
maybe protects the right to bear arms, very broadly understood, 
and acts like a weapon against Congress.
    Now, for those who believe that campaign finance reform and 
affirmative action programs are often bad ideas, it is really a 
mixed blessing to want the Supreme Court to vindicate that 
view, at least all of the time. So the suggestion is really a 
simple one. If President Bush wants to nominate a conservative 
for the Supreme Court, he is entirely within his rights to do 
that, but please let him nominate a conservative who is very 
respectful of the prerogatives of the democratic branches. That 
is the kind of conservative that we have seen much too little 
of in the last 10 years.Senator Durbin. Thank you. I want to 
thank the panel and thank the chairman.
    Chairman Schumer. Thank you, Senator Durbin, for some 
excellent questioning.
    First, we have a few housekeeping measures. Senator 
Kennedy's statement should be read into the record. He 
explicitly apologizes to the Committee for not being here. He 
is on the floor with the patients' bill of rights.
    A letter from Professor Yalof and a letter and law review 
article from Professor Tulis will be put in the record, without 
objection.
    First, just preliminarily, both Professors Presser and 
Volokh did talk about what is mainstream, what is the right 
interpretation, but I didn't see any contradiction in your 
testimony that these shouldn't be questions that we should be 
asking prospective nominees to the Court.
    Is that correct?
    Mr. Presser. Before I answer that, I take it that all of 
our full statements will be entered into the record.
    Chairman Schumer. Yes, indeed. I just want to bring that 
out here.
    Go ahead.
    Mr. Presser. It seems to me that, first of all, as a U.S. 
Senator you can ask anybody anything you want in any hearing, 
and I admire you for that.
    Chairman Schumer. It is not as broad as you think.
    Mr. Presser. It seems to me that you are well within 
accepted practice if you ask a nominee, tell me about what your 
philosophy of judging is, tell me what you think about the role 
of precedent, tell me what you think a lower court judge ought 
to do. If you get answers to that that suggest that somebody is 
way out of what we might regard as the mainstream, I think that 
is entirely an appropriate thing to do.
    I would go further, and maybe not everybody would agree 
with this. It seems to me that you are also within your rights 
if you ask about particular issues, and then the nominee would 
be within traditional practice if, for the response to certain 
questions, he or she indicated, well, that is something that 
might come up before me as a judge and I don't want to talk 
about, or the perspective that I would take on this is very 
different if I were a judge than what I have voiced in prior 
positions. But with the parameters that I have laid down, I 
think all of that is fair game.
    Chairman Schumer. Do you agree with that, Professor Volokh?
    Mr. Volokh. I think this is actually a very difficult 
question. I think there are great arguments to be made on both 
sides. I think that Professor Presser has basically -I think 
that his view is a sound one, but I do think there are good 
arguments to be made both for a more restrained view of making 
sure that one never asks a nominee something that might commit 
him in the future, and for the opposite view as well, which is 
to probe as closely as possible.
    Chairman Schumer. Mr. Bolick, you said ideology shouldn't 
be the sole determination of what is a judge. I presume you are 
saying that it is a relevant issue when a judge comes before 
us. I don't want to get into an argument here of what is 
mainstream and what isn't. Obviously, that is different.
    I want to get into an argument of what best moves the 
process forward to avoid the kind of ``gotcha'' politics that 
everyone has decried here. If you ask the American people, does 
ideology enter into the process, they will say yes. They would 
have said yes before Bush v. Gore. They certainly say it now. 
In fact, for the first time we have a real division among 
Democrats and Republicans in terms of respect for the Court. 
But even leaving that aside, they always think so.
    When we vote on judges, when there are controversial votes, 
it splits along mostly ideological lines. So to say that 
ideology isn't part of it--whoever wants to say that can do it, 
but the American people are incredulous, and rightly so, 
because we all know just by an observation that it happens.
    The question is has our judicial process, the way we do 
this, gotten so away from--has it become sort of a kabuki game, 
as opposed to talking about these issues right up front, and it 
damages the process, it damages the judiciary, and doesn't lead 
us to the right people? I would like to have had this hearing 
when the opposite occurred, if there were a Democratic 
President and a Republican Congress. I think the answers should 
be the same.
    But it is my inclination, as I said at the beginning, that 
ideology, broadly defined--I don't mean are you a Democrat or a 
Republican, but your views, and I am going to get to that in a 
minute as to what people think would be permissible and 
salutary questions.
    I take it you don't disagree with that either, Mr. Bolick. 
You emphasized the adjective ``solely,'' and I would agree with 
that.
    Mr. Bolick. That is right, Mr. Chairman, and I would make a 
further delineation. I think that the context for a Supreme 
Court confirmation is one in which a much more robust exchange 
on these issues is extremely relevant because that person does 
not speak to a higher authority.
    Traditionally, for lower court judges, liberal Senators 
have voted for conservative judges and conservative Senators 
for liberal judges. That, I believe, is the issue that some 
groups are attempting to place on the table right now, and I 
think that we would suffer a tremendous problem in the 
confirmation process were that to be a larger issue than it is 
right now.
    Chairman Schumer. Fair enough. What is interesting is the 
first panel, both the counsels, seemed to say, well, let's just 
look at the excellence of the qualifications. But I think, to a 
person, this panel is saying, no, look at some of these other 
issues.
    Now, the difficulty, in my judgment, is how closely do you 
look. To say will you uphold the Constitution, are you a 
democrat or do you harbor some other ideology--that is so 
obvious that that is not going to get you very far, and that is 
just a refuge.
    On the other hand, we are getting into don't ask about 
specifics. I think, and you folks have more erudition than I 
do, that that came about because you didn't want potential 
judges to talk about specific cases that they might litigate. 
So, yes, if it is a very narrow case that is coming before the 
Court and this judge might be part, you would certainly not 
want to ask them that.
    But there is a range in between, and I would like to ask 
people on certain issues whether they think it would be out of 
bounds to ask the following. Let's take campaign finance. Would 
it be impermissible to ask a potential Supreme Court nominee--
and let's put it at Supreme Court for the moment--do you 
believe the First Amendment applies to campaign finance limits? 
No one would disagree, correct? That would an OK question to 
ask?
    Mr. Presser. I might disagree with that. It is important to 
bear in mind, Senator--and maybe other panelists can correct me 
if I am wrong, but the first Supreme Court nominee actually 
ever to appear in person for a Senate hearing, I think, was 
Felix Frankfurter, who almost didn't make it because he had a 
class to teach at Harvard and decided maybe that was more 
important.
    The phenomenon of questioning people in person is a very 
recent one. Now, if you are going to do it, you must ask 
questions about what sort of questions to ask, but the process 
worked reasonably well when you just looked at a candidate's 
record without having him in front of you. So I am not at all 
certain that the process as currently done, especially when it 
amounts to a very partisan hearing, is the right thing to do to 
preserve the separation between law and politics.
    But the campaign finance question that you are asking is 
very much one that is likely to come before the Supreme Court, 
and I am not sure that one wants to go on record, if one is a 
nominee, with a particular position on that.
    Mr. Tribe. Could I say something, Mr. Chairman?
    Chairman Schumer. Professor Tribe, yes.
    Mr. Tribe. First of all, I think that we have all 
experienced the end of innocence. It may have been that once 
upon a time one of my former colleagues, though I was then, I 
guess, an embryo or something, thought it more important to 
talk to his class than to appear before the American people as 
a prospective Supreme Court Justice. Those days are gone and we 
can't return to them. I don't think it would be a wise thing to 
return to them. People have awakened to how much is at stake, 
and the White House is certainly so sophisticated at the 
selection process that for the Senate to say, well, we are 
going to go back to the golden days and pretend wouldn't really 
work.
    Secondly, as to your question, does the First Amendment 
apply to campaign finance limits, I would have thought that any 
person who would be reluctant to answer that would be 
disqualified right away. Of course, the First Amendment 
applies. The question of how it applies and what it means is 
perhaps what you might then want to ask, and how far we go down 
that chain.
    Just as Professor Sunstein earlier said, anyone who thought 
that the Bill of Rights shouldn't apply to the States through 
the 14th Amendment would be outside the ball park, if someone 
said, well, the First Amendment applies, Senator, to Federal 
finance limits, but not State finance limits because I don't 
believe the Bill of Rights is incorporated against the States, 
you could say thank you very much, Mr. President, who is your 
next nominee?
    Chairman Schumer. But it is certainly a legitimate 
question. Would anyone, aside from Professor Presser, disagree 
with that? I want to get a little more specific. I don't want 
to dwell on this because I think, Professor Presser, the idea 
that we shouldn't have hearings or shouldn't ask witnesses such 
broad-gauged questions like that is probably out of the 
mainstream.
    Mr. Presser. Well, let me say I don't disagree with what 
Professor Tribe said. If it is simply, is this an issue with 
First Amendment implications, of course anybody would say yes. 
I thought you were suggesting specific statutory provisions.
    Chairman Schumer. I am going to get to that.
    Mr. Volokh. Senator, I think that Professor Tribe's point 
is an excellent one and it ties in to what I was saying. 
Setting aside the question of whether it is proper or improper 
to ask a question like that, the difficulty is if you ask a 
question that is too specific--how would you rule on the 
statute--then you might get into an area where a lot of people 
would feel uneasy. If you ask it too generally, you are going 
to get virtually no useful information.
    Chairman Schumer. Correct, but let me ask you this one. 
Let's take the next one down the line. Is there anything wrong 
with asking, do you agree with Buckley v. Valeo and would you 
overrule it if a new case came up? Now, how is that one? I 
would want to know the answer if a nominee came before me. I 
think Buckley v. Valeo was a bade decision, OK?
    Senator Sessions. Are you going to vote against them if 
they won't tell you that or if they don't agree with your 
interpretation of Buckley?
    Chairman Schumer. Are you going to vote against them? I 
don't think any single issue would drive me to vote for or 
against someone, but I would want to know their overall set of 
views. And when we had some of our colleagues here saying don't 
have a litmus test--and often that relates to choice and we all 
have different views on choice--but a litmus test saying you 
must be this way on this issue or I won't vote with you, there 
may be some people who feel that way. I don't, but that doesn't 
mean I don't want to know their view.
    Go ahead, Professor Sunstein.
    Mr. Sunstein. I think the problem with that is that someone 
might reasonably think I am just not sure whether I agree with 
Buckley v. Valeo.
    Chairman Schumer. That is fine.
    Mr. Sunstein. And they don't want to pre-commit themselves. 
So I think they would be entirely within their rights to say I 
am not sure, or I have a clue, but I don't want to pre-commit 
myself. And then you would be within your rights to say, well, 
that is a great answer, that is a bad answer, and that is 
relevant.
    The trick with these specific questions is they might get 
the nominee in inappropriate territory, and there is a limit to 
how much you can get if you have someone who is both public-
spirited and clever. You won't get anything out. So the trick 
is to come up with something that is neither too specific nor 
general.
    Let me just float an idea that is in the terrain. I am not 
sure if it is a good idea, but it is in the terrain of 
something that would work. You might ask someone, are you 
someone who has as your most admired people on the Court or the 
people whom you tend to think are right--is it Thomas and 
Scalia, is it Brennan, Marshall and Blackmun, is it Kennedy and 
O'Connor, or is it Breyer and Ginsburg? That is to identify 
four kinds of camps and that would be an informative answer. If 
they say ``I am a Brennan-Marshall-Blackmun type,'' then the 
President is going to be very unhappy with some of his 
advisors.
    [Laughter.]
    Mr. Sunstein. If the person says ``I am a Kennedy-O'Connor 
type,'' they are under oath and they are telling you something 
quite important, as distinguished from a Thomas-Scalia type. It 
is not clear that is the right question specifically, but that 
is the direction, I think, rather than a specific question.
    Chairman Schumer. But would you say, then, asking about how 
people felt about previous cases, established law no longer 
being litigated at least at the moment, is a bad idea?
    Mr. Sunstein. Well, the Souter hearings were actually very 
informative on that because Souter kind of marked himself as a 
Justice Harlan type. Justice Harlan was the most conservative 
member of the Warren Court, who also believed in a kind of 
evolving notion of what the Due Process Clause was. And every 
Republican and every Democrat got a clue about what Justice 
Souter was like through those questions, which were about old 
precedents that weren't really anymore in play. There, you can 
get something.
    Ms. Greenberger. Let me just say something also, Senator 
Schumer. I think one of the dilemmas that your question goes to 
is the fact that there was something behind why the nominee was 
presented to the Senate for confirmation.
    The President and the administration had a reason for 
selecting this person, and if this is a person without a 
fulsome record, it becomes extremely difficult to really get a 
sense of that person's views on the full range of issues that 
are going to be of enormous importance.
    Nobody is looking, as you pointed out, for a narrow litmus 
test, but judicial philosophy, approach to the courts are the 
most fundamental questions. And we have also all shown that by 
asking generalized questions, you don't get to the rub of where 
the real differences lie.
    Chairman Schumer. I would go beyond that. I would say 
certain times, from what has been written, the nominee that is 
looked for is one who doesn't have a record.
    Ms. Greenberger. Exactly.
    Chairman Schumer. And somebody who has been on the bench 
for a long period of time and has ruled on so many things--they 
say, well, they will find something and they will go against 
them. And so you are getting a trend to get people who have 
less of a record, which I think is awful--not awful, but could 
have bad problems.
    Ms. Greenberger. It is very problematic, and when there is 
so much that is hanging in the balance certainly with respect 
to the Supreme Court, as everyone has pointed to, with 5-4 
decisions going in many different critically important ways, 
but with lower courts as well, I think that expecting that 
someone will be able to come before this Senate Committee 
saying that they can't be required to answer probing questions 
is correct on the one hand, but then they also can't expect 
that the Senators are going to vote to confirm them.
    I know, Senator Sessions, you have asked probing questions 
sometimes. There was a district court nominee that you asked 
whether that person believed in a constitutional right to sleep 
in the parks, and did they believe there was a constitutional 
right to welfare, and what was their opinion of the California 
civil rights initiative. Those were probing questions.
    Senator Sessions. I don't think I asked that.
    Ms. Greenberger. Sorry?
    Senator Sessions. I don't believe I asked some of those 
questions, the last one particularly.
    Chairman Schumer. It wouldn't be wrong if you did.
    Ms. Greenberger. ``In your opinion, is the California civil 
rights initiative constitutional,'' was the quote that I had, 
in the context of trying to explore----
    Senator Sessions. Well, that is a little different.
    Ms. Greenberger. Sorry, then I mischaracterized it. Let me 
read it, then, again. ``In your opinion, is the California 
civil rights initiative constitutional?'' Well, that was in an 
attempt to explore your concerns about judicial activism, as 
you defined it. Those are philosophical judicial philosophy 
questions that I would expect, from some of the answers of 
Professor Presser or Bolick, they would say those were too 
specific. And, of course, those were even posed to a district 
court nominee, far more constrained even than court of appeals.
    Chairman Schumer. Do you think there is anything wrong with 
asking those questions? I don't.
    Ms. Greenberger. I think that to the extent that there is 
this view on the part of Senators that they want to have some 
comfort about the judicial philosophy, as you did, Senator 
Sessions, in that context, it is up to the nominee to determine 
how much of an answer they can give. It is then in your 
province to decide whether you are comforted enough about their 
judicial philosophy, not only based on their answers but based 
on what else you know about them.
    If they have no background, if they have no way your 
assessing what will happen when they get that lifetime 
appointment, when you have got so many stakes at issue, then I 
would say at this particular time, given where the courts are, 
given the stakes at issue, given the very extreme views of some 
of the nominees, given the model of Thomas and Scalia that has 
been presented as the driving force for selection by this 
administration, then I would submit it is actually the 
responsibility of each Senator to assure himself or herself 
about judicial philosophy. And if the nominee is reluctant to 
answer the questions, then the nominee has not assuaged those 
concerns in a way that deserves a lifetime appointment.
    Chairman Schumer. Professor Tribe?
    Mr. Tribe. Yes, Senator Schumer. One thing that I was a 
little disturbed by is how abstract some of this is getting. 
When we talk about the nominee for the Supreme Court, I think 
we should keep in mind that in recent decades a fairly clear 
model has emerged for the path to the Supreme Court.
    Back in 1954, in Brown v. Board, not one of the Justices 
who sat had previous judicial experience. That doesn't happen 
anymore, almost never. Of the current Justices, there is only 
one who, when first named to the Court, hadn't already 
developed a track record as a judge, and that is the Chief 
Justice. Everybody else, except for Sandra Day O'Connor, who 
had been on a State court, came through the farm teams of the 
circuit courts.
    Despite the ability of the U.S. Supreme Court to reverse a 
decision of a circuit court, that is why I think instinctively 
this Committee recognizes that it better look carefully not 
necessarily at the particular philosophy of every single 
nominee to a circuit court, but the overall balance, because 
that corpus is in all likelihood where the next level is going 
to come from.
    And when it does, there is an optical illusion that I would 
alert you to--I think you are probably aware of it--and that is 
when somebody comes here with a track record in a circuit 
court, already having been confirmed once, one of the arguments 
made by the allies of the nominee is what are you so worried 
about? You have already confirmed the person. The person has 
already been through the baptism of fire. And, look, they have 
only been reversed twice out of umpteen times.
    Keep in mind, the U.S. Supreme Court reviews less than 1 
percent of the decisions of the circuit courts. It has made 
clear that a circuit court decision, even one it thinks is 
clearly erroneous, will not be reviewed unless there is a 
special reason, like a conflict.
    So somebody who goes through that laundering process, in 
effect, can emerge smelling like a rose, almost never reversed, 
virtually never reviewed. And the person followed the law, 
here, here and there, and then sort of the robes come off, as 
it were. It seems to me that is an additional reason that you 
have to look at every available piece of evidence. How does the 
person answer various questions? What did the person write 
before becoming a judge? Those are all relevant.
    It is odd to me that it should be problematic to ask a 
follow-up question about Buckley v. Valeo. Well, if it troubles 
you, what part of it troubles you? How would you approach the 
application of the Free Speech Clause to money? That that 
should be troubling to ask, when it would be perfectly OK for 
the person to have written an article about it or a treatise 
about it--I think the more you know from someone's writings, of 
course, the more trouble they may in because it is hard to 
write a lot without offending various people. But the more you 
have available, the more legitimately informed your judgment 
is, not because you have a litmus test--oh, he didn't answer 
right about part 2(b) on Buckley v. Valeo--but you need to 
know.
    Chairman Schumer. Go ahead, Professor Volokh.
    Mr. Volokh. Just a few basic principles that might be 
helpful here. One is that there is a certain area, it seems to 
me, of the tail wagging the dog here. There were 370-odd 
appointments by President Clinton to circuit courts and 
district courts, and two Supreme Court appointments. To say we 
should spend not just as much effort but as much time on the 
lower court judges because they might be appointed, I think 
would be a mistake. Likewise, it seems to me that you might 
very well say that we don't want to trench quite as much on the 
judges with specific questions if somewhat less is at stake, 
and there is much, much less at stake with lower court judges.
    The second point is I think it is very easy to say, well, 
we will ask them a lot of questions, but none will become a 
litmus test. You are the politicians and I am just an observer 
of the process, but it seems to me it is often a lot harder to 
resist something becoming a litmus test than it might seem. You 
ask enough questions and enough groups will get galvanized 
about this and eventually a litmus test will very quickly 
develop.
    Now, one possible answer is that is great, that is 
democracy in action and we want the interest groups to 
galvanize about it, not just Supreme Court Justices, but every 
circuit judges, maybe on every district judge; you know, more 
robust debate about legal ideas. That is one possibility.
    Another possibility is you might find that not only does it 
become harder to appoint really illustrious people with long 
track records to the Supreme Court, it becomes also harder to 
appoint them to other judgeships. As a result, the quality of 
the judiciary ends up suffering, as well as the quality of the 
process, and the amount of time that you have to devote to it 
will dramatically increase.
    Chairman Schumer. Ms. Greenberger and then Professor 
Sunstein.
    Ms. Greenberger. Just a couple of quick points. I have to 
say, as intellectually stimulating and challenging as some of 
these discussions are, I don't think that what is at stake here 
is the ability to engage in robust debate or an intellectual 
exercise.
    I think to the extent that there are individuals and 
organizations who speak out with respect to these nominations, 
it is because of their fundamental concerns about what is at 
stake. My organization actually has never opposed a lower court 
nominee. So in that sense, we have something in common with Mr. 
Bolick. But that is not to say that in the future when we are 
dealing with the burning issues----
    Chairman Schumer. Both litigate before all these judges, so 
I can understand.
    Ms. Greenberger.--that when we have these burning issues 
that we wouldn't speak out, and that people are not looking to 
speak out simply because of an interest in an ideologically 
challenging debate, but rather because their most fundamental 
concerns are at stake.
    And I want to say just one other quick thing about lower 
courts as opposed to the Supreme Court and the kind of scrutiny 
involved. It is a matter of simple common sense that, of 
course, the most scrutiny, the most concern, the most at stake 
is with respect to Supreme Court nominees. That is obvious. 
However many they will be, they will not rival in number by any 
means the number of lower court judges that will come through, 
and their authority over the lives of all of us is far greater. 
But that is also not to say that lower court judges don't have 
enormous power and influence in people's lives, as well, and 
because they are not at the Supreme Court scrutiny is no longer 
warranted for them.
    There have been a number of different comments made that I 
haven't been able to respond to, but with respect to a lower 
court nominee--and there was a discussion about Roe v. Wade and 
how could a lower court overturn Roe v. Wade; that is the 
province of the Supreme Court. Well, of course, that is true in 
one respect.
    It took 8 years between the time that the Supreme Court 
established an undue burden standard for determining whether 
women's constitutional right to choose was being infringed 
improperly -that standard of undue burden is a very loose and 
very subjective standard that depends obviously on the eye of 
the beholder or the particular judge at issue. It took 8 years 
before the Supreme Court took another case just last year to 
determine whether particular State laws constituted that undue 
burden, and five Justices said that it did.
    Professor Tribe responded to Professor Presser when he 
said, well, women's rights can be protected in other ways 
outside of the Federal courts; they could go to the State 
courts, they could go to the State government. Well, this is 
the 30-year anniversary of Read v. Reed, Ruth Bader Ginsburg's 
first great triumph which established that the Equal Protection 
Clause gives women a role and an ability to protect their 
rights under our Constitution in the Federal courts, and we are 
not left just to the State courts or the State government for 
that fundamental equal protection challenge.
    Mr. Bolick mentioned the Virginia Military Institute case 
to say that the Supreme Court today is still upholding that 
right. Well, Justice Scalia dissented from the Virginia 
Military Institute case, where the State of Virginia would have 
said no women need apply to this Institute; they don't have the 
kind of emotional oomph to be able to make it in those kinds of 
military settings. Fortunately, history has proven him wrong.
    Chairman Schumer. Ms. Greenberger----
    Ms. Greenberger. I just want to say, and I know I have 
taken a lot of time here----
    Chairman Schumer. No. I just want to ask you a question.
    Ms. Greenberger. But I do want to say that in the rule of 
reason about looking at and scrutinizing lower court judges and 
the role that they play, the fact that they will not be 
supervised by the Supreme Court as a practical matter, the fact 
that, in fact, we will have fewer and fewer splits in the 
circuits for the Supreme Court to review if we get that kind of 
uniformity, all augers for a very important and careful role by 
this Senate.
    Chairman Schumer. Did you want to say something, Professor 
Sunstein?
    Mr. Sunstein. Well, we have been focusing a lot on the 
confirmation hearings, and you might say that more important is 
the kind of process and mutual understanding between the Senate 
and the President before the hearings get going. The hearings 
do have a kind of ``gotcha'' feel, and aside from the Bork 
hearing and maybe the Thomas hearing, it is hard to think of a 
hearing that really made much of a difference.
    What happened with Breyer and Ginsburg was that President 
Clinton was assured that those who didn't want a left-wing 
judge on the Supreme Court would be fine with Breyer and 
Ginsburg, so they were centrists. What happened with Justice 
Kennedy was that President Reagan was pretty well assured that 
Justice Kennedy would be acceptable to the Senate.
    With lower courts, with respect to what President Clinton 
did exactly, he didn't go appointing liberals, partly because 
some Senators, as you know, said off the record, no liberals, 
Mr. President. And he took that quite seriously, so we have a 
real mix of Clinton appointees.
    Now, the simple suggestion is the hearings are important, 
but in terms of producing deference to Congressional 
prerogatives and appropriate intellectual diversity, much, much 
more important is the mutual understanding within the Senate 
and between the Senate and the White House before nominations 
are made.
    Chairman Schumer. That is a good point. I would just put 
two caveats in there. One, we may be in the position where 
there is no consultation. There has been none up to now. There 
have been, what, 20 or so nominees? There has been virtually 
none. That was what the argument even before the Democrats got 
into the majority about the blue slips was all about, not to 
give every Senator a veto, but to bring the President and the 
White House to come and talk to us.
    Second, I have a feeling there is going to be less than in 
the situations you have mentioned because the Senate is so 
narrowly constituted. Even if Senator so-and-so or a group of 
Senators said no conservatives, Mr. Presidents, put moderate 
conservatives, no hard-right conservatives, the President still 
might take the chance and say, well, all I need to do is win 
two or three over from the other side to get it done. When it 
is a 55-45 or a 60-40 Senate, I think it lends itself more to 
that situation, whereas now we are on a precipice here now.
    I have more questions, if the panel doesn't mind, but Jeff 
has been waiting patiently. I am going to leave for 2 minutes, 
give the questions to him, and then return to some when he is 
finished, if that is OK with everybody.
    Senator Sessions. Well, it is difficult when you ask a 
person about cases if they have been involved in matters where 
they have written on it, or maybe written opinions on it. I 
think you are in a little bit better shape to probe as much as 
that person is willing to discuss. I think respect for that 
person would indicate that if they are troubled by the 
question, they don't have to answer it.
    With regard to those questions, what troubles me is that if 
I am asked about campaign finance reform and the First 
Amendment, I might tell you I think A, B, C, D. But I get on 
the Supreme Court and somebody has submitted two powerful 
briefs and I sit down with two of the best law clerk brains, or 
three or four or however many they have, in America and we 
start tracing the history of Valeo and other cases and we go 
through this and you come out with an entirely different 
approach.
    I have done that many times in my legal career. You ask me 
a question and I say that can't be so, and some lawyer comes in 
and sits down and says, boss, I am telling you, you know, look 
at this case, you forgot about this or that statute. So I think 
we have got to respect nominees in that regard.
    I think it is unhealthy, Ms. Greenberger, to suggest that 
when the Supreme Court ruled one small part of the Violence 
Against Women Act unconstitutional on a sovereign immunity 
question, an important sovereign immunity question, that they 
were somehow against women. I think you may take that too 
personally.
    Ms. Greenberger. It is hard to----
    Senator Sessions. Let me finish. You have talked beyond 
your limit several times.
    Ms. Greenberger. Sorry.
    Senator Sessions. Let me just say I respect that view, but 
I think as a former Attorney General of the State of Alabama, I 
am aware of the great heritage of the sovereign immunity 
principle. The U.S. Congress, to my knowledge, cannot blithely 
overrule that by passing a statute.
    It strikes me odd that our more liberal speakers are 
somehow now complaining that the Supreme Court would dare to 
overrule a Congressional act, when historically you have been 
much more supportive of that than the conservatives. But I 
guess on that question, I don't think it is activism if the 
Supreme Court, in fidelity to the Constitution, finds that a 
Congressional act violates that Constitution, which is the 
supreme law of the land.
    Staff just quickly found the way Senator Hatch defined it. 
He defined it in more detail, but this is a good summary of it. 
He said the test was, with regard to qualification, activism. 
He said judicial activists do not abide by the law. ``They are 
someone who makes law as a super-legislature and usurps power 
from the other two coequal branches.'' Well, that clearly is a 
disqualifying thing, if a judge would do that.
    Mr. Presser, I agree with you that if a President says he 
is going to submit nominees who are going to follow the law, 
that is not a big threat to us. I guess the threat is when we 
appoint nominees who think they have the right to create law.
    I would agree with you, Mr. Sunstein, and I have said this 
repeatedly. There were these people who believed that the 
Reagan-Bush 12 years were going to destroy the judiciary. It 
didn't. Conservatives told me all the time that these Clinton 
judges are going to destroy the judiciary, and they haven't. 
For the most part, we have had a pretty good bunch of judges 
over the last number of years.
    We did have a confrontation over classical activism, in my 
view. I think the high-water mark of it was when Marshall and 
Brennan would dissent on death penalty cases, every death 
penalty case before the Supreme Court. They declared that the 
Constitution, under cruel and unusual punishment, declared the 
death penalty unconstitutional, whereas there are at least 
five, maybe more, references in the Constitution within the 
corners of the document itself to capital crimes, to being able 
to deprive people of life without due process. You could not do 
it, but you could, of course, with due process.
    That, to me, was classic activism when you had two members 
of the Supreme Court prepared to rule on their personal, deeply 
held, which I can respect, view against the death penalty to 
the extent that they would really do it in the face of the 
plain language of the Constitution. So I think the courts are 
getting better. I think things are settling down. Whoever said 
that comment, I believe, is correct.
    I think it is OK for a Senator to ask any question they 
desire, but I also think we ought to give consideration to the 
nominee with regard to their reluctance to opine on matters 
that they are not prepared to opine on or matters that they may 
be required to rule on shortly.
    I am concerned about the word, and not really sure why we 
use the word ``ideology.''
    Chairman Schumer. We are not; we are using ``ideology.''
    [Laughter.]
    Senator Sessions. Ideology. Mr. Cutler and I are in accord 
on that; I am glad that we have a Democrat and Republican that 
do.
    That makes me nervous, and I would ask you, Mr. Tribe, on 
this, I know you care deeply about that Presidential election 
contest, and you argued it brilliantly. I appreciated very much 
your kind comments about Ted Olson, your adversary in that, who 
won and got to be Solicitor General. Things happen.
    [Laughter.]
    Senator Sessions. He certainly wouldn't have if he hadn't 
won, I am sure.
    [Laughter.]
    Mr. Tribe. I think he was on the short list.
    Senator Sessions. In your remarks, though, you raised some 
concerns in my mind when you suggested that there really is a 
dangerous illusion that we can ascertain the law, the Olympian 
ideal that law can be above partisan politics. And you 
suggested pretty clearly that that is a dangerous illusion. I 
do think the good and decent American people believe judges 
rule on the law; they don't rule on politics.
    Mr. Tribe. Senator Sessions, I am sorry. I said nothing of 
the sort. I said I have spent 32 years battling those of my 
colleagues who think that law is nothing but politics. I said I 
profoundly believe that law is different, but I also believe 
law is not something that you can discover like a little robot. 
You have to think about it. Does the law, properly understood, 
invalidate a provision of the Violence Against Women Act, 
which, by the way, didn't involve sovereign immunity. It was a 
suit against a private individual. How do we understand the 
law?
    I think you made a wonderful point when you said that when 
a nominee might answer a question saying, well, the way it 
looks to me now, here is what I think about Buckley v. Valeo, 
that shouldn't lead us to predict that for sure that is the way 
that person will forever think about it. If the person has got 
a brain, the person is likely to reflect on it.
    Just as Robert Jackson once said on the Supreme Court when 
he took a position different from one he had taken as Attorney 
General, he said the matter does not appear to me now as it 
appears to have appeared to me then. That is a common 
phenomenon. It is not a confirmation conversion.
    Some nominees will do what you suggest, namely they will 
say I would rather not talk about that because I might change 
my mind. That will tell you something about the nominee.
    Senator Sessions. Or their mind may not be formed.
    Mr. Tribe. Right, but then you might ask them, OK, think 
about it out loud with me. How would you go about it? If they 
say I would rather not, then depending on where you are to 
begin with, that might lead you to think you don't know enough 
about them to confirm them, or you might admire them for their 
chutzpa.
    But if the person does go along with you and answers these 
questions, hopefully you will realize that down the line, with 
law clerks and briefs and arguments and a different world, the 
thing might look a little different. It doesn't mean you 
shouldn't inquire about these things.
    Senator Sessions. Well, I did sense in your written remarks 
a suggestion that--you quote here, ``If we could only wave a 
magic wand and remove all ideological considerations from 
judicial selection on the part of the President making 
nominations and on the part of the Senate in the confirmation 
process, somehow the Olympian ideal of a Federal judiciary, 
once again above politics and beyond partisan reproach, could 
be restored. For several reasons, that is a dangerous 
illusion.''
    Mr. Tribe. Exactly.
    Senator Sessions. I think all of us on this side of the 
table, that side of the table, and every judge and lawyer needs 
to work on a daily basis to maintain public respect for law. Do 
you think that is a bit of cynicism in your comments?
    Mr. Tribe. No. I mean, in context, I don't have any problem 
with what I wrote. What I am saying is if the world were 
different, if we knew the President didn't care at all about 
the substantive approach of a person--what is his view of 
federalism, what is his view of privacy--a kind of lottery; 
let's take the most brilliant, most witty, most humane lawyer 
and then gamble. Then we would have not just moderates and 
mainstream people; we would have pretty far right and far left 
people. That is a kind of wonderful world. It might be a better 
world.
    I am saying that is not our world, and the American people 
know it. They know that the President typically has a pretty 
good idea of the kind of judge that he or she would like.
    Senator Sessions. But a judge that is restrained and 
principled and adheres to, as best he can consistently, or she, 
to the law as written--I think the people understand that. I 
think they understand that that is the kind of judge he might 
appoint. I think when Al Gore referred to the living 
Constitution, I think they knew what kind of judges Al Gore 
would appoint.
    Mr. Tribe. They think they know----
    Senator Sessions. They are going to show less fidelity and 
they are going to feel more able to read into that document 
what they would like it to say.
    Mr. Tribe. Do you read States' rights into it, or do you 
read personal rights into it? Justice Scalia and many other 
Justices--and I have praised them for this--take a structural 
approach to the Constitution. They don't say that everything in 
there is written down in so many words. They draw inferences, 
and the question of what kind of inferences judges draw--are 
they more willing to draw inferences about a very powerful 
state or about personal autonomy--that tells you a great deal. 
But the generality about ``do you follow the law,'' I am 
afraid, with all respect, Senator, is just a platitude.
    Senator Sessions. Well, there is a degree to which certain 
people are less likely to expand the law than others, and I 
think that is what we deal with. A judge who goes too far in 
that act is, in fact, making law. When two members of the 
Supreme Court rule that the death penalty is unconstitutional 
and in violation of cruel and unusual punishment, they are 
acting as a constitutional convention, not as a Court.
    Mr. Tribe. I happen to disagree with those two Justices on 
that point, but not for the reasons you gave.
    Senator Sessions. Well, we had two members of the Court 
saying that and we don't want any more.
    Mr. Tribe. But what you said, Senator Sessions--please, 
with respect, what you said was because the Constitution refers 
to capital punishment, those guys couldn't be right. But it 
also refers to lopping people's limbs off. It says no one shall 
be twice put in jeopardy of life or limb. Does that mean that 
we couldn't conclude it is unconstitutional to lop off people's 
hands? It is an open question. I just happen to disagree with 
them.
    Senator Sessions. I don't think it was very open.
    I would just say this, Mr. Chairman. This has been a 
fascinating hearing. We have had an outstanding series of 
panelists. We have raised some important issues. I believe it 
is very important that we adhere to a procedure here that does 
not subject a nominee to attack because they ruled one way or 
the other in a case. I believe we need to be very careful about 
asking their opinions on existing matters that may come before 
them as a judge. I think that is at high risk.
    I believe we ought to avoid ideology, whatever that means 
precisely. As Mr. Cutler said in his remarks, this would be 
contrary to the view of the established ABA in their 1996 
article which he quoted in his remarks that he provided for us 
today. So I think we just have got to be careful.
    Those of us who would like to see the President's nominees 
move forward--are we a bit defensive? Perhaps. We don't want to 
see the rules changed after being accused of being too hard on 
Clinton nominees, when 377 were confirmed and 1 not confirmed 
and only 41 left pending when he left office. That is not a 
record of objection to those nominees.
    So we don't want to see this changed where we are in a 
circumstance where judges are criticized and call in to account 
and put in the middle of political turmoil and then find that 
they didn't answer the questions precisely right. That is what 
troubles me.
    I look forward to working with you. You are a good lawyer 
and a good scholar, and I enjoy working with you and I hope 
that we can see these nominations move forward. You said that 
Senator Hatch didn't set hearings. He did have a hearing set on 
May 23. Senator Leahy asked him to delay that. We have now gone 
along further.
    We have at least 107 vacancies in the Federal courts today. 
Last year, Senator Leahy was complaining about there were 67 
vacancies. This is a first-rate group of nominees that has been 
sent forward. It is time for us to commence hearings on them. 
We are reaching, and will soon reach a real crisis in the 
judiciary. It has been said that about 60 vacancies is about 
normal, and we are getting close to double that and I believe 
we need to move forward on it. I hope Senator Leahy will do 
that.
    Chairman Schumer. As you know, we can't move forward until 
we reorganize the Senate. That is what I was saying to Mr. 
Bolick. From the day the President was inaugurated to this very 
moment, our side--and I don't want this to be a partisan issue 
because that is not the purpose of this hearing, but our side 
hasn't had any ability to move hearings.
    We have asked that we not be notified of a nominee and have 
a hearing the next day. I think that is perfectly appropriate. 
But right now, we can't do a thing. Senator Leahy has said it 
is his intention to move forward once the Senate is 
reconstituted. We are already having the ABA, which we believe 
should still be part of the process, look at the process, and 
we will move forward.
    Senator Sessions. But other committees are having hearings 
on nominees and moving them forward. We absolutely could move 
forward. He has decided not to move forward. That is the fact.
    Chairman Schumer. But we are not reconstituted as a Senate 
and as a Committee as of yet, and I don't think it is 
unreasonable for him to say let's do that.
    In any case, can I go back to some of the issues here? 
Senator Sessions and I have always gotten along well. We work 
well on quite a few issues together. We disagree on quite a 
few, as well, but we have always tried to be fair to one 
another, and I promise you that that will continue.
    Let me just ask a generic question because maybe I--again, 
I agree with you, Professor Sunstein, and I agree with Ms. 
Greenberger. The questions we ask are not going to make 
people's sole judgment. It depends on how big the record is. It 
depends on how much consultation there is ahead of time. There 
are certain questions that I would want to ask somebody who 
comes to my office, which the nominees do, that I might not ask 
them publicly. It is a whole process.
    But what I have found so disconcerting in the last decade 
are two things. One, we avoid the subject like it is naughty, 
and I don't think we should and that is one of the reasons this 
was the first hearing that we have held on this issue. In fact, 
I think it is an obligation to ask these questions, whether we 
have the views of Professors Presser and Volokh, and Bolick, or 
of Professors Tribe and Sunstein, and Greenberger.
    It is our obligation to do it and it is an important part 
of the record, and I intend to do it. It will not be totally 
dispositive with me.
    Senator Sessions. I wish you had been advocating that with 
Clinton nominations.
    Chairman Schumer. Well, I did. I did ask a lot of questions 
of Clinton nominees. I was only here the last 2 years. I might 
add that in those 2 years, the percentage of nominees that went 
forward was much lower than in the previous--the percentages I 
have are, of all judges, the 106th Congress was the lowest on 
record since the 97th, which is how far back I go, 62 percent, 
and circuit 44 percent. That was a lot lower, but that is for a 
different day.
    Let me ask you this, generally. You forced me to bring it 
up, Jeff.
    Senator Sessions. You force me to reply.
    Chairman Schumer. Yes, OK, you can.
    But the question I wanted to ask you is this: is there 
anything wrong with asking potential nominees their views of 
already established cases and what they think of them and where 
they might agree and disagree? Does anyone think that is 
inappropriate?
    We will have another hearing on this, but in my judgment, 
there is an affirmative burden on a lifetime appointee, 
particularly a Supreme Court lifetime appointee, to answer 
those questions, provided it doesn't interfere with a specific 
case that is coming before them. But I will even tell you 
there, I give the benefit of the doubt.
    If there is a possibility, say, on the issue of gun control 
that somebody would eventually say that the Second Amendment 
means that you have--I will take a different one--that the 
Commerce Clause, because that is a more likely one----
    Senator Sessions. Professor Tribe agree on this one, I 
think.
    Chairman Schumer. Right, that the Commerce Clause allows 
national gun registration. Now, that is a potential case that 
might come up. But I would still feel, given my views, that it 
is an important thing I want to know about in terms of asking a 
potential judge their view.
    Is there anything wrong with asking that?
    Mr. Bolick. Senator Schumer, I would note that in terms of 
asking about existing cases, a potential judge's----
    Chairman Schumer. That is not an existing case right now.
    Mr. Bolick. Or past precedents. A judicial nominee's proper 
response, in my view, is in all instances that the doctrine of 
stare decisis compels that judge to accord appropriate respect 
to that.
    Chairman Schumer. Well, let's say it is a Supreme Court 
nominee.
    Mr. Bolick. The problem is that when the nominee begins to 
invest that decision with nuances, that judge is getting in 
almost all instances to issues that may not have been decided 
within that decision. Other than saying, yes, I agree with it 
or, no, I disagree with it, once that judge starts getting into 
nuances, that judicial candidate is getting into dangerous 
territory.
    Now, you noted that Ms. Greenberger and I play a different 
role in this process than some other groups, and one of the 
things that we do is when we have an important case before a 
judge is to look at that judge's record very, very carefully. 
And to the extent that a judge--even take campaign finance, for 
example, Buckley v. Valeo. A lot of those issues are still on 
the table, still unresolved, coming back to the courts once 
again.
    I as a litigator would look at a judge who has taken a 
position on any of those matters and do a recusal motion if the 
judge had taken a position during a confirmation hearing that 
seemed to pre-judge any aspect of a case that I was going to be 
bringing before that judge.
    Chairman Schumer. But existing judges have taken--I mean, 
my questions would be no different than the questions that 
judges on the bench already are forced to answer all the time. 
Yes, it would be a recusal motion if somehow I came up with a 
hypothetical that was exactly or almost exactly the same as the 
case that you would litigate, but the odds of that happening 
are next to none.
    Mr. Bolick. I would way a judge in a very difficult 
position and should be very, very constrained because the kinds 
of broad principles that that person is articulating could, in 
fact, be exactly the case that is coming up and the judicial 
system requires an appearance of impartiality. So I think the 
further you go on that continuum, even beginning with cases 
like Buckley--I think Buckley is a great example because 
Buckley is constantly being litigated--it is dangerous 
territory.
    Chairman Schumer. Professor Tribe?
    Mr. Tribe. I respect Clint Bolick, and he and I happen to 
agree on a few things, but this particular thing that he is 
saying, which I have heard other people say, completely baffles 
me.
    Chairman Schumer. Me too.
    Mr. Tribe. Justice Scalia, for example, whom I respect a 
lot even when I disagree with him, was a professor at Chicago. 
He wrote lots of articles. Those articles took positions on 
various issues that he then had to rule on as a judge on the 
D.C. Circuit and now come before him in one way or another as a 
Justice. And sometimes, just as Senator Sessions pointed out, 
from a different vantage point he might change his mind 
somewhat.
    It seems to me that you are better off, not worse off, when 
you know from someone's writings or testimony where that person 
is coming from. Do you think these people who haven't written 
about something have blank minds, that they have no ideas? No. 
You just don't happen to know their ideas.
    Now, if, when they wrote something down or answered 
questions, they were, in effect, committing themselves as to 
how they would eventually vote when the case comes before them, 
that would be disqualifying them. Anybody who would make that 
kind of commitment shouldn't be a judge.
    But let's draw a distinction between the disqualification 
that comes from having, in effect, committed yourself in 
advance to a position, which I think is understandable, and the 
alleged disqualification that comes from having been 
transparent about something, which I think is completely 
incomprehensible.
    Chairman Schumer. It makes sense.
    I am just trying to flesh you out on this, Mr. Bolick, but 
in 1994, admittedly with a different President, you wrote in an 
article--it was about ``Bork-ing'' and the article is in the 
ABA Journal of 1994. You wrote, ``Meanwhile, Senators should 
demand answers from both judicial and executive branch 
nominees. Though it is inappropriate for potential judges to 
say how they would rule on specific cases, their 
jurisprudential views on past decisions are relevant and proper 
areas of inquiry.'' I couldn't have said it better myself.
    Mr. Bolick. Well, Senator, I think that what I am saying is 
you can ask the question about Buckley v. Valeo. Brown v. Board 
of Education is probably a much easier example.
    Chairman Schumer. That is why I didn't want to give that.
    Mr. Bolick. Right, but when issues are live, on the table, 
it is dangerous to ask and dangerous to give those answers. I 
could imagine you, not in the context of a specific past 
precedent, but, for example, asking, do you think school choice 
is unconstitutional or constitutional. If someone were to 
answer that question, I would act very aggressively to make 
sure that that person was not involved--not just in an academic 
musing, but before this committee, I would act very 
aggressively to make sure that that person was not sitting on a 
court that I had a school choice case in front of. And if that 
person were, the opinion, I believe, would not be respected by 
the public because that person had pre-judged it.
    Chairman Schumer. Then we are getting back to what Mr. 
Presser first said and then backed off that maybe we shouldn't 
have hearings, and then the advice and consent becomes a rubber 
stamp. And it is not the hearings; I don't care about the 
hearings. I don't care how this comes out. You know, it could 
be questions that the President asks, and this hearing has 
convinced me further that having these kinds of issues out 
there is important.
    It is not the sole determination, just as there is no 
litmus test on even any specific issue. But I think we have 
messed ourselves up by having this shibboleth that this stuff 
doesn't matter.
    Ms. Greenberger. I also want to draw a distinction between 
filing a recusal motion and a judge feeling as if he or she 
needs to recuse themselves from a case. Filing a motion isn't 
dispositive.
    Chairman Schumer. Professor Sunstein and then Professor 
Volokh.
    Mr. Sunstein. I do think things are simpler and more agreed 
on than some of the last few minutes suggest. Of course, you 
can ask any question you want, and then it is up to the nominee 
to decide how to answer. And if the nominees says, I am sorry, 
I feel any answer would be to pre-commit myself and would be 
inappropriate, then you are perfectly entitled to take that 
into account.
    I don't know that anyone disagrees. I think some of the 
detail has gotten away from that broadly sensible way of 
proceeding.
    Chairman Schumer. Right, but you would also say--and this 
is where people would disagree, but to me, at least, asking, 
say, about the Buckley v. Valeo case and getting sort of 
nothing, you know, sort of what Mr. Bolick said, that should 
legitimately enter into my evaluation of whether this nominee 
deserved to get to the bench. I think that is where we have a--
--
    Mr. Sunstein. I think you are right, and if the nominee 
said I think Buckley v. Valeo should be overruled and I won't 
respect it as a lower court judge, that would be entitled to 
consideration, also. Any answer.
    Chairman Schumer. Professor Volokh?
    Mr. Volokh. Senator, actually I do think that the question 
you ask is a very tough question. I don't know to what extent 
it is proper to even ask point blank, what do you think of this 
decision and how would you vote in the future. There are 
certainly arguments for it, but it seems to me important to 
recognize that it is not the same as just looking at what this 
person has written as a scholar.
    Somebody who is elevated to the bench can say, look, you 
know, sure, I wrote this law review article, but that was a law 
review article and now I have changed my mind. It is, I think, 
a lot tougher when somebody is testifying under oath in a 
situation where a decision about their future career was going 
to turn on this. There is always the fear that they will say, 
when I say I have changed my mind, people will misperceive that 
and will think that, in fact, I wasn't being quite candid 
before the Committee earlier.
    I think a good example of the implication of that is you 
read back to Mr. Bolick an earlier article that he had written, 
and I think that is a powerful way of arguing. Imagine this had 
been sort of testimony that he had given. I take it that he 
would feel in a much tougher position explaining how it was 
that he----
    Chairman Schumer. But, Professor Volokh, the purpose of 
this process, and I would say the Founding Fathers' purpose 
relates ultimately to the responsibility to the people, not to 
the potential judge and to the point that this person, he or 
she, may be put in an embarrassing position or be put on the 
spot.
    As has been said by almost everyone here, it is a lifetime 
appointment, and I think my 19 million people in New York and 
the 260-some-odd-million Americans are entitled to know quite a 
bit, and I would agree with the Supreme Court more than the 
lower courts, but even with the lower courts to have some 
degree of understanding.
    Mr. Volokh. Senator, of course it is about the people. The 
question is, and I think it is genuinely tough question, to 
what extent are the people entitled to have judges who have not 
found themselves put in a position where they are essentially -
no matter how exactly they might put it, but where they 
essentially feel they are pre-committing themselves under oath.
    Chairman Schumer. We may get tautology here. I would argue 
to you if we discussed so-called ideology openly, it would be 
better for those nominees because they would be--and I think we 
would come to much more of an agreement here. They would be 
less ``gotcha,'' there would be less trying to nail somebody 
for something, and I think the American people would have a 
better understanding and better respect for the bench. That is 
at least my preliminary view.
    Professor Presser?
    Mr. Presser. A very quick comment because I have to run to 
catch a plane, but it seems to me that whatever you need to 
determine a nominee's judicial philosophy ought to be fair 
game. But one of the points that you made very early on that we 
haven't talked about that we really should say something about 
is the notion that anybody who comes before the Judiciary 
Committee has a presumption against them that they have to 
overcome. Those weren't the words that you used, but the----
    Chairman Schumer. We are going to have a hearing to decide 
if that should be the case or not.
    Mr. Presser. The implication is that you are guilty until 
proven innocent, and that wouldn't be the kind of deference to 
the executive branch that I think you want to have.
    Chairman Schumer. Right. I would not characterize it that 
way. The question is should our purpose be to find 
disqualifiers or should there be an affirmative case that has 
to be made by the nominee that he or she should be on the 
bench. I think that is going to be a very interesting hearing.
    Mr. Bolick. Senator, some of us have to defer to airline 
schedules.
    Chairman Schumer. OK. Well, then let me, in conclusion, 
thank every one of you for being here. I think this has been a 
tremendously important hearing that is going to make all of us 
think a great deal as we move forward in this process.
    Senator Sessions. Mr. Chairman, I would just like to add a 
thank you for your cooperative spirit, and your staff who has 
worked well with us on it. I would just add that every Senator, 
of course, can pursue matters as aggressively as he or she 
chooses. I guess one of the things that is troubling us is how 
far should we go, No. 2. And, No. 2, I wish we could think of a 
better word than ``ideology,'' however we pronounce it, because 
this Miller Report condemns the use of ideology.
    It deals with partisanship or political philosophy, and I 
voted for a lot of people whose politics are quite different 
from mine. But I believe they would follow the law, so I 
followed their legal philosophy, not their political agenda.
    Chairman Schumer. Well, that is a great suggestion and we 
will take it up.
    I want to ask unanimous consent that the statement by 
Senator Thurmond be added to the record.
    The record will kept open for 1 week for any additional 
material to be submitted.
    With that, we adjourn with profound thanks to all of our 
witnesses.
    The hearing is adjourned.
    [Whereupon, at 2:37 p.m., the Subcommittee was adjourned.]










  THE SENATE'S ROLE IN THE NOMINATION AND CONFIRMATION PROCESS: WHOSE 
                                BURDEN?

                              ----------                              


                       TUESDAY, SEPTEMBER 4, 2001

                               U.S. Senate,
  Subcommittee on Administrative Oversight and the 
                                            Courts,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:07 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles 
Schumer, Chairman of the Subcommittee, presiding.
    Present: Senators Schumer, Durbin, Sessions, Hatch, 
Thurmond, Kyl, and McConnell.

 OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Chairman Schumer. The hearing will come to order. On behalf 
of the Subcommittee and Senator Sessions and myself, we would 
like to welcome everybody to the second in a series of hearings 
that the Subcommittee on Administrative Oversight and the 
Courts is holding to examine the judicial nomination and 
confirmation process.
    Our first hearing examined the role of ideology in the 
Senate's consideration of judicial nominees. By the hearing's 
close, I think we showed that an open, honest and above-board 
consideration of a nominee's judicial ideology ultimately 
benefits the Senate and the nominee by keeping the inquiry 
focused on issues of substance rather than falling prey to the 
type of ``gotcha'' politics that has unfortunately emerged over 
the past two decades.
    We also showed that openly considering judicial ideology 
benefits the judiciary itself by helping ensure that our courts 
remain balanced and moderate and represent the views and 
beliefs held by the majority of the American people.
    Today, we have another opportunity to shed more light on 
the judicial confirmation process. In recent history, both 
Republican and Democratic Presidents have nominated 
controversial candidates to the bench. The confirmation process 
for many of these candidates has been tarnished by allegations 
of unfair treatment of the nominees by both sides, Republicans 
and Democrats.
    It is time to clean up what has all too accurately been 
called the ``confirmation mess.'' That is why we are holding 
these hearings, to look at what the process has become and talk 
about how to turn it into something that treats both the 
nominees and the Senate with dignity and respect, and ensure 
that the Federal bench receives the very best candidates our 
Nation has to offer. It is an appropriate time to do this, 
before our full Committee and this Subcommittee get caught up 
in Supreme Court nominees and the thicket and maelstrom that 
that may produce.
    Today, we take our next step toward that goal. We have 
invited a series of distinguished witnesses from across the 
political spectrum to come and discuss the Senate's role in 
judicial nominations and confirmations. During today's hearing, 
we will explore and hopefully answer one simple yet important 
question: On whose shoulders should the confirmation burden 
rest? Should the Senate ask itself, why shouldn't we confirm 
this nominee, or should the Senate ask the nominee, why should 
we confirm you?
    The former puts the burden of proof upon the Senators, 
requiring them to either rubber-stamp the nominee or uncover 
evidence, often in the vein of ``gotcha'' politics, showing why 
the nominee is unfit for nomination. The latter puts the burden 
of proof on the nominee, requiring the nominee to demonstrate, 
based on his or her experience, qualifications, background, 
judicial ideology and writings, among other factors, why he or 
she merits a lifetime appointment to the Federal bench. The 
difference is subtle yet profound, impacting both the overall 
quality of the judiciary and the future of the advise and 
consent process.
    As I so often learn, the best way to figure out what to do 
next is often by looking back at what the Framers did first. 
When the Framers debated how to fill judgeships on the Federal 
bench, they considered a wide range of possibilities. The 
options went from vesting all power in the Senate to giving the 
President unilateral authority to appoint judges.
    According to the records of the Constitutional Convention, 
some delegates were concerned that the President might use the 
appointment power to put only his friends and like-minded 
thinkers on the Federal bench. So the Framers acted wisely. 
They chose a middle course that balanced power between the 
President and the Senate. The President was given the ability 
to nominate, but the Senate was given roles of offering advice 
in nominations and deciding whether to consent to those 
nominations.
    In Federalist 77, Alexander Hamilton, a great New Yorker 
and a proponent of a powerful presidency and executive branch, 
lauded this balance of power. He noted that the very purpose of 
the Senate's role is to ``restrain'' the President as he 
exercises the nomination power. Hamilton foresaw an active 
Senate examination of judicial nominees, where blame would lay 
at the Senate's door if qualified nominees were rejected, but 
where credit would be given to the Senate when undeserving 
nominees were justifiably denied confirmation.
    What does that mean? To me, it seems clear that the Framers 
wanted the President to select candidates for the bench, but 
that they also wanted the Senate to actively deliberate whether 
those candidates are fit for the bench. And I know that several 
of my colleagues, including the distinguished Minority Leader, 
Senator Lott, and my ranking colleague, Senator Sessions, the 
Ranking Member of this subcommittee, have made similarly strong 
statements in favor of a very active Senate role in the 
confirmation process.
    Given the stakes at hand, it makes sense that the burden 
should rest with the nominee. We require parties who appear 
before a court to prove their case. It is not unreasonable to 
ask those who come before the Senate seeking a lifetime 
appointment to the Federal bench to do the same.
    Imagine a job interview where you walk in and it is up to 
the interviewer to either automatically hire you or find 
something in your past that disqualifies you. Provided you just 
sit there with your mouth shut, or at the very most voicing 
meaningless platitudes, and as long as there is no major 
skeleton in your closet, you are a shoo-in for the job. Is that 
the best way to find the best person for the job? Of course 
not. Any company built that way would be filing for Chapter 11 
in months, but here in the Senate we sometimes call that the 
judicial confirmation process. And here in the Senate, the 
nominee gets the job for life.
    Our system is on the verge of being broken and it needs 
fixing. The Founders, from Federalists like Hamilton to 
Democrats like Madison and Jefferson, would be shocked if they 
saw what was happening today. The Federal bench should be 
filled with the best and brightest legal talent. When the 
screening board is merely charged with asking itself why not 
this nominee, we can never hope to achieve the level of 
excellence the Framers intended and the American people have 
the right to expect.
    When two co-equal branches of government are given balanced 
roles in a system, as is the case with judicial nominations and 
confirmations, the Senate cannot simply presume that the 
President's pick merits confirmation. A mistake here doesn't 
last just 2, 4 or 6 years, as it does with elected 
representatives; a mistake here lasts a lifetime. That is why 
it is our duty to ask every nominee ``why should we,'' instead 
of asking ourselves ``why not.''
    What does that mean for the President's nominees, this 
President's or any other? It would mean that they can expect to 
be treated fairly, but questioned rigorously. It means that 
they will be respected, but not rubber-stamped. It means that 
they will not be ignored, but they will also not be rushed.
    Of course, saying the burden should be on the nominee 
doesn't answer the question of what the nominee should have to 
prove. At our first hearing, we established that ideology has 
been, is, and in my judgment should be a part of the inquiry. 
But other factors, such as diversity and political climate of 
the day, should be considered, too.
    One factor that some of our witnesses focus on in their 
written testimony is the question of experience. By experience 
I don't just mean legal experience. We are talking more broadly 
about the importance of real-world experience, political 
experience, governmental experience. We are talking about the 
range of experience that we need to make the bench 
representative of and better able to understand America.
    As Professor Tushnet points out in his testimony, the real-
world experience of Justice Thurgood Marshall, the executive 
branch experience of Justice Byron White, and the national 
experience of Louis Brandeis all helped them make substantial 
contributions to the Supreme Court's understanding of important 
national issues, even though those experiences weren't solely 
in the courtroom. Some of our witnesses today will help provide 
a historical context for placing the burden of proof on the 
nominee. Others here will surely disagree, and that is what 
makes these hearings interesting.
    Before I turn to our ranking member, Senator Sessions, for 
his opening statement, I want to remind everyone that our third 
hearing, which will be held in the coming weeks, will examine 
the new federalism and the recent trend in Federal courts of 
limiting Congress' power to pass laws that affect people's 
everyday lives in important ways.
    In conclusion, I want to thank Senator Sessions for again 
helping make this hearing a fully bipartisan hearing. We have 
had an equal number of witnesses and I have tried, as Chair, 
not to interfere with who Senator Sessions would think would be 
best to answer these questions. I look forward to continuing in 
this mode of productive bipartisanship.
    You and your staff, Jeff, have helped us get this hearing 
scheduled in a short timeframe and have been a real pleasure to 
work with.
    I now call on Senator Sessions for an opening statement.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman, and I would like 
to say that you have been extraordinarily courteous and 
accommodating as we work through these issues. I think it is 
fine and appropriate that we have hearings to discuss these 
issues. It is an important matter.
    Basically, it is an important matter for each individual 
Senator because each Senator will have their own standard for 
what they believe should be the test for a nominee, whether or 
not they should be confirmed individually, and we have had 
different ones in the past and we will have different ones in 
the future.
    I also appreciate your concern over the ``gotcha'' 
politics, having seen that firsthand and seen it over the 
years. I don't think that is a healthy way to go about the 
process. Some have said, well, they do that because they don't 
want to confront a person's philosophy. And I think you are 
saying, well, let's just talk about the philosophy more openly, 
and maybe that has validity. I think we just must be cautious 
how we go about it.
    It is a difficult thing to analyze a nominee and say, well, 
we don't agree with your politics, therefore you are not a good 
nominee. I think that is an unhealthy approach. It rejects the 
concept which I as a practicing attorney in Federal court full-
time for almost 15 years saw, which was on a daily basis all 
over America judges are making decisions based on law and facts 
and not on politics.
    We in this body seem to think politics trumps everything 
and that you can't remove politics from it. But the truth is 
justice goes on in this country on a daily basis based on law 
and facts, and politics does not enter into it. I think it 
would be dangerous if we as a Committee were to suggest that a 
nominee who is a conservative or a liberal wouldn't be 
qualified because of their political views when, in fact, day 
after day they both, as good lawyers and good judges, would 
probably rule the same way.
    We will examine the role of the Senate today in the 
nomination and confirmation process. The Constitution simply 
states that the President ``shall nominate, and by and with the 
Advice and Consent of the Senate, shall appoint...Judges of the 
Supreme Court, and all other Officers of the United States...'' 
Thus, the Senate has the duty and responsibility to advise the 
President on judicial nominees.
    I am glad to see that President Bush is consulting with 
Republican and Democratic Senators from each judicial nominee's 
home State before the nominations are made. I think that is a 
healthy thing and I believe it will eliminate some difficulties 
that might otherwise occur. President Clinton's people talked 
with me normally before a nomination came forward in the State.
    Once the President forwards a nomination to the Senate, 
Article II, section 2, clause 2, of the Constitution empowers 
the Senate to confirm or reject a nominee. It does not provide 
a standard for doing so. While the Senate has a great deal of 
latitude in exercising the power to confirm, it has the duty to 
exercise that power in a responsible manner.
    One of the responsibilities is the manner in which the 
nomination hearings are conducted. Senator Hatch, to my right, 
while he was the Chairman of the Judiciary Committee, examined 
each nominee's integrity, qualifications, temperament, and 
approach to the law. While Senators sometimes disagreed on 
these issues, Senator Hatch is to be commended for not carrying 
out ``gotcha''-type hearings to attack judicial nominees of the 
Clinton administration. This practice, I believe, panders to 
special interest groups at the expense of fairness in the 
hearings. If there was a personal issue, Senator Hatch usually 
would handle that privately. Senator Hatch elevated the 
confirmation process, and I believe justice in America 
benefited from it.
    Another responsibility of the Senate is to confirm enough 
judges to assure the proper functioning of the judiciary. A 
judiciary cannot function without judges, and this is usually 
measured by the number of nominees, though we too little talk 
about it. President Clinton left office with a Republican 
Senate and there were just 67 vacancies, only 4 more than when 
the Democrats controlled the Senate in 1994. I believe that we 
did a pretty good job of moving nominees forward; in fact, a 
very good job of moving nominees forward. I think this Senate 
now, with a Democratic majority, is going to be challenged to 
meet that record.
    Another responsibility of the Senate is to examine the 
record of each nominee to ensure they are qualified, have 
integrity, have judicial temperament, and will follow the law 
as written and as intended. If a nominee's record indicates 
that they lack those qualifications or will not follow the law, 
then the nominee, whether liberal or conservative, Republican 
or Democrat, should not be confirmed.
    That the Senate is not a rubber stamp does not mean that it 
should be an aggressive co-policer, co-nominator, with the 
President of the United States. We have heard much about the 
need for the Senate to return to its historic role of 
aggressively defeating judicial nominations. It is true that 
during the first 100 years of our country's history, a number 
of nominees to the Supreme Court were not confirmed. The 
reasons why, however, have not been clearly explained. Many 
nominees declined to serve because of the Court's lack of 
prestige at that time, and others were not confirmed due to the 
lame duck or near-lame duck status of the nominating President.
    In fact, only a very few were rejected because of what 
might be called their ideology. Thus, the impression that the 
Senate, as one witness earlier had said, took an early, 
vigorous role in policing the ideology of the Court or in 
making nominees bear the burden of proving their moderation in 
order to earn confirmation, is not borne out by the facts.
    If history is to serve as a guide, we would do well to 
examine it with respect to the burden, or lack thereof, on 
nominees to prove their worthiness of confirmation beyond their 
paper record. During the first 130 years of our country, the 
Senate did not ask nominees any questions at hearings, probing 
or otherwise. The first nominee to even appear before the 
Senate was Harlan Fiske Stone, in 1925, and nominees did not 
appear regularly before the Judiciary Committee until John 
Marshall Harlan II, in 1955.
    Occasionally, the Committee asked a few nominees questions 
in writing, but there was not probing examination and cross-
examination in committee. It would therefore be difficult 
indeed for a nominee to bear some burden--illusory burden, I 
would suggest--of earning confirmation to submit to vigorous 
cross-examination and to personally convince Senators on the 
Committee that he or she truly meets the criteria in a way not 
reflected in that nominee's record, if indeed the nominee was 
not present at the hearing or there was no hearing.
    Further, to place the burden on President Clinton's 377 
nominees who were confirmed by this Senate would have been a 
logistical impossibility. To make each one prove their 
worthiness beyond their record as reflected in the files and 
forwarded to the committee, beyond the ABA rating, beyond the 
FBI background check, beyond the support of their home State 
Senators, would create an unprecedented logjam.
    Generally, nominees are asked general questions and then 
confirmed without having to prove their worthiness by long 
statements or extensive cross-examination or production of 
philosophical documents. As a general matter, the history and 
practicalities of the appointment process make it very unlikely 
that the burden should even be on the nominee to prove his 
worthiness for confirmation. Thus, the presumption in favor of 
confirmation is a historical and practical necessity.
    Moreover, shifting the burden to the nominee, when combined 
with policing for, let's say, conservative views, would, of 
course, place the Republican nominees in a catch-22. On the one 
hand, the Democrats would say that they would vote against the 
nominee if he answers questions in a manner that shows he is 
conservative. On the other hand, they could then say that they 
would vote against the nominee if he refuses to answer 
questions because he hasn't borne the burden. This catch-22 
would not be a healthy thing, in my view.
    So under the broad guidelines of the Constitution, a 
Senator can ask a nominee any question and a nominee can answer 
in any way he chooses or not at all. And while the Senate is 
not a rubber stamp, we owe to the institution of the Senate not 
to degrade the advice and consent process to the point of 
partisan bickering that could politicize the Federal courts. 
That was the testimony we had earlier in one of our previous 
hearings.
    We don't need a double standard for confirmations. We need 
the same standard that former Chairman Hatch used with 
President Clinton's nominees, one of deference to the President 
and respect for the nominee and respect for the non-political 
rule of law.
    Mr. Chairman, thank you, and I ask that my full statement 
be made part of the record.
    Chairman Schumer. It will be made part of the record.
    [The prepared statement and an attachment of Senator 
Sessions follows:]

   Statement of Hon. Jeff Sessions, a U.S. Senator from the State of 
                                Alabama

    While I welcome this review of the Senate's constitutional advice 
and consent responsibilities, I am concerned that if a new higher 
standard for confirming Republican judicial nominees is adopted it will 
degrade the Senate's role in the appointment process.
                                Concerns
    On April 30, 2001, at a private retreat, Laurence Tribe, Cass 
Sunstein, and Marcia Greenberger lectured Democratic senators on how to 
block Republican judicial nominees by ``changing the ground rules.'' 
Neil A. Lewis, Democrats Readying for a Judicial Fight, N.Y. TIMES, May 
1, 2001. Then on June 26, 2001, Tribe, Sunstein, and Greenberger were 
invited to testify before this subcommittee at a hearing entitled, 
``Should Ideology Matter? Judicial Nominations 2001.'' They argued, in 
effect, for a higher standard for confirming Republican nominees than 
was used to confirm Democratic nominees.
    The higher confirmation standard is justified, according to Tribe, 
Sunstein, and Greenberger, because, they insist, Clinton appointed no 
liberal judges (they really said that) and that as a result the courts 
are to the ``right'' of mainstream, and that the Republican Senate was 
unfair to President Clinton's nominees. These justifications for a 
higher standard do not survive close examination.
    First, President Clinton certainly appointed liberals to the 
courts. Ruth Bader Ginsburg was the general counsel to the ACLU before 
she was elevated to the Supreme Court. Marsha Berzon was the head of 
the litigation section for the ACLU's San Francisco chapter before 
President Clinton appointed her to the Ninth Circuit. Certainly, these 
were ``liberal'' appointees.
    Second, the Rehnquist Court is not far to the ``right'' of the 
mainstream and thus in need of ``balancing'' by ``moderate'' 
appointees. Indeed, the Rehnquist Court has protected burning the 
American flag, United States v. Eichman, 496 U.S. 310 (1990), banned 
voluntary student prayer at high school football games, Sante Fe 
Independent School District v. Doe, 530 U.S. 290 (2000), protected 
special rights for gays, Romer v. Evans, 517 U.S. 620 (1996), stopped 
the police from using heat sensors to search for marijuana growing 
equipment, Kyllo v. United States, 121 S.Ct. 2038 (2001), and 
reaffirmed and expanded abortion rights, Stenberg v. Carhart, 530 U.S. 
914 (2000). Perhaps these rulings are far to the ``right'' of Tribe, 
Sunstein and Greenberger, but they are not far to the right of Middle 
America.
    Third, despite reports to the contrary, the Republican Senate was 
not unfair to President Clinton's judicial nominees. To the contrary, 
the Senate confirmed 377 of President Clinton's nominees and left only 
41 pending at the end of his tenure. This compares favorably to the 382 
confirmations for President Reagan and the 54 nominees left pending at 
the end of the first President Bush's term.
    Thus, the characterizations of President Clinton's appointees as 
wholly non-``liberal'', of the Rehnquist Court as out of the 
``mainstream,'' and of the Republican Senate's treatment of President 
Clinton's nominees as ``unfair'' do not pass muster. To use these false 
premises as the justifications to impose a higher standard for 
confirming Republican nominees than that used to confirm 377 Democratic 
nominees would be wrong and seriously degrade the confirmation process. 
In my view, we do not need to inject a stealth partisanship into the 
advice and consent process under the labels of ``balance,'' 
``moderation,'' or ``mainstream.'' Instead, the President needs to 
nominate and the Senate needs to examine and confirm qualified, fair 
judges who will follow the law.
                         The Nomination Process
    At today's hearing, we examine the role of the Senate in the 
nomination and confirmation process. The Constitution simply states 
that the President ``shall nominate, and by and with the Advice and 
Consent of the Senate, shall appoint . . . Judges of the Supreme Court, 
and all other Officers of the United States . . . .'' Thus, the Senate 
has the duty and responsibility to advise the President on judicial 
nominees.
    Part of this responsibility is reflected in the tradition of 
senatorial courtesy which dates back to George Washington's Presidency. 
The input of home state senators is an important part of this process. 
I believe that the President should consult in good faith with home 
state senators prior to nominating a judge to a federal court located 
in that state. In my view, although the power to nominate belongs 
solely to the President, the President has the obligation to listen to 
home state senators before he makes his decision to nominate a 
particular person. I am glad to see that President Bush is consulting 
with Republican and Democratic senators from each judicial nominee's 
home state prior to making the nomination.
                        The Confirmation Process
    Once the President forwards a nomination to the Senate, Article II, 
section 2, clause 2 of the Constitution empowers the Senate to confirm 
or reject a nominee. It does not provide a standard for doing so.
    While the Senate has a great deal of latitude in exercising the 
power to confirm, it has the duty to exercise that power in a 
responsible manner. One of the responsibilities is the manner in which 
nominations hearings are conducted. Senator Hatch, while he was 
chairman, examined each nominee's integrity, qualifications, 
temperament, and approach to the law. While senators sometimes 
disagreed on these issues, Senator Hatch is to be commended for not 
calling a series of nominations hearings at which panels of witnesses 
were called to attack judicial nominees. This practice inevitably 
panders to special interest groups at the expense of the nominee. If 
there was a personal issue, he handled it privately, thus saving the 
nominee and the nominee's family much anguish. His fairness and 
gentlemanly demeanor were a credit to the chair he held, to this 
Committee, to the Judiciary and to the Senate as a whole. He did not 
respond to the ``Borking'' procedures used against some Reagan and Bush 
nominees by doing the same. He elevated the confirmations process, and 
justice in America benefitted from it.
    Another responsibility of the Senate is to confirm enough judges to 
ensure the proper functioning of the federal judiciary. A judiciary 
cannot function without judges. This is generally measured by the 
number of vacancies on the federal bench. At the end of each Congress 
during the Clinton Presidency, the number of vacancies on the federal 
bench was far lower than it is today:

------------------------------------------------------------------------
             Year                       Senate             Vacancies
------------------------------------------------------------------------
                      1994               Democrat                  63
                      1996             Republican                  65
                      1998             Republican                  50
                      2000             Republican                  67
         September 4, 2001                    107
------------------------------------------------------------------------

    Though the media generally refuses to report it, when President 
Clinton left office with a Republican Senate, there were just 67 
vacancies--only 4 more than when the Democrats controlled the Senate in 
1994. Because of retirements, deaths, and the lack of confirmations, 
the number of judicial vacancies has grown to 107 since the last 
Congress under President Clinton adjourned. Thus, if no more 
retirements or deaths occur between today and the end of the year, we 
will need 40 more confirmations to match the number that the Republican 
Congress left President Clinton with last year. In the first years of 
the past three Administrations, all but one of the nominees who were 
nominated before the end of the August recess were confirmed in the 
first year of the Presidency. Thus far, the Senate has confirmed only 4 
of the 44 nominations that President Bush has made prior to the August 
recess. We can do better.
    Moreover, there are certain districts, like the Southern District 
of California, that desperately need new judgeships. I hope that the 
Committee can act in a bipartisan basis to create a moderate number of 
new judgeships where the caseload is the most egregious and the 
consistent administration of justice is at risk.
    Another responsibility of the Senate is to examine the records of 
each nominee to ensure that they are qualified, have integrity, have a 
judicious temperament, and will follow the law as written and intended. 
If a nominee's record indicates that he or she lacks qualifications, 
integrity, a judicial temperament, or will not follow the law, then 
that nominee whether Republican or Democrat, liberal or conservative, 
should not be confirmed.
    That the Senate is not a rubber stamp does not mean that its proper 
role is that of aggressive policer or even co-nominator with the 
President. In Federalist No. 76, Alexander Hamilton set forth the view 
of the Framers that ``[i]n the act of nomination, [the President's] 
judgement alone would be exercised; and it would be his sole duty to 
point out the man, who with the approbation of the Senate, should fill 
an office.'' \1\ Hamilton added that the Senate was to serve as ``an 
excellent check upon a spirit of favoritism in the President, and would 
tend greatly to prevent the appointment of unfit characters from State 
prejudice, from family connection, from personal attachment, or from a 
view to popularity.'' \2\ Moreover, he stated that the Senate should 
``not be tempted by the preference they might feel to another [nominee] 
to reject the one proposed.'' \3\ Thus, the Senate should ensure that 
the President's nominees meet the criteria of qualification, integrity, 
temperament, and fidelity to law, and if they do, we should give 
deference to those nominees.
---------------------------------------------------------------------------
    \1\ The Federalist No. 76, at 456-57 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961).
    \2\Id. at 457.
    \3\ Id.
---------------------------------------------------------------------------
    We have heard much about the need for the Senate to return to its 
historic role of aggressively defeating judicial nominations. It is 
true that during the first 100 years of our country's history, a number 
of nominees to the Supreme Court were not confirmed. The reasons why, 
however, have not been clearly explained. Many nominees declined to 
serve because of the Court's lack of prestige at the time and others 
were not confirmed due to the lame-duck or near lame duck status of the 
nominating President. In fact, only a very few were rejected because of 
their own ideology. Thus, the impression that the Senate took an early 
vigorous role in policing the ideology of the Court or in making 
nominees bear the burden of proving their moderation in order to earn 
confirmation is not true.
                               The Burden
    If history is to serve as the guide, however, we would do well to 
examine it with respect to the burden, or lack thereof, on nominees to 
prove their worthiness of confirmation beyond their paper record. 
During the first 130 years of our country's history, the Senate did not 
ask nominees any questions at hearings, probing or otherwise. The first 
nominee to even appear before the Senate was Harlan Fiske Stone in 
1925, and nominees did not appear regularly before the Judiciary 
Committee until John Marshall Harlan II in 1955. Occasionally, the 
Committee asked a few nominees questions in writing, but there was no 
probing examination and cross examination in Committee. It would be 
difficult indeed for a nominee to bear some illusory burden of earning 
confirmation, to submit to vigorous cross examination, and to 
personally convince senators on the Committee that he truly meets the 
criteria in a way not reflected in his record, if the nominee was 
absent.
    Further, to place the burden on President Clinton's 377 nominees 
who were confirmed by the Senate would have been a logistical 
impossibility. To make each one prove their worthiness beyond their 
record as reflected in the files forwarded to the Committee, beyond the 
ABA rating, beyond the FBI background check, and beyond the support of 
their home state senators would create an unprecedented logjam. 
Generally, nominees are asked a few stock questions and then confirmed 
without having to prove their worthiness for confirmation by long 
statements, extensive cross-examination, etc. As a general matter, the 
history and practicalities of the appointment process make it very 
unlikely that the burden should or even could be on the nominee to 
prove his worthiness for confirmation. Thus, the presumption in favor 
of confirmation is a historical and practical necessity.
    Moreover, shifting the burden to the nominee when combined with 
policing for conservative views, would, of course, place Republican 
nominees in a Catch-22. On the one hand, the Democrats could say that 
they would vote against a nominee if he answers questions in a manner 
that shows he is conservative. On the other hand, the Democrats could 
say they would vote against a nominee if he refuses to answer their 
questions because he hasn't borne his burden. This Catch-22 for 
Republican nominees was not used for Democratic nominees and should not 
be used for any nominees.
                               Conclusion
    Under the broad guidelines of the Constitution, a senator can ask a 
nominee any question, and a nominee can answer any way he chooses or 
not at all. While the Senate is not a rubber stamp, we owe it to the 
institution of the Senate not to degrade the advice and consent process 
to the point of partisan bickering that could politicize the federal 
courts. We don't need a double standard for confirmations. We need the 
same standard that former Chairman Hatch used with President Clinton's 
nominees--one of deference to the President and respect for the 
nominee, and respect for a non-political rule of law.
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    Chairman Schumer. I thank you, Senator Sessions.
    I know that we have Senator Simon waiting. We are going to 
ask, if that is OK with the other members, that whatever 
opening statements they have be done as part of the question 
period. Otherwise, we will be here kind of late.
    Senator Thompson is on his way over. He is debating the 
Export Administration Act on the floor, but let me call on 
Senator Simon here before us. I don't think he needs much of an 
introduction, but the best introduction that he can get to all 
of us on the panel is from his successor in the U.S. Senate and 
longtime friend, Senator Durbin. So I am going to call on 
Senator Durbin, a member of this subcommittee, to introduce 
Senator Simon.
    Senator Durbin. Thank you, Mr. Chairman, and I am sure 
other members of the Committee could take over this 
responsibility quite well.
    I see that Senator Hatch has brought a copy of your book, 
Paul, to this hearing, so you know that you might be asked some 
questions about its content.
    It is my honor today to introduce Paul Simon formally to a 
Committee where he served for many years. Back in 1966, in a 6-
month period of time as a college student, it was my great 
honor to meet two men who changed my life: one, Senator Paul 
Douglass, whom I interned for across the street in what was 
then known as the Old Senate Office Building, and then just a 
few months later an Illinois State senator with a bow tie named 
Paul Simon. Those two men had a profound impact on my career 
decision, and ironically here a few years later I have 
succeeded both of them to this Senate seat.
    I come here as a friend of Paul Simon's, who was also my 
mentor and inspiration and for many years. He served in the 
House and in the Senate, and while in the Senate served on the 
Judiciary Committee, of which we are all members. He was here 
during a very historic period when the nominations of Robert 
Bork and Clarence Thomas were considered, and I know that those 
experiences became an important part of his book Advise and 
Consent, which many of us have had the good opportunity to 
read.
    I want to thank Paul Simon for joining us and I want to 
make certain that we plug his current position. He is on the 
faculty of Southern Illinois University, in Carbondale. He is 
the founder and director of the Public Policy Institute, where 
he teaches classes in legislative process for their Department 
of Political Science and non-fiction writing for the Department 
of Journalism. He is just as actively involved in the actions 
and passions of his time as he was as a member of the U.S. 
Senate and I am happy to welcome him back to the committee.
    Chairman Schumer. Thank you, Senator Durbin. We all agree 
with your words of admiration--there is no better word, I 
think--that we all have, regardless of our party, for you, 
Senator Simon. It is an honor to have you here. Your entire 
written statement will be read into the record and you may 
proceed as you wish.

STATEMENT OF PAUL SIMON, FORMER U.S. SENATOR FROM THE STATE OF 
                            ILLINOIS

    Mr. Simon. I thank you very much, Mr. Chairman. I thank 
Senator Durbin for his generous remarks. He could have given 
you a more balanced introduction and I am grateful that he 
didn't do that.
    I didn't have the privilege of serving with you Mr. 
Chairman, in the Senate, but I worked with you when you were in 
the House, and Senator McConnell I worked with; Senator 
Thurmond I worked with.
    I believe you had little seniority over me, Senator 
Thurmond, but it was a pleasure to work with you.
    Senator Hatch was either the Ranking Member or the Chairman 
of the committee. Senator Sessions is the new Howell Heflin, 
from Alabama, of this committee. It is a pleasure to be with 
all of you.
    Senator Sessions. Thank you, Senator.
    Mr. Simon. I will read part of my remarks. As those of you 
who served with me know, I didn't read remarks when I was on 
the floor of the Senate, but you demanded a statement and I had 
to sit down at my old manual typewriter and knock one out, and 
so I will read part of my brief statement here.
    The original idea was that the Senate would be kind of an 
informal Cabinet for the President. But that quickly gave way 
and then when it came time for the first confirmations, the 
Senate invited George Washington to come up to the Senate to 
discuss the confirmations. George Washington properly, as he 
did in so many things, said you ought to make this decision; 
the President of the United States shouldn't be influencing the 
decision that you make. That is how things started, and 
started, I think, in a proper direction.
    By tradition, the President does seek our advice on the 
district judgeships. There, the advice and consent mandate of 
the Constitution is clearly followed. At the appellate level, 
it is sometimes followed. Because I served on this committee, 
on at least two occasions I was consulted by the White House on 
appellate nominations.
    But at the most important level, the Supreme Court, it is 
rarely followed today. We are a long way from a Supreme Court 
contest in which President James Garfield wrote that a 
nomination he made--and I am quoting President Garfield now--
``will settle the question whether the President is the 
registering clerk of the Senate or the executive of the United 
States.''
    Two days after George W. Bush took the oath of the 
presidency, he met with six Democrats--Senator John Glenn; 
Carter Press Secretary Jodie Powell; Walter Mondale's chief of 
staff, Richard Mole; former Congressman Bill Gray; former 
Democratic National Committee Chair Robert Strauss; and 
myself--on how he could reach out to Democrats. I stressed that 
when it comes to nominations for the United States Supreme 
Court, he should take his time, consult with members of this 
Committee of both political parties, and with others, because 
that legacy would live long after his presidency.
    On the lower courts, it is important that you get the 
opinion, I believe, of the American Bar Association. Even with 
that screening, occasionally a marginal appointee would appear 
before us where I said to myself, I hope nothing too 
complicated comes before this judge.
    I stopped only two nominations that I recall, one a nominee 
who made racially insensitive remarks, and the other a nominee 
who refused to resign from a club which discriminated, a 
practice I am pleased to say the Committee now follows. Beyond 
that, unless views expressed by a lower court nominee are 
extreme or there is an evident lack of ability or a question 
about integrity, I believe the nominee should be approved.
    Let me illustrate. When Clarence Thomas came before this 
Committee for chairmanship of the Equal Employment Opportunity 
Commission, I voted against him because he did not believe in 
the mission of the agency. When he came before us as a nominee 
for the appellate court, I voted for him, but said at the time 
if he should be nominated to the United States Supreme Court, I 
would probably vote against him because of his philosophy, and 
that I did.
    On Supreme Court nominations, whatever is considered by the 
President properly should be considered by the Senate. While it 
is true that sometimes nominees follow and unexpected pattern, 
in the large majority of cases the background of the nominee is 
an accurate gauge of the future decisions that Justice will 
make.
    In one of the worst decisions of the Supreme Court ever 
made, the Korematsu decision, approving Franklin Roosevelt's 
1942 order to suddenly relocate 115,000 Japanese-Americans, not 
a one of whom had committed a crime, one of the three Court 
dissenters was a nominee of President Herbert Hoover, and among 
the six in the majority were Justices Hugo Black and William 
Douglas, usually champions of civil liberties. One of the few 
people within the administration to speak out against the 
President's action was J. Edgar Hoover, later not so sensitive 
to our basic liberties. But that unexpected pattern is unusual.
    The best recent example of how a nomination should be 
handled was President Gerald Ford's nomination of John Paul 
Stevens. Attorney General Ed Levi scoured the landscape for a 
quality Justice. Senators were consulted, as were many others. 
The President did not act hastily. No President should, nor 
should the Senate.
    While it is not ideal, the Supreme Court can operate with 
eight members, and whatever problems that presents, it is much 
better than approving someone like Woodrow Wilson's appointment 
of Justice James McReynolds, the clear winner of the award as 
the worst Justice ever to serve on that high body.
    During my 12 years on the Senate Judiciary Committee, no 
President ever talked to me about a possible Supreme Court 
nominee prior to the nomination. A President should do that; 
that is what the Constitution calls for. The President does not 
need to follow the advice of the Senate, nor the Senate of the 
President.
    The Senate favored naming Aaron Burr as Ambassador to 
France, and sent James Monroe and James Madison to talk to the 
President about it. George Washington refused, saying he had, 
and I am quoting George Washington, ``made it an invariable 
rule never to suggest to a high and responsible office a man 
whose integrity he questioned.'' The President was right, the 
Senate wrong.
    Three suggestions: one, again, you should take into 
consideration philosophy for a Supreme Court nominee. When Earl 
Butz came before the Senate as the nominee for Secretary of 
Agriculture, Senator Hubert Humphrey said to him, ``I am 
worried about your economic philosophy. Your bonds and stocks 
are to your credit. You have earned everything that you have. 
You can put all that in escrow, but I don't think you can put 
your philosophy into escrow.'' If that is a consideration for a 
Secretary of Agriculture, how infinitely more true is it of a 
lifetime member of the United States Supreme Court?
    Two: practical political experience should be at least a 
minor consideration. Linda Greenhouse recently had an article 
in the New York Times in which she mentioned that only one 
member of the current Supreme Court, Justice Sandra Day 
O'Connor, has ever held elective office, having served in the 
State legislature. Greater elective office experience would be 
of help to this Court.
    Three: a broad look for nominees to the Supreme Court 
should include non-lawyers and members of the opposite party. 
Justice Hugo Black favored having one or two members of the 
Court who were not lawyers. Someone who became a Supreme Court 
scholar like Irving Dilliard, of the St. Louis Post-Dispatch, 
would have made a superb Supreme Court Justice. Let me add that 
at the age of 72 I am not talking about myself. As to political 
party, in the last century Presidents Taft, Wilson, Harding, 
Hoover, FDR, Truman, Eisenhower and Nixon all nominated at 
least one Justice of the other party.
    One final footnote. In the history of the Senate, it has 
rejected one-fifth of the nominees to the Supreme Court; in the 
19th century, it rejected one-fourth--reasons enough for the 
President and the Senate to work together.
    Chairman Schumer. Thank you very much, Senator Simon, for 
really excellent, thoughtful and practical testimony at the 
same time. We very much appreciate your taking the time to come 
here.
    Senator Thompson has just arrived and as I mentioned before 
he came in, we know that he is very busy right now on the floor 
with pending legislation and went out of his way to be here and 
provide his views to us very graciously.
    Senator Thompson, as everybody knows, is a friend of all of 
us, the senior Senator from Tennessee. He was Chairman of the 
Committee on Governmental Affairs, and before joining the 
Senate had a distinguished legal career as an attorney, serving 
as a Federal prosecutor and working as a staffer on several 
Senate committees, including a role as minority counsel on the 
Senate Select Committee on Presidential Campaign Activities, 
better known as the Watergate Committee. Elected to the Senate 
in 1994, he previously held a seat on this committee.
    I know, because Senator Sessions mentioned this to me 
earlier, we both want to thank you personally for joining us 
today on short notice, despite the fact that you are managing 
an amendment on the floor. It was gracious of you. You may 
proceed as you wish, and we know that you will have to get back 
to the floor quite soon.
    Thank you.

STATEMENT OF HON. FRED THOMPSON, A U.S. SENATOR FROM THE STATE 
                          OF TENNESSEE

    Senator Thompson. Thank you very much, Mr. Chairman. I 
appreciate your calling me, although, as you indicated, we were 
both kind of running and I wish my level of preparation was the 
same as my level of interest.
    I did want to be here with you for a few minutes today, 
since you did extend the kind invitation, because of my respect 
for you and the Ranking Member and what this Committee is 
trying to do, and my respect for this gentlemen right here, who 
personifies the integrity that we talk about when we talk about 
qualifications for the judiciary.
    It is wonderful to see you again, Senator.
    I simply had a chance to jot down a few notes and would 
simply like to share some thoughts as one member who is 
concerned about the judiciary, who has practiced law for 20-
some-odd years in the vineyards, both civil and criminal, and 
trial and non-trial, and one thing and another.
    I understand, as all the members of this Committee 
understand, the importance of what we are doing here because we 
are ultimately not trying to win elections with this process or 
not trying to come up with justifications for what we would 
like to do. We are ultimately trying to see to it that over the 
long stretch, a long period of time, we have the best judiciary 
that we can possibly have.
    I am concerned that we are not moving in the right 
direction in that respect for a lot of reasons. Each person has 
their own view about advice and consent and the process, and 
from what I have read about it there have been times in history 
where almost anything has been used as a legitimate reason for 
supporting or opposing a President's nominations for the 
judiciary. I think we have been kind of all over the map 
historically. I don't think there is much to learn there, 
except that if you want to do something or come up with a 
reason, you can probably find some historical precedent for it.
    I, first of all, turn to my own situation because every 
member has got to come to terms with him or herself as to what 
they felt that the Founding Fathers meant and would want them 
to do and what would be best in terms of getting a good 
judiciary.
    To me, my hallmark has always been in looking at these 
nominees competence and integrity, often used, not very 
complicated, but to me is the absolute basis for any nominee. I 
approach it by giving the President some deference. I did that 
with President Clinton. I think my actions have backed up my 
words, and the record would indicate that, not total deference, 
not no deference, but some deference.
    To me, that means if a President makes a nomination, I need 
a reason to oppose it, with the goal toward the judiciary. And 
I look at things within that broad category: if they have 
served in a judicial capacity, are their arguments well-
reasoned, are they based on precedent, are they based on common 
sense, logic, fairness, intellectual honesty.
    When you are talking about lower court judges, as most of 
the decisions--we may be here our entire careers and not have a 
Supreme Court Justice to consider, but we will certainly have 
lower court judges and district court judges. In many cases, 
they are the most important. I don't know of anybody in our 
system that is more powerful than a Federal district judge.
    And if you appear before them on a regular basis, you soon 
conclude that it is not Marbury v. Madison that you are 
concerned about or that the judge is concerned about. It is 
work habits, it is intellectual honesty, and it is not 
political philosophy. It is competence and it is integrity and 
it is the ability to handle a docket and be decent to people. 
Those things are hard to over-emphasize when we are considering 
the judiciary.
    On the issue of judicial philosophy, I think a Senator has 
a right to consider whatever he or she thinks is appropriate to 
consider in making up their own mind. The problem, as we well 
know, is that you are not going to be able to predict how a 
person is going to decide a case. Cases are decided on the 
basis of individual facts presented in a given situation. They 
are not law school exams and they are not opinion pieces; they 
consider disputed facts or they wouldn't be there to start 
with, and factual issues.
    We have seen too many cases to recount where Presidents 
have been surprised and Members of Congress have been 
surprised. Members have changed their minds about even law 
review articles that they themselves wrote earlier. You cannot 
predict. As the issues evolve, as society evolves, as a 
person's experience and maturity evolve, you simply are not 
going to be able to sit with any precision and make a decision 
where you rank judicial philosophy very high on your scale and 
feel like you are doing it based on some notion of certainty.
    Again, I think we are not being totally honest with 
ourselves if we say we do not want to know what a person's 
judicial philosophy is, and if they have had a time on the 
bench to know what that is. I don't think that is much of an 
issue. I think clearly you want to know that. I think clearly 
we do know that, and clearly we do evaluate that. We want to 
make sure that that person is not an extremist in any way.
    Oftentimes, we will not agree with that judicial philosophy 
or their personal political views. I am sure that many of those 
who almost overwhelmingly voted for Justice Ginsburg, having 
represented the ACLU, probably did not agree with her on many 
things. But I am sure they evaluated that, gave the President 
the deference that they thought he should have under those 
circumstances, and did not disqualify her because she had views 
different.
    I have tried to apply that. In my home State of Tennessee, 
as Vice President Gore was clearly getting ready to run for 
President, we had about five different occasions where he 
essentially selected nominees down there. I supported every one 
of them when I was on the Judiciary Committee. I got early 
hearings for some of them. I came and introduced some of them. 
One of them was for the Sixth Circuit Court of Appeals, and 
other Federal district judges.
    Probably, not a one of them would I have selected, strictly 
based on political or judicial philosophy, or what I would 
perceive would be their judicial philosophy, not to mention the 
fact that it wouldn't hurt the Vice President any to have all 
these judges appointed there, I suppose. But be that as it may, 
the main thing was integrity and competence. These people were 
people of integrity, these people were people of competence.
    I went back this week and checked on every one of them, and 
the only criticism I heard of one of them was that he takes it 
so seriously that he gets frustrated; he is not managing the 
docket well enough and it shows, and all of that. He can get 
over that. He is competent, he has integrity, and I think that 
I did the right thing.
    I think we have got to be very careful not to get so 
results-oriented. When I read, quite frankly, where people--let 
me back up a second.
    My concern now as we approach this new presidency is not 
what individual Senators use as a criterion. I think we are all 
going to do what we are going to do. I would be concerned if, 
though, the impression is going to be left that in some way we 
are going to come in and take factors that may have been 
considered all along and rearrange them and reprioritize them 
in a way to get the end result that we want to get. I do not 
think that that is the right. With all the disputes we have had 
back and forth, I do not think that has been done in the past.
    I think the atmospherics of all that are important and I 
think if we stray too far from the basics of competence, 
integrity and some deference to any President, because he puts 
the person in play--I mean, after all, it is not like we get to 
come up with somebody. He puts the person in play and we are 
put upon to deal with it. If we do that, we are going to get 
bogged down into a political quagmire that is going to result 
in endless rounds of payback.
    When I read where people talk about we need new balance, 
circumstances are different now; we have got a certain kind of 
revolution going on, meaning an area of the law that I 
specialize in and that is the most important one, and so it is 
important we have certain kinds of judges for that; we need to 
go back and rectify the injustice of Bush v. Gore--when I read 
certain members are saying they are going to put a hold on 
anybody in their entire circuit, whether it is in their State 
or not, it is not going to help the judiciary any. It is hard 
enough to get good judges as it is.
    Mr. Chairman, back when Eisenhower was President and he had 
the opportunity to appoint John Marshall Harlan to a Southern 
district judgeship and he left Sullivan and Cromwell to take 
that position, there are not many John Marshall Harlans. That 
is for sure, but how many people of that caliber are eager now 
to take on a Federal district judgeship? We have made that job 
in many cases a very unattractive job. To start with, he would 
have to make less than a beginning associate at Sullivan and 
Cromwell.
    But with all of the legislation we have passed and all the 
additional burdens we have put on the judiciary, do we really 
want to put these good people we are trying to entice to make 
sacrifices through a living hell in order to get there? I don't 
think it would do the judiciary any good and I don't think it 
would do the Senate any good, because there will always be 
payback.
    You are going to have the presidency back one of these days 
and we are going to have the Senate back one of these days. We 
know how that goes. It depends on when you came to this game as 
to what your views are because one has no historical 
perspective. But everybody has got something to complain about 
as far as the treatment of the prior batch, and that will 
always be there to some extent. That is not the end of the 
world, the fact that at the end of the term you do things a 
little differently. That is resolved in the political process. 
If you get too far out of line, it seems to me like you ought 
to pay at the polls. It is not that.
    It is that if we get into the notion that we are going to 
radically change the way we are doing things now and the 
perception is out there that, as I say, we are going to kind of 
reprioritize things and reemphasize things in order to get the 
result we want, I am afraid it is going to further balkanize 
us. One side remembers what was done to them in the 14th 
century and the other side remembers what was done to them in 
the 17th century, and they will never probably get over it.
    So I am not saying that I am naive enough to think that 
partisan considerations can, or even should be totally 
eliminated from any process. I just hope that we resist the 
temptation in this important matter to further divide ourselves 
and lay further groundwork that if it gets too far out of hand 
will be paid back. I know that we all share the same general 
goal in that regard.
    Again, I appreciate the opportunity to be heard.
    Chairman Schumer. Well, thank you, Senator Thompson. Once 
again, your remarks were really excellent. I know that you have 
to get back to the floor. Can you stay for a few questions?
    Senator Thompson. Well, if you have any, I will refer them 
to Senator Simon.
    Chairman Schumer. I have a few for both, but we will try to 
make this part of it as quick as we can and get to our next 
panel.
    My question, I guess, to you, Senator--and I will just ask 
one to you and then go to Senator Simon--you may have heard 
Senator Simon's testimony sort of was consonant with yours in 
one sense. To avoid this kind of nasty process which we all 
think is awful--I called it before you came in ``gotcha'' 
politics where everything is sort of under the table and then 
you look for something they did wrong way back when, and that 
is the demeaning part of the process, when we really want to 
talk about other things. You end up with a real problem.
    One of the things Senator Simon suggested is that at least 
the ``advice'' part of the Constitution, where the President 
was intended to consult with the Senate not just on district 
nominees which happen, but on appellate nominees, and he 
suggested, and others have too, Supreme Court nominees, be 
revitalized, brushed up a little bit so that it is not just a 
call an hour before saying we are nominating so-and-so, but 
rather there be some consultation.
    What do you think of that idea?
    Senator Thompson. I think that is a practical consideration 
that the President ought to decide for himself. I assume most 
Presidents don't do that because of their view of 
constitutional history and checks and balances. They do it 
because they want to get their guy through. I think that it can 
have a salutary effect, but I would think we would be intruding 
on the office of the presidency if we in any way required or 
expected him to pre-approve his nominations before he made 
them. I think that how he comes to his conclusions hopefully 
will be a found process and may or may not include what you 
suggest, but it has got to be his process. Then, of course, he 
bears the consequences of how it is received on the Hill.
    Chairman Schumer. The suggestion, I think, is it might 
avoid some of the acrimony that we have seen in judicial 
appointments if there were a little more of that. I don't know 
if it would happen, and obviously each President makes his own 
decision about what ``advice'' means--they didn't just say 
``consent,'' they said ``advice and consent''--but as a way of 
bringing things more together, particularly, I would suppose, 
when the Senate is of one party and the President is of 
another, whichever way it is.
    Senator Thompson. Well, I take your point. I would imagine 
that the need to consult early on would probably be in inverse 
proportion to the quality of the candidate.
    Chairman Schumer. That is probably true.
    Senator Thompson. If the President chooses the kind of 
person that he ought to choose, that person ought to stand on 
their own merits and ground. I would think that a President 
would want as many in his pool to consider as he could possibly 
have and maybe people he and his close friends do not know. I 
think from that standpoint that any President would want a 
broad array of qualified people.
    There are so many wonderful judges and non-judges out there 
in the country who have never been involved in politics and 
never aspired to a high position like that who would be 
wonderful choices. So to the extent that he could get some of 
those from us, I think it would be a good idea. But, again, 
that has got to be his choice to make.
    Chairman Schumer. Let me ask Senator Simon just two 
questions and then I will move on.
    First, I thought your suggestion that there be some non-
lawyers on the Court is a very interesting one. Your knowledge 
of history is probably better than mine. Who was the last non-
lawyer to serve on the Supreme Court? Was it Hugo Black?
    Mr. Simon. I am not aware of any non-lawyer who served.
    Senator Sessions. Hugo Black was from the University of 
Alabama School of Law.
    Chairman Schumer. Hugo Black was, so it wasn't Hugo Black.
    Mr. Simon. Who?
    Senator Sessions. Hugo Black.
    Mr. Simon. I wasn't aware of that, frankly.
    Senator Thompson. I am informed that there has never been a 
non-lawyer on the Court.
    Chairman Schumer. On the Supreme Court, OK; there you go.
    The second question I had was this, Senator Simon: You had 
mentioned that you thought for the Supreme Court--both of you 
are not terribly far apart in saying that judicial philosophy 
should be part of what every Senator considers, but not totally 
dispositive. I think Senator Thompson said we ought to give 
some consideration, not complete, to what the President does, 
and I suppose, given the history of what you said you did in 
the Senate, that is what you did.
    If somebody was way over the line, you probably didn't 
support him, but even if somebody like Justice Ginsburg, whom 
you didn't agree with on everything--I don't have right in 
front of me how you voted on it--you would defer to the 
President's concerns. Senator Simon mentioned the same thing. 
He said it ought to be more of a consideration for Supreme 
Court Justices than for appellate court judges.
    Last time, at our panel, we heard some discussion that 
because so few cases now reach the Supreme Court and so much 
final law is made at the court of appeals level--and that is 
just because of the huge volume of the bench and the larger 
number of cases that our Federal courts have taken over the 
years--that even for particularly court of appeals, maybe not 
district court judges, judicial philosophy ought to have some 
consideration.
    What do you think of that?
    Mr. Simon. I don't reject the idea that it should have some 
consideration if there is extreme philosophy, but the Supreme 
Court really sets the standard for the appellate courts and the 
district courts. Just as an example, you have the University of 
Georgia decision on diversity, you have the University of 
Michigan decision, you have the Hopwood decision in Texas. 
Those three cases ultimately are going to be decided by the 
United States Supreme Court and the appellate courts are going 
to have to follow that.
    One of the things Senator Thompson mentioned that I agree 
with completely is when we talk about consultation or advice, 
it should not be that we pre-approve someone, but the President 
ought to be asking, Senator Kyl, do you have someone you think 
would be a great United States Supreme Court Justice? Ask the 
members of this body, and then if the President--and I 
mentioned Woodrow Wilson's terrible appointment of James 
McReynolds, but it was the same Woodrow Wilson who decided, 
after consultation, to appoint Justice Brandeis, one of the 
great giants in the history of the United States Supreme Court. 
Because of Brandeis's fights with the utilities, he knew that 
was going to be a controversial appointment. The President has 
that right, to nominate but there ought to be consultation. It 
is not an option. The Constitution says ``advice and consent.''
    Chairman Schumer. Thank you. In deference to your schedule, 
Senator Thompson, I will skip the rest of my questions and turn 
to Senator Sessions.
    Senator Sessions. I will just ask one question and then 
yield my time to Senator Hatch.
    Fred, you have tried cases before a lot of Federal judges, 
and you have mentioned integrity and competence, and I think 
you include in competence, judgment, the ability to analyze 
complex case law to render a decision in court or after 
contemplation effectively.
    Based on that experience, does it matter to you whether the 
judge is a Republican or Democrat? Isn't it true that most of 
the time, regardless of party, a good judge will hit the same 
nail every time?
    Senator Thompson. You mean after the appointment process?
    [Laughter.]
    Senator Sessions. After the appointment process.
    Senator Thompson. Honestly, no. I can't think of a time 
when I ever had a case where it was relevant or it was in any 
way remotely decided, I thought, on that basis.
    Senator Sessions. Whether they were liberal or conservative 
before they hit the bench?
    Senator Thompson. Exactly.
    Senator Sessions. That is my experience.
    Senator Thompson. Exactly. If they were good, 
conscientious, hard-working, intellectually honest lawyers, 
regardless who they represented or what not, they were that 
kind of people on the bench. Every once in a while, their 
judicial temperament would be lacking a bit, but that seems to 
be a bipartisan trait.
    Senator Sessions. They thought they were anointed rather 
than appointed?
    Senator Thompson. Exactly.
    Senator Sessions. Senator Hatch?
    Senator Hatch. Well, thank you for yielding to me.
    Chairman Schumer. Senator Hatch is the Ranking Member of 
the committee. We welcome you here today, and thank you very 
much for your interest in this subject.
    Senator Hatch. Thank you, Mr. Chairman.
    Paul, we are glad to have you back.
    Mr. Simon. Thank you.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. I remember all those years we served 
together on this committee, and we appreciate your friendship 
and the life that you have lived and I appreciate your 
testimony here today.
    In my 25 years in the Senate I have seen a lot, and thus I 
have much to say on this important topic. I agree with Senator 
Thompson, basically, what his remarks are. He has tried a lot 
of cases in Federal court, and so have I. Unfortunately, I have 
had the experience of having Federal court judges who used 
partisan tactics in court, both in Pittsburgh and in Utah. But 
they were aberrations, they were unique judges. Even though 
each of them did some things that I thought were not proper, 
the fact of the matter of the matter is they were great 
characters in the law and I always showed great respect to both 
of them.
    What worries me is that some could argue that this hearing 
appears to be part of a partisan strategy to change the 
longstanding practice of this Committee and the Senate by 
injecting partisanship into the judiciary, the branch designed 
by the Founders to be insulated from the very kinds of 
temporarily fashionable political ideas that some are now 
trying to infuse into it.
    I think we have some charts here. This Chart 1 is an 
excerpt from a cartoon that recently appeared in Roll Call and 
captures what appears to be the theme in what we have been 
hearing in these recent hearings and what some are speculating 
is the Democrats' plan. The Democrats' Capitol Improvement Plan 
seems to be an effort to halt progress on judicial nominations 
in the name of analyzing the ground rules for the judicial 
confirmation process. That is what some think.
    The New York Times reported on just such an effort being 
launched at a retreat for Democratic Senators earlier this 
year. Several liberal scholars reportedly instructed the 
audience to ``change the ground rules'' of judicial nominations 
in order to prevent the confirmation of judges who do not meet 
certain litmus tests of currently vogue liberal politics.
    This was the type of strategy the liberals employed after 
the Democrats took control of the Senate in 1986, and the 
result was the fiasco over Hon. Clarence Thomas, which has been 
a stain on the reputation of this body ever since. As one 
recent article reports, just a few years before the Thomas 
confirmation hearing, however, the judiciary selection rules 
had radically changed. Democrats captured the Senate in 1986, 
in that election, and conspired with leftist legal gurus that 
dramatically politicized the process. They used this slash-and-
burn manual when they could not defeat Thomas on the merits.
    The place to begin the discussion of burdens in the 
judicial nomination process, of course, is the Constitution. 
The Constitution gives the President the power to appoint 
judges. The most significant burden borne by a candidate for a 
judgeship is to convince the President that he or she is the 
best person for the job. Together with the clear constitutional 
dictate, the modern method of screening judicial candidates is 
one of the primary reasons that the Senate gives Presidents' 
nominations great weight.
    I have long maintained the view that a President's judicial 
nominations are deserving of deference. Indeed, when I was 
charged as Chairman of this Committee with leading the 
evaluation of judicial nominees, I held steadfast to this view 
during our consideration of one of President Clinton's most 
liberal and controversial nominees--and I might say on a great 
number of them--the Honorable Marsha Berzon, I will point out 
just for the sake of the record, who was the former head of the 
litigation section of the ACLU's San Francisco Chapter.
    Here is what I said in July 1999 about the way we should 
treat Judge Berzon's nomination: ``I have reservations 
regarding the application of a different standard to any 
nominee for the Ninth Circuit or the other circuit courts. In 
my view, the Senate standard for confirming nominees to the 
Federal bench derives directly from the Senate's advice and 
consent power in Article II, section 2, of the Constitution. 
This standard does not change from nominee to nominee. On the 
one hand, we must carefully examine a nominee and conclude that 
he or she is qualified to hold a life-tenured position in the 
Federal judiciary. On the other hand, we must generally defer 
to the President whom the people elected to fulfill the 
constitutional duties of his office, including the selection of 
the nominees to our Federal courts. Thus, I believe that this 
Committee should focus on the qualifications of a nominee--
honesty, temperament, and the nominee's appreciation for the 
proper constitutional role of the Article III judge. I believe 
that both Republican and Democrat nominees who meet these high 
standards should be confirmed.''
    Now, these principles of our constitutional duty remain as 
true today for President Bush's nominees as they were for 
President Clinton's nominees. Any suggestion that a heightened 
level of scrutiny is appropriate for this President's judicial 
nominees because of the peculiarities of the 2000 Presidential 
election, I think, is simply irresponsible.
    There is no question, for example, that Senator Daschle is 
the Majority Leader or that Senator Leahy is the Chairman of 
this important committee. They are due all the respect and 
deference that come with those positions, despite the fact that 
they did not gain those positions in a landslide election, or 
any election at all for that matter. So regardless of how much 
you may disagree with President Bush, the fact remains that his 
nominees should be judged by the same standard as the judicial 
nominees of other Presidents.
    I would like to put the rest of my remarks in the record at 
this point, Mr. Chairman, and just make one last comment, and 
that is that I believe that if we get to the point where we 
start making the ultimate determination, one of politics or one 
of viewpoint or one of ideology, then I guarantee you there is 
going to be war on Capitol Hill from both sides. That is 
something we want to avoid.
    That is why we have Presidents and that is why they have 
this great nomination power which, in my perception, is greater 
than the confirmation power, although both are important and 
exceptional powers. I believe when we start coming to the 
conclusion that ideology should play the major role in 
determining whether a person sits on the Supreme Court or any 
other court in this country, then I think we will be on the way 
downward to getting a very, very inferior judiciary.
    My experience has been that you can't tell what a person is 
going to be when they are up for their nomination. Many of them 
have proven to be somewhat completely different from what the 
President who chose them thought they would be. We all know the 
old story about President Eisenhower, who said that I have only 
made two mistakes in my whole presidency and they are both 
sitting on the Supreme Court.
    Well, whether that was a correct observation or not is kind 
of irrelevant. The important thing is that we do our job to 
look at these nominees and to determine who should sit on these 
courts, and we do so in a fair and responsible way, giving 
great deference to the President of the United States, whoever 
he or she may be.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Hatch follows:]

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    I would like to thank Chairman Schumer for permitting me to say a 
few words on the important question of who bears the burden in the 
judicial nominations process.
    During this subcommittee's last hearing on judicial nominations--
the one about the role of ideology--I expressed my hope that the 
heightened focus on judicial nominations, engendered by the change in 
control of the Senate, would prove to be unwarranted. I said that I was 
optimistic that the new Democratic leadership would treat President 
Bush and his judicial nominees fairly, and I still remain optimistic 
about that.
    The coming weeks will show whether my confidence is warranted or 
misplaced. There are 40 judicial nominations pending before the 
Committee. The history of the Judiciary Committee is that, during the 
first year of a new presidential administration, we act by the end of 
the year on all judicial nominations made before the August recess. 
This means that the Committee has its work cut out for it: hearings and 
mark-up votes on 40 judicial nominations before the session's end. 
Achieving this goal would not only preserve the Committee's historical 
record of fairness and diligence, but would also prove conclusively 
that the Democrats mean what they say about fairness.
    Some of President Bush's judicial nominations already have been 
waiting for an unnecessarily long time. Of his first 11 nominations, 
made approximately 118 days ago on May 9th, only one has had a hearing. 
Nine of the other ten are completely ready to go: their paperwork is 
complete, their FBI background checks are done, the blue slips are in, 
and outside groups--including the ABA--have had ample time to comment. 
We could be having a hearing right now on two or three of them.
    Now, I am not suggesting that today's hearing on burdens is a 
misallocation of the Committee's time and energy when we have so many 
nominees and vacancies pending. There's nothing wrong with examining 
our own process from time to time, if.done fairly and for the right 
reasons. What worries me, however, is that we appear, and this hearing 
appears, to be part of a partisan strategy to change the long-standing 
practice of this Committee by injecting partisanship into the 
judiciary--the branch designed by the Founders to be insulated from the 
very kinds of temporarily fashionable political ideas that some are now 
trying to infuse into it. This excerpt from a cartoon that recently 
appeared in Roll Call captures what appears to be the theme in what we 
have been hearing at these recent hearings, and what some are 
speculating is the Democrats' plan. The Democrats' Capitol Improvement 
Plan seems to be an effort to halt progress on judicial nominations in 
the name of ``analyzing the ground rules'' for the confirmation 
process.
    The New York Times reported on just such an effort being launched 
at a retreat for Democratic senators earlier this year. Several 
professors, well-known not only for their scholarship but also for 
their radically left-of-center political bias, reportedly instructed 
the audience to ``change the ground rules'' of judicial nominations in 
order to prevent the confirmation of judges who do not meet certain 
litmus tests of currently vogue liberal politics. This was the type of 
strategy the liberals employed after the Democrats took control of the 
Senate in 1986, and the result was the fiasco over the Honorable 
Clarence Thomas, which has been a stain on the reputation of this body 
ever since. As one recent article reports:

        ``Just a few years before [the Thomas confirmation hearing], 
        however, the judicial selection rules had radically changed. 
        Democrats captured the Senate in the 1986 election and 
        conspired with leftist legal gurus such as Harvard law 
        professor Laurence Tribe to dramatically politicize the 
        process. They used this slash-and burn manual when they could 
        not defeat Thomas on the merits.''

    For the sake of this body and our republic, I hope that my 
colleagues in the Senate heed the advice of former Carter and Clinton 
counsel Lloyd Cutler--and not the brilliant, yet ultraliberal activist, 
Professor Tribe--and refrain from staging an encore performance of that 
disastrously mis-scripted play.
    On the narrower point of this hearing, I think the place to begin 
the discussion of burdens in the judicial nominations process is the 
Constitution. The Constitution gives the President the power to appoint 
judges. The most significant burden born by a candidate for a judgeship 
is to convince the President that he or she is the best person for the 
job. In other words, the burdens of the judicial nominations process do 
not begin when the Senate Judiciary Committee receives the official 
nomination from the White House. Far from it. That one page 
presidential document represents a nominee who has already passed a 
rather extraordinary test. As administered in modern times, the 
presidential judicial selection process consists of exhaustive 
examinations not only of the ultimately successful nominees, but also, 
typically, of at least a handful of other serious contenders for the 
job. In conducting this research, lawyers in the White House and the 
Department of Justice work closely with home-state Senators and 
typically seek input from avariety of local lawyers, bar associations, 
and interested citizens concerning potential candidates. In some 
states, senators have established advisory committees who evaluate 
potential candidates. The upshot of all this is: by the time a 
nomination emerges from the White House, the nominee typically has 
already met the extraordinary burden of convincing his or her local 
colleagues, his or her senators, the Department of Justice, and the 
President of the United States that he or she is the person most 
suitable for the job. To make believe otherwise is simply a fantasy. 
Together with the clear constitutional dictate, the modern method of 
screening judicial candidates is one of the primary reasons that the 
Senate gives presidents' nominations great weight.
    This is a view that I have long maintained. Indeed, when I was 
charged as Chairman of this Committee with leading the evaluation of 
judicial nominees, I held steadfast to this view during our 
consideration of one of President Clinton's most liberal and 
controversial nominees, the Honorable Marsha Berzon, who was the former 
head of the litigation section for the ACLU's San Francisco chapter. 
Here's what I said in July 1999 about the way this Committee--and the 
Senate--should treat Judge Berzon's nomination:

        ``I have reservations regarding the application of a different 
        standard to any nominee for the Ninth Circuit or the other 
        circuit courts. In my view, the Senate's standard for 
        confirming nominees to the federal bench derives directly from 
        the Senate's advice and consent power in Article II, section 2 
        of the Constitution. This standard does not change from nominee 
        to nominee. On the one hand, we must carefully examine a 
        nominee and conclude that he, or she, is qualified to hold a 
        life-tenured position in the federal judiciary. On the other 
        hand, we must generally defer to the President whom the people 
        elected to fulfill the constitutional duties of his office, 
        including the selection of nominees to our federal courts. 
        Thus, I believe that this Committee should focus on the 
        qualifications of a nominee: honesty, temperament, and the 
        nominee's appreciation for the proper constitutional role of an 
        Article II judge. I believe that both Republican and Democratic 
        nominees who meet these high standards should be confirmed.''

    These principles of our constitutional duty remain as true today 
for President Bush's nominees as they were for President Clinton's 
nominees. I encourage partisans on both sides of the aisle to think 
carefully about this before coming to a contrary view. None of us 
Senators gets our first pick as president every time, but all of us 
have chosen to take an oath to preserving our Constitution and the 
balance of powers it established. And any suggestion that a heightened 
level of scrutiny is appropriate for this President's judicial nominees 
because of the peculiarities of the 2000 presidential election is 
simply irresponsible. There is no question, for example, that Senator 
Daschle is the Majority Leader or that Senator Leahy is Chairman of 
this Committee. They are due all the respect and deference that come 
with those positions, despite the fact that they did not gain those 
positions in a landslide election, or any election at all, for that 
matter. So, regardless of how much you may disagree with President 
Bush, the fact remains that his nominees should be judged by the same 
standard as the judicial nominees of other presidents.
    On the specific question of the nominee's burden during the 
confirmation process, my remarks regarding Judge Berzon's nomination 
are once again reflective of the view I continue to hold today. I said, 









    ``. . .[W]e must be careful not to assign a particular judicial 
philosophy to a nominee who has taken controversial positions in the 
very difficult role of advocate. Being an advocate in controversial and 
challenging case[s] does not, in my view, automatically disqualify a 
person from service on the federal bench. I must agree that an 
extensive amount of such work may increase the level of scrutiny the 
Committee should apply to a nominee. And perhaps such work may even 
shift the burden to the nominee to demonstrate that he, or she, 
understands and respects the proper role of a federal judge. However, 
such work is not, and should not be, an insurmountable impediment to 
Senate confirmation.''

    These remarks reveal my comprehension of the intent of the Framers 
of our Constitution and of longstanding Senate practice, that the 
burden in the confirmation process shifts to the nominee under only 
extraordinary circumstances. My distinguished former colleague, Senator 
Paul Simon, who will testify before us today, appears to agree with me. 
In his written testimony, he stated, ``[U]mess views expressed by a 
lower court nominee-are extreme or there is evident lack of ability or 
question about integrity, I believe the nominee should be approved.'' 
While I cannot wholeheartedly endorse this statement, since Senator 
Simon did not define what he meant by extreme views, I do believe that 
the good Senator and I share a similar understanding regarding the 
deference due to a President's judicial selections.
    Let me explain my concern about wholesale acceptance of the idea 
that a nominee should be disqualified because of what some perceive as 
extreme views. The source of my concern is that characterization of a 
nominee as having extreme views may be a way of imposing an ideological 
litmus test on the nominee: any nominee who disagrees with my 
Democratic colleagues on various social issues will be labeled as an 
extremist who is out of the mainstream and who should therefore not be 
confirmed. But the Senate's responsibility does not include 
establishing an ideological litmus test to gauge a candidate's fitness 
based on his or her position on controversial issues. The hallmark of a 
good jurist is one who does not allow personal opinion to affect 
objective legal decision making. Thus, personal views should be 
considered for the limited purpose of ensuring that they will not 
interfere with the nominee's ability as a judge to follow the law 
impartially and fairly.
    Perhaps it is in recognition of just this--the principle of stare 
decisis--that Senator Simon believes that judicial philosophy is an 
appropriate matter of inquiry for only Supreme Court nominees, and not 
lower court nominees. For the reasons I have articulated, I disagree 
with the use of ideology as a basis for denying confirmation to a 
Supreme Court nominee. But I do agree with the premise that lower court 
nominees should be approved absent extraordinary circumstances, such as 
proof of racial insensitivity. These are matters that strike at the 
heart of a nominee's integrity and an understanding of the rights 
granted to us by our Constitution, and reflect poorly on the ability to 
apply the law fairly and impartially to the litigating parties. They 
thus serve as fair grounds for disqualification. Absent such indicia of 
a nominee's unfitness, once we have reviewed the nominee's 
qualifications and found?that he or she has the intellectual capacity, 
integrity, and temperament to fill the role of a federal judge, the 
nominee should be confirmed.
    This is the same view expressed by former Carter and Clinton White 
House counsel Lloyd Cutler during this Subcommittee's last hearing on 
the role of ideology in the judicial confirmation process. Quoting from 
a report issued by a commission in which he participated, Mr. Cutler 
stated,

    ``What is most important is the appointment of judges who are 
learned in the law, who are conscientious in their work ethic, and who 
possess what lawyers describe as `judicial temperament.' . . . The 
Commission believes that it would be a tragic development if ideology 
became an increasingly important consideration in the future. To make 
ideology an issue in the confirmation process is to suggest that the 
legal process is and should be a political one. That is not only wrong 
as a matter of political science; it also serves to weaken public 
confidence in the courts. Just as candidates should put aside their 
partisan political views when appointed to the bench, so too should 
they put aside ideology.''

    I believe the President's power to nominate judges is an essential 
part of the balance of powers. This is the reason that, despite many 
ideological and political differences, the Judiciary Committee under 
Republican leadership confirmed 377 of President Clinton's judicial 
nominations. This number is essentially the same--only 5 fewer--than 
the record number confirmed under President Reagan. If Republicans had 
infused ideological litmus tests into the process--as some Democrats 
are toying with doing now--those numbers would be dramatically 
different.
    So, Mr. Chairman, there is plenty to talk about here today, and 
plenty of work yet to do on filling the 108 judicial vacancies. Thank 
you again for allowing me the opportunity to speak.

    Chairman Schumer. Thank you, Senator Hatch.
    Now, let me call on Senator Durbin.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                        STATE OF ILLNOIS

    Senator Durbin. Thank you very much, Mr. Chairman, and 
thank you for this hearing. I know this is the second of three, 
and I think it is important.
    I would take exception perhaps to some of the things that 
have been said. I think it is important for us to put this 
issue right out on the table and talk about it because I think 
what you have done in calling this hearing is really you have 
asked to be a lot more honest and truthful in how this process 
really works.
    There have been nominees in the past who did not pass some 
ideological test and it wasn't heralded or reported. Those 
nominees were usually relegated to a Judiciary Committee 
purgatory where there was no hearing, no vote, no hope. They 
were gone, and they would sit here usually for months and years 
and finally give up the ghost, or someone else would decide to 
move on.
    I think it is important to bring this out in front of 
everyone and discuss it, and I think that I would concede the 
point that has been made by Senator Hatch and others that 
sometimes you are surprised. Hugo Black was not supposed to 
turn out to be a liberal. He surprised everybody. I think you 
can find other stories on the other side politically of those 
who turned out to be more conservative than anticipated. So 
this isn't a precise science.
    I have one specific question I would like to ask of the two 
witnesses because they have been through a process that I 
haven't been through, and that is the selection of a Supreme 
Court Justice. If ideology is going to be an important 
consideration, clearly you have to ask the right questions to 
get answers to understand a person's philosophy.
    Now, in the Clarence Thomas hearing you had a person who 
had studied for the Catholic priesthood, but came before this 
Committee and said he had never discussed Roe v. Wade or the 
abortion issue to that point in his life. That strikes me as a 
question which, if asked and answered the same way, might give 
a lot of people pause as to whether or not you can just say I 
have never really thought about an issue like the death 
penalty. Do you think that is an important consideration, or 
the abortion decisions?
    How do you balance the need for someone who is seeking the 
bench not to tip their hand and commit themselves on cases in 
the future and yet be honest enough so that you understand what 
their philosophy is on an important issue like a woman's right 
to choose or privacy or the death penalty as you go into the 
process?
    Senator Simon?
    Mr. Simon. I think a nominee can say, ``I will give you my 
personal attitude, but this doesn't mean that is how I am going 
to rule when I am on the United States Supreme Court.'' So 
there is a certain amount of evasiveness that can occur without 
having said ``I don't remember ever having discussed Roe v. 
Wade.'' You know, that became kind of implausible to some of 
us. So I think you can do that.
    Now, it doesn't mean that you are not going to--well, an 
example, Justice Scalia, whom I like personally, a very likable 
person. Only one member of this Committee voted against him, 
Senator DeConcini, who said he didn't answer our questions. All 
the rest of us voted for him. I voted for him on the floor. 
Frankly, if I were to redo my vote, I would vote against 
Justice Scalia, not that I don't like him, but I don't think he 
represents what I believe should be the philosophy of the 
United States Supreme Court.
    I think nominees can be candid. I think we have to be 
careful how we ask questions. We can't ask, how would you rule 
on reversing Roe v. Wade. I think, there, a nominee is going to 
properly say ``I can't answer that question.'' But the general 
parameters of where the nominee stands--I think we ought to 
know that.
    Senator Durbin. Senator Thompson, how would you reconcile 
that?
    Senator Thompson. Well, that is not easy. I haven't, as a 
matter of fact, been here for a Supreme Court vote yet, but I 
can see how it is going to be difficult. I think that one needs 
to look at what the purpose of the inquiry is, what it is 
about.
    Clearly, on issues of competence, integrity, understanding 
the law, if the person has been on the bench before, the 
decisions they have made, whether or not they stand up to 
analysis and scrutiny--I think those are all valid 
considerations.
    If, in fact, the purpose is to either get the person in a 
position where they refuse to answer because they feel like the 
question is inappropriate and thereby raise the DeConcini 
problem, or if the purpose is to pin a person down and to try 
to kind of get a commitment--surely, nobody thinks that a 
Justice ought to talk about how they will on a particular case, 
but if it is to try to pin them down as to how they will rule 
in a particular kind of case, I think that is very 
inappropriate, also.
    It is somewhat of a fool's errand, too, because cases are 
based on the facts of an individual case, the case in 
controversy. You will never be able to present a case that 
hasn't happened yet as a hypothetical. You will never be able 
to foresee the kinds of things that will come up before the 
judge. There is an area of propriety there that I think we are 
free to explore in terms of their judicial integrity.
    But to take one area of the law and say this is the most 
important one and you have got to pass a litmus test on this, 
or another area of the law and say that you have got to make a 
certain kind of commitment on that, when in all instances what 
they need to do first and foremost, and I think it so outweighs 
everything else, is approach it with a sense of integrity, 
intellectual honesty, an astute understanding of the law, and I 
think for the Supreme Court hopefully be a person of wisdom--
all the rest of this stuff is for us; it is not them. It is not 
about them. It is about us and what we can do to them or for 
them. It doesn't make for better judges, it doesn't make for 
more enlightenment as to what kind of judge they will be. So I 
think we ought to be careful when we get past that.
    Mr. Simon. Could I give a 60-second response?
    Senator Durbin. Please.
    Mr. Simon. When Judge Bork was before us, I was inclined to 
be against him, but wasn't sure, and I asked him about the 
Ninth Amendment of the Constitution. Madison originally had 12 
amendments to the Bill of Rights and Alexander Hamilton wrote 
to him and said, if you spell out these rights, people will say 
these are the only rights that people have. So the Ninth 
Amendment was added, saying other rights not spelled out here 
are reserved to the people.
    When I asked Judge Bork about that, he said, well, I think 
they probably meant other rights are reserved to the States. 
Well, you know, that is a dramatically different kind of a 
thing, and that indicated to me a philosophy. I think those 
kinds of questions are proper.
    Chairman Schumer. Did anyone object to that question to you 
afterwards or in any way?
    Mr. Simon. I don't recall that anyone paid any attention, 
Mr. Chairman.
    [Laughter.]
    Mr. Simon. As they usually didn't to my questions.
    Chairman Schumer. Well, that is what we are trying to do 
here, is figure out the parameters of what is appropriate and 
what isn't appropriate, and have it be above board. I am sorry 
if anybody takes umbrage at that. I think it is a fair and 
legitimate inquiry.
    Senator Thurmond, a member of the subcommittee.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Thurmond. Mr. Chairman, the confirmation of Federal 
judges is one of the greatest responsibilities of this 
committee. We should consider whether the individual is 
qualified and whether he or she understands a judge's limited 
role in our constitutional system.
    However, in my view, the President is entitled to some 
deference in the choices he makes for the Federal courts. I do 
not believe a nominee must somehow prove to the Committee that 
they deserve to be confirmed. Creating this special burden on 
the nominees is not the tradition of this committee. In fact, 
during most of the Senate's history judicial candidates did not 
even appear before the committee. The burden should not shift 
based on which party is in power in the White House or in the 
Senate at any particular time. Our constitutional 
responsibilities should remain consistent, regardless of 
politics.
    Thank you.
    Chairman Schumer. Thank you, Senator Thurmond.
    We have two members of the full Committee who are not 
members of the Subcommittee and I would be happy to give them a 
brief moment to just--
    Senator Sessions. Senator Thurmond hasn't used all his 
time.
    Chairman Schumer. Did you have any questions, Senator 
Thurmond?
    Senator Sessions. Would he yield that to the others? I have 
had my questions.
    Chairman Schumer. I don't mind Senator McConnell and 
Senator Kyl, as long as they are brief, asking questions to the 
witnesses.

  STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 
                       STATE OF KENTUCKY

    Senator McConnell. Well, Mr. Chairman, I don't know what 
``brief'' means. I am certainly not planning on filibustering 
and I appreciate the opportunity to make some observations.
    First, I want to welcome our old friend, Paul Simon, back. 
We were sworn into the Senate on the same day and it is good to 
see you again, Paul.
    Mr. Simon. Thank you.
    Senator McConnell. As one of the most conservative members 
of the Senate, and some would argue one of the least 
bipartisan, I voted for Justice Breyer, Justice Ginsburg, and 
almost all of the 377 judges that President Clinton nominated.
    Like Senator Thompson related his experience in Tennessee, 
I returned every single blue slip on a Kentucky nomination, did 
not expect Senator Clinton or Senator Ford to call me and ask 
my advice on who they should select because, after all, they 
had won the election. Certainly, I didn't try to dictate the 
selection of judges in the Sixth Circuit from Kentucky. So I 
must say, Mr. Chairman, I am somewhat disturbed by these 
hearings and where they appear to be leading.
    We have had until recently what could best be called the 
Biden standard which several Senators have outlined, which was 
the same as the Hatch standard, which was basically the 
standard that Senator Thompson outlined which is one of 
competency and approach to handling issues. That has prevailed, 
I think, for most of the time since we have been here and 
really, for that matter, most of the time since the Senate has 
been confirming nominations to the Supreme Court.
    Curiously, when we were confirming all of the judges that 
President Clinton nominated, there were no Democratic calls for 
placing the burden on Democratic nominees to prove their 
fitness for the bench. But after President George W. Bush was 
sworn into office and began nominating people to the Federal 
bench, we suddenly heard calls for changing the standard by 
which we consider judicial nominees.
    Specifically, after President Bush informed the ABA that it 
would evaluate judicial candidates after their nomination, 
there was a letter sent by some of our colleagues to the 
President which protested. They wrote, ``We firmly believe that 
ending the long-established practice of ABA review would dilute 
the quality of the Federal bench. ABA evaluation has been the 
`gold standard' by which judicial candidates are judged.''
    So applying the gold standard, the ABA ratings on President 
Bush's early nominations have come out: Miguel Estrada, well-
qualified; Jeffrey Sutton, majority qualified, minority well-
qualified; James Gritzner, well-qualified; Carolyn Kuhl, well-
qualified; Charles Pickering, well-qualified; Barrington 
Parker, well-qualified; and Dennis Shedd, well-qualified. 
Indeed, to date, all of President Bush's nominees have met the 
gold standard, the ABA standard. Yet, none have been acted 
upon.
    Once it became apparent that President Bush's judicial 
nominees were going to pass the ABA gold standard with flying 
colors, some on the left again changed the test that nominees 
would have to satisfy. This time, many of our colleagues across 
the aisle pronounced that the President's judicial nominees 
would have to satisfy some sort of ideological litmus test, 
with only those nominees who were in the ``mainstream'' being 
able to serve on the Federal bench.
    So we have a new standard, the ``mainstream.'' Some 
consider that the editorial opinion of the New York Times as 
mainstream. For some of us, mainstream values are more likely 
to be found in Ohio or Tennessee or Kentucky or Arizona than on 
the editorial page of the New York Times.
    To no great surprise of members on this side of the aisle, 
Laurence Tribe recently testified that Republican nominees 
should be subjected to higher scrutiny and should bear the 
burden of proving their worthiness to be confirmed. So much for 
any shred of deference to the President's sole constitutional 
power to nominate. We would now have 50 or 51 co-presidents who 
would change their constitutional role from ``advice and 
consent'' to ``demand and dictate,'' where they essentially get 
to renominate each and every nominee to the Federal bench.
    After the Biden standard for the Democrats, the very 
similar Hatch standard, and the recently minted gold standard, 
we have yet another standard. This could best be described as 
the ``double standard'' for Republican nominees. Now, I say 
this double standard was no great surprise to us on this side 
of the aisle because we had seen some on the left advocate it 
before when discussing Republican nominees.
    In 1990, when arch-conservative David Souter testified 
before this committee, some of our Democratic colleagues stated 
that he would have to bear the burden of proving his 
worthiness. In 1987, when Professor Tribe testified against 
Robert Bork, he also argued that the burden should be on the 
nominee. So I guess it is only natural to have a double 
standard now that we have Republican nominees again.
    Well, if we Republicans adopted that standard for President 
Clinton's nominees, I guarantee you we would have confirmed far 
fewer than the 377 that we confirmed, and I certainly would 
have liked to have had a lot of my votes back. In the end, we 
should use the same standard for Democratic and Republican 
nominees. If they are men and women of integrity, are 
qualified, have a judicial temperament and will follow the 
Constitution and statutes as they are written and intended, we 
ought to confirm them.
    Finally, there are calls for ideological diversity. The use 
of litmus tests which this approach necessarily entails are 
really thinly veiled demands for blocking judicial nominees in 
the name of political diversity, not racial diversity, mind 
you, but political diversity.
    The Constitution already provides for such diversity by 
empowering the President, not us, to nominate judges to the 
Federal bench. Over time, Presidents from different political 
parties will nominate members of their own party to the bench. 
This will result in political, and hence ideological diversity 
on the Federal bench.
    The current composition of the Federal bench provides an 
example of this. With respect to active-status Federal district 
and appellate court judges, there are currently 400 Democratic-
appointed judges and about 330 Republican-appointed judges. 
This translates into 55 percent of the judges being Democratic, 
while only 45 percent are Republican. Let me just suggest that 
after Roosevelt and Truman, I expect there were darn few 
Republican judges on the Federal courts of this country, and a 
good deal of political diversity would have been required at 
that point to even it out.
    Mr. Chairman, I think you get my drift. These are hearings 
that are heading us in entirely the wrong direction. As Senator 
Thompson pointed out a while ago, 1 day you will have the White 
House again and we will have the Senate again, and we are 
drifting off in a direction that will make it impossible to 
confirm judges to the Federal courts. I think that is not what 
the Constitution expected. I certainly don't think it is what 
the American people want us to do.
    Thank you very much.
    [The prepared statement of Senator McConnell follows:]

  Statement of Hon. Mitch McConnell, a U.S. Senator from the State of 
                                Kentucky

    The advice and consent powers of the Senate are a very important 
part of every Senator's duty and should be taken very seriously. 
Together with the recent hearing on ideology, this hearing and future 
hearings will shed light on the role that the Senate should play in the 
appointment process. Two key issues about this role which have been 
raised are the standard the Senate should use to determine whether a 
judicial nominee should be confirmed and the so-called need for 
political diversity on the bench.
                           The Biden Standard
    In 1994, Senator Biden enunciated a standard for use in evaluating 
President Clinton's nominees. In speaking on the nomination of Rosemary 
Barkett, Senator Biden stated:

        ``I. . .want to make clear a standard which I have adopted. . . 
        .It is a three-pronged standard:
        ``First, that the nominee has the capacity, competence, and 
        temperament to be on the court of appeals or trial court.
        ``Second, is the nominee of good character and free of conflict 
        of interest?
        ``Third, would the nominee faithfully apply the Constitution 
        and the precedents of the Supreme Court?. . .Using this test 
        through 12 years of Republican nominees, I voted to confirm 
        numerous lower court judges who were far more conservative than 
        I am.'' \1\

    \1\ Statement of Senator Joseph Biden, Jr., Nomination of Rosemary 
Barkett, of Florida, to be U.S. Circuit Judge for the Eleventh Circuit. 
140 Cong. Rec. S4281, 4282 (April 14, 1994).
---------------------------------------------------------------------------
                           The Hatch Standard
    The Republicans agreed with this approach for Democratic nominees 
and, in fact, adopted it in large part when Senator Hatch assumed 
Chairmanship of the Judiciary Committee in 1995. Speaking of Marsha 
Berzon, former head of the litigation team of the ACLU of northern 
California, Chairman Hatch stated:

        ``[W]e must generally defer to the President whom the people 
        elected to fulfill the constitutional duties of his office, 
        including the selection of nominees to our federal courts.
        ``Thus, I believe that this Committee should focus on the 
        qualification of a nominee: honesty, competence, temperament, 
        and the nominee's appreciation for the proper constitutional 
        role of an Article III judge. I believe that both Republican 
        and Democratic nominees who meet these high standards should be 
        confirmed.'' \2\
---------------------------------------------------------------------------
    \2\ Statement of Senator Orrin Hatch on the Nomination of Marsha 
Berzon, of California to the United States Court of Appeals for the 
Ninth Circuit (July 1, 1999).
---------------------------------------------------------------------------
    We heard no objections from our colleagues across the aisle to 
these very similar standards that were used to confirm 377 Democrat 
nominees, a number only five shy of President Reagan's all-time record. 
Curiously, when we were confirming all these Clinton judges, there were 
no Democrat calls for placing the burden on Democrat nominees to prove 
their fitness to serve on the federal bench.
                         The ``Gold'' Standard
    But after President George W. Bush was sworn into office and began 
nominating people to the federal bench, we suddenly heard calls for 
changing the standard by which we consider judicial nominees. 
Specifically, after President Bush informed the ABA that it would 
evaluate judicial candidates after their nomination, and not before, 
two of my Democratic colleagues on this Committee, in a March 16, 2001 
letter to President Bush, protested. They wrote: ``We firmly believe 
that ending the long-established practice of ABA review would dilute 
the quality of the federal bench. . . .ABA evaluation has been the gold 
standard by which judicial candidates are judged.'' \3\
---------------------------------------------------------------------------
    \3\ Senators Patrick J. Leahy and Charles Schumer, Letter to 
President George W. Bush (March 16, 2001).
---------------------------------------------------------------------------
    Well, after this March 16th letter, the ABA ratings for 
President Bush's nominees began to come in.
         Miguel Estrada--``Well Qualified'';
         Jeff Sutton--``Majority Qualified/Minority Well 
        Qualified'';
         James E. Gritzner--``Well Qualified'';
         1Carolyn Barbara Kuhl--``Well Qualified'';
         Charles W. Pickering, Sr.--``Well Qualified'';
         Barrington D. Parker--``Well Qualified'';
         Dennis W. Shedd--``Well Qualified''
    I could go on and on with the list of nominees who have met Senator 
Schumer and Leahy's ABA ``Gold Standard.'' Indeed, to date, all of 
President Bush's nominees have met this standard, with every single 
nominee having received a rating of ``majority qualified'' or better. 
And, quite frankly, given the group of accomplished jurists, academics, 
and practitioners that President Bush has put together, I would have 
been quite surprised if the ABA had not given them such high marks.
                          The Double Standard
    Once it became apparent that President Bush's judicial nominees 
were going to pass the ABA Gold Standard with flying colors, some on 
the Left again changed the test that nominees would have to satisfy. 
This time, many of our colleagues across the aisle pronounced that the 
President's judicial nominees would have to satisfy some sort of 
ideological litmus test, with only those nominees who were ``in the 
mainstream'' being able to serve on the federal bench. And it will be 
these same Members, along with the always-reliable editorial board of 
the New York Times, who will be the selfappointed arbiters of 
``mainstream values.'' I suspect, however, that their pronouncements on 
what views lie within the mainstream will be quite different from the 
views of the average citizen in Kentucky and Kansas and Ohio--places in 
the ``heartland'' of America which typify ``mainstream'' values. In 
short, this is where the real mainstream lies.
    Now, at no great surprise to Members on this side of the aisle, 
Laurence Tribe recently testified that Republican nominees should bear 
the burden of proving their worthiness to be confirmed.\4\ So much for 
any shred of deference to the President's sole constitutional power to 
nominate. We would now have 50 or 51 co-Presidents who would change 
their constitutional role from ``advise and consent'' into ``demand and 
dictate,'' where they essentially get to re-nominate each and every 
nominee to the federal bench. After the Biden standard for Democrats, 
the very similar
---------------------------------------------------------------------------
    \4\ Judicial Confirmations 2001: Hearings Before the Subcomm. on 
Administrative Oversight and the Courts Comm. on the Judiciary, 
107th Cong. --(2001) (testimony of Prof. Laurence Tribe at 
*13) (``[T]he burden must . . . be on the nominee. That burden must be 
to persuade each Senator . . . that the nominee's experience, writings, 
speeches, decisions, and actions affirmatively demonstrate not only the 
exceptional intellect and wisdom and integrity that greatness as a 
judge demands but also the understanding of and commitment to those 
constitutional rights and values and ideals that the Senate regards as 
important for the republic to uphold. '').
---------------------------------------------------------------------------
    Hatch standard, and the recently minted ABA Gold Standard, I dub 
this new test the ``Double Standard'' for Republican nominees.
    Now, I say this ``double standard'' was no great surprise to us on 
this side of the aisle because we had seen some on the left advocate it 
before when discussing Republican nominees. In 1990, when ``arch-
conservative'' David Souter testified before this Committee, some of 
our Democrat colleagues stated that he would have to bear the burden of 
proving his worthiness.\5\ And in 1987, when Professor Tribe testified 
against Robert Bork, he also argued that the burden should be on the 
nominee.\6\ So, I guess it's only natural to have a ``double standard'' 
now that we have Republican nominees again.
---------------------------------------------------------------------------
    \5\ 136 Cong. Rec. S14343 (1990) (statement of Sen. Biden) (``I 
believe the burden of proof is on the nominee. Just as the burden is on 
the President to convince the American people to vote for him to be 
President, is on every Senator and Congress person to convince the 
people in their State to vote for them to have this power, it is also a 
burden that is on the nominee to be given such awesome power for a 
lifetime. Any future nominee who fails to meet that burden--and I 
emphasize again how close I believe this nominee came to that line--
will be vigorously opposed, at least by this Senator. '').
    \6\ Nomination of Robert H. Bork to be Association Justice of the 
Supreme Court of the United States, Hearings Before the Comm. On the 
Judiciary, 1001 Cong. 1273-72 (1987) (testimony of Prof. Laurence 
Tribe) (``It is crucial to remember that Judge Bork is not on trial 
before the Senate; at stake is not simply his future but the 
Constitution's future. Thus the Senate's advice and consent function 
counsels placing the burden of proof on those who urge confirmation. 
Theirs should be the burden of dispelling the considerable doubts this 
nomination has raised, both before the nominee testified and in light 
of his testimony.'').
---------------------------------------------------------------------------
    Well, if we Republicans had adopted that same standard for 
President Clinton's nominees, I guarantee you we would have confirmed 
far fewer than 377 of his nominees. In the end, we should use the same 
standard for Democrat and Republican nominees: If they are men and 
women of integrity, are qualified, have a judicial temperament, and 
will follow the Constitution and statutes as they are written and 
intended, we should confirm them.
                    Political Diversity And Balance
    Finally, calls for ``ideological diversity"-and the use of litmus 
tests which this approach necessarily entails-are really thinly-veiled 
demands for blocking judicial nominees in the name of political 
diversity-not racial diversity, mind you, but political diversity. 
Well, the Constitution already provides for such diversity by 
empowering the President, not us, to nominate judges to the federal 
bench. Over time, Presidents from different political parties will 
nominate members of their own party to the bench. This will result in 
political, and hence ideological, diversity on the federal bench.
    The current composition of the federal bench provides an example of 
this. With respect to active-status federal district and appellate 
court judges, there are about 400 Democrat-appointed judges and about 
330 Republican-appointed judges. That translates into 55% of the judges 
being Democrat appointees, while only 45% are Republican appointees. 
Moreover, most of the judges who will be retiring and taking senior 
status over the next 4 years will be those who were appointed by 
Presidents Reagan and George H.W. Bush ten, fifteen, and even twenty 
years ago; not those whom President Clinton appointed in the last few 
years.
    And this statistic shows something else. Now, I don't subscribe to 
the premise that there is some sort of constitutional requirement of 
``equivalency by party'' with respect to federal judges. As an aside, 
after five consecutive terms of FDR and Harry Truman, there is no way 
there was anything close to ``political equivalency'' on the federal 
bench when these men were in office. But for those of my Democrat 
colleagues who believe there is such a rule, they do not have standing 
to raise this issue, at least not until a whole lot more Republican 
judges are confirmed. About 70, by my count. Right now, we have a grand 
total of four, inclusive of Roger Gregory. It is apparent, then, we 
have a lot of work to do before this diversity argument is even ripe 
for consideration.
    Thank you.

    Chairman Schumer. Thank you, Senator McConnell.
    Senator Kyl, also, welcome, a member of the full committee.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. I welcome your 
courtesy in welcoming those of us who are on the full 
committee, but not the subcommittee, to this hearing. I shall 
be very brief, in return, and not really ask witnesses 
questions, but I would like to do two things.
    One, I welcome our old friend, Paul Simon, back. There 
isn't anyone with whom I have served in the Senate on the 
Democratic side of the aisle for whom I have had more respect. 
I miss your service here, Senator Simon.
    I appreciated the part of what I heard both of you say and 
the second thing I want to do is just to express a caution and 
a concern. All of us are saying this in one way or another, but 
part of the problem with this hearing, I respectfully suggest, 
Mr. Chairman, is that it is in the context of news stories 
which reported that at a conference of Democrats, erudite law 
professors suggested that the way that Democrats in the Senate 
could kill President Bush's nominees was to change the ground 
rules.
    What we have seen is an attempt, through op eds, through 
speeches on the floor, and now through hearings here in the 
Senate, to make a case that two specific traditions should be 
changed. The first is that it should become quite appropriate 
to consider the political philosophy of nominees as a 
prerequisite to determination of their qualifications, and the 
second is to, in effect, change the burden of proof, that the 
burden now becomes that of the candidate.
    It seems to me that when the President, through the use of 
the ABA and his vetting process and the FBI and the 
consultation that, I agree with Senator Simon, should take 
place--he has, in effect, presented the case-in-chief, to 
analogize to a case. The burden of going forward with the 
evidence is then on the Senate. If there is a matter that 
through our investigation we believe disqualifies a candidate, 
we have the burden of laying that out in our questions to the 
witness and of pursuing that in the various ways that we have. 
But it would be inappropriate to analogize to carrying the 
burden of a case.
    So that troubles me with this particular hearing. I regret 
that because I am going to have to be on the floor on the 
business that is pending on the floor, I won't have an 
opportunity to hear the witnesses speak to that issue, but I 
have reviewed some of their testimony in that regard.
    I will just close with this point, and if Senator Simon 
wishes to comment on it, I would be very pleased to get your 
remarks. One of the most interesting things in the first 
hearing was Lloyd Cutler's citation, in fact quotation of a 
question always asked by this Committee of every nominee, the 
effect of which is, has anybody asked you how you would rule on 
a specific case or a specific issue.
    The whole point is anybody that has done that has crossed 
the line. We don't want nominees who have promised that they 
would rule a certain way on a particular case. Yet, that is 
inevitably where this new line of thinking takes us, to a query 
of the nominee, how that nominee would rule in a particular 
case, in order to determine judicial philosophy and in order to 
have that candidate carry his or her burden of proof. That, I 
submit, is a very dangerous path.
    I think we should retain the question that says has anybody 
asked you how you would rule on a particular case, and we 
should be very careful, as Senator Simon said, about how we 
word any questions to get to the qualifications of the nominee 
to be very clear that we are not trying to determine how the 
nominee would rule on a particular set of facts in a particular 
case. I think that would lead us down a very dangerous path.
    If you wish to comment on that, fine, but I have made my 
point. Again, Mr. Chairman, I appreciate your courtesy in 
allowing us to be here.
    Chairman Schumer. Thank you, Senator.
    Mr. Simon. I would make just one general observation, and 
that is for our free system to function we have to exercise 
self-restraint. When Richard Nixon lost to John F. Kennedy, he 
didn't say let's get people out in the streets and protest. He 
very reluctantly said congratulations. Hubert Humphrey and 
Richard Nixon, the reverse. So self-restraint has to be used by 
this body, by the courts, and by everyone in a free system if 
the free system is to function effectively.
    The public should not perceive that we are doing things for 
partisan purposes. Now, we are all partisans and we are proud 
to be partisans, but the national interest is what has to 
prevail. Here, we have to ask the question how do we build a 
court system that is really a solid, good court system that 
will give justice to our people. That is the bottom line.
    Thanks for hearing me.
    Chairman Schumer. Well, thank you, Senator, and I just want 
to echo what you said. I would think that what we are talking 
about here would apply no matter who was President, no matter 
who controls the Senate. I don't think there has been much of a 
change.
    I am compelled to just add a few things to the record 
before you go because--
    Senator Kyl. Mr. Chairman, might I submit a statement for 
the record?
    Chairman Schumer. Please. Without objection.
    So many of my colleagues on the other side said this is a 
dramatic change. I don't think it is a change at all. I think 
we are just taking something that was under the table and 
bringing it above.
    I would just like to quote, for instance, Senator Lott, on 
the floor, last year. He said about two judges up for court of 
appeals, ``I have no doubt that these two judges are fine 
lawyers and technically competent,'' meeting the standards that 
we talked about before. But he went on to say, ``It is an 
extremely liberal circuit. It will get worse with these two 
nominees. This is one of the reasons I have been hesitant to 
bring them up.'' This, of course, was when he was Majority 
Leader.
    Let me read some quotes, without names, from some of my 
colleagues a few years back. It is not a change; we are just 
trying to do this in a more civil and above-board way. One of 
my colleagues said, ``We need to send the President of the 
United States a message that those members of this body in 
helping select nominees cannot in good conscience continue to 
accept nominations to a circuit who are not going to make it 
better and bring it back into the mainstream.'' That colleague 
went to the floor and argued that the proposed nominee was 
``too liberal.'' That is ideology. Many colleagues voted with 
him in that regard.
    Another one: ``The general judicial philosophies to the 
Federal bench reflect the judicial philosophy of the person 
occupying the White House, the Oval Office. And differences in 
judicial philosophy have real consequences for the safety of 
Americans in their streets, homes and workplaces.'' And they 
went on to say that it should be the Senate that should invoke 
that different judicial philosophy to block the President.
    One more: ``Whatever the case''--this was on burden; this 
was because a nominee was regarded philosophically as out of 
the mainstream by this Republic Senator--``Whatever the case, 
the Senate will need to be especially sensitive to this problem 
when it provides advice and consent on nominations to fill 
court vacancies.'' The nominees will need to demonstrate 
exceptional ability and objectivity, he went on to say, to 
overcome that their philosophy was, in his regard, out of the 
mainstream. Those are from some colleagues, including some of 
my colleagues who are sitting here today.
    This is not an attempt to be a partisan hearing. Ideology 
was invoked before. Ideology, judicial philosophy, is 
legitimate to be invoked today. But because, in my judgment at 
least, and the judgment of many Democrats and Republicans, we 
have been reluctant to talk about it, we talk about delay, we 
talk about the balance of circuit, we talk about something in 
their past. I believe it is a legitimate inquiry, and so did 
many members of this committee, some of whom are sitting here 
today.
    Senator Hatch. Mr. Chairman?
    Chairman Schumer. I would just say I would like to continue 
this hearing in a way of general inquiry, in a way to figure 
out how we can do best here to provide the best judges, not 
with litmus tests, not with the New York Times editorial page 
or the Louisville Courier editorial page, which has a similar 
philosophy, as I understand it, making--
    Senator McConnell. There is no difference.
    [Laughter.]
    Chairman Schumer.--the determination, but with each of us 
making the determination and bringing a little more respect to 
the process than we have. I am not blaming one party or the 
other for doing it. What we are trying to do is lay out some 
ground rules that we can debate whether they are appropriate, 
but at least we are debating them instead of taking it out on 
individual nominees when they come forward.
    Senator Hatch. Mr. Chairman, I really appreciate those 
remarks and I believe that is your purpose in holding these 
hearings. I hope that is your purpose and I believe it to be. 
And you have told me that it is, so I appreciate those remarks.
    But let's understand one thing. There have always been some 
on both sides who have tried to bring ideology into these 
matters. One of my most difficult 6 years was the last 6 years 
as Chairman of this committee, where we put through 377 of 
President Clinton's judgeship nominees, 5 less than the all-
time record, which was Reagan, who had a Republican Senate for 
those 6 years. President Clinton had a Republican Senate for 6 
years, but it was the opposite party. And, yes, there were some 
who honestly felt that ideology played a role in some of these 
things, but they were beaten because we were able to pass 
virtually every one of those Clinton nominees.
    Now, I think the point I am making is this: anybody who 
says, and that includes some of our law professors here today, 
words to the effect that political ideology ought to determine 
whether a person sits on the Supreme Court or on any court in 
this country, if they are otherwise qualified, I think that 
ideology is a very dangerous ideology to be preaching because 
if we ever get to a point where liberals vote against 
conservatives and conservatives vote against liberals in a 
knee-jerk fashion because we differ in philosophy and ignore 
the fact that the President has this power of nomination and 
ignore the credentials of the people who are nominated, then I 
think we are going to have a rough time getting really 
qualified people to serve in the Federal courts anywhere in 
this country.
    It is tough enough as it is, as Senator Thompson has 
pointed out, with the pay scale the way it is where law review 
graduates make more money than Supreme Court Justices to start. 
Now, that is what I am concerned about, and I am concerned 
about some of our ideological law professors in this society 
who actually believe it, who don't like the fact that Clarence 
Thomas made it or helped to defeat Robert Bork, or you can 
mention any number of others who had difficulty.
    I remember when Justice Souter was up how many on the left 
were decrying the fact that this unknown person from New 
Hampshire should sit on the Court because he was going to be a 
conservative. Well, he has been proven anything but a 
conservative on the Court, an honorable, decent man who is 
doing the best job he can.
    So I am concerned about it because I don't want to see this 
devolve into a Democrat/Republican ideological litmus on a 
political basis in any way, shape or form, because if it does, 
then I think that this country which has been saved by the 
Federal judiciary for many, many years is going to have 
difficulties it never dreamed or never imagined.
    So I personally want to say I appreciate you holding these 
hearings and elevating this discussion to the point of should 
we play politics, should politics play a role, should politics 
be determinant and all of these other collateral issues that 
pertain thereto. I think that you are doing a service, but I am 
going to fight very hard to make sure that whoever is President 
has the respect for that power called the nomination power from 
this body as long as I am here.
    So I just hope that I have made myself clear on this.
    Chairman Schumer. I thank the Senator. The only response I 
would make before we dismiss our good friend is this: I think 
what has made it hard to get judges to go to the court is not a 
discussion of judicial philosophy. They do that everyday. They 
are happy to answer questions about it. I think both parties 
have done it.
    I think what has made it hard is when we deny that that is 
the case and instead we go deep into their past and try to find 
little ``gotcha'' things that have made them look bad before 
their families and everybody else. Politics is one thing, 
judicial philosophy is another.
    Senator Hatch. That is right.
    Chairman Schumer. I certainly agree with Senator Thompson. 
I don't care if the person is a Republican or a Democrat. I do 
care if I think their philosophy, as have most members of this 
committee, is so far from the mainstream that they can't well 
represent the American people. That is the question here and it 
is an ongoing discussion. I thank Senator Simon for coming and 
I will call forward the second panel.
    Mr. Simon. I thank you and I thank the other members of the 
subcommittee.
    Chairman Schumer. Senator, thank you.
    Senator Hatch. Nice to see you, Paul.
    Senator Sessions. Mr. Chairman, as they gather, with regard 
to your discussion about the Ninth Circuit, our concern was 
that they were outside the judicial mainstream based on the 
fact that the Supreme Court had, I believe, the previous year 
reversed them 27 out of 28 times, and another year 13 out of 
16. They had by far the highest reversal rate in the country.
    Senator Hatch took the view that that shouldn't make any 
difference; each nominee to that circuit should be given the 
same deference as any other circuit. I concluded that it was 
important to try to make sure that the nominees, and send the 
message to the President that the nominees should be faithful 
to the judicial mainstream. In fact, the New York Times wrote 
that a majority of the Supreme Court considered the Ninth 
Circuit to be a rogue circuit. So it was a real matter of 
interest at the time. Basically, those nominees, though, were 
all confirmed.
    Chairman Schumer. And I would just say to Senator Sessions 
that is why we are having these hearings to clear up the 
difference between Senator Hatch and himself, but to really 
discuss that very legitimate issue.
    Now, let me call our next panel of witnesses here. We have 
a very distinguished and broadly based panel, with widely 
different philosophies, and we expect you to talk about those 
philosophies. We don't expect you not to. I ask them to come 
forward. I think what I will do is I will introduce each one as 
they speak.
    Our first witness is Professor Sanford Levinson. He is an 
internationally renowned constitutional law scholar. He 
received his bachelor's degree from Duke University, a Ph.D. 
from Harvard, and a law degree from Stanford, covering almost 
every region of the country. He currently holds chairs in law 
and government at the University of Texas, and held posts at 
Harvard and New York University Schools of Law. He is the 
author of numerous books, textbooks and articles. He is 
coauthor of the popular casebook Processes of Constitutional 
Decisionmaking. He is also the coauthor, with Yale Law School 
Professor Jack Balkin, of a forthcoming article in the 
University of Virginia Law Review entitled ``Understanding the 
Constitutional Revolution,'' which covers some of the territory 
we intend to address here.
    Professor Levinson, your entire statement will be read into 
the record. We are going to have a question period, and so if 
you could limit your testimony to the 5-minute clock--we will 
ask all witnesses to do that so we can finish at a reasonable 
hour--we would appreciate it.

STATEMENT OF SANFORD LEVINSON, PROFESSOR OF LAW, UNIVERSITY OF 
                TEXAS LAW SCHOOL, AUSTIN, TEXAS

    Mr. Levinson. Gladly. I do want to take 15 seconds to say 
how honored I am to be invited here today, and I would like to 
read just the first paragraph of my prepared statement and then 
discuss it for the 5 minutes.
    I begin with two quotations from members of the Supreme 
Court itself. The first was written by Felix Frankfurter some 
70 years ago, and I quote, ``Members of the Court are 
frequently admonished by their associates not to read their 
economic and social views into the neutral language of the 
Constitution. But the process of constitutional 
interpretation''--and here I would interpolate, in the year 
2001; I think we would also add statutory interpretation--``But 
the process of constitutional interpretation compels the 
translation of policy into judgment, and the controlling 
conceptions of the Justices are their idealized political 
pictures of the existing social order.''
    A far more recent Justice, Stephen Breyer, has put the 
matter slightly differently, but he arrives at the same basic 
conclusion. After first stating that ``Politics in our 
decisionmaking process does not exist,'' he distinguished what 
might be termed low from high politics. Thus, he said, and I 
quote, ``By politics I mean will it help certain individuals be 
elected.'' And I will interpolate here that he gave this speech 
before Bush v. Gore, and I believe that Bush v. Gore must 
necessarily be a part of the discussion of the Senate's duties 
at this time.
    In any case, Justice Breyer quickly went on to say that 
``Personal ideology or philosophy is a different matter. Judges 
have had different life experiences and different kinds of 
training, and they come from different backgrounds.'' Most 
importantly for our present purposes is Justice Breyer's 
forthright comment that ``Judges appointed by different 
Presidents of different political parties may have different 
views about the interpretation of the law in its relation to 
the world.''
    What I would like to do in my remaining few moments before 
the question period is to focus on this very last sentence of 
Justice Breyer because I believe the very fact that notice was 
not particularly taken when he gave his speech, that he was 
thought to be stating what is almost the common sense of the 
matter, indicates exactly how far we are, for better and 
perhaps for worse, from the Framers' vision.
    The fact is the Framers would have been shocked by the idea 
that Presidents were political or that Senators were political, 
because if there is one thing we know about the vision of the 
Framers in 1787, it is that they disliked the very idea of 
political parties. That particular vision of American political 
possibility lasted somewhere between 7 and 12 years. By the 
election of 1800, that vision was absolutely in tatters, as 
indicated in part by the true crisis then--if we thought that 
the 2000 election was a crisis election, it did not begin to 
compare to the election of 1800, where there were suggestions 
to call out the State militia, where it took 36 ballots to 
break the tie between Thomas Jefferson and Aaron Burr.
    This was because, by 1800, there were two parties 
contending for power. In fact, this was recognized, in effect, 
by the 12th Amendment which, by separating the stream of 
electing the President from the Vice President, is, in fact, 
the recognition that we are a party-based political system.
    Indeed, the last thing that John Adams did before he left 
the presidency was to appoint a series of so-called midnight 
judges who were Federalists, who were placed in office in part 
because their idealized political picture of the world, to go 
back to Justice Frankfurter, was the Federalist vision shared 
by President Adams and was most antithetical to Thomas 
Jefferson. The most famous of these appointments, of course, 
was John Marshall, who is often called the Great Chief Justice.
    If we are injecting not only ideology but, to be perfectly 
candid, political party background, which is what Justice 
Breyer referred to, I don't believe that this is the injection 
of something that has not existed heretofore. I don't believe 
it is even a decline. I believe that the vision in 1787 that 
one could have a political system without political parties was 
itself a wrong vision; that the strength of America, as has 
often been said, is a vigorous contest of political parties.
    The political parties, at the their very best, organize 
themselves around idealized political pictures so that they 
present different notions not only of public policy, but also 
different notions of certain constitutional issues. Justice 
Jackson once referred to the majestic generalities of the 
Constitution. He was referring to the Equal Protection Clause, 
the Due Process Clause, and the like.
    Senator Hatch, in particular, is well aware that there is a 
debate which I participated in with regard to the Second 
Amendment. One can look at the two parties and see quite 
different views with regard to the Second Amendment. One could 
see this with regard to other parts of the Constitution. This 
is our political system, and I commend you Committee for 
suggesting that we be more candid about recognizing the 
importance of the idealized political pictures when considering 
people for lifetime appointments to the Federal judiciary.
    [The prepared statement of Mr. Levinson follows:]

  Statement of Sanford Levinson, W. St. John Garwood and W. St. John 
 Garwood Jr. Regents Chair in Law, University of Texas Law School, and 
        Professor, Department of Government, University of Texas

    Mr. Chairman and Members of the Subcommittee:
    I am honored by the invitation of the Committee to present this 
statement on the criteria that should be applied with regard to 
confirming nominees for lifetime appointments to the federal judiciary. 
This responsibility, of course, is truly one of the most awesome 
responsibilities that Senators have.
    I begin with two quotations from members of the Supreme Court 
itself. The first was written by Felix Frankfurter some 70 years ago: 
``[M]embers of the court are frequently admonished by their associates 
not to read their economic and social views into the neutral language 
of the constitution. But the process of constitutional interpretation 
compels the translation of policy into judgment, and the controlling 
conceptions of the justices are their `idealized political pictures' of 
the existing social order.'' A far more recent justice, Stephen Breyer, 
has put the matter slightly differently but he arrives at same basic 
conclusion. After first stating that ``[p]olitics in our decision-
making process does not exist,'' he distinguished what might be termed 
``low'' from ``high'' politics. Thus, he said, ``By politics, I mean . 
. . will it help certain individuals be elected?'' He quickly went on 
to say that ``[p]ersonal ideology or philosophy is a different matter . 
. . . Judges have had different life experiences and different kinds of 
training, and they come from different backgrounds.'' Most importantly, 
for our present purposes, is Justice Breyer's forthright comment that 
``[j]udges appointed by different presidents of different political 
parties may have different views about the interpretation of the law 
and its relation to the world.''
    Justices Frankfurter and Breyer raise the central issue that 
Senators must face in passing on presidential nominations to the 
Judiciary: Judges with different ideologies will shape the Constitution 
in radically different directions, with effects that are likely to be 
felt for generations to come. Frankfurter himself, for example, was one 
of the key Roosevelt appointments who together rejected the 
constitutional learning of seventy years and established the basis of 
congressional regulatory power and federal-state relations that are 
still very much being felt to this day.
    To be sure, Senators must first make sure that nominees to the 
judiciary meet certain baselines of professional competence. Frankly, 
however, this is almost never a serious hurdle. Instead, the crucial 
question before you is what you believe the Constitution of the United 
States, at least as interpreted by the Supreme Court, should look like 
years from now. There is no serious doubt that the executive branch, 
when submitting nominees, is attempting to shape the Constitution to 
fit its own guiding vision. You must therefore ask if these nominees 
offer compelling visions of what our constitutional order truly is (or 
should be). To vary Mark Antony's famous statement, the good and the 
evil that these men and women do will live long after they leave the 
bench.
    The original framework of the Constitution presumed that the Senate 
would play an important role in the judicial appointment process and 
serve as a necessary check and balance to the power of the Executive. 
This made sense in 1787, when the Constitution was initially drafted. 
Subsequent developments in our nation's history, however, make the 
argument for Senate supervision of the President's judicial nominations 
even stronger and the Senate's role as a check on presidential efforts 
to transform constitutional meaning even more crucial.
    I emphasize two such developments. First, no one in 1787, even if a 
supporter of the abstract idea of judicial review, could possibly have 
contemplated the role that courts would come to play in our political 
life, including decisions, sometimes in quite minute detail, regarding 
some of the most important political issues before the country. Even 
more to the point, situated as they were at the very beginning of the 
great American experiment, citizens did not understand that the work of 
judges (and, for that matter, of presidents and members of Congress) 
would greatly reshape the meaning of the Constitution over time. The 
Constitution that emerged from the New Deal and World War II, for 
example, is in many ways a substantially different document from the 
one that existed in the 1820's, when few people imagined a significant 
congressional role in helping to regulate a national economy and when 
the United States was still able to maintain a more-or-less detached 
posture vis-a-vis the intrigues of world politics. And, of course, it 
is not only the Congress and the President who today possess powers 
that would have astonished earlier generations. It is the Judiciary as 
well. One may celebrate this set of developments or regret them, but 
they comprise the constitutional system that we live under today. No 
one denies that it matters who is elected to the Executive or the 
Congress; it would be equal folly to pretend that the particular 
identity of those who sit on the federal bench is without consequence 
with regard to the quality of life and liberty our fellow Americans 
enjoy, both now and in the years to come.
    Second, the authors of the 1787 Constitution assumed that there 
would be no organized political parties, the very idea of which 
appalled them. They would therefore surely be astounded to learn that 
presidents deliberately staff the judiciary with people from their own 
political party in order to promote a distinctive ideological agenda. 
Indeed, a testament to the pervasiveness of this development is that 
Justice Breyer's statement quoted at the outset stirs no contemporary 
sense of outrage and is, instead, quite properly treated as a truism 
about the reality of what might be called constitutional politics. And, 
unlike the New Deal, this is scarcely a (relatively) recent 
development. It was, after all, James Madison himself who became, 
during the 1790's, one of the leading founders of the Democratic-
Republican party that vigorously opposed the Federalist Party headed by 
Alexander Hamilton. The creation of the party system led to the 
election fiasco of 1801, when it took the House of Representatives 36 
ballots to break the tie vote between the Democratic-Republicans Thomas 
Jefferson and Aaron Burr. The tie was the direct result of the original 
Constitution's failure to recognize the existence of political parties, 
and it led, therefore, to the quick adoption of the Twelfth Amendment, 
which, by separating the electoral tracks for president and vice-
president, also served to recognize the legitimacy of the political 
party system.
    Indeed, by 1801 the Framers' original vision of a judiciary free 
from partisan influence had collapsed, for precisely the same reasons 
that led first to the struggle in the House of Representatives and then 
the adoption of the Twelfth Amendment. After all, almost literally the 
last thing that the outgoing Federalist President, John Adams, did 
before leaving office was to pack the judiciary with Federalists, 
confirmed by a lame-duck and popularly repudiated Federalist Senate. 
Adams firmly hoped that these new judges would use all the powers at 
their disposal to put stumbling blocks in the way of the feared 
Jeffersonians. The most famous such appointment is, of course, John 
Marshall, whose designation as Chief Justice was understood by one and 
all to be a powerful political statement. Thus, only a dozen short 
years after the ratification of the Constitution, the practice of 
linking judicial appointment to possession of the correct party 
membership and ideological perspective was firmly established. ``Non-
partisan'' simply does not describe the two centuries of nominating and 
confirming federal judges.----
    Both Professors Cass Sunstein and Laurence Tribe, in their earlier 
testimony to this Committee, have spelled out the role that ideological 
judgment can legitimately play when considering judicial appointments. 
I would like to state forthrightly that the point applies to both 
parties, regardless of whose ox is being gored. In recent years, 
Republican Senators have put stumbling blocks in the way of 
confirmation of many of President Clinton's nominees to the judiciary. 
I cannot offer any other than political objections to this, at least 
when that opposition was candidly expressed as a good-faith belief that 
a nominee possessed an unacceptable view of the Constitution. All 
Senators take an oath to ``support'' the Constitution, and I have long 
regarded it as important that everyone-including all elected officials 
and even ordinary citizens-take seriously their own, non-delegable, 
obligation to interpret the meaning of the Constitution-and, therefore, 
to help safeguard what is most important in our constitutional 
traditions. That means, therefore, at the very least, that every 
Senator, and particularly those on the Judiciary Committee, must decide 
what the Constitution, best understood, actually requires in our never-
ending quest to realize the great aims of the Preamble and its emphasis 
on ``establish[ing] Justice.''
    This is, obviously, not an easy task, and, as already acknowledged, 
reasonable people can certainly disagree. If I disagreed with the 
Republican opposition to President Clinton's nominees, it was because I 
do not share their own particular vision of the constitution, not 
because I think they had a duty to exhibit automatic deference to 
President Clinton's contrary judgments. Senators of both parties must 
think through these issues of constitutional interpretation for 
themselves rather than bow down humbly before a presidential 
determination as to who should be on the federal judiciary.
    It is, therefore, thoroughly legitimate, under the most ordinary of 
circumstances, for Senators to concern themselves with the direction in 
which federal judges are reshaping the American Constitution. But these 
are not ordinary times. Hovering over any discussion of judicial 
nominations in our day are two central events. The first is that this 
country is in the midst of a constitutional revolution in areas of 
federal-state relations and civil rights. Many of the key cases in this 
constitutional revolution have been decided by narrow 5-4 votes in the 
Supreme Court. This revolution will be quelled, or it will go into 
overdrive-with significant consequences for our system of government-
depending on the next set of appointments to the federal judiciary.
    The second key event is that the occupant of the Oval Office, who 
by virtue of his position gets to nominate those who will decide the 
fate of the constitutional revolution, was neither elected by a 
majority of the American electorate nor, far more to the point, elected 
even by ordinary operation of our Electoral College system. Instead, he 
was granted his office by a willful decision of the United States 
Supreme Court. The five Justices who decided Bush v. Gore--and who, not 
at all coincidentally, are the architects of the constitutional 
revolution whose fate is at stake--put themselves in the remarkable 
position of making sure that the person charged with appointing their 
colleagues and successors would be the candidate most sympathetic to 
the ongoing revolution. At the risk of stating the obvious, this is not 
how the constitutional system of checks and balances, including the 
vision of a Judiciary removed from politics, was supposed to work.
    Bush v. Gore remains the equivalent of a stinking pig in the 
parlor. One simply cannot calibrate the responsibility of Senators at 
this crucial moment in our Nation's history without taking it into 
account. Senators who share my concerns about the way that the United 
States Constitution has been rewritten over the last decade and who 
believe that the Court's intervention in the political process last 
December was an especially ugly breach of judicial propriety must not 
ignore its implications for their constitutionally assigned role as 
partners in the appointments process.
    In at least one way the aftermath of the 2000 election was even 
more disturbing than its counterpart 200 years ago. In 1800 no one 
doubted that the House of Representatives was the proper body to decide 
the election dispute. In December 2000, however, we were presented with 
the spectacle of five Republican judges using their power to shortcut 
not only the process of counting the votes in Florida but also, in 
effect, to render irrelevant the possibility that Congress, exercising 
its powers under both Article II and the Twelfth Amendment, would 
resolve any continuing disputes and, as in 1800 and 1824, name the 
president (who, of course, might well have been George W. Bush). One 
need not accuse them of consciously betraying their oaths of office. 
But their choice to intervene as they did placed them in a patent 
conflict of interest: No one could seriously doubt that the five 
justices in the majority relished the prospect that the White House 
would be inhabited by a Republican who could, among other things, 
nominate their successors. And, of course, in December 2000, it 
appeared that the Senate would continue to be Republican. The very 
possibility that the five justices were completely sincere in their 
conscious belief that they decided Bush v. Gore on the basis of the law 
alone simply underscores the point that judges are human beings like 
the rest of us, with a propensity to read the Constitution, if at all 
possible, in a way that provides ``happy endings.'' In this case, the 
happy ending is a Republican president picking Republican justices to 
be confirmed by a Republican Senate.
    Many law professors, of whom I am one, regard Bush v. Gore as a 
patently illegitimate decision, shoddily reasoned; and many of us 
believe that its illegitimacy taints Mr. Bush's own status as our 
President. Even if there is something to be said for the Senate's 
extending deference to a President when submitting nominees for the 
federal bench, that is really quite irrelevant in the present 
circumstance.
    As a practical matter, there is little that one can do about Bush 
v. Gore. Mr. Bush does indeed occupy the White House, and no one 
seriously suggests that he ought not be accepted as our President.
    But it is absolutely incumbent on those who were properly appalled 
by the majority's behavior last December to stand vigilant against 
allowing it to profit from its own wrong by acquiescing to the packing 
of the federal judiciary with nominees who are committed to extending 
the majority's constitutional revolution.
    The prior testimony of Professors Sunstein and Tribe included 
excellent discussion of the contours of this ongoing revolution, and I 
will not repeat their arguments. I am, however, submitting today the 
text of an article co-authored by Yale Law School Professor Jack M. 
Balkin and myself, entitled Understanding the Constitutional 
Revolution, which will appear next month as the lead article in the 
Virginia Law Review. In it we set out our own understanding of the 
situation that faces us, including the implications of Bush v. Gore for 
the appointment process. We do not attack the good faith of those who 
believe that the current majority manifests a correct constitutional 
vision. We respectfully disagree, and we present an overview of what we 
believe to be a far better perspective. No doubt the current majority 
and its supporters would say that it is our own vision that deserves to 
be rejected. Perhaps they are right, but the central point is that the 
adequacy of constitutional vision of judicial nominees should be the 
primary concern of members of this Committee.
    I have emphasized my general agreement with the testimony offered 
by my friends and distinguished colleagues Cass Sunstein and Laurence 
Tribe. I do, however, disagree with them in at least one important 
respect: Both of them evoke metaphors of maintaining (or restoring) 
``balance'' to the Court and achieving the right ``mixture'' of 
viewpoints. Each seems to suggest that it is especially important to 
prevent the Court from becoming too unbalanced in favor of right-wing 
perspectives. The problem with the imagery of ``balance'' is that we 
have absolutely no way to figure out what a proper balance is. Franklin 
Delano Roosevelt had no obligation to preserve a mixture of New Dealers 
and opponents of the New Deal in his judicial appointments in the 
1940's. His authority to appoint Justices like Felix Frankfurter (and 
Senator Hugo Black and his Attorneys General Robert Jackson and Frank 
Murphy, among others) came from his repeated victories at the polls, 
which suggested, among other things, that Americans viewed as necessary 
and proper a variety of changes in the basic structure of our political 
system, ranging from a significantly strengthened Congress to the 
acceptance of the validity of an elaborate system of administrative 
agencies charged with implementing congressional enactments. In like 
fashion, I see no reason (nor did anyone suggest at the time) that 
President Lyndon Johnson in 1967 should have nominated a conservative 
(or even moderate) segregationist instead of Thurgood Marshall in order 
to achieve some balance on racial issues in the increasingly liberal 
Warren Court. Johnson's 1964 landslide victory, coupled with equally 
impressive-legislative victories by the Democratic Party in 1964 and 
1966, established all the authority that was necessary to promote an 
agenda of racial equality in naming new members of the federal 
judiciary. The same thing might be said, incidentally, about the 
nomination and confirmation of Antonin Scalia during the Reagan 
Administration, shortly after his smashing victory in 1984 and, equally 
important, the return of a Republican Senate. The problem today is that 
George W. Bush lacks precisely this sort of political authority to 
throw the Court further to the right and to reshape the meaning of the 
Constitution for generations to come. George W. Bush is not Ronald 
Reagan, and the disputed election of 2000 is not the landslide of 1984. 
And, frankly, given the 200-year acceptance of the legitimacy of 
political parties, Democratic members of the Senate are under no duty 
to pretend that they are not the majority of this venerable 
institution.
    Whether ``balance'' is really the issue is underscored by a 
question raised by Illinois Senator Stephen A. Douglas in one of the 
most electric moments of our political history, his famous debates with 
Abraham Lincoln. Speaking of the Court's 1857 decision in Dred Scott, 
which in effect held unconstitutional the platform of the newly formed 
Republican Party represented by Lincoln, Douglas noted that ``Mr. 
Lincoln cannot conscientiously submit, he thinks, to the decision of a 
court composed of a majority of Democrats. If he cannot, how can he 
expect us to have confidence in a court composed of a majority of 
Republicans?'' Douglas's use of the word ``majority'' is key, for he is 
speaking not of ``balance'' and the propriety of having a Republican 
voice on the Court. (That, indeed, existed.) Nor would Lincoln have 
been any happier if Dred Scott had been a 5-4 decision instead of 7-2. 
Rather, he objected to the fact that the Supreme Court was controlled 
by persons committed to what Lincoln properly viewed as an odious view 
of the Constitution. And Douglas recognized that Lincoln was committed 
to securing a new majority, as in fact he did upon his election to the 
presidency two years later and his ability to nominate justices who 
would be confirmed by what had become a Republican Senate.
    Focusing on questions of ``balance'' and ``mixture,'' I am afraid, 
simply allows us to neglect talking about the real issues before both 
the Senate and the American public. What should become of the 
constitutional revolution put in place by the current five-person 
majority and celebrated, as a ``revolution,'' by such prominent law 
professors as Northwestern law professor Steven Calabresi? Should the 
Senate allow the decision in Bush v. Gore to its proponents a political 
advantage in carrying that revolution forward?
    I offer two final comments about ``balance.'' First, to the extent 
that ``balance'' is in fact desirable, the best way to achieve it is 
through the ordinary political process of shifts in power among the 
political parties in both the Executive and the Senate. It may be, 
however, that our ordinary political system is failing us in important 
respects, for reasons that I would be happy to go into in during the 
question period.
    Secondly, if this Committee does wish to wrestle with such 
questions as to what constitutes the best ``mix'' of judges on a court, 
I would emphasize the importance not only of abstract ideology, but 
also of what Justice Breyer described as ``life experience and 
different kinds of training.'' I believe that a significant lack on the 
current Supreme Court is someone with a significant degree of political 
experience. The developing custom of appointing to the Supreme Court 
only persons with prior experience on the bench is, I believe, 
decidedly unwise, depriving the Court of important perspectives that 
are the result of real immersion in the political process. Courts in 
the past have regularly included former senators, governors, cabinet 
officials, and, in one instance, a former president. We would do well 
to return to that practice, and this Committee should use its 
``advisory'' role to encourage such nominations.
    In one sense, this emphasis on political experience is independent 
of ideology inasmuch as there are obviously both Democrats and 
Republicans who would bring rich political backgrounds to the 
judiciary. But there is at least one connection worth mentioning: 
Several analysts of the current Supreme Court emphasize a specific 
ideological theme that runs through many of its decisions, which can 
accurately be described as a near contempt for politics and 
politicians. The current Court is composed of a majority of justices, 
themselves without significant political experience, who appear to view 
politicians as simply the agents of private interests and pressure 
groups, unworthy of trust, coupled with a fear of disorder if the 
political process is not tightly controlled. (Bush v. Gore is the most 
dramatic illustration of this point.) The disdain for other branches of 
government, and for the wisdom that might be generated by service in 
this branches, leads the Court to give the impression that only it can 
be trusted to enforce constitutional values or to think about what the 
Constitution means. Three important examples of this contempt for 
Congress are Flores v. City of Boerne, in which the Court blithely 
invalidated the Religious Freedom Restoration Act, supported by 
overwhelming majorities of both Houses of Congress and by the President 
of the United States; and United States v. Morrison and University of 
Alabama v. Garrett, in which the majority exhibited ill-disguised 
disdain for the relevance of the many hearings, held over several 
years, that led Congress to pass the Violence Against Women Act and the 
Americans with Disabilities Act.
    The Supreme Court, therefore, has made its own contributions, 
together with the tabloid press and cable news shows, to the pervasive 
cynicism about the political process that is corroding our political 
system. The voice of an honorable practitioner of the arts of politics 
would be a valuable addition both in the conference room of the Supreme 
Court and, indeed, in the written opinions themselves.
    I have emphasized the issues posed by nominations to the Supreme 
Court, but one should not minimize the importance of appointments to 
what the Constitution deems ``inferior'' federal courts. Indeed, 
because of the fact that the Supreme Court hears only relatively few 
cases in any given year, almost all decisions of the circuit courts are 
in fact final, not only for the litigants in the particular case but 
also for the millions of persons who happen to live in a particular 
circuit. Circuit judges do not enjoy the same degree of freedom as do 
Supreme Court justices with regard to overruling past decisions, but it 
would be foolish to ignore the extent to which imaginative and 
innovative circuit judges can indeed exercise a real influence on legal 
developments, for good and for ill. No one, for example, could 
understand the current constitutional revolution without paying due 
attention particularly to certain judges on the Fourth and Fifth 
Circuits. This does not mean that the same level of ideological 
scrutiny should be applied to all nominees at each level of the federal 
judiciary. It does mean, however, that ideology should not be 
irrelevant even when considering a nominee to a federal district or 
circuit court.

    Chairman Schumer. Thank you, Professor Levinson. I very 
much appreciate your summary.
    Our next witness is someone equally distinguished, although 
different philosophically
     than you are. This is Professor Ronald Rotunda. He is the 
Albert E. Jenner, Jr. Professor of Law. He is a graduate of 
Harvard College, Harvard Law School, and he was a member of the 
Harvard Law Review. He clerked for Walter Mansfield, of the 
United States Court of Appeals for the Second Circuit, 
practiced law in Washington, D.C., and served as assistant 
majority counsel for the Senate Watergate Committee.
    He then joined the faculty of the University of Illinois 
College of Law and at present is a visiting professor at George 
Mason University School of Law. He has published over 200 legal 
articles, is the author of a leading constitutional law 
treatise, and has served as a consultant to several emerging 
democracies, including Cambodia and Eastern European countries, 
helping them craft constitutional, legal and judicial codes.
    Professor Rotunda, like all the other witnesses, your 
statement will be read into the record and you may proceed as 
you wish for 5 minutes.

STATEMENT OF RONALD D. ROTUNDA, PROFESSOR OF LAW, UNIVERSITY OF 
          ILLINOIS COLLEGE OF LAW, CHAMPAIGN, ILLINOIS

    Mr. Rotunda. Thank you very much. I really wish my mother-
in-law were here to hear that. Behind every married man is an 
amazed mother-in-law.
    First, as a matter of judicial ethics--I teach ethics as 
well as constitutional law--the general rule has always been, 
and it is in the ABA ethics rule and I think all of the States 
have adopted it, that a candidate for judicial office, whether 
elected or appointed, should not ``make pledges or promises of 
conduct in office, other than the faithful and impartial 
performance of the duties of the office.''
    I think it is wrong for a nominee to promise to vote a 
certain way, promise to adhere to a particular philosophy. The 
Senate should not confirm anyone who would make such promises. 
I have talked to people who have gone through the vetting 
process for the first President Bush. None of them were asked 
such questions, at least the ones I talked to. I can't believe 
President Clinton or his aides would do that. I think Senators 
should find out from the nominees if they have made such 
promises and should reject those who have made them.
    Professor Larry Tribe, whose ears must always be ringing at 
the hearing today, whom I quote in my paper, said regarding 
Justice Kennedy he is conservative on a great number of issues. 
``I don't have any illusion he will be a liberal, but he 
shouldn't be opposed just because of that.''
    I don't think nominees should make any of these promises. I 
think that consideration of ideology should not be over the 
table, under the table, or through the table. It is something 
that shouldn't be done. Various Democratic commentators like 
Lloyd Cutler have urged that as well.
    I think that you ought to be guided by three standards. 
First, we want the independence of our Federal judiciary. The 
business of judging is not treated as outcome-based; it is not 
like an election or like a football team. Tell me who won. That 
is all we want to know.
    Second, we want fair courts. We don't want liberal courts, 
we don't want conservative courts, we don't want balanced 
courts. We want fair courts. ``Fair'' doesn't necessarily mean 
that they reflect what most of the people want, or we never 
would have had Brown v. Board of Education. By ``fair'' I mean 
judges who call them as they see them, not because of the 
politics of the next election. They worry about the next 
generation.
    Thirdly, I think neither the Senators nor the President 
should be asking nominees how they are going to vote on 
particular outcomes, and if they do, the nominees shouldn't 
answer.
    Should we change the system? If it ain't broke, we don't 
change it, is the general principle. We have today the most 
respected judiciary in the world, bar none. I have gone around 
the world. A member of the supreme court of Moldova said, ``I 
don't know much about your system, but I know yours is the one 
we want to emulate.'' That is why they asked for an American to 
be their constitutional adviser; Cambodia the same thing. These 
people were imbued in French law, but they said, ``No, we want 
to be like America because we respect your judges.'' We are at 
the top of the food chain and when something is successful, we 
normally don't change it.
    A third point: I think it is erroneous to believe that 
judges rule as either Democrats or Republicans once they are on 
the bench. In Roe v. Wade, this controversial decision for many 
years, a dissenter was a Democratic appointee, Justice White.
    Judge Harry Edwards, a respected professor, as well as a 
judge on the D.C. Circuit, did a very interesting empirical 
analysis of the circuit. He concluded that couldn't predict how 
they were going to vote based on their appointments.
    I have talked to a lot of lawyers. I deal with a lot of 
lawyers in litigation. What they want is a judge who is open-
minded, and they often don't know who appointed the judge, 
whether it was a Republican or a Democrat.
    Finally, history should teach us to be more humble. When we 
try to predict, we are just wrong. The National Organization 
for Women last May, I believe, had a big demonstration. They 
were upset that Justice O'Connor might retire soon and they 
didn't like her replacement, whoever that might be. But 
earlier, when she was nominated, they were against her.
    When Justice Powell was nominated, the president of NOW 
testified that Powell's confirmation would mean ``justice for 
women will be ignored.'' When Stevens was nominated, NOW 
testified that Stevens had ``blatant insensitivity to 
discrimination against women.'' If NOW were a baseball team, it 
would be batting zero.
    Presidents are just as unsuccessful as NOW. There is 
nothing about that organization that makes it stand out. 
President Roosevelt appointed both Felix Frankfurter and 
William O. Douglas. They had different judicial philosophies.
    I think, frankly, that most candidates for judgeships don't 
know what their philosophy is when they start judging and it 
changes everyday. That is why we can't give it to computers; we 
want people who learn over time. One of the examples in my 
paper was Judge Friendly. Judge Friendly wrote an article on 
how an issue should be decided. When he was a judge, he was in 
the dissent. When he saw the oral argument, looked at the 
transcript and read the briefs, he decided he was wrong. The 
majority quoted Judge Friendly's article. How is that for 
sticking something in? They were are quoting Friendly against 
Friendly.
    Well, we know he was right because he was on both sides of 
the issues, so he has to be correct at least part of the time. 
But the point was that you could look at that quote and you 
would think I know how he is going to rule as a judge. He 
didn't know how he was going to rule as a judge until he 
actually ruled, and the best judges are like that.
    Thank you very much.
    [The prepared statement of Mr. Rotunda follows:]

Statement of Ronald D. Rotunda, The Albert E. Jenner, Jr. Professor of 
 Law, University of Illinois College of Law, and Visiting Professor of 
         Law, Fall, 2001, George Mason University School of Law

                              Introduction
    I thank the Subcommittee for inviting me to express my views. I am 
the Albert E. Jenner, Jr. Professor of Law at the University of 
Illinois College of Law, where I researched and taught Constitutional 
law and Legal Ethics for over a quarter of a century. This fall, I am 
Visiting Professor of Law at George Mason University School of Law.\1\
---------------------------------------------------------------------------
    \1\ A complete resume is on file with the Subcommittee
---------------------------------------------------------------------------
    Let me begin by making several points on which I will elaborate at 
the end of this paper.
    FIRST, IF IT AIN'T BROKE, DON'T FIX IT. We have today--and we have 
had the entire Twentieth Century--the most powerful and respected 
judiciary in the world. I have traveled from Cambodia to Moldova as a 
Constitutional advisor to newly emerging democracies. Foreign lawyers 
admire our legal system. Even if they do not fully understand our 
system, even if the Commissars had kept them in the dark, they know 
that it is the system that they would like to emulate.\2\
---------------------------------------------------------------------------
    \2\ See, e.g., Ronald D. Rotunda, Exporting the American Bill of 
Rights: The Lesson from Romania, 1991 U. ILL. L. Rev. 1065 (1991); 
Ronald D. Rotunda, Eastern European Diarv: Constitution-Building in the 
Former Soviet Union, 1 THE GREEN BAG, 2D SERIES 163 (Winter 1998).
---------------------------------------------------------------------------
    That sentence bears repeating because I am paraphrasing judges, 
lawyers, and politicians in Eastern Europe, Far East Asia, and South 
America. They all say that they want their judicial systems to be like 
our federal system. They want their judges to be like our judges. The 
lawyers in South America were familiar with our system, the lawyers 
formerly under Communist domination were not, yet they knew that it was 
our system that they wanted to copy. They were all more familiar with 
the French Civil Law system, but they wanted to copy our system, not 
the French.
    In Moldova, for example, a member of the Supreme Constitutional 
Court told me that, years earlier, when he was writing his dissertation 
on Comparative Constitutional Law, he had to secure special permission 
to travel to Moscow to read the Czech Constitution, which was under 
lock and key at the time--although Czechoslovakia was then a Communist 
country, and hardly a model of Western democracy. This Moldovan Justice 
knew nothing about our system except that he wanted to copy it. He knew 
that if the Commissars were concerned with the destabilizing influence 
of the Czech Constitution, they were overwhelmed by the American Bill 
of Rights.
    Our judicial system is at the top of the food chain, and that is a 
good reason to leave well enough alone. Given the fact that the Senate 
has been confirming federal judges for years, and the product is 
admired around the world, one wonders why we should think of changing 
the way the Senate confirms.\3\ There is no reason to change 
presumptions or change the way the confirmation process works when the 
present system has produced--over a period that spans several 
lifetimes--the best judiciary in the world. Granted, some judicial 
decisions are not immediately accepted. The one person, one vote 
decisions, fall in that category, \4\ but now they are part of the warp 
and woof of our Constitution. Our federal judiciary is independent by 
design of the framers of our Constitution. An independent judicial 
system means that sometimes judicial opinions will be unpopular, and we 
must accept that.
---------------------------------------------------------------------------
    \3\ E.g., Vikram Amar, How Do You Think?: Ideology and the Judicial 
Nominee, Legal Times, July 9, 2001, at 50, arguing that the Senators 
should ask the nominees ``various hypothetical or not-so-hypothetical 
cases,'' with questions that are ``concrete,'' and based ``on actual 
live controversies.'' This author even argued that the Senators should 
take into account a ``lawyer's decision to take a case that he knows 
will involve the making of certain kinds of arguments that may be 
probative of his beliefs.''
    I disagree: we should not judge lawyers by their clients. Lawyers 
have every right (and duty) to defend members of the Communist Party or 
the KKK, although they strongly disapprove of those organizations. 
``Regardless of his personal feelings, a lawyer should not decline 
representation because a client or a cause is unpopular or community 
reaction is adverse.'' ABA Model Code of Professional Responsibility, 
E.C. 2-27. Lawyers may defend guilty people and secure their acquittal.
    The fact that a lawyer takes such cases and is successful in his 
legal arguments is not ``probative of his beliefs.'' We do not judge 
lawyers by their clients.
    \4\ Philip Kurland, Egalitarianism and the Warren Court, 68 MICH. 
L. REV. 629, 677 (1970) (attacking the one person, one vote cases); 
ALEXANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 174 (1970) 
(same); ALEXANDER BICKEL, SUPREME COURT, supra, at 59 (criticism of 
poll tax case); ARCHIBALD COX, THE WARREN COURT: CONSTITUTIONAL 
DECISION AS AN INSTRUMENT OF REFORM 125 (1968) (same).
---------------------------------------------------------------------------
    SECOND, IT IS A COMMON, AND ERRONEOUS BELIEF THAT JUDGES RULE AS 
DEMOCRATS OR AS REPUBLICANS ONCE THEY ARE ON THE BENCH. THAT IS FALSE. 
The judges are human, to be sure. They put on their robes, two legs at 
a time. But they act in good faith in coming to their conclusions, and 
they do not vote based on the election returns. They know that their 
ultimate judge is history, not the politics of the moment. We want fair 
courts--not liberal courts, not conservative courts, not moderate 
courts, but fair courts, and by ``fair,'' I mean we want judges who 
will call them as they see them, without regard to politics.
    Let us take the D.C. Circuit, for example. I have heard it said 
that the D.C. Circuit is one of the most partisan, and that one can 
predict how the case will come out when you know which judges are 
sitting on the three-person panel. That is the popular notion and it is 
wrong. A former law professor, Harry Edwards, the highly respected 
judge of the D.C. Circuit, studied this issue as only a scholar would. 
He studied the cases and the votes of the judges based on the President 
who appointed them. Based on the facts, Judge Edwards concluded that 
the judges did not act as Democratic Judges or Republican Judges but as 
judges. He strongly objected to ``a growing perception that federal 
judges decide cases on political grounds . . . .'' This view, he said, 
is not only simply wrong, and a ``myth,'' but it tends to undermine 
public confidence in the judicial process.'' \5\
---------------------------------------------------------------------------
    \5\ Harry Edwards, Public Misconceptions Concerning the 
``Politics'' of Judging: Dispelling Some Myths About the D. C. Circuit, 
56 COLO. L. REV. 619 (1985) (emphasis added).
---------------------------------------------------------------------------
    THIRD, COMMENTATORS, PRESIDENTS, AND SENATORS MAY THINK THAT THEY 
CAN PREDICT HOW A NOMINEE WILL VOTE ONCE THAT PERSON IS CONFIRMED, BUT 
OUR HISTORICAL EXPERIENCE SHOULD TEACH US TO BE MORE HUMBLE. We do not 
know what will be the major legal issues ten, fifteen, or even five 
years from now, much less what might be the ``liberal'' or 
``conservative'' answer to them. We cannot predict with any accuracy. 
History has repeatedly taught us that lesson.
    For example, the National Organization for Women recently rallied 
in Washington, D.C., demonstrating because of their concern that 
Justice O'Connor might retire soon and were concerned about her 
replacement.\6\ However, when President Reagan appointed her, NOW was 
substantially less enthused. When Justice Powell was nominated, the 
President of NOW testified that Powell's confirmation would mean that 
``justice for women will be ignored . . . .'' \7\ When Justice Stevens 
was nominated, a different President of NOW testified that Justice 
Stevens has ``blatant insensitivity to discrimination against women.'' 
\8\ If NOW were a baseball team, it would be batting zero.
---------------------------------------------------------------------------
    \6\ Charles Lane, O'Connor Denies Plans To Leave Supreme Court, 
WASHINGTON POST, May 2, 2001, at A9: ``The National Organization for 
Women rallied to a recent demonstration in Washington in part by 
warning that O'Connor was about to step down.''
    \7\ NOMINATIONS OF WILLIAM H. REHNQUIST AND LEWIS F. POWELL, JR.: 
HEARINGS BEFORE THE SENATE COMM. ON THE JUDICIARY, 92d Cong., Ist Sess. 
424 (1971).
    \8\ NOMINATION OF JOHN PAUL STEVENS TO BE A JUSTICE TO THE SUPREME 
COURT: HEARINGS BEFORE THE SENATE COMM. ON THE JUDICIARY, 94th Cong., 
1st Sess. 227 (1975).
---------------------------------------------------------------------------
    Similarly, civil rights lawyer Henry L. Marsh III testified at the 
Powell confirmation hearings about Powell's ``record of continued 
hostility to the law, his continual war on the Constitution.'' \9\ That 
is not the Justice Powell that any of us would recognize.
---------------------------------------------------------------------------
    \9\ NOMINATIONS OF WILLIAM H. REHNQUIST AND LEWIS F. POWELL, JR., 
SUPRA, AT 389-90.
---------------------------------------------------------------------------
    Presidential batting averages are equally poor, as I explain more 
fully below. President Roosevelt appointed both Felix Frankfurter and 
William O. Douglas, two Justices who were both thought liberal before 
they were appointed. The same President appointed both men, and once 
they were on the bench, they were as alike as oil and vinegar.
    FOURTH, IT IS COMMONLY REPEATED THAT THE COURT HAS BECOME MORE 
CONSERVATIVE OVER THE YEARS AND THAT PRESIDENT CLINTON DID NOT APPOINT 
LIBERAL JUDGES. I DO NOT BELIEVE THAT THE RECORD SUPPORTS THAT ROUTINE 
ASSERTION. Elsewhere, I have written \10\ on the difficulties of these 
labels, ``liberal,'' and ``conservative,'' and so I will resist 
mightily the effort to repeat myself. Let us look at a few facts.
---------------------------------------------------------------------------
    \10\ See RONALD D. ROTUNDA, THE POLITICS OF LANGUAGE: LIBERALISM AS 
WORD AND SYMBOL (University of Iowa Press, 1986) (with an Introduction 
by Daniel Schorr).
---------------------------------------------------------------------------
    During the last two terms on the Supreme Court--during just these 
last two terms the Court invalidated a state law that intruded on the 
parental relationship by mandating grandparents' visitation rights.\11\ 
This same Court threw out state laws that interfered with federal power 
over international affairs,\12\ and motor vehicles.\13\ The Court 
upheld federal privacy laws that regulated state motor vehicle 
departments and placed upon them the same restrictions imposed on 
private parties.\14\
---------------------------------------------------------------------------
    \11\ Troxel v. Granville, 120 S.Ct. 2054 (2000).
    \12\ Crosby v. National Foreign Trade Council, 120 S.Ct. 2288 
(2000).
    \13\ Geier v. American Honda Motor Co., 120 S.Ct. 1913 (2000).
    \14\ Reno v. Condon, 120 S.Ct. 666 (2000).
---------------------------------------------------------------------------
    There are those who complain that the present Court is too 
deferential to the states, although some prominent Democratic law 
professors say otherwise.\15\ Yet, this same Court has shown that, when 
it is protecting civil rights and liberties, it is willing to override 
both state or federal laws and regulations to meet that goal. The Court 
is neither liberal nor conservative as those labels are commonly used 
because the Justices are not politicians.
---------------------------------------------------------------------------
    \15\ While some Democratic commentators have made this argument, it 
is interesting that former Acting Solicitor General Walter Dellinger 
appears to have rejected it. The new federalism cases still leave 
Congress with considerable legislative power, but, Mr. Dellinger was 
quoted as saying, it will be more difficult for Congress to enact 
legislation that is ``more appropriate to county commissions than to a 
national government.'' Former acting Solicitor General Walter 
Dellinger, quoted in, Mary Deibel, Court Cutting Federal Role, CHICAGO 
SUN-TIMES, June 25, 1999, at p. 35.
    Professor Laurence Tribe has supported an even broader view of 
states' rights. He has argued for ``islands in the stream of commerce'' 
that would be immune from federal regulation. Tribe, Federal-State 
Relations, in 4 JESSE CHOPER, YALE KAMISAR & LAURENCE TRIBE, THE 
SUPREME COURT: TRENDS AND DEVELOPMENTS 1981-1982, at 164 (1983). See 
also LAURENCE TRIBE, CONSTITUTIONAL CHOICES 125-32 (1985).
---------------------------------------------------------------------------
    There are many other examples one can cite. Justice Scalia, which 
the popular culture typically portrays as conservative, voted twice to 
protect burning the American Flag as free speech.\16\ Justice Stevens, 
which the media tells us is liberal, dissented in both of those two 
cases.\17\
---------------------------------------------------------------------------
    \16\ Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 
342 (1989); United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 
L.Ed.2d 287 (1990).
    \17\ Stevens, J. claimed that the majority's opinion would allow 
vandals to spray graffiti on the Washington Monument. 491 U.S. at 436, 
109 S.Ct. at 2556 (Stevens, J., dissenting). However, Congress owns the 
Washington Monument and can prosecute those who defile it as an 
ordinary trespass. Texas did not prosecute Johnson for trespass, 
disorderly conduct, arson, theft of flag, vandalism, etc. Rehnquist, 
C.J., joined by White (a Democratic appointee) & O'Connor, JJ., filed a 
blistering dissent that included long excerpts quoted from poems (such 
as Ralph Waldo Emerson's ``Concord Hymn'' ' ``and John Greenleaf 
Whittier's ``Barbara Frietchie'') hailing the flag.
---------------------------------------------------------------------------
    A few months ago, this Supreme Court voted unanimously to reverse 
the Ohio Supreme Court and hold that a witness who denied wrongdoing 
still had a constitutional right to assert the privilege against self-
incrimination.\18\ I do not think that this and similar decisions can 
be explained by any facile reference to politics.
---------------------------------------------------------------------------
    \18\ Ohio v. Reiner, 121 S.Ct. 1252 (2001) (per curiam). The Court 
comes out this way because the Justices act in good faith without 
regard to political labels.
---------------------------------------------------------------------------
    Justice Scalia recently wrote the opinion that banned warrantless 
searches using hightechnology heat-seeking devices.\19\ By the way, 
Justice Stevens wrote the dissent.\20\ Some commentators cannot 
understand this line-up and complain that Justice Scalia is acting not 
true to form. Perhaps the problem is the commentators. When they cannot 
put a square peg in a round hole, the problem may not be the peg, but 
the commentators who have predicted that the square peg will be round, 
and are upset that their prediction is incorrect.
---------------------------------------------------------------------------
    \19\ Kyllo v. United States, 121 S. Ct. 2038; 150 L. Ed. 2d 94 
(2001), holding that when the Government uses a device that is not in 
general public use, to explore details of a private home that would 
previously have been unknowable without physical intrusion, the 
surveillance is a Fourth Amendment ``search,'' and is presumptively 
unreasonable without a warrant, under the Fourth Amendment.
    \20\ Stevens, J., filed a dissenting opinion, in which Rehnquist, 
C.J., and O'Connor and Kennedy, JJ., joined.
---------------------------------------------------------------------------
    It is interesting that the year after Justice Scalia was appointed 
to the Court, Professor Larry Tribe became one of his fans:

        So far I find myself more in agreement with him than with any 
        other justice this term. His opinions show a degree of care and 
        attention to the actual issues before the Court that is 
        refreshing and I wish was shown by others on the Court. The 
        clarity of his analysis so far puts him in a class by 
        himself.\21\

    \21\ Professor Tribe, quoted in, Adler, Scalia's Court, AMERICAN 
LAWYER, Mar., 1987, at 20.
---------------------------------------------------------------------------
    AND FIFTH, AS A MATTER OF JUDICIAL ETHICS, JUDGES AND CANDIDATES 
FOR JUDGES MAY NOT PROMISE TO VOTE PARTICULAR WAYS ON PARTICULAR CASES. 
Any person who is a candidate for appointment to a judicial office 
``shall not''--

        make pledges or promises of conduct in office other than the 
        faithful and impartial performance of the duties of the 
        office.\22\

    \22\ ABA MODEL CODE OF JUDICIAL CONDUCT, Canon 5A(3)(d)(i). See, 
RONALD D. ROTUNDA, LEGAL ETHICS: THE LAWYER'S DESKBOOK ON PROFESSIONAL 
RESPONSIBILITY Sec. Sec. 62-2 (ABA-West Group, St. Paul, Minnesota, 
2000) (jointly published by the ABA and West Group, a division of 
Thompson Publishing); THOMAS D. MORGAN& RONALD D. ROTUNDA, PROBLEMS AND 
MATERIALS ON PROFESSIONAL RESPONSIBILITY 644-55 (Foundation Press, New 
York, N.Y., 7th ed. 2000).
---------------------------------------------------------------------------
    It is wrong for a nominee to promise to vote a certain way, to 
promise to vote to overrule or to not overrule a particular precedent, 
or promise to approach a legal problem with a particular mind set.
    The Senate should not confirm anyone who should make such promises. 
I have talked to people who went through the vetting process under 
former President Bush and none of them were asked such questions. I 
cannot believe that President Clinton or his aides would have asked 
such questions, nor that such questions would be asked in the vetting 
process under President George W. Bush.
    Senators should not vote for or against a nominee because of 
predictions (often wrong) of how that nominee might vote on legal 
questions. As Professor Larry Tribe has advised, regarding Justice 
Kennedy, ``He's conservative on a great number of issues. I don't have 
any illusions he will be liberal. But he shouldn't be opposed just 
because of that.'' \23\
---------------------------------------------------------------------------
    \23\ HARVARD LAW RECORD, Nov. 20, 1987, at 1, col. 1 (emphasis 
added).
---------------------------------------------------------------------------
    I think it is permissible to ask nominees if they have made any 
promises--other than `` the faithful and impartial performance of the 
duties of the office''--to the President or to any Senator. If the 
nominee has made such promises, then the Senate should know what they 
are. But I believe that neither the Senate nor the President may or 
should seek such promises; the Senate should not confirm someone who 
treats the judicial office as an elected office. If judges are no 
different than politicians, the people should elect them directly.
    As various Democratic commentators have advised, we should not 
oppose judicial nominees because of our predictions of how their legal 
views might mature over the years, and we should not ask nominees to 
promise to vote a particular way on legal issues.\24\ And, as former 
White House Counsel Lloyd Cutler under President Carter and President 
Clinton, and former Representative Mickey Edwards (R., Okla.) have 
recommended: ``the president and the Senate must not ask for, and the 
candidate not offer or consent to give, any pre-commitments about 
unresolved cases or issues that may come before them as judges.'' \25\
---------------------------------------------------------------------------
    \24\ Ruth Bader Ginsburg, Inviting Judicial Activism: A ``Liberal 
`` or ``Conservative `` Technique?, 15 GA. L. REV. 539, 553-57 (1981); 
Smith, Involving the Judiciary in Pdlitical Campaigns, 66 A.B.A.J. 1318 
(1980) (American Bar Association's House of Delegates declare that it 
disapproves of ``any [political party] platform plank'' that deviated 
from the selection of judges on the basis of merit by requiring a test 
of the candidate's ``particular political or ideological 
philosophies.''); HARVARD LAW RECORD, Nov. 20, 1987, at 1, col. 1, 
quoting Professor Larry Tribe.
    \25\ 
---------------------------------------------------------------------------
    Lloyd Cutler & Mickey Edwards, Avoiding a Political Dead End on 
Judges, Scripps Howard News Service, Aug. 24, 2001, reprinted in, 
http://www.nandotimes.com/opinions/v-text/stoDL/6601 1 p-
941658c.html?printer%20
    In short, Senatorial questions to nominees ought to be guided by 
three standards:

         FIRST, it is essential that the independence of the 
        courts be preserved. This means that the business of judging 
        cannot be treated as though it is solely outcome-based, i.e., 
        who wins and who loses on a particular policy issue.
         SECOND, we want fair courts--not liberal courts, not 
        conservative courts, not moderate courts, but fair courts, and 
        by ``fair,'' I mean we want judges who will call them as they 
        see them, without regard to politics. And,
         THIRD, neither Senators nor the President should ask 
        nominees about particular issues and outcomes because nominees 
        should only promise the faithful performance of their judicial 
        duties.

    With that introduction, let me turn in more detail to some 
interesting history that may, hopefully, put the present issues in 
perspective.
                         Our Earlier Traditions
    It has only been in relatively recent times that the Senate has 
subjected nominees to wide-ranging confirmation hearings, yet it has 
always been a given that the nominees do not make promises other than 
the faithful performance of their judicial duties. The last 
threequarters of a century has seen dramatic changes in the style and 
format of these hearings.
    The hearing process used to be much simpler. For example, on 
September 4, 1922, Justice John H. Clarke resigned. On the very next 
day, President Warren Harding nominated George Sutherland to the 
Supreme Court, and the Senate confirmed later that same day.\26\ No one 
would expect the Senate to act so promptly today.\27\
---------------------------------------------------------------------------
    \26\ H. ABRAHAM, JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF 
APPOINTMENTS TO THE SUPREME COURT 186 (2d ed. 1985).
    \27\ When President Clinton left office, there were 41 judicial 
nominees pending, and 67 judicial vacancies. Today, there are 107 
vacancies on the Federal Bench.
---------------------------------------------------------------------------
    Until 1929, if the Senate Judiciary committee would hold 
confirmation hearings on the Supreme Court nominee, they would be 
closed.\28\ And, until relatively recent times, the nominee would never 
appear and testify at the confirmation hearing.
---------------------------------------------------------------------------
    \28\ 71 CONG. REC. 3039 (1929). It was not until 1981, during the 
confirmation hearings of Sandra Day O'Connor, that the Senate Judiciary 
Committee allowed radio and television to be present in the hearing 
room. See Nina Totenberg, The Confirmation Process and the Public: To 
Know or Not to Know, 101 HARV. L. REV. 1213, 1213 & n.1 (1985).
---------------------------------------------------------------------------
    For most of our history, it was considered inappropriate for a 
judicial nominee to appear in person and testify. The Senate had the 
duty to advise and consent, but the senators should not directly 
question nominees about their philosophies. Typically the nominee might 
be staying at a hotel near the Capitol, where he could respond to 
questions by sending telegrams or letters to the committee, but he 
would not personally attend and would not be subject to direct and 
follow-up questioning.\29\
---------------------------------------------------------------------------
    \29\ See Frank, The Appointment of Supreme Court Justices: 
Prestige, Principles, and Politics, 1941 Wis L. REV. 172, 200-04 
(1941).
---------------------------------------------------------------------------
                          Personal Appearance
    The first nominee who actually appeared in person was Harlan Fiske 
Stone. Calvin Coolidge nominated Stone on January 25, 1925. In accord 
with the custom of the time, Stone did not appear before the Senate 
Judiciary Committee, which approved him unanimously. But Stone had a 
powerful adversary, Burton K. Wheeler, Senator from Montana, and 
Wheeler had many friends. Wheeler was under investigation by the 
Justice Department, and Stone was the attorney general who had asked 
Wheeler to appear before a federal grand jury in Washington, D.C.
    Senator Thomas Walsh, on behalf of Wheeler, persuaded the Senate to 
resubmit the nomination to the committee. Stone then took the 
unprecedented step of agreeing to appear before the committee for a 
narrow purpose: to answer questions about the Wheeler affair, provided 
that the hearing would be public. On January 28, the committee 
questioned Stone for nearly five hours. On February 2, in executive 
session, the committee again sent forward Stone's nomination, and the 
Senate approved 71 to 6, with Wheeler and the other Montana senator 
abstaining.\30\
---------------------------------------------------------------------------
    \30\ A. MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 188-99 (1956).
---------------------------------------------------------------------------
    Interestingly, Wheeler later became good friends with Stone; 
Wheeler believed that someone had lied to Stone, for ``that [is] the 
only way you can account for the handling of the case against me after 
he became Attorney General.'' \31\
---------------------------------------------------------------------------
    \31\ A. MASON, supra, at 191 n.*.
---------------------------------------------------------------------------
    After Stone's testimony, the Senate reverted to its standard 
procedure of having confirmation hearings without the nominee's ever 
testifying. In fact, five years after Stone's appearance, when Herbert 
Hoover nominated Judge John Parker to the Supreme Court, the Judiciary 
Committee rejected a motion to allow him to appear the committee and 
testify! \32\ Parker had to follow the traditional procedure of 
answering any charges made against him in writing.\33\ The Senate 
rejected Parker and then approved the next nominee, Owen Roberts.
---------------------------------------------------------------------------
    \32\ W. BURNS, DUTY AND THE LAW: JUDGE JOHN T. PARKER AND THE 
CONSTITUTION 84-85 (1987).
    \33\ See, e.g., 72 CONG. REC. 7793-95 (1930).
---------------------------------------------------------------------------
    Felix Frankfurter also broke tradition and appeared before the 
Judiciary Committee. At first, Frankfurter followed tradition and 
refused to appear personally before the committee, but after a steady 
stream of witnesses attacked Frankfurter, his associations, his foreign 
birth, and his religious beliefs, the committee asked him to appear. He 
did so, accompanied by his lawyer, Dean Acheson.
    Frankfurter began by reading a prepared statement declaring that he 
would not discuss or express his personal views on controversial issues 
that were before the Court. He responded to Sen. Patrick McCarran's 
questions about his patriotism by affirming his belief in 
``Americanism.'' His personal appearance was dramatic and brief. He 
spoke, in total, only for about 90 minutes.\34\
---------------------------------------------------------------------------
    \34\ HEARINGS ON THE NOMINATION OF FELIX FRANKFURTER BEFORE THE 
SUBCOMM. OF THE SENATE JUDICIARY COMM., Jan. 11-12 (1939); L. BAKER, 
FELIX FRANKFURTER 208-10 (1969).
---------------------------------------------------------------------------
    John Marshall Harlan was the third nominee who appeared to testify. 
Since that time, which only dates to 1955, supreme court nominees have 
appeared and given testimony. This relatively recent tradition now has 
become so expected that it would be unheard of for a nominee to refuse 
to speak before a public session of the Senate Judiciary Committee.
                             Courtesy Calls
    Another new tradition has developed relatively recently. It has now 
become the norm for Supreme Court nominees to pay courtesy calls on 
selected senators. While it is true that Louis Brandeis had an informal 
dinner meeting with two senators who had expressed doubts on his 
nomination,\35\ the Brandeis meeting was like the Stone personal 
appearance, viewed as an aberration and not as leading to any new 
tradition.
---------------------------------------------------------------------------
    \35\ A. MASON, BRANDEIS: A FREE MAN'S LIFE 503-04 (1946).
---------------------------------------------------------------------------
    Within the last few decades, the new custom for the modern nominee 
is to walk the corridors of the Senate buildings and meet privately 
with individual senators. Afterward, a senator may announce to the 
press that the senator has had doubts answered (or not answered) and 
will therefore support (or oppose) the nomination. Justice Sandra Day 
O'Connor, for example, made various courtesy calls reported by the 
press.\36\
---------------------------------------------------------------------------
    \36\ Judge O'Connor Talks with Potential Critics, N.Y. Times, July 
18, 1981, at 24, col. 1; Mrs. O'Connor Makes the Scene, N.Y. Times, 
July 19, 1981, Sec. IV, at 4, col. 2.
---------------------------------------------------------------------------
    Some commentators have criticized this new convention.\37\ What 
exactly does the nominee say in private? The senators usually do not 
tell us but merely make conclusory statements. Perhaps that is all that 
was said. This practice now seems a permanent fixture.
---------------------------------------------------------------------------
    \37\ E.g., Marcy, Nominees Shouldn't Pay Courtesy Calls on 
Senators, N.Y. Times, July 29, 1981, at A23, col. 3.
---------------------------------------------------------------------------
    With the advent of personal appearances before the Senate Judiciary 
Committee, some people think that the senators would use the hearing to 
glean some knowledge about the nominee's philosophy of constitutional 
interpretation. Some commentators believe that an often unstated 
purpose is to know something about how the nominee might decide a 
controversial issue, such as search and seizure.
    Yet, in spite of all the efforts to predict how nominees will rule 
and in spite of the modern tools now used to try to divine how the 
nominee will act once confirmed, the batting averages of presidents and 
senators and the general public have been remarkably poor. We should 
not be surprised that senators have been no more successful than 
presidents in predicting how nominees will turn out. The same 
president--Franklin Roosevelt--who nominated conservative Felix 
Frankfurter to the Court also nominated liberal William O. Douglas. It 
may be easier to predict stock market tops and bottoms than to predict 
how nominees will rule.
    The analogy between stock-market watching and Court watching is a 
useful one. Some money managers develop good short-term records in 
timing the stock market (i.e., deciding the best times to buy and sell) 
and predicting the various turns in the market, but it is much harder 
to develop a consistent long-term record. The market timer must know 
not only when to sell (when the market is at the top), but also when to 
buy.
    Business school studies typically conclude that it is very 
difficult--if not impossible--to consistently time and beat the market 
over the long term. Similarly, it is extremely difficult--if not 
impossible--to predict with any consistency how Court nominees will 
turn out.
    If a lot of predictions are made, some will be correct. Even a 
stopped clock is right twice a day. But the president and the Senate do 
not have the luxury of making a lot of predictions. A president may 
have only one or two nominations to make (Jimmy Carter had none), and a 
Supreme Court appointee may sit on the Court for decades. The margin of 
error in making predictions must be remarkably small. History has shown 
us that the margin of error is, in fact, quite high.
    Joseph Story. Consider President James Madison's appointment of 
Joseph Story in 1811. Why did Madison choose Story? Madison was a 
member of the Democratic-Republic party. His mentor, Thomas Jefferson, 
had defeated the last Federalist to hold the presidency, John Adams. 
Story, like his father before him, and like Madison, was also a 
DemocraticRepublican. President Madison probably expected that the 
strong-willed Story, already a successful lawyer, politician, and legal 
scholar, would serve as an intellectual counterweight to the views of 
Federalist Chief Justice John Marshall. Yet, once on the Court, Story 
often supported and expanded Marshall's views.\38\ Some contemporaries 
concluded that he even outMarshalled Marshall.
---------------------------------------------------------------------------
    \38\ See JOSEPH STORY'S COMMENTARIES ON THE CONSTITUTION, at pp. v-
xxii. (Ronald D. Rotunda & John E. Nowak eds. 1987).
---------------------------------------------------------------------------
    Hugh Black. The difficulty in predicting a nominee's performance is 
also well illustrated in more modern times by FDR's appointment of 
Alabama senator Hugo Black. Black was generally viewed as a Roosevelt 
crony. Black had enthusiastically supported Roosevelt's ill-fated 
efforts to pack the Court. Black had even once been a member of the Ku 
Klux Klan. Although he had resigned a dozen years before his Supreme 
Court appointment, he still received an unsolicited membership card, 
and many people charged that his resignation was opportunistic; a 
leopard never changes his spots.\39\ But Black surprised his critics.
---------------------------------------------------------------------------
    \39\ H. ABRAHAM, JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF 
APPOINTMENTS TO THE SUPREME COURT 359 (2d ed. 1985).
---------------------------------------------------------------------------
    If the Senators had tried to predict how Black would rule on racial 
and free speech issues, they most certainly would have guessed wrong, 
and we would have been deprived of one of the greatest Justices in our 
nation's history.
    Oliver Wendell Holmes. Even short-term predictions are often wrong. 
President Theodore Roosevelt appointed Oliver Wendell Holmes to the 
Court and thought he would strengthen federal power over interstate 
commerce. In one of the first major opinions after Holmes was 
appointed, the Court upheld federal power but Holmes dissented. T.R. 
then announced that he ``could carve out of a banana a judge with more 
backbone than that.'' \40\
---------------------------------------------------------------------------
    \40\ See RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW 171 (West 
Group, 6`h ed. 2000).
---------------------------------------------------------------------------
    Modern Nominees. Dwight Eisenhower appointed William Brennan and 
Earl Warren, both of whom turned out to be strong liberals. Sandra Day 
O'Connor was considered a rightwing ideologue. Now the news media and 
many commentators regard her as a leader of the moderates.\41\ O'Connor 
has also upset those who have disagreed with her votes to allow 
restrictions on the previously declared women's right to an abortion.
---------------------------------------------------------------------------
    \41\ See, e.g., Galloway, Who's Playing Center, A.B.A.J., Feb. 1, 
1988, at 42, 45.
---------------------------------------------------------------------------
    Some Court watchers believe that they can prophesy what a nominee 
will do by looking at his record. This belief may be a factor 
encouraging presidents to look primarily at lower-court judges when 
choosing appointees to the High Court. However, like generals who are 
always fighting the last war, past practices do not always control the 
future. We can look to history not for prophecy, but for conjecture.
                          Judicial Philosophy
    In recent times, Court watchers have also sought to focus on the 
judicial philosophy of the nominee. Evidence that the nominee will seek 
to look at the historical intention of the framers of our Constitution 
is strong evidence, we are told, that the nominee will be too 
conservative.\42\ For example, if a justice would claim that ``justices 
are not platonic guardians appointed to wield authority according to 
their personal moral predilections,'' many commentators would see such 
a declaration as a code word for judicial conservatism. Yet the 
language just quoted came from Justice William Brennan only a few years 
ago, in 1985.\43\ Brennan, will go down in history as one of our most 
influential justices. There are those who believe that the Senators 
should look for code words or phrases to determine a justice's 
philosophy and that Justice Brennan's reference to judicial restraint--
``justices are not platonic guardians''--should be the kiss of death. 
These people would have voted against Justice Brennan.
---------------------------------------------------------------------------
    \42\ See, e.g., M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN 
RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING 
BY THE JUDICIARY iX-X, 101-14 (1982) [judges should seek the ``right 
answers'' by going ``beyond the value judgments established by the 
framers of the written Constitution (extraconstitutional 
policymaking)'']; L. TRIBE, AMERICAN CONSTITUTIONAL LAW iv (1978) 
(judges should have a ``more candidly creative role'').
    \43\ Justice William Brennan, quoted in N.Y. TIMES, Oct. 13, 1985, 
at 36, col. 2.
---------------------------------------------------------------------------
    Finally, when we seek to predict how a nominee will vote on the 
Court, we should remember that predictions of what might happen later 
this afternoon or tomorrow morning are easier than predictions of what 
will happen in six months or six years.
    The stock-market analogy is again instructive here. The amount of 
money one can make in the market is usually quite limited if one's 
horizon is measured in just hours or a few days. As finance studies 
show, buying and holding stock for the long term is more profitable 
than trying to guess the latest zig and zag in the market. The real 
question is whether one can make money over the long term, and in order 
to do that, one needs a long-term outlook. It is necessary to act like 
an investor, not like a speculator.
    If we treat the Supreme Court as an investment and not as a 
speculation, then the president and the senators and the media as well 
should worry less about how a nominee might vote on any particular 
issue than about what they think of the nominee's personal integrity, 
good faith, and intellectual ability.\44\ The alternative, trying to 
predict how a justice will act on particular legal issues for 5 or 10 
years from now is difficult, if not impossible. We do not know what the 
major judicial questions will be 5or 10 years from now. We would be 
even less successful in forecasting what the liberal or conservative 
answers to those questions will be.
---------------------------------------------------------------------------
    \44\ In the past, people have argued that Senators should reject a 
nominee because they disagree with his politics. The history of these 
instances should teach us to be more meek. Consider the extensive 
criticism of Justice Brandeis: ``The senior Senator from Massachusetts 
said of Brandeis that he `may be keen of intellect . . . but his record 
impeaches him on far higher grounds than those of intellectual 
ability.'' McDonald, Supreme Court Nominees: A Look at the Precedents, 
WALL ST. J., Sept. 16, 1987, at col. 3 (Midwest ed.).
    The President of the American Bar Association and six former ABA 
Presidents agreed that Brandeis was ``not a fit person to be a member 
of the Supreme Court.'' Id. See generally, A. MASON, BRANDEIS: A FREE 
MAN'S LIFE 465-508 (1946); A. L. TODD, JUSTICE ON TRIAL: THE CASE OF 
Louis D. BRANDEIS (1964).
---------------------------------------------------------------------------
    President Bush has made several nominations already.\45\ Some 
people have criticized some of them as possessing the wrong ideology. I 
do not know how these nominees will vote on the bench in specific 
cases, and I doubt that they do either. It is one thing to argue as an 
advocate for a client and another to decide as a judge. It is one thing 
to write an article about a legal issue and another to decide a 
concrete issue with concrete parties.
---------------------------------------------------------------------------
    \45\ In President Clinton's eight years in office (six of them with 
a GOP Senate), Clinton had 377 of his judicial nominees confirmed. 
President Reagan's record was only five higher at 382, despite the fact 
that he also had 6 years with a GOP Senate. There are those who say 
that some Republicans hindered President Clinton's appointments of 
federal judges. Even if that charge is true--and I am sure some people 
sincerely believe it--President Bush is hardly to blame. He was in 
Texas attending to state business at the time. Nor are his nominees at 
fault.
---------------------------------------------------------------------------
    This simple fact is illustrated by no less a judicial titan than 
Judge Henry Friendly, a great judge and prolific author. In one case, 
when one of the parties cited to him one of his own articles indicating 
how an issue should be decided, Judge Friendly decided that he 
disagreed with what he himself had earlier written; the genius of the 
common law system, as he recognized, is that judges must make the 
decisions in the context of concrete cases, not in the context of law 
review articles. Judge Friendly dissented,\46\ while the majority 
relied Friendly's law review article.\47\
---------------------------------------------------------------------------
    \46\ Williams v. Adams, 436 F.2d 30, 35 (2nd Cir. 1970) 
(Friendly, J., dissenting). Judge Friendly (the Judge, not the author) 
was vindicated when the Second Circuit, en banc, reversed the panel 
decision, in 441 F.2d 394 (2d Cir. 1971) (per curiam). But the U.S. 
Supreme Court agreed with Henry Friendly, the author, and not Henry 
Friendly, the judge, as it reversed the Second Circuit. Adams v. 
Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
    \47\ Williams v. Adams, 436 F.2d 30, 34 n.2 (2nd Cir. 
1970), quoting, Henry Friendly, The Bill ofRights as a Code of Criminal 
Procedure, 53 CALIFORNIA LAW REVIEW, 929, 952 (October, 1965).
---------------------------------------------------------------------------
    What I do know of President Bush's nominees is best expressed by 
another excellent lawyer, Walter Dellinger, who was acting solicitor 
general in the Clinton administration. After President Bush announced 
his list, Mr. Dellinger said that, ``although he couldn't comment 
knowledgeably on all the nominees, `this is a very strong list in terms 
of professional qualifications.' In particular, he cited John Roberts, 
a Washington lawyer and Supreme Court practitioner, and Michael 
McConnell, a University of Utah law professor.'' \48\
---------------------------------------------------------------------------
    \48\ Robert S. Greenberger, Bush To Send List of II Diverse 
Nominees For US. Appeals Courts To Senate Panel, THE WALL STREET 
JOURNAL, May 9, 2001.
---------------------------------------------------------------------------
                               Conclusion
    As I have explained in this statement, the history of the 
nomination and confirmation process supports the Senate's current 
practice of focusing on a nominee's character and ability to follow the 
law rather than his or her putative political ideology and reputed view 
on particular politically hot topics of the day. The Senate should 
continue to play the constitutionally mandated role of reasoned advisor 
to the President, not prophet, seer, or investigative reporter.
    Further, nominees should only promise the faithful performance of 
their judicial duties. Hence, there should be no presumption against 
confirmation if a nominee chooses not to answer a politically charged 
question, or if question requires (or appears to require) the nominee 
to promise to decide a legal question of particular way, or if he or 
she believes an answer will compromise (or will appear to compromise) a 
judge's ability to later make an independent law-based decision. 
Nominees should not be judged or punished because of the clients that 
they have represented.
    The Twentieth Century has demonstrated that we have the best 
judicial system in the world, bar none. The Senate has the weighty 
responsibility to preserve it by not changing the ground rules as we 
begin the Twenty-First Century.

    Chairman Schumer. Thank you, Professor Rotunda, for your 
succinct and pointed testimony.
    Next is Judith Resnik. Judith Resnik is the Arthur Liman 
Professor of Law at Yale Law School. We have never met, but 
Arthur Liman was a mentor to me. I didn't know that until I 
read this, but double welcome.
    She is also a graduate of Bryn Mawr College and the New 
York University School of Law. She chairs the Federal Courts 
Section of the American Association of Law Schools, serves on 
the ABA Standing Committee on Judicial Improvements, and is a 
member of the American Academy of Arts and Sciences. She is 
also an occasional litigator in the Federal courts, including 
the United States Supreme Court. In addition to being the 
coauthor of a leading civil procedure textbook, she has written 
extensively on the role of the Federal judiciary in the 20th 
century.
    Professor Resnik, your entire statement is read into the 
record. Please proceed.

STATEMENT OF JUDITH RESNIK, PROFESSOR OF LAW, YALE LAW SCHOOL, 
                     NEW HAVEN, CONNECTICUT

    Ms. Resnik. Thank you for inviting me to testify. I want to 
address in these moments two burdens, the burden on the nominee 
to demonstrate qualifications to serve as a Federal judge and 
the burden on this Senate as a practical matter to discharge 
its constitutional obligations of advice and consent.
    First, the burden on the nominee. No person is entitled to 
a life-tenured judgeship. It is a unique charter in this 
polity. Federal judges ought not to be appointed to be a part 
of the President's team. That they have the President's 
endorsement should never be enough alone to turn someone into 
an Article III judge.
    I am using the words ``Article III judge'' deliberately 
because I want to draw your attention to all of the life-
tenured judiciary, trial and appellate, as well as the Supreme 
Court. And, here, I will disagree with Senator Simon. There 
were 300,000 cases filed, a bit more than that, in Federal 
courts last year, 14,000 trials, 7,000 trials by juries and a 
comparable number by trial judges. As Senator Thompson told us, 
trial judges are central, powerful decisionmakers. They 
interpret laws, they understand facts. They put weight on some 
facts and not on the others.
    District Courts are not only our courts of first instance, 
but by and large, for most people they are the courts of last 
instance. From about 300,000 trial level cases, some 60,000 
appeals are filed. The U.S. Supreme Court decides only about 75 
cases a year. So trial and appellate court judges are the 
judges for our people. Article III judges are at all levels and 
I hope you will have the energy to take seriously each and 
every nomination.
    Now, there has been a question here about ground rules. The 
Federal judiciary is changing the ground rules. Tomorrow, I 
begin a first-year procedure class. I will have to report to my 
new students that a black-letter rule of law with which I grew 
up, that courts held a presumption that congressional statutes 
were entitled to deference and were, expected to be 
constitutional--that black-letter rule is no longer the rule.
    This Supreme Court, by a bare 5-4, time and again, has not 
accorded the deference due to this body in its lawmaking 
function. Simply put, Congress has less Commerce Clause powers 
than it had in 1994. Of the 11th Amendment and 14th Amendment, 
the same can be said.
    At issue are not just constitutional rights, but statutory 
rights. Recently, we have seen the Federal bench start to treat 
the Congress as a wayward lower district court, or worse. 
District Court findings cannot be set aside unless clearly 
erroneous. Congressional findings have been given less respect 
in some instances.
    This is a time to appreciate that the federal courts are 
engaged in affecting the meaning and allocation of power in the 
U.S. Federal system. Some of our trial judges, our life-tenured 
district court judges, are out ahead of the Supreme Courts 
interms of narrowing Congressional powers. For example, take 
the Child Support Recovery Act, passed in 1992, providing that 
if debt is owed across State lines because of failure to 
support children, criminal offense may have occurred. Some 
lower court judges have said that this kind of debt is not 
within the scope of Congressional commerce powers.
    We also have lower court judges saying the Family and 
Medical Leave Act cannot be applied against States in 
particular fashions. We have lower court judges saying that 
when Congress passes an Act under the Spending Clause, that is 
not a ``law'' for purposes of the supremacy of Federal law.
    So, point one: discussion today has focused on whether this 
Committee is changing the rules. There are new rules, but they 
come from the courts, not this Committee, and those new rules 
are being applied against the Congress.
    Point two: the job of the Federal judiciary has changed 
over the last three decades because, in addition to life-
tenured Article III judges, we now have bankruptcy and 
magistrate judges sitting within the life-tenured Article III 
courts. I don't have a blue and red chart, such as those 
provided by others, but I did append a chart in my testimony. 
You will see fromit about 845 magistrate and bankruptcy judges, 
statutory judges that sit for limited but renewable terms now 
at the trial level, along with 646 trial-level life-tenured 
judges.
    So Article III judges don't just adjudicate. They select a 
group of people, their statutory siblings, who are now larger 
in number than the number of authorized trial level judgeships. 
That means that life-tenured judges can reproduce themselves. 
So when you confirm one judge, you are confirming more, because 
magistrate judges are selected by the district courts and 
bankruptcy judges by the appellate courts. In 6 Federal 
district courts in the winter of 2001, the number of magistrate 
judges was greater than that of life-tenured judges; in 16, 
their numbers were equal.
    So the second reason for careful scrutiny: the Senate is 
not just confirming one judge; you are picking judges who now 
have powers of selection, appointment, and reappointment.
    The third point: life-tenured judges have changed the job 
in another respect. Starting in the last two or three decades, 
the Federal judiciary has become active in using its corporate 
voice, taking on the role as an Article III adviser to 
Congress. The judiciary has started issuing policy statements 
advising Congress about whether to create new causes of action.
    If someone asks--does the Federal judiciary have an 
ideology? To answer one must look not only at published 
opinions. One must also read the Long-Range Plan of the Federal 
courts. Recommendation one of about 90 recommendations is the 
presumption against the creation of new Federal rights, new 
civil causes of action, new criminal causes of action. The 
Judicial Conference of the United States now lobbies, 
attempting to influence policy decisions. Currently, it urges 
that a presumption against the creation of new rights.
    Given that the judiciary has taken up these three roles: 
advisor to Congress, appointer of other judges, overseer of 
Congress, it has never been more important for the Senate to 
think hard and long about who ought to be joining the bench. 
The burden ought to be on the person seeking to join the bench. 
Then, turn to the question about how the Senate exercises an 
active role. There is an aura of apology around, as if to say: 
``Oh, dear, isn't it too bad that the Senate is doing this? '' 
I think it is time to stop apologizing. This is one of many 
great places to develop norms about who we are in the United 
States, about what we do value, about what we do care.
    Take the example of women's rights. Up until 1970, it 
wasn't discussed in nomination hearings. In the 1970's, it was 
mentioned, but not important at all. Not until 1987 did it 
become an aspect of what is expected of people who seek to join 
the life-tenured bench--that they be fully committed to equal 
rights for all of us here.
    Now, I want to turn to the question of how the Senate 
discharges its burden. I want to respond to the concern about 
logistics. I have a practical suggestion, which is that you 
could develop an advisory Committee of lawyers and citizens, 
not just lawyers, to help advise this body as it goes about 
learning about judicial nominees. This proposal is akin to that 
used by many Senators, who rely on merit selection committees; 
Governors and States do so as well. Augment your resources: 
bring in the public. Make it a group of people who can help 
advise you on these questions.
    Now to the question, of whether to ask about judicial 
nominees' attitudes--call them philosophy, ideology, activism, 
call it jurisprudential views. This is exactly the question 
that needs to be asked: Who are these people? What are their 
attributes? Answers ought not to rely only on the back-and-
forth, stylistic questioning. What have they done in their 
life?
    The word ``mensch,'' a Yiddish word is apt here. It means 
that a person is good person in the world. In this context the 
focus ought to be on wheather nominees have, for example, 
provide free legal services to people who need them, or whether 
they joined in the enterprise of helping this country be true 
to its values by making the courts accessible to all, such as 
whether, they have dealt with problems of handicapped access to 
the courts, or dealt with problems of bias in the courts. There 
are hundreds of opportunities for we who are lawyers, law 
professors and a part of this community to volunteer our time 
and our energy. You can look objectively at what choices 
nominees have made as lawyers in this world.
    Thank you.
    [The prepared statement of Ms. Resnik follows:]

  Statement of Judith Resnik, Arthur Liman Professor of Law, Yale Law 
                                 School

    Thank you for inviting me to testify. I applaud the Committee for 
taking the time to reflect on its role in the confirmation' process.
    I will speak to two issues: (a) the major transformations within 
the federal courts during the last half-century that have augmented the 
powers of life tenured judges, and (b) the contributions that the 
Senate has made and ought to continue to make when discharging its 
constitutionally-mandated role of evaluating individuals proposed for 
life tenured judgeships.
                        The Federal Courts Today
    Article III judges are unique in this constitutional democracy as 
they hold their charter for life. Those selected and confirmed to serve 
must, therefore, be individuals in whom all can have confidence.
    I use the term ``Article III judges'' deliberately, as I hope that 
your attention and your energies will not be focused exclusively on 
nominees to either the Supreme Court or the appellate courts. Life 
tenured district judges are critical and powerful actors as well, and 
their appointments also merit your full consideration.
    Indeed, the saliency and import of the federal judiciary has grown 
substantially over the twentieth century, with an increase in the 
number of life tenured judges and with an increase in their docket. 
Recall that one hundred years ago, in 1901, some 70 district judges sat 
throughout the country, with a single judge serving entire states, such 
as Maryland, Massachusetts, and Indiana.
    Today, more than 650 authorized judgeships exist in the district 
courts. In addition, some 180 appellate court judgeships are 
authorized, and hundreds of senior Article III judges augment this work 
force.
    During the second half of the twentieth century, Congress also 
authorized two new sets of federal judges--magistrate and bankruptcy 
judges. These judges sit within the Article III judiciary but do not 
have life tenure and constitutionally protected salaries; rather they 
serve for renewable terms. Today, more than 450 magistrate and 325 
bankruptcy judges join district judges at the trial level. For clarity, 
I shall refer to the life tenured federal judges as our constitutional 
federal judges, and to those judicial officers who work within our 
Article III courts but without constitutional guarantees as statutory 
federal judges.
    In short, the federal judiciary today looks vastly different than 
it did, even fifty years ago. Congress has played a central role in 
this expansion--by authorizing new life-tenured judgeships, by creating 
auxiliary, statutory judgeships and periodically enlarging their 
mandates, and by giving new work to the federal courts. According to 
the Administrative Office of the United States Courts, between 1974 and 
1998, more than 470 new causes of action were created.\1\

    \1\ Administrative Office of the U.S. Courts, Revision of List of 
Statutes Enlarging the Court Workload (Sept. 17, 1998) (memorandum).
---------------------------------------------------------------------------
        As a consequence, constitutional judges today have three tasks:
         First, as is familiar, they adjudicate, and their 
        rulings touch our lives in a myriad of ways. Today, the federal 
        judiciary's profile is especially high, with recent rulings 
        that have held unconstitutional several federal statutes.
         Second, constitutional judges now have the 
        responsibility of selecting statutory judges. The district 
        court selects and then decides whether to reappoint magistrate 
        judges; the appellate courts do the same for bankruptcy judges. 
        Recall the numbers; the constitutional trial bench is now 
        somewhat smaller in number than its statutory siblings \2\ 
        Indeed, as of 2001, in six district courts, the number of 
        magistrate judges was greater than that of life tenured judges; 
        \3\ in another sixteen, their numbers were equal.\4\ 
        Constitutional judges are thus responsible for the selection, 
        appointment, and reappointment of more than 700 statutory 
        judges. Those chosen to be our constitutional judges therefore 
        not only shape the law through adjudication; they also shape 
        the law by deciding who will serve as our statutory judges.

    \2\ See Chart I, Authorized Trial Level Federal Judgeships in 
Article III Courts, Nationwide (1999), appended.
    \3\ As of January 2000, those districts were: the Middle and 
Southern Districts of Alabama, the Western District of New York, the 
Eastern and Southern Districts of California, and the Western District 
of Texas. Telephone interview with staff, Magistrates Division, 
Administrative Office of the U.S. Courts (Jan. 9, 2001).
    \4\ Those districts were in New Mexico, Arizona, the Northern 
District of New York, the Virgin Islands, the Western District of North 
Carolina, the Middle District of Louisiana, the Northern District of 
Mississippi, the Western District of Michigan, the Eastern District of 
Arkansas, the Northern and Southern Districts of Iowa, North Dakota, 
Idaho, Montana, Oregon, and the Southern District of Georgia. Telephone 
Interview with staff, Magistrates Division, Administrative Office of 
the U.S. Courts (Jan. 9, 2001).
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         Third, the life-tenured judiciary has, over the course 
        of the last several decades, taken it upon itself to advise 
        Congress about the desirability of creating new causes of 
        action, both civil and criminal. That role is new and 
        represents a change in attitude. In the earlier part of the 
        century, the life tenured judiciary thought it inappropriate to 
        provide this form of collective advice on matters of 
        legislative policy.\5\ Now, however, through the Judicial 
        Conference of the United States, the Article III judiciary 
        relies on its corporate voice to promote the use of the federal 
        courts for certain matters and not for others.\6\ On several 
        occasions, it has urged this Congress not to enact certain 
        causes of action.\7\ Constitutional judges have thus taken on a 
        lobbying role, pressing this Congress to enact legislation that 
        comports with a very particular and narrow view of the role of 
        the federal courts.
---------------------------------------------------------------------------
    \5\ Individual judges and justices have, in contrast, often 
provided their views. See EDWARD PURCELL, BRANDEIS AND THE PROGRESSIVE 
CONSTITUTION: ERIE, THE JUDICIAL POWER & THE POLITICS OF THE FEDERAL 
COURTS IN TWENTIETH CENTURY AMERICA (2000).
    \6\ See, e.g., THE JUDICIAL CONFERENCE OF THE UNITED STATES, LONG-
RANGE PLAN FOR THE FEDERAL COURTS, reprinted at 166 F.R.D. 49 (1995).
    \7\ For example, the Judicial Conference warned against enactment 
of Y2K legislation; it also initially opposed the Violence Against 
Women Act and then, in 1993, decided to take no position. See Judith 
Resnik, The Programmatic Judiciary: Lobbying, Judging, and Invalidating 
the Violence Against Women Act, 74 SO. CAL. L. REV. 269 (2000). See 
also Judith Resnik, Trial as Error, Jurisdiction as Injury: 
Transforming the Meaning of Article III, 113 HARV. L. REV. 925 (2000).

    In sum, when asked to think about whether the current federal bench 
has a point of view, Congress should turn not only to the judgments 
rendered but also to the policy positions taken. In 1995, the Judicial 
Conference of the United States, in its first-ever long-range plan,\8\ 
urged Congress to limit access to the federal courts and to have a 
presumption against the creation of new civil causes of action and new 
criminal protections for citizens. And beginning that very same year, 
the United States Supreme Court, in a series of 5-4 rulings, held 
unconstitutional criminal and then civil causes of action that this 
Congress had enacted.\9\ The voices that now dominate the federal 
judiciary surely have a particular ideological stance--against the use 
of the federal courts for the protection of a wide range of rights and 
against the enactment by this Congress of new rights for Americans.
---------------------------------------------------------------------------
    \8\ See note 6, supra.
    \9\ See, e.g., United States v. Lopez, 514 U.S. 549 (1995); United 
States v. Morrison, 529 U.S. 598 (2000).
---------------------------------------------------------------------------
    Given the multiplying of roles for life tenured judges and the 
increasingly consistent anti access approach of many sitting jurists, 
the question of selection of constitutional judges has never been more 
important. And, given the close divide at the last election and the 
current split in government, it is incumbent on the Senate to ensure 
that the federal judiciary as a whole reflects the breadth of concerns 
in this polity.
 The Senate's Role: Reflecting and Articulating Legal Norms and Values
    A first question posed for these hearings is about the Senate's 
role, and specifically whether the Senate ought to consider the 
attitudes, judicial philosophy, and ideology of nominees. The Senate's 
historical practices make plain that it has done so in the past.
    I hope I can help make clear that considering the bedrock views of 
nominees is not only common and unavoidable (albeit often done 
implicitly) but also to be celebrated as contributing to our legal 
norms. When attitudes are widely shared, they are not perceived to be 
``ideology.'' Only when norms and values are contested do we think of a 
set of questions as touching on ideology. The nominations of judges is 
one place in which legal norms are expressed--and, equally importantly, 
developed. Through hearings such as this set and those of individual 
nominees, we learn about and we develop this nation's values.
    The important contribution of the Senate--and the work yet to be 
done--can be illustrated by a brief review of when the question of 
women's rights became a part of discussions at nominations. It was not 
until 1970 that a nominee, George Harrold Carswell, was questioned 
about his attitudes towards women.\10\ Congresswoman Patsy Mink from 
Hawaii called the nomination of Carswell ``an affront to the women of 
America;'' she cited his role in a case upholding the refusal to employ 
women with children of pre-school age, although men with children of 
pre-school were so employed.\11\ When Senator Birch Bayh of Indiana 
asked Judge Carswell to address ``the impression that [Carswell was] 
not in favor of equal rights for women,'' Carswell responded that he 
was committed to the enforcement of the ``law of the land.'' \12\
---------------------------------------------------------------------------
    \10\ Over the past 200 years, some 140 individuals have been 
nominated to the Supreme Court. See THE OXFORD COMPANION TO THE SUPREME 
COURT OF THE UNITED STATES at 965-971 (Kermit L. Hall ed., 1992). 
Information about nominations first became generally available in 1916, 
when the Senate Judiciary Committee held public hearings and published 
a report on the nomination of Louis D. Brandeis, the first Jewish 
justice on the Supreme Court. See Preface to Volume I, ROY M. MERSKY & 
J. MYRON JACOBSTEIN, THE SUPREME COURT OF THE UNITED STATES: HEARINGS & 
REPORTS ON SUCCESSFUL AND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT 
JUSTICES BY THE SENATE JUDICIARY COMMITTEE (Hein, 1977 & supp.) (16 
volumes compiled by Mersky and Jacobstein). For an understanding of the 
confirmation process during the nineteenth century, the records of 
which can be found in the National Archives, see John P. Frank, The 
Appointment of Supreme Court Justices: Prestige, Principles, and 
Politics, 1941 WIS. L. REV. 172 (part I), 343 (part II); 461 (part III) 
(addressing late nineteenth as well as twentieth century appointments).
    While public hearings occurred in the Brandeis nomination, Brandeis 
himself did not testify. Harlan F. Stone was the first, in 1925, to 
testify on his own behalf before the Senate's Committee on the 
Judiciary. Id. According to the Committee notes, the invitation was 
extended at 10:00 a.m., and Mr. Stone, then
    Attorney General, appeared at 11:30; ``he was interrogated by a 
number of the members of the Committee. The proceedings are in the form 
of transcript, taken by a stenographer.'' Special Meeting of the Full 
Committee on Stone Nomination, Jan. 28, 1925, Committee on the 
Judiciary, U.S. Senate, Minutes, 1923-25, 68th Cong., Records of the 
U.S. Senate, Record Group 46, National Archives (Washington, D.C.). 
However, that testimony is not reproduced in the Mersky and Jacobstein 
compilation nor listed as available in the Library of Congress 
holdings. Transcripts are also not readily available from the period 
when women's suffrage was much before the public, culminating in the 
passage of the Nineteenth Amendment in 1920. Moreover, according to 
Mersky and Jacobstein, not all of the Senate Judiciary Committee 
proceedings since then have been made public.
    In the later part of the twentieth century, more research materials 
became available. A review of hearings on Supreme Court nominees 
beginning in the 1960s reveals that the first questioning about women's 
rights occurred at the Carswell hearings. See Hearings before the 
Committee on the Judiciary on the Nomination of George Harrold Carswell 
of Florida, to Be an Associate Justice of the Supreme Court of the 
United States, U.S. Senate, 91st Cong., 2d Sess. (January 27, 28, 29, 
February 2 and 3, 1970) [hereinafter Carswell Hearings].
    \11\ Carswell Hearings, supra note 10, at 81-82. Carswell's role in 
that case was quite limited; he was a member of an en banc panel that 
denied rehearing in Phillips v. Martin Marietta Corp., 416 F.2d 1257 
(5th Cir. 1969) (en banc), in which Ida Phillips claimed that the 
company had violated her Title VII rights by declining to give her, a 
mother of pre-school age children, a job not denied men with pre-school 
age children. The Fifth Circuit concluded that the policy did not 
discriminate against women but was based upon ``the differences between 
the normal relationships of working fathers and working mothers to 
their pre-school age children.'' Phillips v. Martin Marietta Corp., 411 
F.2d 1, 4 (5th Cir. 1969). That decision was reversed and remanded by 
the Supreme Court. Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 
(1971).
    \12\ Carswell Hearings, supra note 10, at 40-41.
---------------------------------------------------------------------------
    The Carswell nomination was rejected, but not because of Carswell's 
views on women's role in society.\13\ The following year, when William 
Rehnquist and Lewis Powell were nominated to be associate justices, 
several witnesses objected to both nominees' attitudes towards women's 
rights.\14\ While such testimony prompted Senator Bayh to ask William 
Rehnquist about his views on equal rights for women,\15\ no such 
questions were addressed to Lewis Powell.\16\ A nominee's attitudes 
towards women's rights played a minor role in the hearings, and did not 
become a subject of analysis by those commenting on the nomination 
process.\17\
---------------------------------------------------------------------------
    \13\ According to one historian of the proceeding, criticism of 
Carswell centered on his general lack of distinction as well as his 
1948 pro-segregation stance, later repudiated. See, e.g., JOHN P. 
FRANK, CLEMENT HAYNSWORTH, THE SENATE, AND THE SUPREME COURT 103-106 
(1991). Frank noted Congresswoman Mink's opposition, but in his view, 
the ``real sticking points were civil rights and competence.'' Id. at 
113. Frank also discussed the political context, a democratically-
controlled Senate distressed at the forced resignation of Abe Fortas, 
which animated the unsuccessful nomination of Clement Haynsworth (in 
Frank's view, unfortunately rejected) as well as that of Carswell (in 
Frank's view, appropriately rejected). Id. at xiv. 19, 28, 44, 94-95, 
102-03. In May 1970, the Senate approved, with 94 affirmative votes 
(and 6 absentees), the nomination of Harry Blackmun as an associate 
justice. Id. at 124. No questions were addressed to Blackmun about his 
views on women's rights during the brief one-day hearing. Hearings 
before the Committee on the Judiciary, U.S. Senate on Nomination of 
Harry A. Blackmun to be an Associate Justice of the Supreme Court of 
the United States, U.S. Senate, 91 st Cong., 2d Sess. (Apr. 29, 1970).
    \14\ See Hearings before the Committee on the Judiciary, United 
States Senate, on the Nominations of William H. Rehnquist, of Arizona, 
and Lewis F. Powell, Jr., of Virginia, to Be Associate Justices o/the 
Supreme Court of the United States, U.S. Senate, 92d Cong., 2d Sess. 
(November 3, 4, 8, 9, and 10, 1971) [hereinafter, Rehnquist and Powell 
Hearings]. Objections were raised about William Rehnquist's testimony 
while he was in the Justice Department on the Equal Rights Amendment 
(ERA) and the Women's Equality Act (id. at 428-29) and about Lewis 
Powell's failure, as a leader of the American Bar Association, to take 
stands on issues affecting women. Id. at 423-25, 428-33, 433-36. See 
also testimony of Catherine G. Roraback, president of the National 
Lawyers' Guild, id. at 460 (under Powell's leadership, the ABA was 
silent on equal rights for women). Barbara Greene Kilberg, of the 
National Women's Political Caucus, testified not about the nominees but 
about the absence of a female nominee (id. at 421-23), a topic that had 
been in the news, prompted in part because of President Nixon's 
statements that ``qualified women'' should be considered for the two 
vacancies. James M. Naughton, Harlan Retires, N.Y. TIMES, Sept. 24, 
1971, at 1.
    \15\ In 1971, as Assistant Attorney General in the Nixon 
administration, Rehnquist had testified before the House Judiciary 
Committee; the testimony is somewhat ambiguous but in some respects 
supported the ERA. See Federal Rights for Men and Women 1971, Hearings 
before Subcommittee No. 4 of the Committee on the Judiciary on H.J. 35, 
208, and Related Bills, House of Rep., 92d Cong., 1 st Sess. 323 (1971) 
(Representative Wiggins noting that while the ``administration is 
positively committed to the support of this constitutional amendment,'' 
it also said that the amendment was ``not necessary'').
    When testifying as a nominee to be an associate justice before the 
Senate Judiciary Committee, William Rehnquist declined to state his 
personal view on the ERA. When asked his view on the rights of women 
under the Fourteenth Amendment, he responded that it ``protects women 
just as it protects other discrete minorities, if one could call women 
a minority.'' Rehnquist and Powell Hearings, supra note 14, at 163. 
Thereafter, noting that some of the issues were pending before the 
Court, he declined to address additional questions on women's rights. 
Id. at 164.
    \16\ According to a biography of Justice Powell, when confronted by 
``a group of women's rights activists,'' he responded: ``Ladies, I've 
been married for thirty-five years and have three daughters. I've got 
to be for you.'' JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 
233 (1994). As Professor Jeffries describes it, the ``crucial issue was 
not gender but race.'' While Justice Powell had resigned his 
memberships in all-white clubs, concern was raised about his role in 
the ``(non)desegregation of the Richmond schools.'' Justice Powell's 
defense was to rely on endorsements by a variety of individuals 
attesting to his efforts to respond calmly to the complex problems of 
school integration, his work with the all-black National Bar 
Association, and his commitment to fairness. Id. at 235-236.
    \17\ See, e.g., HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS: A 
POLITICAL HISTORY OF APPOINTMENTS TO THE SUPREME COURT, 20-22 (3d ed. 
1992); Hearings before the Committee on the Judiciary on the Nomination 
of John Paul Stevens to Be a Justice of the Supreme Court, U.S. Senate, 
94th Cong., 1 st Sess. (Dec. 8, 9, 10, 1975); Hearings before the 
Committee on the Judiciary on the Nomination of Judge Antonin Scalia, 
to Be Associate Justice of the Supreme Court of the United States, U. 
S. Senate, 99th Cong., 2d Sess. (Aug. 5, 6, 1986) [hereinafter Scalia 
Hearings]; Hearings before the Committee on the Judiciary on the 
Nomination of Justice William Hubbs Rehnquist to Be Confirmed as Chief 
Justice of the U. S. Supreme Court, 99th Cong., 2d Sess. 114 (July 29, 
30, 31, Aug. 1, 1986).
    The nominees did not respond with detailed defenses or point to 
their efforts to enhance women's participation in the political, 
economic, and social life of the country. Indeed, Justice Scalia 
defended his membership in an all-male club on the grounds that 
although the club did discriminate by excluding women, that form of 
discrimination was not ``invidious.'' See Scalia Hearings at 91 (also 
commenting that a judge should not belong to a club that ``practices 
invidious discrimination''). Justice Scalia resigned his membership in 
that club; he explained that several factors influenced his decision, 
including that ``I was uncomfortable at doing something which, although 
I thought it was perfectly OK, was offensive to friends whose feelings 
I am concerned about.'' Id. at 105.
---------------------------------------------------------------------------
    The hearings on the nomination of Robert Bork, in 1987, were the 
first in which women's issues moved to center stage and became relevant 
to the outcome.\18\ Many witnesses questioned Judge Bork's 
interpretations of constitutional doctrine to exclude women from 
heightened protection under the Fourteenth Amendment,\19\ as well as 
his decisions in nonconstitutional cases. Judge Bork's opinions caused 
concern about his capacity to appreciate problems from the perspectives 
of women litigants.\20\ While many factors contributed to Judge Bork's 
rejection, his belief that discrimination against women was not 
directly prohibited by the Equal Protection Clause of the Fourteenth 
Amendment,\21\ his opposition to the Equal Rights Amendment,\22\ and 
his narrow construction of statutory rights for women played an 
important part.
---------------------------------------------------------------------------
    \18\ See generally ETHAN BRONNER, BATTLE FOR JUSTICE: HOW THE BORK 
NOMINATION SHOOK AMERICA (Norton, 1989); Martin Shapiro, Interest 
Groups and Supreme Court Appointments, 84 NW. U.L. REV 935 (1990).
    \19\ Hearings before the Committee on the Judiciary on the 
Nomination of Robert H. Bork to Be Associate Justice of the Supreme 
Court of the United States, 100th Cong., 1st Sess. 160-161 (Sept. 15-
30, 1987) [hereinafter Bork Hearings]. One case that received attention 
was Griswold v. Connecticut, 381 U.S. 479 (1965), which involved a 
challenge to a statute making it a crime to prescribe contraceptives. 
Robert Bork had called the statute a ``nutty law,'' and then, at the 
hearings, described the case as an ``academic exercise.'' Bork Hearings 
at 114, 240-243; Stuart Taylor, Jr., The Bork Hearings: Bork Tells 
Panel He Is Not Liberal, Not Conservative, N.Y. TIMES, Sept. 16, 1987, 
at A1, col. 6. See generally Andi Reardon, Griswold v. Connecticut: 
Landmark Case Remembered, N.Y. TIMES, May 28, 1989, at 12CN, p.6, col. 
5 (describing the efforts of Estelle Griswold and Charles Lee Buxton to 
lobby the Connecticut legislature to repeal that law and their 
subsequent arrest for operating a clinic that openly dispensed 
contraceptives to poor women; Yale law professor Thomas Emerson, who 
had argued the case, explained its import as one of the early 
recognitions of a constitutionally based right to privacy).
    \20\ For example, while on the Court of Appeals for the District of 
Columbia, Judge Bork wrote a unanimous opinion for a panel of three 
judges in which that court upheld, against a challenge under the 
Occupational Safety and Health Act, a company policy that required 
women of childbearing potential to be sterilized if they wanted to hold 
jobs exposing them to chemicals alleged to cause harm to reproductive 
capacities. Oil, Chem. and Atomic Workers Int'1 Union v. American 
Cyanamid Co., 741 F.2d 444 (D.C. Cir. 1984). Judge Bork's opinion 
described the company's plan as an attempt to deal with ``unattractive 
alternatives'' and wrote that rather than firing women, the company had 
given them ``a most unhappy choice'' of sterilization. Id. at 445, 450.
    At the confirmation hearings, the question was whether Bork's 
discussion evidenced understanding of the stark options put to women 
workers: be fired, demoted, or sterilized. When questioned, Judge Bork 
commented that ``some of [the women], I guess, didn't want to have 
children.'' Bork Hearings, supra note 18, at 468. Compare SUSAN FALUDI, 
BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN 450 (1991) (quoting 
Betty Riggs's letter to the Senate: ``Only a j udge who knows nothing 
about women who need to work could say that. I was only twenty-six 
years old, but I had to work, so I had no choice . . . . This was the 
most awful thing that ever happened to me. I still believe it was 
against the law, whatever Bork says''). In 1991, the United States 
Supreme Court ruled that, given evidence of the potential for harm to 
the reproductive systems of both men and women if exposed to lead, 
Title VII and the Pregnancy Disability Act prohibit employers from 
banning only women of childbearing capacity from certain jobs. See 
Int'1 Union, United Auto., Aerospace & Agric. Implement Workers of 
America v. Johnson Controls, 499 U.S. 187 (1991).
    Further, the Bork Hearings also addressed an opinion by Judge Bork 
on sexual harassment, in which he had written about ``sexual 
dalliance'' and ``sexual escapades,'' choosing language that could be 
read as making light of an atmosphere in which sexual compliance was 
allegedly required. Vinson v. Taylor, 760 F. 2d 1330, 1330, 1332 (D.C. 
Cir. 1985) (Bork, J., dissenting from the suggestion for rehearing en 
banc), panel opinion affd in part and rev'd in part sub nom. Meritor 
Savings Bank v. Vinson, 477 U.S. 57 (1986).
    \21\ Judge Bork argued that the Fourteenth Amendment was addressed 
to race and ethnicity, not to gender, and that rules relating to race 
should not and could not be transposed to gender, because ``our society 
feels very strongly that relevant differences exist and should be 
respected by government'' (referring to single-sex bathrooms and women 
in combat). See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL 
SEDUCTION OF THE LAw 328-331 (1990).
    \22\ Bork Hearings, supra note 19, at 161-162 (Bork explained that 
his opposition was not heated; he had not ``campaigned'' against the 
ERA, but he did believe it would be inappropriate to ``put all the 
relationships between the sexes in the hand of judges.'').
---------------------------------------------------------------------------
    The effects were visible three months later, when Anthony Kennedy 
was before the Senate seeking confirmation to the seat denied Judge 
Bork. The discussion of women's concerns took a notably different turn. 
Judge Kennedy made a point of affirming his commitment to women's 
rights. He explained in some detail his growing understanding of the 
issue; he described his unsuccessful efforts to change the policy of 
the all-male club to which he had belonged and his subsequent 
resignation.\23\ As he put it, ``Over the years, I have tried to become 
more sensitive to the existence of subtle barriers to the advancement 
of women and minorities in society. This was an issue on which I was 
continuing to educate Myself'' \24\ Similarly, in 1990, when David 
Souter was questioned by the Senate Judiciary Committee about sex 
discrimination, he rejected the application of only a rational basis 
test to sex discrimination, and he noted the ``difficulty'' with the 
``looseness'' of the ``heightened scrutiny'' standard applied to 
discrimination on the basis of sex.\25\
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    \23\ Hearings before the Committee on the Judiciary on the 
Nomination of Anthony M. Kennedy to Be Associate Justice of the Supreme 
Court of the United States, U.S. Senate, 100th Cong., 1st Sess. 23 
(Dec. 14, 15, 16, 1987) at 104-11.
    \24\ Id. at 105.
    \25\ Hearings before the Committee on the Judiciary on the 
Nomination of David H. Souter to Be an Associate Justice of the Supreme 
Court of the United States, U.S. Senate, 101st Cong., 2nd Sess. 75-76, 
106 (Sept. 13, 14, 17, 18, 19, 1990). Judge Souter responded generally 
to questions about women's rights with discussion of the legal tests 
that govern the Equal Protection Clause and privacy. Id. at 53-57. 
Senatorial concern about these issues is also evident in the Senate's 
report on the nomination; in his ``additional views'' on the 
nomination, Senator Biden noted that Souter had demonstrated a 
``commendable concern'' for ensuring sufficient constitutional 
protection for women's rights. NOMINATION OF DAVID H. SOUTER TO BE AN 
ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT, S. EXEC. REP. 
101-32, 101 st Cong., 2d Sess. 28-30 (Oct. 1, 1990).
---------------------------------------------------------------------------
    With this review of questions put to Supreme Court nominees over 
the past two decades, one can learn something about the useful role 
that ``ideology'' played and the contributions that the Senate has made 
through the hearing process. Up until 1970, women were invisible in the 
hearings. Then, during the 1970s and through most of the 1980s, women 
were but a minor footnote. The change comes in the late 1980s. Through 
nomination hearings, as well as through several pieces of legislation, 
the Senate has helped women to become equal rightsholders under the 
United States Constitution.
    I wish I could report that the work is over. But the substance of 
those rights remain in dispute, and some of the nominees who will come 
before you are likely to support women's rights only at a very general 
level of abstraction. In 1994, Congress enacted a major civil rights 
act for women, the Violence Against Women Act; in 2000, by a 5-4 
majority, the Court found one section of it unconstitutional.\26\ Lower 
courts are concluding that the Family and Medical Leave Act cannot be 
applied against states and finding the Child Support Recovery Act 
beyond Congress's power.\27\ And, last term, the Supreme Court, 5-4, 
upheld the constitutionality of differential treatment of children 
depending on whether their mother or their father is a citizen of the 
United States.\28\ At issue in case after case are women's rights to 
privacy, to be free from violence, to be both wage-workers and care-
givers. Debate continues about what level of scrutiny applies to 
gender-based classifications. Therefore, as each and every nominee 
comes up for appointment, to the district or the appellate courts, the 
Senate must continue its work of shaping legal norms to ensure women's 
equality.
---------------------------------------------------------------------------
    \26\ United States v. Morrison, 529 U.S. 598 (2000) (holding that 
Congress lacked power under either the Commerce Clause or the Equal 
Protection Clause to enact 42 U.S.C. Sec. 13891, the Civil Rights 
Remedy.) The remainder of this legislation remains, and in 2000, 
Congress reauthorized its many important provisions.
    \27\ See, e.g., Chittister v. Dep't of Community and Economic Dev., 
226 F. 3d 223 (3d Cir. 2000); Sims v. University of Cincinnati, 219 
F.3d 559 (6th Cir. 2000) (both Family and Medical Leave Act); United 
States v. Faasse, 227 F. 3d 660 (6th Cir. 2000), vacated en banc, 234 
F. 3d 312 (6th Cir. 2000) (decision en banc pending); United States v. 
King, 2001 WL 111278 (S.D.N.Y. Feb. 8, 2001) (both Child Support 
Recovery Act).
    \28\ See Nguyen v. INS, 121 S. Ct. 2053 (2001).
---------------------------------------------------------------------------
    More generally, the Senate should view the nomination process as an 
important venue for discussions of equality in the courts, in terms of 
the demography of the judiciary, treatment of litigants, lawyers, and 
witnesses, and the legal doctrine. One obvious concern is for 
diversifying the judicial work force so that those who sit in judgment 
reflect more of the characteristics of those whom they judge. And here 
again, while some progress has been made, more is needed. It is not 
that the struggle for what Judge Leon Higginbotham has called 
``judicial pluralism'' \29\ has been won or that affirmative efforts to 
do so are popular, but that hostility to pluralism is no longer 
plausible. Whether from the left or the right, political parties speak 
of the need for inclusion, as they prominently display individuals of 
both sexes and of a variety of races and ethnicities as emblems of 
their commitment to inclusion.
---------------------------------------------------------------------------
    \29\ See A. Leon Higginbotham, Jr., Seeking Pluralism in Judicial 
Systems: The American Experience and the South African Challenge, 42 
DUKE L. J. 1028 (1993).
---------------------------------------------------------------------------
    But what does diversity mean, and is inclusion enough? The Senate 
should be concerned not only that women and men ofall colors come 
before it as nominees but also that those candidates view the law--both 
statutory and constitutional--as having an affirmative role to play in 
expanding opportunities for all.
    The Bork nomination was a watershed in other respects. The Senate's 
extensive public questioning of the nominee prompted a vigorous debate 
about the meaning of the Senate's constitutional obligation and about 
the effects of the public nomination process. At that time, like today, 
debate focused on whether the power to provide both ``advice and 
consent'' ought to mean that the Senate should presume it will consent. 
Further, assuming a substantive role for the Senate, the issue raised 
was whether senators could inquire directly about what was then termed 
``judicial philosophy'' and what is now called ``ideology''--or whether 
``judicial temperament'' and ``professional competence'' were the only 
permissible topics.
    Reviewing the nominations both before and since the Bork hearings, 
I hope that the question about the Senate's role can now be understood 
as settled. As Charles Black explained some years ago, no reason--
``textual,'' ``structural,'' ``prudential,'' or ``historical''--exists 
for objecting to reading the Constitution's words ``advise and 
consent'' as authorizing senators to take an active role in shaping the 
federal judiciary.\30\ As I have just detailed, in recent years, the 
Senate has used that role to illuminate both the ideas and beliefs of 
an individual nominee and the concerns of the nation.
---------------------------------------------------------------------------
    \30\ See Charles L. Black, Jr., A Note on Senatorial Consideration 
of Supreme Court Nominees, 79 YALE L. J. 657, 664 (1970). See generally 
PAUL SIMON, ADVICE & CONSENT: CLARENCE THOMAS, ROBERT BORK, AND THE 
INTRIGUING HISTORY OF THE SUPREME COURT NOMINATION BATTLES (National 
Press, 1992); David R. Strauss & Cass R. Sunstein, The Senate, the 
Constitution, and the Confirmation Process, 101 YALE L. J. 1491 (1992); 
Robert F. Nagel, Advice, Consent, and Influence, 84 Nw. U. L. REV. 858 
(1990); Judith Resnik, Changing Criteria for Judging Judges, 84 NW. U. 
L. REV. 889 (1990); Paul A. Freund, Appointment of Justices: Some 
Historical Perspectives, 101 HARV. L. REV. 1146 (1988).
---------------------------------------------------------------------------
    Rather than apologize, I hope that the Senate will embrace the 
constitutional structure. We should all applaud the insights of the 
Constitution to build in roles for both the Executive and the Senate. 
Through these layers of repeated inquiry, first by the President's 
staff and then by the Senate, power is distributed. The Senate should 
not hesitate to engage nominees in careful exploration of their views, 
their work experiences, and their commitments.
    This series of hearings has also focused on a related question: 
whether nominees ought to be asked to make an affirmative showing or 
whether they come with a presumption of confirmability. No such 
presumption ought to attach. The Article III judiciary is conceived as 
independent of both Congress and the Executive. Federal judges are not 
and ought not to be selected to be apart of the President's ``team.'' 
When Presidents select a broad and diverse group of nominees who in 
turn represent a wide spectrum of views, senatorial concern might 
relax, but when presidents pick a narrow band, such choices ought to 
prompt ``heightened scrutiny.''
    Searching inquiries are necessary today for two reasons. First, we 
are in the midst of a significant debate about the meaning of federal 
law. To preview questions that I understand will be central in the next 
hearings of this Committee, the meaning of ``our federalism'' (to use 
Justice Black's phrase from Younger v. Harris \31\) is deeply 
contested. By way of a simple summary, today the Commerce Clause has 
been read to mean something different than it did in 1994\32\ The same 
can be said for both the Eleventh and Fourteenth Amendments.\33\ These 
new interpretations all come by virtue of decisions made by a bare 
majority on the Supreme Court.
---------------------------------------------------------------------------
    \31\ 401 U.S. 37, 44 (1971).
    \32\ See United States v. Lopez, 514 U.S. 549 (1995); United States 
v. Morrison, 529 U.S. 598 (2000).
    \33\ See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Kimel v. 
Florida Bd. of Regents, 528 U.S. 62 (2000).
---------------------------------------------------------------------------
    What is at stake in the appointment of life tenured judges is not 
only constitutional rights but also the many statutory rights crafted 
by Congress. Historically, a shared view was that courts were obliged 
to defer to congressional judgments; doctrinally, this view was 
expressed by the rule that federal statutes were entitled to a 
presumption of constitutionality. That presumption is entirely proper, 
marking the constitutionally shared power of the branches of the 
federal government to make the meaning of federal law.
    But, as I begin to teach my students tomorrow about the federal 
courts, I cannot report to them that this presumption remains intact. 
Members of the federal judiciary have undermined it substantially, as 
they strike federal statute after federal statute. As Justice Breyer 
put it in his dissent last term in the Garrett case, the five-person 
majority of the Supreme Court is treating the record developed through 
hearings in this Congress ``as if it were an administrative agency 
record'' and substituting its own evaluation for that of this 
legislature.\34\ Several of the majority's decisions are what I term 
``factless,'' by which I mean that they are filled with abstract 
theoretical claims about constitutional structure rather than grounded 
in the experiences of litigants, the materials produced through 
congressional hearings, and the detailed facts within the records.
---------------------------------------------------------------------------
    \34\ See Board of Trustees of University of Alabama v. Garrett, 121 
S.Ct. 955, 969 (2000) (Breyer, J., dissenting, joined by Justices 
Stevens, Souter, and Ginsburg).
---------------------------------------------------------------------------
    That approach ought not be one to which anyone aspires. As the 
Senate considers nominees to the federal bench, it ought to inquire 
about their attitudes towards the job of judging. Rather than presume 
them appropriate for the judiciary, assess what they have done, as 
lawyers and as judges. Further, when considering individuals, the 
Senate ought also to assess the wisdom of their joining the specific 
courts for which they have been proposed. I also hope that you will 
think about the nominees as a group and reflect upon the degree to 
which they bring to the bench diverse experiences as lawyers, involved 
with the full range of legal and political activities rather than drawn 
from only a limited sector. We need individuals who have been lawyers 
for all kinds of people. The ranks of the judiciary ought to include 
prosecutors and defense attorneys, those who have worked full time as 
legal services lawyers and those who have worked in large commercial 
firms, lawyers involved in the public sector, those who work for all 
aspects of government, and for non-profits.
    No single formulation captures the many attributes that are needed 
to be a good judge. But the Senate can approach the issue by looking 
for objective indices of nominees' views. For example, one can learn 
whether a person, as a part of a professional career, has contributed 
time and energy to represent those unable to afford lawyers. One can 
learn whether nominees are aware of the many recent studies 
demonstrating that courts are not yet places seen as providing equal 
treatment, regardless of race, language, ethnicity and gender \35\ More 
than sixty court-commissioned reports address the subject matter of 
gender, race, and ethnic bias in the courts and the legal 
profession.\36\ Bar associations have taken on these issues as well. 
One can learn whether nominees contributed to such projects.
---------------------------------------------------------------------------
    \35\ See, e.g., AMERICAN BAR ASSOCIATION, PERCEPTIONS OF THE U.S. 
JUSTICE SYSTEM (1999).
    \36\ 
---------------------------------------------------------------------------
    36. See, e.g., New York State Judicial Commission on Minorities, 
Report of the New York State Judicial Commission on Minorities (1991); 
New York Task Force on Women in the Courts, Report of the New York Task 
Force on Women in the Courts, reprinted in 15 FORDHAM URB. L. J. 11 
(1986); Ninth Circuit Gender Bias Task Force, The Effects of Gender in 
the Federal Courts: The Final Reports of the Ninth Circuit Gender Bias 
Task Force, reprinted in 67 So. CAL. L. REv. 727 (1994).
    Through a variety of means, the Senate can learn whether nominees 
evidence concern for the human beings whose lives are to be affected by 
court rulings and whether they can be sensitive to the fact that 
disputants are often needy. One can look for evidence of a patient 
willingness to be tethered to records, to be grounded in the minutiae 
that make up legal proceedings, and to be constrained by the role to 
delve into the parties' claims to ascertain the merits. One can look at 
whether a nominee sees the use of federal courts as an important aspect 
of justice in the United States and supports ready access to the 
federal courts.
    In sum, at this point in our history, I do not believe that the 
question is really whether the Senate can ask questions and engage in a 
full inquiry. Nor do I believe that the Senate has any basis in law or 
practice to feel itself beholden to the President and obliged to 
confirm his nominees.
    Rather, the real question is whether the Senate will have the 
willingness to devote itself to the work at the level required to do 
so, well. Stamina, commitment, and energy are required. Hence, I come 
today not only to offer historical and scholarly materials, drawn from 
both the archives of the federal judiciary and contemporary databases, 
but also as a citizen, appreciative that this Committee has convened 
this hearing--and to ask for more. I have spent much of my life as a 
lawyer and law professor thinking about the role of the federal 
judiciary. I am deeply admiring of this institution, for, as one of our 
Supreme Court justices put it, ``the independent judiciary . . . has 
been one of our proudest boasts, by reason of Article III.'' \37\
---------------------------------------------------------------------------
    \37\ See Palmore v. United States, 411 U.S. 389, 410, 412 (Douglas, 
J., dissenting) (objecting to the reorganization of the D.C. courts, 
which had been challenged by a criminal defendant arguing for an 
Article III judge to preside in his case).
---------------------------------------------------------------------------
    The task now is to make good on that constitutional promise. To do 
so requires a fulsome commitment by the United States Senate to ensure 
that the individuals entrusted with this lifetenured position, and who 
therefore have the power to adjudicate, to appoint other judges, and to 
advise this institution on the role of the federal courts, represent 
all of America rather than only a narrow slice of our legal, political, 
and social life.
    Thank you.
    [GRAPHIC] [TIFF OMITTED] T9825.014
    

    Chairman Schumer. Thank you, Professor Resnik, for getting 
a lot in in a short time.
    Our next witness is Douglas Kmiec. He is the Dean of the 
Columbus School of Law at the Catholic University of America 
here in Washington, D.C., a graduate of Northwestern University 
and the University of Southern California Law School. In 
addition to postings at Pepperdine and Notre Dame Law School, 
Dean Kmiec served from 1985 to 1989 in the Reagan and first 
Bush administrations, where he headed the Office of Legal 
Counsel. He is the author of numerous books and articles, 
including The History, Structure and Philosophy of the American 
Constitution, which he coauthored with a panelist from our last 
hearing, Northwestern University legal historian Stephen 
Presser.
    Your entire statement, without objection, is read into the 
record and you may proceed, Dean Kmiec.

   STATEMENT OF DOUGLAS W. KMIEC, DEAN AND PROFESSOR OF LAW, 
        CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C.

    Mr. Kmiec. Thank you, Senator, and thank you for the 
invitation and including my full statement in the record.
    There is no question that the Senate's power of advice and 
consent is textually unfettered, but I think as a matter of 
historical context and practice, my proposition to you would be 
simple, that the appropriate Senate inquiry is to matters of 
demeanor, integrity, competence, and fidelity to the rule of 
law.
    I think the proposition that I state here is one that is 
grounded in our history, going back to Alexander Hamilton's 
explanation in The Federalist Papers of what your role would 
be. You may remember, Senator, that his description of your 
role was that it would be powerful, but that it would also be 
generally silent in operation; that, in essence, the President 
would know by the fact that his men and women would have to 
come before you that that in itself would be quite a chastening 
experience, and apparently it is turning out to be so.
    But Alexander Hamilton specified in particular that it was 
chastening with regard to the following matters. ``It would be 
an excellent check,'' he wrote, ``upon the spirit of favoritism 
in choices of the President,'' that it would tend greatly to 
prevent the appointment of unfit characters, that it would 
prevent the appointment of people who are laboring under 
prejudice or family connection or who are appointed from 
personal attachment or from a view of popularity.
    I think if you analyze The Federalist Papers carefully, you 
will see that those are questions of integrity, those are 
questions of fitness, those are questions of temperament, those 
are questions of fidelity to the rule of law. So one question 
that I think needs to be answered is why are we reexamining 
this, then, today?
    Now, there has been a lot of popular suggestion that maybe 
it is retribution for the allegation that President Clinton's 
nominees were not treated well. I think it has been stated here 
more than once this afternoon that, in fact, they were treated 
quite similarly to those of Reagan in terms of similar number 
approved, as well as the similar number that were left 
unapproved by virtue of the lack of time. So I think, quite 
frankly, that is either a speculation that is demeaning to this 
body in terms of attributing to it only a partisan motive or 
that is factually untrue.
    Another explanation for why we are here today comes from 
our colleague, Laurence Tribe, and he suggests that there is a 
need for balance. Well, the difficulty with balance is that 
this is an effervescent concept. It is largely undefined, and I 
would suggest that in addition to being largely undefined and 
somewhat unworkable, we already have it, whatever it is.
    We have on the Supreme Court of the United States members 
appointed from five different Presidential perspectives. We 
have had recent essay writings suggesting that maybe we have 
too many judges on the Court and we should get people from 
other political experience. While there is something to be said 
for that argument, I think it understates the careers of the 
people who are already serving on the Court.
    Take, for example, Ruth Bader Ginsburg, who was, as already 
mentioned, I think, by Senator Simon, an advocate for the 
American Civil Liberties Union. Take, for example, Justices 
Thomas, Scalia and Breyer. Thomas and Scalia had distinguished 
careers in the executive branch. Justice Breyer was a law 
teacher. So we do have a number of different backgrounds 
already in existence on the Court.
    I think the real answer for why we are here is that there 
is a desire for different substantive outcomes, and that is 
what I heard in my colleague, Professor Resnik's remarks, and 
that is what I have read in some of the other statements that 
have been submitted to you. Quite frankly, there is 
disenchantment by some Members of the Congress with how the 
Supreme Court and the lower Federal courts are treating your 
enforcement powers with regard to civil rights.
    There is disenchantment with regard to what the scope of 
the commerce power is, what things are national, what things 
are local. There is disagreement over other questions that have 
come before the Court recently with regard to the 11th 
Amendment and State sovereign immunity and how that interacts 
with Federal authority.
    Quite frankly, those questions are important questions, 
vital questions, and I like the notion of laying things on the 
table. But where those should be laid on the table is in 
legislative debate, in responses to the Court, in responses to 
judicial decisions. If, in fact, the Court is saying to you 
that there is an insufficient legislative record to vitiate 
sovereign immunity, then, in fact, the response is to produce 
that legislative record of the type that the Court suggests is 
necessary, to address it head-on and not indirectly through 
judicial nominations.
    Most importantly, it is important to keep it in that 
context because otherwise a very wrongful supposition is 
indulged. Last week, Joseph Califano, a distinguished member of 
this legal community in Washington, wrote an essay for the 
Washington Post. The essential premise of the essay was that 
this Congress is paralyzed, it is gridlocked, it is failing in 
its responsibilities legislatively.
    Mr. Califano mentioned a couple of topics of concern to 
him. He talked about Big Tobacco, he talked about handgun 
control. He said basically the Senate and the House have failed 
on these issues, so we must turn to an alternative venue, the 
courts, and have policy implemented through the courts. That, I 
think, is the most grievous wrong that could be done to our 
system, not only because it substitutes the courts for your 
function, but it sacrifices what every school child knows is 
important in terms of fairness of judgment, and that is the 
independence of the judiciary.
    The closest analog, Mr. Chairman, that I can think of is 
the attempt, the well-intentioned intent perhaps of Franklin 
Delano Roosevelt to pack the Court. You remember it. We were in 
a dire economic depression. The Court was not being very 
congenial to his ideas as to how to work his way out of that, 
and so he came up with an ingenious plan which he said would 
inject new blood onto the Court. But he rather quickly gave up 
that pretense and said, what I really dislike is that these 
conservative Justices are turning down my liberal outcomes.
    Well, you remember the response to that. The response as 
this Judiciary Committee said was ``If we may force the hand of 
the Court to secure our interpretation of the Constitution, 
then some succeeding Congress may repeat the process to secure 
another and different interpretation, and one which may not be 
so pleasant to our ears. The initial and ultimate effect of 
undermining the independence of the courts and violating all 
precedents in the history of our Government would be a 
dangerous precedent for the future.'' It was a dangerous 
precedent for the future 64 years ago and it is dangerous 
today.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Kmiec follows:]

 Testimony of Douglas W. Kmiec, Dean and St. Thomas More Professor of 
       Law, The Catholic University of America, Washington D. C.

    Summary: To measure nominees by an ideological litmus-test or place 
the burden on nominees to justify their ideological conformity is the 
equivalent of partisan, outcome driven court-packing. Using the advice 
and consent function for this purpose threatens judicial independence, 
wrongly assumes judicial predictability, undermines the democratic 
choice embodied in presidential election, and distracts the Senate from 
its proper inquiry into competence, integrity and demeanor, and leaves 
unexamined, more subtle and difficult inquiries into statutory or 
interpretive method and fidelity to the rule of law.

    Mr. Chairman, thank you for inviting me here to testify on the 
appropriate inquiries for the Senate in considering judicial nominees.
    My proposition is simple: the proper Senate inquiry of a judicial 
candidate is demeanor, integrity, legal competence and fidelity to the 
rule of law. It is not partisanship or policy agreement. While 
textually the Senate is free to inquire and to reject a nominee on any 
ground even a highly political, constitutionally problematic one like 
the nominee's views on outcomes in specific cases--it should not do so. 
Undertaking to make nominees carry a type of political burden of proof 
will over time merely invite a subservience of mind and personality 
that is contrary to an independent judiciary.
    The significance of an independent judiciary is well-known to every 
school child. The point was made plain in the bill of indictment 
included against the English King in our Declaration of Independence. 
``He has made Judges dependent upon his Will alone, for the tenure of 
their offices,'' our founders complained. Any attempt to transform the 
Senate's advice and consent role into a similar partisan inquiry would 
cut deeply against our history and unnecessarily invite making federal 
judges dependent upon constitutionally inappropriate considerations. In 
the constitutional convention of 1787, great concern was expressed 
against having judicial appointments influenced by the Legislature out 
of ``cabal, from personal regard, or some other consideration than a 
title derived from the proper qualifications.''\1\ Indeed, in this past 
century, there has been only one other such blatant effort to subvert 
the independence of the federal judiciary: FDR's court-packing plan.
---------------------------------------------------------------------------
    \1\ Records of the Federal Convention of 1787 (July 21, 1787).
---------------------------------------------------------------------------
    The court-packing plan, in essence, proposed that when a federal 
judge who had served at least ten years waited more than six months 
after his seventieth birthday to retire or resign, the President would 
add a new judge to the bench, with up to six additional slated for the 
Supreme Court. FDR talked about the need for ``new blood'' and so 
forth, but everyone knew that the President wanted to change the 
jurisprudential direction of the Court--to bend it to his will. FDR, 
himself, gave up the pretense soon enough. As one scholar noted, ``the 
President virtually abandoned this line of argument and came out with 
his main reason: that the Court was dominated by a set of conservative 
justices who were making it impossible for liberal government to 
function.'' \2\ Sound familiar? These were times of great economic 
distress. Millions were out of work and the Court was showing little 
deference for FDR's regulatory initiatives to address the problem. Yet, 
even under these dire circumstances--which are hardly equivalent to the 
relative prosperity of today--``it quickly became apparent that 
opponents of the plan enjoyed widespread support.'' \3\
---------------------------------------------------------------------------
    \2\ William E. Leuchtenburg, Franklin D. Roosevelt's Supreme Court 
`Packing' Plan,'' 86.
    \3\ Id. at 83.
---------------------------------------------------------------------------
    Like President Roosevelt, some in the Senate today may believe the 
Rehnquist Court, and even the lower federal courts (even though they 
have recently been augmented with 377 new judges sharing the judicial 
philosophy of former President Clinton) to be ideologically contrary to 
desired policy. Like FDR, these members of the Senate ask for a 
judicial population that will not weigh case or controversy by 
adherence to precedent. or textual or structural interpretation, but by 
the desirability of particular outcome. This course is ill-advised and 
should not be pursued. The short-term political gratification of 
defeating one or a handful of judicial nominees on partisan or 
ideological grounds will harm the federal judiciary and bring dishonor 
to this deliberative body.
    Why dishonor? Consider the words of the Senate Judiciary Committee 
in turning away FDR's attempt to inject partisanship into the 
composition of the courts. The plan was denounced for applying ``force 
to the judiciary. It is an attempt to impose upon the courts a course 
of action, a line of decision which, without that force, without that 
imposition, the judiciary might not adopt.'' \4\ This assault upon 
judicial independence came with the following warning which 
unfortunately seems equally apt to the arguments being presently made 
to force judicial nominees to prove their ideological bona fides:

    \4\ S. Rep. No. 75-711 at 7-8 (1937).
---------------------------------------------------------------------------
        ``Let us, for the purpose of the argument, grant that the Court 
        has been wrong, wrong not only in that it has rendered mistaken 
        opinions but wrong in the far more serious sense that it has 
        substituted its will for the Congressional will in the matter 
        of legislation. May we nevertheless safely punish the Court?. . 
        . .If we yield to temptation now to lay the lash upon the 
        Court, we are only teaching others how to apply it to ourselves 
        and to the people when the occasion seems to warrant. 
        Manifestly, if we may force the hand of the Court to secure our 
        interpretation of the Constitution, then some succeeding 
        Congress may repeat the process to secure another and a 
        different interpretation and one which may not sound so 
        pleasant in our ears as that for which we now contend.\5\
---------------------------------------------------------------------------
    \5\ Id. at 10.
---------------------------------------------------------------------------
    In the end, the Senate Judiciary Committee in the 1930s strongly 
denounced the courtpacking exercise as having the ``initial and 
ultimate effect [of undermining] the independence of the courts,'' and 
[violating] ``all precedents in the history of our Government and would 
in itself be a dangerous precedent for the future.'' \6\
---------------------------------------------------------------------------
    \6\ Id. at 3.
---------------------------------------------------------------------------
    The future is apparently now, and sixty-four years later packing 
the courts on the basis of desired outcomes looks no better and is no 
more consistent with the spirit of the Constitution and its guarantee 
of judicial independence.
    But more than judicial independence is at stake, because an attempt 
to exclude men and women of excellent credential and judgment because 
they don't happen to subscribe to your particular conception of 
federalism, or because they do not possess the right disposition toward 
this or that doctrinal formulation of due process, or affirmative 
action, or any other topical subject is a use of the vital Senatorial 
role of advice and consent that is either wholly random since it seeks 
to predict the unpredictable or deeply anti-democratic as it seeks to 
undo a national election and the contemplated sovereignty of the people 
in the selection of judges through the election of a new executive.
    Nominee selection--as a matter of fact--is seldom sufficient to 
predict accurately the philosophical direction of a particular judicial 
candidate, once appointed to a lifetime job with no salary diminution. 
Eisenhower had his Earl Warren; Nixon had his Blackmun; Bush had his 
Souter. In each case, it is either popularly speculated or actually 
articulated that the nominee's service was at some considerable 
variance to the philosophy of the nominating president. A recent study 
for the LBJ Journal of Public Affairs estimates that one Justice in 
four disappointed his appointing president.
    Whether or not presidents have been dismayed by their nominees at 
times, judicial behavior is certainly a hazard to predict. ``Chief 
Justice Earl Warren, prior to his appointment, supported President 
Roosevelt's decision to intern United States citizens of Japanese 
ancestry during World War II . . . . But as Chief Justice, Warren 
became an icon of civil liberties organizations . . . .'' \7\ Consider 
also just the past term of the high court. So-called conservative 
Justices Scalia and Thomas insisted that law enforcement observe the 
privacy of a home from the intrusion of a rare thermal imaging device, 
while claimed liberal Justice Stevens dissented. Meanwhile, Justice 
Breyer assumed by the President who nominated him, the media, and this 
body to have a progressive or liberal ideology at the time of his 
confirmation, has joined results permitting a student Bible club to use 
a public school classroom in the after school hours, and earlier, that 
would more easily exclude adult cable programming. As Professor Richard 
Garnett has observed: ``[the] justices are neither easy to pigeonhole 
nor easy to predict. Their dispositions are not merely `restrained' or 
`activist.' Their decisions aren't predetermined by the ideological 
labels slapped on?by partisan animators.\8\
---------------------------------------------------------------------------
    \7\ Bruce Fein, ``A Circumscribed Senate Confirmation Role, ``102 
Harv. L. Rev. 672, 682 (1989).
    \8\ Richard Garnett, ``Disrobed! Actually, They Think for 
Themselves,'' Washington Post (June 29, 2001).
---------------------------------------------------------------------------
    But even if there was a greater level of predictability, what 
possibly authorizes the Senate to substitute its judgment for that of 
the electorate under the disguise of inquiring into judicial fitness? 
Despite the disagreements that you or I may have with individual 
decisions of the present Supreme Court or the lower federal courts, 
there is little to suggest that, in the aggregate, these institutions 
are composed of individuals unrepresentative of the people. Quite the 
contrary. Five presidents have contributed to the make-up of the 
present Court and Presidents Reagan and Clinton had the opportunity to 
appoint virtually identical numbers of lower federal court judges over 
their respective terms [377 for Clinton and 382 for Reagan]. And 
despite the fact that the last national election may have hung by a 
chad, or that some academics would have preferred greater reliance upon 
political (rather than adjudicative) means of resolving the electoral 
disputes that emerged, the outcome--supported at its most basic level 
by seven justices (labeled conservative and liberal alike)--has vested 
the power to nominate judicial officers in President Bush by a majority 
of electoral vote. And that vote has meaning for executive and judicial 
appointment that ought not be undone covertly by this body.
    Here it is good to recur to first principle. As the very able 
Northwestern legal historian Professor Stephen Presser pointed out 
before this body earlier this year, the critics of the Constitution 
were particularly worried about any policy making tendencies of federal 
judges, especially as it might displace state authority. Hamilton 
responded to this criticism by emphasizing that it was not the job of 
judges to make law, that their role under the Constitution was simply 
to enforce the Constitution and laws as they were written, according to 
their original understanding. By doing so, Hamilton explained, federal 
judges would be acting as agents of the sovereign people themselves, 
and would do their part in implementing the rule of law. It was true 
that judges might sometimes be called upon to declare statutes invalid 
because of the dictates of the Constitution, but this was the role 
envisioned in those specific, and one might hope, rare cases. The 
Constitution itself sets limits on what Congress may do, Hamilton 
explained, and when the legislature exceeds those limits it ceases to 
act pursuant to the will of the people. It is then the job of the 
people's other agents, the Courts, to reign in the legislatures.\9\ All 
this is a long way of saying, as Hamilton did succinctly, that in 
properly deciding matters of unconstitutionality, the courts are not 
implementing their own preferences, but that of the people.
---------------------------------------------------------------------------
    \9\ Federalist 78
---------------------------------------------------------------------------
    Professor Presser further bolstered this historical reference by 
mention of the separation of powers. It was well understood to our 
framers, pursuant to the theories of Montesquieu, that liberty could 
not be preserved unless judges were barred from legislating. Lawmaking 
was left to the legislature and the people themselves. As Hamilton 
wrote in Federalist 78, quoting Montesquieu's Spirit of Laws directly, 
``there is no liberty if the power of judging be not separated from the 
legislative and executive powers.'' \10\ And that is not just an 
admonition to judges to observe the boundaries of their intended role. 
Liberty can also be lost if judging is given over to the executive or 
legislative branches as well, or if prospective judges are invited to 
be lawmakers by the pressures of politicized confirmation.
---------------------------------------------------------------------------
    \10\ Id..
---------------------------------------------------------------------------
    Sadly, this is forgotten far too often today. Courts are casually 
discussed as merely alternative policymakers. Mr. Joseph Califano Jr. 
in an essay just last week, for example, accused and the Congress as a 
whole of ``political pandering,'' ``gridlock,'' and ``failure,'' and as 
a result argued that federal courts must become (and have become) 
``powerful architects of public policy.'' \11\ I doubt very much 
whether the Senate wants to indulge Mr. Califano's harsh premise of the 
failure of Congress. Perhaps, as a policy matter, many would support a 
more aggressive regulatory, perhaps even prohibitory, policy toward 
tobacco or hand-guns, and reading him, I suspect so would Mr. Califano. 
But the Congress has chosen a different path--to regulate tobacco 
advertising and to pursue background checks for certain weapon 
purchases. These are policy choices. Congress has made them. When the 
Supreme Court was asked to do more than Congress was willing to do--to 
authorize explicitly the FDA to regulate tobacco products--it declined. 
If Congress is truly displeased with that judicial outcome, it has a 
far more direct and appropriate constitutional means than to smuggle a 
highly partisan, policy litmus-test into the judicial confirmation 
inquiry.
---------------------------------------------------------------------------
    \11\ Joseph A. Califano Jr., ``Yes, Litmus-Test Judges,'' 
Washington Post A 23 (August 31, 2001).
---------------------------------------------------------------------------
    The President has the power of choice in his nomination. Textually, 
the Senate has unfettered power to deny that choice. But text is 
necessarily bounded by its historical context. History reveals that the 
Senate up until the 1980s largely confined its inquiries to integrity, 
demeanor, competence and subscription to the rule of law. ``There will, 
of course, be no exercise of choice on the part of the Senate,'' wrote 
Hamilton in Federalist 66. In observing this precept over time, the 
Senate was observing the designed independence of the judiciary, 
respecting the democratic will of the people, and abiding by the 
separation of powers. It certainly was not attempting to escape any 
allegation of its own policy forfeiture, and to seek to do indirectly 
that which it has lacked the political courage to do directly.
    If the Senate is truly interested in improving the federal 
judiciary, I respectfully suggest that these hearings would be better 
devoted to examining judicial method and fidelity to text and 
legislative purpose, rather than partisanship; in other words, to 
inquire whether nominees coming, before you are willing to abide by the 
text of the statutory law as you have authored it. Legitimate questions 
can be asked whether there is a difference between statutory and 
constitutional interpretation, and how a prospective nominee would 
address that difference. The Constitution is to ``endure for the 
ages,'' after all, and statutes often are intended to have a shorter 
life or a narrower object. But that said, what this body needs to 
know--especially from lower court nominees--is whether the judicial 
nominee proposes to observe the intended scope of statutory text given 
to it by the Congress, or one of his or her own making.
    In brief, personal integrity, judicial temperament or demeanor, and 
learning in the law or competence are the primary indicia for 
eligibility of judicial service, and underlying them all, must be a 
sincere commitment to abide by the rule of law. Judicial independence 
from mean spirited or shallow political posturing or inquiry is merited 
because in this country, citizens are still entitled to believe that 
lawyers called to the bench--and those receiving the confirmation of 
the Senate--will allow the prospective application of previously and 
regularly enacted rules to prevail over arbitrary power, even when they 
may dislike the rule at issue. Nominees should face no obstruction or 
delay or improper placements of political burdens so long as they 
believe that all people, rich and poor alike and of whatever race, are 
to be equally subject to generally applicable law administered by 
ordinary, regular courts. Yes, the Senate has a duty to inquire whether 
a nominee subscribes to these age-old precepts of the rule of law, 
well-summarized to our founders by Blackstone, and traceable to the 
earliest manifestations of the common law. But this inquiry bears no 
resemblance to the bumper-sticker like characterizations of whether one 
nominee or another is conservative or liberal.
    If this is so well-settled, why are we invited to reconsider it 
now? There is little by way of a coherent response that the proponents 
of a heightened nominee burden of proof give. Some proponents of a 
reconfigured Senate role, like my friend and constitutional law 
colleague Laurence Tribe, propose that the ultimate purpose of the 
questioning is to have a balanced court. With all due respect to 
Professor Tribe's erudition in matters of constitutional study, a S-4 
court on the most delicate issues of the day is a fairly solid 
indicator of balance. Perhaps the balance ``tilts'' slightly to the 
center-right, rather than the center-left, but there is no real measure 
of this from term to term. So too, it is recently popular to claim that 
there aren't enough varieties of experience on the bench--too many 
former judges, as it were. This characterization, however, slights the 
lifetime of achievement of the present Court. Ruth Bader Ginsburg had 
prior appellate judicial experience, but also, led a litigation arm of 
a very active national organization on gender issues. Several of the 
justices had executive or administrative experience (Rehnquist, Scalia 
and Thomas); others were teachers (Breyer and Kennedy) and still others 
distinguished practitioners (Stevens).
    However, even if balance could be defined, another witness before 
you today, the distinguished Professor Sanford Levinson, says balance 
is the entirely wrong inquiry. Professor Levinson urges you to 
substantively object to the Court's Fourteenth Amendment, Commerce 
Clause and Eleventh Amendment jurisprudence.
    Why does Professor Levinson feel comfortable substituting his view 
of these issues for those of the present Court, or more relevantly to 
today's discussion, to the views of the people as represented by the 
President through the appointment process? Bluntly: because, to quote 
him, Bush v. Gore is ``a patently illegitimate decision, . . . 
monumentally unpersuasive; and . . . its illegitimacy taints Mr. Bush's 
own status as our President.'' We owe Professor Levinson a debt of 
gratitude for his candor, because I believe his remarks are the 
gravamen of this hearing.
    This is not the place to re-argue Bush v. Gore, and I won't. 
However, it is clear that, unlike some academics, the overwhelming 
percentage of people (and seven justices of the Supreme Court) accept 
the proposition that equal protection when applied to ballots means at 
least this: if you're asked to count votes, you have to know what 
you're counting. When the Florida Supreme Court reflected upon the 
matter, five of the state justices who had previously ordered the 
standard-less recount affirmed that ``the development of a specific, 
uniform standard necessary to ensure equal application and to secure 
the fundamental right to vote throughout the State of Florida should be 
left to the body we believe best equipped to study and address it, the 
Legislature.'' \12\
---------------------------------------------------------------------------
    \12\ Gore v. Harris, 773 So. 2d 524, 526 (Fla. 2000) (per curiam); 
this is the opinion written disposing of the matter after it was 
remanded by the U.S. Supreme Court the second time in Bush v. Gore.
---------------------------------------------------------------------------
    Respect for the lawmaking enterprise, for legislatures, especially 
the Congress, is a salutary by-product of the proper exercise of advice 
and consent. ``Limiting the judicial function to interpreting the 
Constitution guarantees the political branches their legitimate powers, 
which keeps policymaking in the hands of those who are most accountable 
to the people. . . .The Senate's power of advice and consent is a broad 
one, though it is not arbitrary. A fair interpretation of the qualities 
required of judicial nominees by the Constitution emphasizes legal 
capacity, personal integrity, and a commitment to abide by the 
Constitution.'' \13\ Obtaining commitments to abide by favored policy 
outcomes does not abide the Constitution.
---------------------------------------------------------------------------
    \13\ Christopher Wolfe, ``The Senate's Power to Give `Advice and 
Consent' in Judicial Appointments,: 82 Marquette L. Rev. 355, 379 
(1999)
---------------------------------------------------------------------------
    The Senate is rightly desirous to perform its constitutional duty 
well. But undertaking partisan screening no matter how elegantly 
dressed in academic language is a default of that duty. As Hamilton 
explained, ``the necessity of [your] concurrence would have a powerful, 
though, in general a silent operation. It would be an excellent check 
upon the spirit of favoritism in the President, and would tend greatly 
to prevent the appointment of unfit characters from state prejudice, 
from family connection, from personal attachment, or from a view to 
popularity.'' \14\
---------------------------------------------------------------------------
    \14\ Federalist No. 76.
---------------------------------------------------------------------------
    The Senate should not place the burden of proving partisan 
compatibility upon judicial nominees.

    Chairman Schumer. Thank you, Dean Kmiec.
    Finally, our last witness, and we thank him for his 
patience here today, is Mark Tushnet. He is the Carmack 
Waterhouse Professor of Constitutional Law at the Georgetown 
University Law Center. He received his undergraduate degree 
from Harvard, a master's and law degree from Yale, and clerked 
on the Supreme Court for Justice Marshall before embarking on a 
career in academia where he has developed a reputation as one 
of the Nation's leading legal historians. He is the coauthor 
of, among other works, Federal Courts in the 21st Century, and 
has written extensively about the history of the Federal 
judiciary.
    Like the other witnesses, your entire statement is read 
into the record and you may proceed as you wish, Professor.

    STATEMENT OF MARK TUSHNET, PROFESSOR OF LAW, GEORGETOWN 
            UNIVERSITY LAW CENTER, WASHINGTON, D.C.

    Mr. Tushnet. Thank you, Senator Schumer. I want to thank 
you and your Subcommittee for inviting me to testify on the 
important question we are discussing today.
    I am going to begin with some general comments about 
whether nominees must show that they are particularly qualified 
for the appointment or whether, in contrast, those who oppose 
the nomination must show that the nominees are not qualified. 
My written comments turn to the relevance of political 
experience to appointment to the Federal courts. I won't go 
through those points orally, but would be happy to discuss them 
in the question period.
    It seems to me that constitutional principle shows that 
nominations come to the Senate essentially in equipoise because 
the considerations relevant to a burden of persuasion are 
basically in balance. That conclusion, it seems to me, is 
supported by the most basic aspects of our system of separation 
of powers, famously described by Madison in the 51st Federal 
Paper as one in which ambition counters ambition; that is, the 
separation of powers system works best when each branch--here, 
the President and the Senate--take positions that each 
calculates independently will serve the American people best.
    In the context of judicial nominations, the process of 
ambition countering ambition works in this way: the nominee and 
his or her supporters can point out that the nomination was 
made by a President. Now, we have heard talk about deference to 
the President, but the question really is what is the reason, 
if any, for the existence of some presumption or deference.
    It is not simply the position the President occupies. 
Rather, deference arises, if it does, because the President 
presumptively has the support of the people of the United 
States as a whole, having been chosen by a majority of them. In 
response, Senators can reasonably respond that they too were 
chosen by the majority of the American people, taken as a 
whole, organized somewhat differently. Indeed, I think there 
are a couple of considerations that make the Senators' claims 
somewhat stronger, although the distribution matters a bit.
    The President was chosen by a majority of the American 
people in a single election, capturing the people's views at a 
moment in time, while Senators were chosen in a series of 
elections that, taken together, might better capture the more 
enduring values of the American people. And in that connection, 
questions of timing may matter as well. The more remote the 
Presidential election is, the more powerful is the Senate's 
claim to represent the people as of the time of nomination.
    Now, the historical record is unsurprisingly subject to 
varying interpretations. One historian describes the Senate's 
role as reactive, responding to the initiative taken by the 
President in selecting a nominee. In this connection, there is 
a particular problem in assessing history which I would put 
under the heading of ``divided government,'' a relatively 
recent phenomenon as a sort of permanent feature of our 
constitutional system.
    When the Senate and the President are in the same party, it 
is not surprising that the Senate would engage in a relatively 
limited inquiry and that the criteria articulated would be 
relatively limited. After all, there is going to be relatively 
little disagreement between the nominating President and a 
majority of the Senate where there is this sort of unified 
control.
    I think that Senator Schumer's concern about the under-the-
table problem arises in connection with divided Government, 
when the President and a majority of the Senate are from 
different parties. It is at that point that controversy arises, 
and I take the effort here to be one to make sure that the 
nature of the controversy be brought out into the open rather 
than concealed by some other inquiries that might be 
undertaken.
    This historian I quoted, Dean Raymond Solomon, describes 
the history as one in which politics, policy and 
professionalism all play a role. Policy concerns, he says, 
dominate when Presidents attempt to transform governmental 
structures or policies and perceive the Court as a necessary 
ally in accomplishing that agenda.
    Controversy has arisen when Presidents made selections 
based on concerns that the Senate didn't share, whether the 
disagreement was over a policy course the President sought to 
set through the nominations or over the patronage-type politics 
the President pursued in selecting a nominee.
    My own take on this complex history would be that, in 
general, opponents of nominations have never thought that the 
mere fact of nomination carried with it any special presumption 
in favor of the nomination. Nomination contests have focused on 
whatever seemed relevant at the time: the nominee's ideology, 
the nominee's performance in executive office pursuing policies 
with which the Senate didn't agree, whether the nomination 
would have particularly dramatic effects on the overall 
direction of the Court, the nominee's background. All of this 
has been fair game, and it seems to me that is precisely the 
way the system of ambition countering ambition should work.
    I want to close with two comments. The first is the 
observation that has been made earlier today about the 
inaccuracy of predictions about the course the nominees will 
pursue once appointed. Here, there is a line--I may not quote 
it exactly -from Ecclesiastes: the race is not always to the 
swift, nor the battle to the strong. It was amended by either 
H.L. Mencken or Damon Runyon, but that is the way to bet; that 
is, chances are you are going to get what you expect to get.
    The second point relates to the concern about an intrusive 
or extensive nomination process and its effects on attracting 
people to the positions for which they might be nominated. 
Here, I want to refer to a dinner conversation I had nearly 30 
years ago with the first judge I worked for, George Edwards, in 
Detroit.
    At the end of my term of service with him as a law clerk, 
we went out to dinner and during the course of that dinner he 
said something that I have never forgotten, which is, 
reflecting on his career, he said we should always remember 
that it is a privilege to have the opportunity to serve the 
American people. I think that a nominee who does not regard the 
opportunity to serve as a real privilege is one about whom we 
ought to have questions.
    Thank you.
    [The prepared statement of Mr. Tushnet follows:]

      Statement of Mark Tushnet, Carmack Waterhouse Professor of 
          Constitutional Law, Georgetown University Law Center

    I want to thank Senator Schumer and the subcommittee for inviting 
me to testify on the important question of the criteria Senators should 
use in determining whether to vote in favor of a proposed appointment 
to the federal courts, and especially the Supreme Court. My 
observations are informed by historical experience and, I believe, 
constitutional principle. I begin with some general comments about 
whether nominees must show that they are particularly qualified for the 
appointment or whether, in contrast, those who oppose the nomination 
must show that the nominees are not qualified.
    My comments then turn to the relevance of political experience to 
appointment to the federal courts, and especially the Supreme Court. In 
my brief comments I will provide some snapshots from history, which 
indicate that many Supreme Court justices, including some of the most 
celebrated, have had substantial experience at the national political 
level.\1\ After giving these snapshots, I will explain why I think that 
such experience is an important asset that a person can bring to the 
Supreme Court. I do not argue, of course, that only people with such 
experience should be appointed to the Court, but rather that the Court 
serves us best when it contains a mixture of people with different 
backgrounds, and among those backgrounds should be some with 
substantial national political experience.
---------------------------------------------------------------------------
    \1\ My comments draw in part on Mark Tushnet, Constitutional 
Interpretation, Character, and Experience, 72 B. U. L. REV. 747 (1992).
---------------------------------------------------------------------------
    I believe that constitutional principle shows that nominations come 
to the Senate essentially in equipoise, because the considerations 
relevant to a burden of persuasion are basically in balance. This 
conclusion seems to me supported by the most basic aspects of our 
system of separation of powers, famously described by James Madison in 
The Federalist 51 as one in which ambition counters ambition. That is, 
the separation of powers system works best when each branch--here, the 
President and the Senate--take positions that each calculates 
independently would serve the American people best.
    In the context of judicial nominations, the process of ambition 
countering ambition works in this way: The nominee and his or her 
supporters can point out that the nomination was made by a President 
who presumptively has the support of the people of the United States as 
a whole, having been chosen by a majority of them. Senators can 
reasonably respond that they too were chosen by a majority of the 
American people taken as a whole. Indeed, they can note that the 
President was chosen by a majority of the American people in a single 
election, capturing the people's views at a moment in time, while 
Senators were chosen in a series of elections that, taken together, 
might better capture the more enduring values of the American people. 
In that connection, questions of timing may matter as well: The more 
remote the presidential election is, the more powerful is the Senate's 
claim to represent the people as of the time of the nomination.
    The historical record is, unsurprisingly, subject to varying 
interpretations. One historian describes the Senate's role as 
``reactive,'' responding to the initiative taken by the President in 
selecting a nominee.\2\ Presidents always have political allies in the 
Senate, who almost always take the position that the nominee is fully 
qualified for the position and that, in any event, the President's 
judgment that the nominee is qualified deserves some deference. 
Evidence taken from statements by supporters of a nomination is 
therefore, in my judgment, less valuable than evidence taken from 
statements by a nomination's opponents. In addition, the confirmation 
of a nominee has often been something of a foregone conclusion, which 
makes statements of principle on the question of confirmation something 
of a free shot by supporters and opponents: The supporters can 
structure their comments to lay the groundwork for using the 
confirmation as a precedent, and the opponents can dismiss those 
statements because they have no effect on the confirmation process.
---------------------------------------------------------------------------
    \2\ Rayman L. Solomon, ``Nominees, Controversial,'' in THE OXFORD 
COMPANION TO THE SUPREME COURT 595-96 (Kermit L. Hall ed. 1992).
---------------------------------------------------------------------------
    These considerations lead me to conclude that the most historically 
informed inquiry would examine highly contested nominations, a much 
smaller number, of course, than all nominations. Dean Solomon describes 
the history as one in which ``politics, policy, and professionalism'' 
all play a role. He points out that ``policy concerns dominate when 
presidents attempt to transform governmental structures or policies and 
perceive the Court as a necessary ally in accomplishing that agenda.'' 
Controversy has arisen when Presidents made selections based on 
concerns that the Senate did not share, whether the disagreement was 
over the policy course the President sought to set through the 
nominations or over the patronage-type politics the President pursued 
in selecting a nominee.\3\
---------------------------------------------------------------------------
    \3\ For example, the Senate rejected the nomination of Ebenezer 
Hoar to the Supreme Court in 1879 because the President represented one 
segment of the Republican Party, to which Hoar adhered as well, while 
the majority of the Senate formed a different faction in the same party 
and sought a nominee from that faction.
---------------------------------------------------------------------------
    I would summarize a complex history by saying that, in general, 
opponents have never thought that the mere fact of nomination carried 
with it any special presumption in favor of the nomination. Nomination 
contests have focused on whatever seemed relevant at the time. The 
nominee's ideology, the nominee's performance in executive office 
pursuing policies with which the Senate did not agree, whether the 
nomination would have particularly dramatic effects on the overall 
direction of the court, the nominee's background, whether the President 
is using the nomination essentially as a patronage appointment or to 
appeal to some particular interest group--all this has been fair game. 
In my view, that is precisely the way the system of ambition countering 
ambition should work.
    I turn now to the question of political experience as a 
qualification for judicial office. Consider first the membership of the 
Supreme Court when it decided Brown v. Board of Education. The Chief 
Justice had been Governor of California, the Republican Party's 
candidate for the vice-presidency in 1948, and a realistic contender 
for the presidential nomination in 1952 until Dwight Eisenhower entered 
the race. Hugo Black had been a Senator and a leader in promoting some 
of Franklin Roosevelt's most important legislative initiatives. William 
O. Douglas had been a presidential adviser and chair of one of the New 
Deal's major administrative agencies, the Securities and Exchange 
Commission. Stanley Reed had been a state legislator, general counsel 
to an important Depression-era agency, and Solicitor General. Felix 
Frankfurter had been a close presidential adviser and a major public 
commentator on the Supreme Court and the Constitution. Robert Jackson 
had been Solicitor General and Attorney General. Tom Clark had been a 
close presidential adviser and Attorney General under Harry S Truman. 
Even the least distinguished members of the Brown Court had significant 
national political experience: Harold Burton had been mayor of 
Cleveland and a Senator, and Sherman Minton had been a Senator from 
Indiana before his 1940 election defeat, after which he was appointed 
to the federal court of appeals.
    The substantial political experience represented on the Brown Court 
was not unique, or a response to the Court's obstructionism during the 
early New Deal, as a second snapshot reveals. The Court in the 1920s 
also had several members with substantial national political 
experience. The Chief Justice, William Howard Taft, had of course been 
president of the United States. James McReynolds had been Attorney 
General. Louis Brandeis had been a major public figure, leading the 
nation's consumer movement. Joseph McKenna had been a member of the 
House of Representatives and, briefly, Attorney General. And George 
Sutherland had been a leading figure in the United States Senate, after 
having served in the state legislature and the House of 
Representatives.
    A third snapshot includes the men who have served as Chief Justice. 
John Jay, of course, had been an important diplomat for the new nation 
and an author of a handful of The Federalist Papers. John Marshall had 
been a Virginia legislator, an important legal and political adviser to 
George Washington, a member of the House of Representatives, and, 
briefly, secretary of state. Roger Taney had been, again, a close 
adviser to President Andrew Jackson, secretary of the treasury and 
Attorney General. Salmon Chase was a governor and Senator, and 
Lincoln's secretary of the treasury, and, even while serving on the 
Court, a persistent potential candidate for the presidency. Edward 
Douglass White served in the Senate for three years before his 
appointment as Chief Justice. I have already mentioned William Howard 
Taft. Taft's successor Charles Evans Hughes had been Governor of New 
York for two terms before his appointment to the Court, and was the 
unsuccessful Republican candidate for the presidency in 1916. Before 
his reappointment as Chief Justice, Hughes served as secretary of 
state. Fred Vinson was a member of the House of Representatives, and, 
after resigning as a federal judge, occupied a number of important 
positions in Roosevelt's wartime administration before becoming 
secretary of the treasury in 1945.
    My final snapshot is drawn from a list of justices provided in the 
first pages of the constitutional law casebook of which I am a co-
author. The list is designed, we say, ``to offer at least some sense of 
the background, personality, and intellectual style of the justices who 
have had the greatest impact on modern constitutional law.''\4\ 
Omitting the Court's present members, we describe 29 justices, of whom 
seventeen, in my judgment, had substantial political experience, almost 
all of them on the national level.
---------------------------------------------------------------------------
    \4\ GEOFFREY STONE ET AL., CONSTITUTIONAL LAW lxxi (4th 
ed. 2001).
---------------------------------------------------------------------------
    I should note at this point an important qualification. Of course 
determining whether someone has had substantial political experience on 
the national level is a matter of judgment, and I have no doubt that 
some of my judgments could be challenged. In my efforts to count and 
evaluate, for example, I treat Louis Brandeis and Thurgood Marshall as 
people with substantial national political experience even though 
neither had occupied elective office before they became justices, and 
Brandeis had not held even an appointive national office. But I did not 
include Lewis Powell in my list of justices with substantial national 
political experience, despite the important positions he held in 
Virginia's education system during the early years of desegregation and 
despite the fact that he had been president of the American Bar 
Association. I counted serving, even briefly, as Attorney General as 
having national political experience, but what of Justice Byron White's 
service as Deputy Attorney General?
    The snapshots I have given indicate rather clearly, I think, that 
over the course of U.S. history, substantial experience in national 
politics has been regarded as an asset for Supreme Court justices. This 
is not to say that such experience has been a prerequisite for 
appointment, or that justices with such experience have uniformly been 
better, according to any relevant criteria, than justices without it. 
Rather, it is to say only that the judgment of presidents and Senators 
appears to be that having a Court with some justices with national 
political experience is valuable for the Court and the nation.
    What might explain that judgment? I will identify three reasons, in 
decreasing order of importance, for thinking that the Supreme Court's 
quality, and therefore the quality of constitutional law, is improved 
when some justices have had significant national political experience. 
Again, of course, one's view about the quality of constitutional 
adjudication depends at least in part on the general understanding one 
has about what constitutional adjudication is, and each Senator will 
have to assess what I have to say in light of his or her individual 
understanding about that question.
    The most important reason for thinking that substantial national 
political experience is a valuable attribute of Supreme Court justices 
is that an important component of what we want from Supreme Court 
justices is what Dean Anthony Kronman of Yale Law School calls prudence 
or practical wisdom, precisely because justices are called upon not to 
articulate principles of justice in the abstract but rather to develop 
principles of justice suitable for regulating government in the present 
day, under real-world conditions.
    We can find practical wisdom in many places, of course, but people 
with substantial national political experience have two characteristics 
that make them particularly suitable candidates for finding it. First, 
they have displayed their capacity to exercise practical wisdom in 
their public lives. So, we simply have a larger evidentiary base for 
evaluating a nominee's capacity to exercise practical wisdom when the 
nominee has been an important public figure. No doubt backroom advisers 
and lawyers in private practice can have practical wisdom, but only 
those whom they advise will be able to say with confidence that the 
nominees are indeed people of sound practical judgment.
    Second, an important reason that people become successful public 
figures over the long run is that they actually demonstrate their good 
judgment. Among other things, success requires that political figures 
listen well to people with views different from theirs, and learn how 
to respect and to some degree accommodate those views without yielding 
on what is fundamental to the political actor. Here substantial 
national political experience does not itself give the person a 
particular asset, such as knowledge about the realities of government 
that he or she can contribute to the Court. Rather, successful 
performance on the national political stage is an indication that the 
nominee has the valuable character trait of practical wisdom and 
judgment that we seek in judges.
    A somewhat less important reason for thinking that national 
political experience should be regarded as an asset in a judicial 
nominee is the sense of reality that people with such experience can 
bring to constitutional adjudication. To the extent that Supreme Court 
justices are developing doctrine aimed at ensuring that the American 
people are governed as well as we can be within constitutional limits, 
knowing how government actually works may be a valuable asset. The 
usual example given to support this point is that someone sensitive to 
the realities of the national legislative process would not dismiss 
legislative history as a guide to interpreting statutes.\5\ Another 
example might be that of Justice Byron White, the Court's most 
articulate defender of the proposition that separation-of-powers 
questions should be resolved with an appreciation of the way in which 
members of Congress and members of the executive branch are engaged in 
long-term interactions. Justice White based this understanding of the 
Constitution on his experience as Deputy Attorney General.
---------------------------------------------------------------------------
    \5\ I note, though, that to some extent those who argue against 
resort to legislative history have an account of statutory meaning 
based on a theory of democratic self-governance according to which the 
actual operation of the present legislative process is irrelevant.
---------------------------------------------------------------------------
    I think it is indeed important that the Supreme Court as an 
institution have access to this sense of the realities of governing. 
One problem, however, is that those realities change, and a person 
appointed in one era might not understand the new realities. Justice 
Black, for example, clearly knew what Congress was like in the late 
1930s, but he served through the 1960s, by which time the realities of 
the legislative process had changed dramatically. He could, and did, 
contribute his sense of the realities of governance to the Court in the 
1940s, but his ability to make such a contribution dissipated over 
time. This consideration suggests to me that Senators should be 
concerned that they be presented with some regularity with nominees 
with substantial national political experience. A long run of nominees 
without such experience is, I think, likely to impair the quality of 
constitutional law.
    Finally, in conversations about the contributions people with 
substantial political experience can make to constitutional 
adjudication, sometimes I have heard politicians disparaged as people 
who are good at the art of compromise but--for that reason--not well 
suited for developing constitutional principles. Designing a statute 
that accommodates competing interests, it is thought, is quite 
different from articulating a constitutional principle to regulate some 
general area like free speech. In the main, I agree with this position, 
although I think it fails to appreciate the extent to which politicians 
themselves act on principle. Still, I think it worth noting that the 
art of compromise is not foreign to the Supreme Court. As with 
statutes, opinions contain language whose terms are sometimes 
negotiated among the justices, as the inspection of the papers of 
various justices at the Library of Congress reveals. A person adept of 
explaining to a recalcitrant colleague why a change in language is 
desirable and need not impair what the colleague thinks important 
serves a valuable function on the Court. To the extent that people with 
substantial political experience bring such talents to the job, all the 
better. But, of course, those talents are not unique to people with 
such experience, so the ability to work out compromises over doctrinal 
formulations is the least important asset people with substantial 
national political experience bring to the Court.
    I should be clear that neither my snapshots nor my normative 
argument establish that we should have only people with substantial 
national political experience on the courts. For example, having some 
grasp of the realities of government is useful, but so is having some 
grasp of the realities of business, and having some grasp of the 
realities of the criminal justice system, and so on. Different nominees 
bring different experiences to the courts, and what seems desirable is 
having a decent mix of people, among whom are some with substantial 
political experience.\6\
---------------------------------------------------------------------------
    \6\ I think it worth noting as well one disadvantage associated 
with the nomination of people with substantial national political 
experience: The Senators who will consider them in the confirmation 
process are likely to have had personal relations with the nominees. 
Such relations can enhance the quality of the Senators' judgments, but 
they also can distort those judgments: nominee who has been easy to get 
along with may mistakenly be seen as wise and prudent.
---------------------------------------------------------------------------
    To summarize: Historically it has been thought important that some 
significant number of Supreme Court justices have substantial 
experience in national politics. And there are good reasons, based on 
what I think is the best understanding of what we seek in 
constitutional adjudication, supporting that judgment. In particular, 
judges with such experience are likely to bring a sense of reality to 
constitutional adjudication, and, more important, practical wisdom as 
well.

    Chairman Schumer. Thank you, Professor. I want to thank all 
five witnesses. The testimony was varied, but I think right to 
the point, and we appreciate it very much.
    We may have a vote at five o'clock, so I am going to do 5-
minute rounds and maybe we will go for a second round, if that 
is OK.
    I want to propose three questions that as a Senator I would 
like to ask nominees, certainly to the Supreme Court, but 
others, and their answers would not be totally dispositive, but 
influential, let's say, or having some influence in whether I 
would vote for them.
    They are: what is your belief in the First Amendment, how 
does it affect your views on whether the Congress should be 
able to regulate campaign finance reform? What are your views 
on the Second Amendment and do you believe that licensing and 
registration of firearms is inconsonant with the Second 
Amendment? What is your view on the Federal right to privacy 
and how does it affect your views on a woman's right to choose?
    I could go on ad nauseam with questions like that, and I 
would be particularly interested in Professor Rotunda's and 
Dean Kmiec's view on that, but I would want to hear all the 
witnesses because particularly Professor Rotunda's testimony 
would seem to say those questions should not be asked and that 
should not be influential in determining whether we should have 
a judge. Now, these are not political questions, these are not 
questions involving a particular case. They are questions of 
broad judicial philosophy that have relevance to the American 
people.
    So why don't you start, Professor Rotunda, because I have a 
feeling you would think that those are not legitimate questions 
for inquiry by this committee, give your reasons why, and then 
I will ask others who would disagree to rebut that.
    Mr. Rotunda. I don't think those questions should be 
answered. Judge Ruth Ginsburg came to Illinois some years ago 
when she was on the D.C. Circuit and recalled questions that 
were going to be asked of her by a group called United Families 
of America. They wanted to test the nominee's ``balance.'' That 
is her phrase. These were typical inquiries: can Congress limit 
the jurisdiction of the Federal courts in, say, school busing 
cases? Do parents have any rights with respect to abortions 
performed on their minor children? Present law and practice of 
the armed forces bar women from combat. Could that exemption 
withstand a constitutional challenge?
    She said that United Families wanted these inquiries to 
uncover any bias toward activist and she said, ``I was relieved 
when Senator Howard Metzenbaum, who chaired the confirmation 
hearing the day I appeared, refused to ask the questions. I 
found them a frightful prospect.''
    I mean, it is a free country: You ask what you want, but I 
don't think a nominee should answer those questions. It is 
basically giving a promise on how he or she is going to vote on 
a particular case and you wouldn't want a nominee like that.
    Chairman Schumer. Well, those are not particular cases, but 
much broader judicial philosophy. I didn't ask specifically 
about any specific case.
    Mr. Rotunda. Well, you asked does the First Amendment limit 
the campaign financing rules.
    Chairman Schumer. Right.
    Mr. Rotunda. Does the Second Amendment restrict Congress' 
power to restrict arms? You are asking about legal issues. I 
don't think judicial candidates should do that.
    Chairman Schumer. Any disagreement?
    Mr. Tushnet. Well, it seems to me on the Second Amendment 
question, I think most of your nominees or people put up in 
front of you would say, I know there is this controversy over 
how the Second Amendment should be interpreted; I really 
haven't examined it in any detail and so I don't have any 
formed views on that. I think that would be an honest answer 
for many of the nominees. I think it is an appropriate question 
to ask and I think that is certainly an appropriate kind of 
answer.
    On the campaign finance question, I think it would be 
perfectly proper for somebody to say, well, you know, Buckley 
v. Valeo is on the books. There is now 25 years of campaign 
finance law. The Supreme Court has decided. They have 
identified a series of considerations about the appearance of 
corruption and whether that is implicated by particular forms 
of campaign finance regulation.
    Now, you could go either way. One nominee might say, it 
seems to me that they have struck the balance somewhat in a way 
that makes me a little uncomfortable. They have identified the 
right kinds of things, but I am not sure which way I would go 
on particular cases. Or they might say they have identified the 
right kinds of things and, on the whole, the law that the Court 
has developed seems basically OK by me.
    Now, that seems to me revealing of what we have been 
calling here judicial ideology, a way of thinking about--
    Chairman Schumer. I am sort of at a loss as to what 
Professor Rotunda would have me--why we would have a hearing 
here. Now, someone pointed out on the other side that we didn't 
have hearings for a while.
    Mr. Rotunda. When you had them, they were closed to the 
public and the nominees could not testify.
    Chairman Schumer. So what is the purpose of the ``consent'' 
part of the Constitution?
    Mr. Rotunda. Well, what we have been doing for the last 200 
years, which is--
    Chairman Schumer. Well, no. These questions have been asked 
before.
    Mr. Rotunda.--talking about integrity.
    Chairman Schumer. Just integrity? OK.
    Mr. Rotunda. That is right. Take the Second Amendment 
question. If you can ask that question, the Senator is going to 
be saying, OK, you haven't thought about it; think about it for 
a month and come back to me because I would like to know your 
answer on that. And we shouldn't do that.
    Chairman Schumer. Why don't we have Professor Resnik and 
Professor Levinson?
    Ms. Resnik. Imagine that you asked the question, does the 
14th Amendment prohibit discrimination against race and are 
single-race schools illegal? No one would object to your asking 
that question.
    Chairman Schumer. Would you, Professor Rotunda?
    Mr. Rotunda. No. That is what the law is.
    Ms. Resnik. But my point is--
    Chairman Schumer. Because it is settled law? Is that the 
reason?
    Mr. Rotunda. Yes.
    Ms. Resnik. But actually what the real meaning of Brown has 
not yet become settled law.
    Chairman Schumer. Well, what if I believe Roe v. Wade is 
settled law?
    Mr. Rotunda. Well, the Supreme Court has pretty much 
settled it for the last 25 years.
    Chairman Schumer. So my third question is a legitimate 
question?
    Mr. Rotunda. Well, no. I think if you ask somebody what has 
the Court ruled on this, that is just like looking at a law 
book; you answer the question. If you are asking somebody how 
they are going to rule on the issue, I think a lower court 
judge should follow the U.S. Supreme Court. That is what a 
judge should say. Is that helpful to you?
    Chairman Schumer. It is certainly helpful in knowing 
someone's judicial philosophy to me. It is not dispositive, but 
it is helpful. To me, it is as important as the law school they 
went to or the fact that they haven't had anyone file anything 
against them at the bar association. Particularly for a Supreme 
Court nominee, you bet it is helpful. I think that is part of 
my job. I think I would be derelict in my responsibilities if I 
didn't ask those questions.
    Go ahead, Professor.
    Ms. Resnik. I would like to also push you a little further. 
In addition to asking and looking at their answer, you should 
go further and look at what they have done in their past.
    Chairman Schumer. Of course.
    Ms. Resnik. We need to not just look at the answer in a 
given time. The role of the Senate confirmation hearings is a 
positive one in developing the legal rules. The good news is 
since 1925 we have been doing it, and the better news is that 
more recently, we have been doing it in public. Doing it in 
public creates a public forum for debating what our law ought 
to be. When you confirm someone, you are endorsing the notion 
that this person ought to have the privilege of serving as a 
life-tenured judge.
    Chairman Schumer. I will let Professor Levinson answer, but 
I am sort of befuddled that we are allowed to ask questions 
about settled law, but not about unsettled law. Well, I would 
like to know the big book in the sky that says what is settled 
and what isn't settled. On so many of the issues, the side that 
agrees with them regards it as settled and the side that 
disagrees regards it as unsettled. I am sure there are some 
crazy people in this country who don't think the 14th 
Amendment, as Professor Resnik brought out, is settled. It is a 
weird path to go down.
    Professor Levinson?
    Mr. Levinson. I think the thrust of Professor Rotunda's 
argument is that the Senate should go back to its pre-1925 
practices, and I think there are very good reasons that the 
Senate has over the years rejected those. In my earlier 
comment, I mentioned that the Framers did not imagine political 
parties. I think it is also fair to say that nobody imagined 
the practical power of the Federal judiciary.
    Whatever side you are on, I suspect that all of us have, at 
least in conversation, referred to the imperial judiciary, even 
if we have been referring to different judges and different 
judiciaries. As a practical matter, everybody knows it matters 
who is on the courts. You are interested and the public is 
interested.
    If you don't stop holding hearings at all with the judges, 
the second best model for Professor Rotunda is the Scalia 
hearings. But Justice Scalia quite remarkably--and I will kind 
of give him credit for his gumption on this--refused to answer 
a question, I believe, about Marbury v. Madison because, after 
all, the issue of judicial review and judicial power is the 
fundamental issue. Professor Tushnet has written an excellent 
book attacking the idea of contemporary judicial review, and if 
you take this seriously, there really is nothing to hold 
hearings about.
    Chairman Schumer. You are right. It gets to a point of 
absurdity, I guess.
    Do you want to have the last word, Dean Kmiec, because you 
didn't have a chance on this one?
    Mr. Kmiec. Well, I doubt it will be the last word, but an 
observation. I think the difficulty with the questions you pose 
may be the level of specificity. It would be a preferred 
alternative to ratchet it up to the methodology that the 
particular nominee would use in the context of--
    Chairman Schumer. Well, I specifically tried not to make it 
a specific case.
    Mr. Kmiec. Not to make it a specific case. I think this is 
a delicate line to observe because, Mr. Chairman, part of your 
question is really a question about the rule of law. As you may 
remember, in my testimony I said it was entirely proper to ask 
questions about fidelity to the rule of law and questions about 
stare decisis and the like.
    But in terms of actually evaluating a judicial nominee, I 
think you want to know method. You want to know is there a 
difference for this nominee between statutory interpretation 
and constitutional interpretation. How does he approach both 
questions? And perhaps as you edge ever closer to a particular 
substantive area, you run the risk of not being able to 
anticipate where cases are going to come from, and that is what 
threatens the independence of the judiciary.
    Chairman Schumer. I would never want to press a potential 
nominee on a specific case. I would never say on the evening of 
March 2nd, such and such occurred and this is what happened and 
how would you rule?
    In fact, I specifically avoided, I believe, in my question 
mentioning Buckley v. Valeo or Roe v. Wade because I didn't 
even want to get into that level of specificity. But to explore 
the very question that you have posed--how does someone reason 
and how does someone look at statutory rulings--you need to ask 
questions like this.
    Mr. Kmiec. I think those questions are in the ballpark, but 
I think the one thing that you would have to be alert to very 
assiduously is the moment that the citations start to come out.
    Chairman Schumer. From which side of the table?
    Mr. Kmiec. On either side of the table, because for the 
nominee to awkwardly start making gratuitous, non-judicial 
comments about the cases or for the questions to start being 
put to him starts to undermine, I think, the judicial process.
    Chairman Schumer. Just one point here. Some of our nominees 
have very little judicial experience, but some have been judges 
at the State or lower Federal courts for 20 years. I would need 
less of an answer for the latter type of nominee than the 
former type of nominee, don't you think?
    Mr. Kmiec. Well, without a doubt, Professor Resnik made 
that point about reviewing their past behavior, whatever it is, 
whether it be prior judicial opinions, whether it be law review 
writing, whether it be speeches that they have given to the bar 
association.
    But, again, all of those things seem less important than 
whether or not the person has manifested an attachment to the 
seriousness of the position that he has been nominated for in 
terms of the rule of law, his integrity to abiding by the 
precedents as they exist, depending on the level of court we 
are talking about here now--different judges are going to have 
different responsibilities with regard to that--and, of course, 
fundamental fitness, preparation, learning in the law.
    Chairman Schumer. They are all important, and I would say 
no specific is dispositive to me, at least.
    Senator Sessions, I appreciate your indulging me.
    Senator Sessions. This is most interesting, Mr. Chairman. I 
appreciate this fine panel. We have had a lot of good 
discussion about this matter and I think it is worthy of 
discussion. I think it is a free country and we ought to talk 
about it, but I don't believe that we need to alter our 
historic pattern of giving deference to the President.
    I believe Senator Simon said he wished he had not voted for 
Scalia, and would not had he come again. But does that mean 
that I as a person who believes in restraint should vote 
against Ruth Bader Ginsburg and other judges that got 
overwhelming support in this body just because we don't agree 
with all aspects of their legal, judicial or personal politics? 
I think it is a dangerous road for us to get into, that we go 
down that road, and I would share that.
    I think the greatest danger, as Senator Hatch has stated, 
is do we have a judge who is an activist? An activist is a 
judge that allows his or her personal political or 
philosophical views, whether liberal or conservative, to 
override their commitment to the rule of law.
    I believe Professor Rotunda noted that our laws are 
respected around the world. Indeed, I am absolutely convinced 
as I become older that the strength of the American economic 
system, judicial system and political system is our legal 
system. You can expect to go to court and get a fair and 
consistent verdict in any court in America normally, and if 
not, you have a good chance of getting it reversed. It is a 
good legal system. It has worked by keeping politics out of it. 
We need to keep politics out of the courts.
    Now, I know there is afoot in this country a philosophy, 
particularly in law schools, that believes that all law is 
politics, that everything is politics and there is no truth, 
that you can redefine words to mean anything you want them to 
mean, and therefore a judge has a power to carry out an agenda. 
That is a threat to democracy. That is a threat to democracy 
because judges are lifetime-appointed; they are unaccountable 
to the people, they are anti-democratic. It is the only aspect 
of our system that I know of that is that way, and we ought not 
to put somebody on the bench that has an agenda to achieve. 
That is the key aspect.
    I remember, and I will never forget it, in the early 1980's 
Hodding Carter when this debate was going on was on ``Meet the 
Press'' and he said we liberals are frustrated because we can't 
expect the courts to carry out our political agenda which we 
can no longer win at the ballot box. Basically, that is what he 
said, and I think that is what the key aspect of it is here.
    We want to have judges, whether they are liberal or 
conservative, who have fidelity to the law and will subordinate 
themselves to it. Now, if you start asking them about what is 
your view on firearms or campaign finance reform, a judge who 
thinks his answer might not be in accord with one more than 
half this Committee is probably in a difficult position.
    I would submit to you honorable people can disagree on 
whether Laurence Tribe is right and the right to bear arms is a 
personal right guaranteed under the Second Amendment or not. We 
ought not to just decline to confirm a nominee who may disagree 
with us on that point or any other single point. The judges are 
all over the lot. We have got people in this Senate who believe 
that the burning of a piece of cloth is speech and ought to be 
protected, and so does Scalia. The same group of people believe 
that we can pass a law in this Senate that says a group of 
American citizens can't come together and raise money and buy 
an ad on television to say Senator Jeff Sessions is a no-good 
skunk. They say that doesn't affect the First Amendment right 
of free speech and press.
    I say those are serious matters and I don't know the answer 
to them. I don't expect every nominee who comes before us to 
answer those questions. Hopefully, if it ever comes before 
them, they will study every brief and they will study history 
and give it serious thought.
    Mr. Chairman, I think you can't prohibit a Senator from 
asking a lot of the questions you are talking about. I think 
you do get an insight from some of those questions, but we have 
got to be very careful that we don't politicize this process. 
That would be my concern.
    I will go back to you.
    Chairman Schumer. You have got plenty more time.
    Senator Sessions. I have questions, but I will let you go 
next.
    Chairman Schumer. Great. I just wanted to follow up on what 
you said. The problem here is what people see and where you 
come from. You said Orrin Hatch said ``activist judges,'' and I 
understand where people in the 1970's and 1980's and others 
particularly said we have a Supreme Court that is so far away 
from what the American people think that they are making laws 
that they can't get through Congress.
    I would argue that now there are a lot of people who feel 
that the activists on the Supreme Court are certainly not Judge 
Ginsburg or Judge Breyer, the two Clinton appointees who tend 
to be regarded at least by the people on the left as moderate.
    I like moderates. When I appoint judges in New York, I 
don't want far-left people because I have seen them in New York 
City make laws that are ludicrous. I don't want them and I will 
tell you stories, between you and me, of people I have rejected 
because some of their decisions, even though my heart would 
agree with them, were so impractical and so beyond the bounds. 
They were just saying I am a judge and I want to put it my way 
on homeless issues, on things like that.
    I would say to you that, here, lots of people regard the 
real activists on the Court as Scalia and Thomas. You may say, 
well, they are strictly interpreting the law and they are not 
activists. But some of us would say the Commerce Clause has 
been interpreted since the 1890's and the 1912s, you know, the 
progressive era, and certainly the New Deal, as allowing this, 
this, this and this. And all of a sudden we get some people who 
say, oh, no, let's go back to the way the Commerce Clause might 
have been in 1840.
    I would say, or some would say--let's not even bring you 
and me into this--many would say that is activist and the 
danger is having too many of those activists.
    Senator Sessions. Well, let's talk about that.
    Chairman Schumer. Well, I want to get the panel's view on 
this.
    Senator Sessions. All right. That would be just as well; it 
would be better.
    Chairman Schumer. And then we will talk about it, but the 
same, exact arguments that many on the right objected to with 
the Warren Court are being used now by many on the left to 
object to the present Court. And I am not talking about Bush v. 
Gore. I don't quite agree with Professor Levinson on that. He 
is the President and that is that. I don't think it was great 
reasoning, but it doesn't influence my views on how I want to 
vote on judges.
    Senator Sessions. He won anyway, the recounts show.
    Chairman Schumer. Well, we won't get into that one now. I 
am trying to avoid it, Jeff.
    Senator Sessions. You started it.
    Chairman Schumer. And so particularly when you have the 
present President Bush who said he wanted to choose judges like 
Scalia and Thomas, who are not--I forget the words now, but we 
can read them into the record--who are not big liberals and who 
are not translating the law too far, many in the country, and 
not people just on the far left would say because the President 
has decided to nominate people who are such activists, 
activists on the right as opposed to activists on the left, 
there is an added burden to stop him, just using the same 
analogy used, but mirror-imaged.
    I would like to know people's view on when a President 
seems to be invoking some degree of judicial philosophy in whom 
he chooses, does that put a greater burden on the Senate to 
bring out who the nominees are? Does that mean the judges 
should have to go forward?
    This time, I will call on Professor Resnik first.
    Ms. Resnik. Well, I would just like to start by working on 
these words ``to act.'' Imagine you are a judge in a particular 
case and you have heard all the testimony and you just say, 
wow, I really can't decide, I pass. We don't let judges do 
that; they have to judge. To judge is to act. So all judges of 
any stripe, including the moderates, are acting in rendering 
judgment.
    Then the question is what is their license? The facts in a 
case are the first basis for their license. One of the problems 
with the current majority of five on the Supreme Court is that 
many of their decisions are what I would call ``factless'', 
which is to say that their opinions are theoretical discussions 
of the structures and the meaning of the Constitution, but the 
decisions do not actually struggle with the facts in the 
records, including the records made here in Congress.
    So when are judges moving outside their realm? I noticed 
that Boyden Gray and I would say exactly the same thing. Judges 
should not legislate. What judges need to do is, A, hold a 
presumption in favor of and deference to Congressional 
statutes, and B, decide based on facts and arguments on whether 
to shift legal rules, and C, but try to make narrow rulings.
    I am a judicial conservative in the sense that I think 
judges ought to do less rather than more. In that sense, the 
real concern now is that courts are striking statutes with 
breathtakingly general statements. For example, take the deeply 
atextual approach to the Eleventh Amendment. For those who care 
about the text of the Constitution, one of the most remarkable 
aspects of the current 11th Amendment jurisprudence is that 
some of the majority opinions state that it is not the text of 
that provisions that matters it is what these justices believe 
it supposed to mean that counts. That is where I think we move 
into a form of aggressive judicial behavior. All judges must 
act; what is objectionable is the take on aggressive 
expansionist authority.
    If the President is saying that such an aggressive posture 
is his model of a desirable judge, then your work is all the 
greater, particularly in a split government. In a split 
government, found a split election, we need to be sure that the 
people who are the new judges really are judges for us all and 
not appointed to forward only a particular, narrow agenda. So I 
think you actually have a bigger job now than you might have 
under other circumstances.
    Chairman Schumer. Professor Levinson?
    Mr. Levinson. I agree with most of what Professor Resnik 
has said. I confess I don't find the word ``activist'' very 
helpful on either side, and in terms of Senator Sessions' 
comment about law and politics, I would return to Justice 
Frankfurther's comment about the idealized political pictures. 
Whatever my views about Bush v. Gore, I am sure that the 
majority believes that that is the accurate political picture 
of the Constitution, just as I am sure that the dissenters 
believe that is the actual constitutional picture.
    I think the point of the Frankfurter quotation and the 
Justice Breyer quotation is precisely that law is complex, is 
controversial, is unclear, especially the higher up you go in 
the judicial hierarchy. I have no doubt that the comments made 
earlier that most district judges will come out the same way 
most of the time--we might quibble about the percentages, but I 
suspect you are right.
    But I think that as you go higher in the judiciary, the 
cases are going to be more difficult, more controversial. And 
then I think to keep with the Frankfurter metaphor, the lens 
you use, the filter you use and the like, are thoroughly 
sincere. I think that all of the people we are talking about 
are people of integrity, but they are using different filters. 
They do look at different things and you come out sometimes 
with profoundly different pictures.
    I think that the question about inquiry into ideology is 
precisely--and this metaphor might come to an end--precisely 
what camera you are going to use, what kind of equipment you 
are going to use. I think it is perfectly proper to ask those 
questions, but I really don't think the words ``activist'' or 
``restraint'' are at all helpful anymore. I think they are 
simply labels to attack people whose pictures you basically 
don't like.
    Chairman Schumer. Professor Rotunda?
    Mr. Rotunda. Well, Justice Scalia a few months ago wrote 
the opinion that banned warrantless searches using high-
technology, heat-seeking devices. Justice Stevens was in the 
dissent. Maybe when President Bush says he wants to appoint 
Justices like Scalia, he means people that respect our Fourth 
Amendment privacy rights. Maybe that is what he means.
    How in the world he is going to find these people, I don't 
know. I mean, you could ask somebody, do you agree with Justice 
Scalia's opinion? And I guess the answer would be it is the law 
now; lower court judges are supposed to follow it. But 
otherwise, I don't think Presidents, any more than Senators, 
are able to predict with any kind of accuracy.
    Chairman Schumer. President Bush, when he mentioned Scalia 
and Thomas, mentioned the words he didn't want liberal or 
activist judges. I believe that is in the quote.
    Mr. Rotunda. That is right.
    Chairman Schumer. I think he was much clearer than you are 
giving him credit for.
    Mr. Rotunda. Professor Resnik doesn't believe in activist 
judges. You want moderate judges, we all want moderate judges, 
but that is a level of generality that I don't think really 
helps a lot. I think that if we look to some of these--
    Chairman Schumer. How do we find them?
    Mr. Rotunda. What?
    Chairman Schumer. How do we in the Senate help find them if 
we want them, or how does the President find them? If none of 
us can ask the questions that I asked in the first round, I 
don't get it.
    Mr. Rotunda. Some things are impossible, like trying to 
square the circle. If you wanted to look at somebody's 
background, the Senate would have rejected Hugo Black, who was 
a card-carrying member of the Klan, and still had his card when 
he was a Senator.
    Chairman Schumer. But the exception doesn't prove the rule.
    Mr. Rotunda. No. I think actually that that is the rule, 
that we tend always to guess wrong. When we reject somebody on 
the bench, we never know what kind of judge he will be, but we 
have accepted people on the bench who have really surprised us 
all the time. And I think they ought to because that is why we 
give them lifetime tenure and salary protection. They are not 
beholden to the President or the Senators, and they shouldn't 
be.
    Chairman Schumer. Do you have any historical perspective on 
this, Professor Tushnet?
    Mr. Tushnet. Well, I want to reiterate the point I made 
earlier that, as a general matter, you can predict reasonably 
well. If you could predict as well on the stock market as you 
can predict about judges, you would be a very rich person.
    It just seems to me, of course, there are individual 
exceptions and, with individual judges, particular cases where 
things are somewhat surprising. But I don't think President 
Reagan is disappointed in his appointment of Justice Scalia. I 
think he wanted a conservative, activist judge and got one. 
Now, he might not like the flag-burning decision. I have no 
idea about the Fourth Amendment stuff, but on the whole he got 
what he wanted.
    Chairman Schumer. You can always point to exceptions here 
and there. Otherwise, we might as well just go Aristotlean, was 
it, or Plato or Socrates who said we ought to choose people by 
lot because none of these questions matter because we can't 
predict?
    Ms. Resnik. I want to disagree a little bit with Professor 
Levinson's notion about a focus only or primarily at the higher 
levels of that Judiciary. Look at the district court judgments. 
Some are reading even the current Supreme Court's Commerce 
Clause jurisprudence for more than it is worth. It is in the 
lower courts where the meaning of Brown of the permissiblility 
affirmative action is debated. Lower courts are parsing the 
meaning of the Child Support Recovery Act, of the 11th 
Amendment.
    I want to underscore that the Senate's job shouldn't be 
just seen as a sort of one-shot play where you put in an 
appearance for the purposes of the United States Supreme Court, 
or even some of the high-visibility appellate court judgeships. 
To me, the real question is how to help the Senate have the 
wherewithal and stamina to do the needed inquiry for this life-
tenured position time and time again. How are you going to 
develop and embrace that role? How can you institutionalize 
practices?
    Chairman Schumer. Good question.
    Ms. Resnik. The judiciary at the beginning of the twentieth 
century was 70 to 100 people. We are now talking about 700 to 
800 lifetime appointments. The stakes are high each and every 
time. To me, the question is how can any of us help you augment 
your resources so you do undertake the inquiry not as a show, 
but as a serious effort to express the degree to which we all 
cherish the Article III judiciary. The Senate and the President 
together constitute this other branch with deep respect for it. 
How can we help you institutionalize processes that express 
that approach and that make this serious inquiry go forward?
    Mr. Kmiec. And ideology isn't it. Respectfully, there is a 
fundamental divide between two questions. One question is to 
the nominee: how will you go about your job, how will you go 
about deciding? The other question is how will you decide?
    The question, how will you decide, is entirely 
inappropriate, I respectfully suggest to this body. The 
question, how will you go about deciding, is the difficult and 
the tough one, the one that I think Professor Resnik just 
alluded to. But it is also the one that Senator Sessions picked 
up because, in essence, it is asking the nominee, do you 
believe that the language this body, the Congress of the United 
States uses has meaning and can be ascertained with reasonable 
effort from the statute itself, from the statutory placement of 
its words, from the underlying purpose that gave rise to the 
statute in the first place? Will you make a faithful effort to 
ascertain our meaning so that the politically accountable 
branch will, in fact, govern in the United States? That is the 
question.
    Chairman Schumer. Professor Resnik wouldn't disagree with 
you. She is just saying some of the present members are 
ignoring that and we ought to find out if they will continue to 
ignore it.
    Is that right? Is that a fair statement?
    Ms. Resnik. Absolutely.
    Mr. Kmiec. But be careful here. The evidence of how they 
are ignoring it cannot be proved by that you dislike their 11th 
Amendment jurisprudence or you dislike their Commerce Clause 
jurisprudence or you dislike their holding on a particular flag 
case. I may dislike them, too.
    The question is did they faithfully go about their business 
as a judge seeking to ascertain in the text of the 
Constitution, the structure of the Constitution, the history of 
the Constitution what it means to have a First Amendment right 
of free speech. Did they go about doing that? And if, in fact, 
they fairly went about doing that, then the outcome is far less 
important because you and I can't anticipate the cases that are 
going to come before them.
    We can anticipate whether or not they have the legal, 
mental capacity and the disposition to fairly carry out their 
function. So, again, the difference is how you go about 
deciding, as opposed to how will you decide.
    Chairman Schumer. Go ahead.
    Mr. Levinson. Could I suggest actually one additional 
question, and I would be very interested to hear particularly 
Professor Rotunda's and Dean Kmiec's responses. I think it 
would be perfectly proper to ask nominees if they thought it is 
proper--and what they would do--to time their leave-taking from 
the Federal judiciary with regard to the political identity of 
the President or the Senate.
    I think there is no doubt, for example, that Justice White 
and Justice Blackmun timed their resignations to wait for a 
Clinton presidency. There have certainly been similar 
suggestions with regard to the current Court, and one can look 
through our history--
    Chairman Schumer. Professor, some would have us believe 
that never, ever happens.
    Mr. Levinson. But that is demonstrably false, and it does 
seem to me that this is a very clear and important way that 
politics injects itself into the judicial role if, by judicial 
role, we mean the way one leaves that role gracefully.
    This does not ask anybody to talk about a future case, to 
promise a decision on the merits or the like. It simply asks, 
in effect, whether one ought to take into account the politics 
of appointment. And to the degree that we do believe that the 
politics of appointment are taken into account in timing 
resignations, I think it is certainly a matter worth hearing on 
some other day whether there is anything that can be done about 
that, short of abolishing lifetime tenure.
    Chairman Schumer. Go ahead, Professor.
    Ms. Resnik. It is the politics of authorizing judgeships, 
as well, because the Congress increases the number of life-
tenured judgeships under certain circumstances and not under 
others. Just last year, under the prior administration, we were 
hearing from members of the opposing party in Congress that we 
didn't need more life-tenured judges because the benches were 
full enough. Now there has been a change in administration, 
some of the people who had opposed additional appointments for 
the Fourth Circuit or the D.C. Circuit are suddenly saying that 
now we need more life-tenured judges. So the rhetoric around 
the need for appointments is deeply steeped in politicals.
    Chairman Schumer. If you ask the average American person 
does politics have anything to do with the role of selecting 
judges, and even the way judges decide, they say of course it 
does. And it is not the worst thing in the world, they would 
say.
    I understand the countervailing argument and that we can't 
just have someone's politics decide things. That is why we have 
a system of law and that is why we have judges interpret the 
law. But the opposite argument is like the gambling in 
``Casablanca.'' It is somewhere in between, and that is what we 
are trying to figure out here, I think.
    Go ahead, Dean, and then Senator Sessions has been very 
patient with me.
    Mr. Kmiec. I think we are trying to figure that out. I 
would disagree a little bit with what you report to be the 
conversation from the man on the street. I think he would 
readily admit, thinking through the nature of the appointment 
process and where the Constitution assigns the appointment 
responsibility to the President of the United States--Alexander 
Hamilton says the Senate will have no choice in the selection 
of nominees. They can, of course, reject the nominees given to 
them, but they have no choice in the selection. You know this, 
as well. Justice Scalia, from the bench, in the patronage cases 
articulates how odd it is for the Court to put patronage off 
limits in those cases when, in fact, the Justices themselves 
emerged out of a political process.
    But we do understand from the guarantee of independence of 
life tenure and no salary diminution that, in fact, these 
judges and Justices will dispassionately, as much as that is 
humanly possible, aspire to the rule of law. And the rule of 
law is still what Blackstone and Dicey and all the other great 
authors told us it was. It is to be governed by the written 
word, not arbitrary exercises of power. It is to extend 
equality of treatment to rich and poor alike, and to people of 
all races alike, and not to selectively apply the generally 
prospective law. That is what we want out of our judges.
    I think, therefore, Mr. Chairman, they would disagree with 
you on the second point. They would not expect a true judge who 
was trying to do his job to make a political decision in terms 
of the writing of an opinion.
    Chairman Schumer. They would say that the judge should 
aspire to be as dispassionate and neutral as possible, in my 
judgment anyway, but they would admit that some types of 
politics enter the process. And when they ask what we do, I 
think they would say because we are more political, so to 
speak, without lifetime appointments, politics enters into it 
more. The quotes I read from my colleagues here before indicate 
that that has been the case before as well.
    Mr. Kmiec. I am from the Catholic University of America and 
I admit sin as well, but hopefully don't aspire to it.
    Senator Sessions. I think that is a point, Chuck. We just 
need to be sure that as we go through this process what we do 
doesn't acknowledge, affirm or encourage the politicization of 
the courts. That is critical. If we do that, we have done 
something badly. I think if every time we bring a nominee up 
here we pound away at them over their personal political views, 
I think we are going to be not encouraging them to act 
independently on the bench, but to feel their confirmation was 
based on saying the right things, and encouraging the public to 
have less respect than they do today for the independence of 
the courts.
    Chairman Schumer. I would agree with that. I would just 
simply say what is politics and what is judicial philosophy are 
two different things, and the latter belongs as part of our 
inquiry, and always has and always will. That is all. To call 
judicial ideology politics--you can get into semantics, but it 
is not, I think, what people are referring to. At least I am 
not.
    I think Professor Rotunda wanted to say something.
    Mr. Rotunda. There are so many things to say. It is so nice 
that everybody is talking about me.
    When you say President Reagan was happy with his 
appointment of Justice Scalia, I don't know. Certainly, on 
things like Fourth Amendment people were surprised. If abortion 
was the big issue, which many people said at the time, what 
about Justice Kennedy?
    I point out in my paper if a baseball team can bat .500, 
that is great. But a President on the Supreme Court only gets 
between zero and one appointment every 4 years, 2 in his 8-year 
term. President Clinton got 2 in his 8-year term and both of 
them ruled against him in Jones v. Clinton. That probably hurt. 
And that is, of course, on the U.S. Supreme Court where we pay 
a lot of attention. What about the trial court, the district 
court, and the court of appeals?
    The fact is, as Judge Edwards pointed out, you cannot 
predict how these judges will rule based on who appointed them. 
And, of course, we are talking not just about tomorrow, but 5 
or 10 years from now. We don't know what the big issues are. 
When Justices Kennedy and Souter were appointed to the Court, 
nobody knew about New York v. United States. That issue wasn't 
even on the horizon.
    So I think it is difficult, but you don't choose by lot. I 
think you want to make sure that the person is well-qualified 
as a lawyer and has experience either as a practitioner, 
academic, or in prior government service. Those are the things 
you look at before to make sure that the questions that come to 
them they will be able to understand and try to make sure they 
have an open mind.
    We have had some great judges. Abner Mikva was a partisan, 
a U.S. Congressman, but a great judge. When he came to my class 
once, he said of one case on statutory interpretation, I knew 
what I wanted as a Representative, but it wasn't in the record 
and so I had to rule against what I knew in my heart Congress 
really intended. Now, not all judges will act with that kind of 
self-restraint, but the great judges do. That is why he was a 
great judge, although when he was not a judge, he was a 
Democrat and Congressman. But when he put on the robes, he 
acted as a judge.
    Now, I am not surprised that a Democratic President 
appointed him rather than a Republican President. To the victor 
belongs the spoils. It is not surprising that people choose 
members of their own party, but they shouldn't choose anybody 
simply because he is of their own party. They should choose 
people who are qualified, such as Judge Friendly rejected his 
own article in one of his opinions--and that is why he became a 
good judge because he wasn't tied by the past. He tried to have 
an open mind.
    How do you choose people who have an open mind? I guess if 
I could bottle it, I would sell it and make a mint. But I think 
the way we have been doing it for the last 200 years, 
particularly the last century, has worked well. That is why I 
suggest we not change what we are doing, because we have 
produced the best judiciary in the world under both Republican 
and Democratic Senates and Republican and Democratic 
Presidents.
    Ms. Resnik. Just for the clarity of the record, I should 
add that Judge Edwards was writing in response to a series of 
law review articles by Professor Ricky Ravesz of N.Y.U. Law 
School. Professor Ravesz's essays are empirical studies of the 
D.C. Circuit that show a cohort or collegiality effect. The 
judges are identified by the President that nominated them. It 
is not whether they are themselves personally Democratic or 
Republican, but they are coded by reference to the party of the 
President who nominated them.
    In those studies, Professor Ravesz reports that there is a 
pattern. When two Republican-appointed judges or two Democrat-
appointed judges are together, there are patterns of voting. 
Judge Edwards disagrees with that analysis, and there has been 
a series of backs-and-forths between them on this issue. My 
point is that some empirical literature suggest and verify 
Professor Tushnet's elegantly put ``good bets'' point. There 
are a number of studies that I am sure any of us who are 
teachers of the Federal courts would be happy to forward to the 
Committee.
    Mr. Levinson. Certainly, you can understand the 
practitioner's devotion to forum-shopping and trying to get it. 
In Texas, we are particularly familiar with forum-shopping on 
plaintiffs' personal injury suits. Rightly or wrongly, good, 
experienced lawyers believe that they can predict some fairly 
important things, though no doubt they also do strike out on 
occasion.
    Mr. Rotunda. Of course, in Texas the state have elected 
judges and some litigants want to get to Texas State court. It 
is amazing that throughout the country, it is the appointed 
judges that do better. Illinois has primarily an elected 
system. The deans of every law school in the State of Illinois 
for years joined the American Judicature Society in asking for 
an appointed system.
    When you have an appointed system, you just have a better 
system. That is the system we have now and it works well. It 
worked well under President Clinton, under the first President 
Bush, President Reagan, President Eisenhower, and so on. It has 
worked well this century and I am concerned about tampering 
with it.
    Chairman Schumer. On that note, we are going to thank our 
witnesses for what I think was an excellent exchange and helped 
elucidate things. I thank Senator Sessions again for his 
patience and camaraderie on this, and I thank everybody who 
stayed until the end of the hearing.
    Senator Sessions. Mr. Chairman, I would like to include in 
the record two articles written by Joseph Califano and Roger 
Pilon.
    Chairman Schumer. Without objection.
    The hearing is adjourned.
    [Whereupon, at 5:15 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow:]
    [Additional material is being retained in the Committee 
files.]

                         QUESTIONS AND ANSWERS

   Responses of Stephen B. Presser to questions submitted by Senator 
                                Thurmond

    Question 1. Assume the President nominates someone for a district 
or circuit judgeship who appears to be well qualified to serve because 
he or she, for example, has extensive legal experience, is well 
regarded in the local legal community, and has not had any character 
issues arise in background checks. At this point should the nominee 
have an affirmative burden to prove to the Judiciary Committee and the 
Senate that he would be confirmed and deserves the votes of senators, 
or should the opponents to the nominee have some obligation to show 
that the objective criteria for being qualified are not sufficient for 
a particular candidate?
    Answer. In my opinion, Senator, if a judicial nominee appears to 
possess the objective qualifications which indicate high standing in 
the legal community of a kind that you have suggested, it is profoundly 
wrong to suggest that such a nominee has an ``affirmative burden'' of 
proving to the Judiciary Committee and the Senate that he or she 
deserves to be confirmed. The role of the Senate, as I understand it 
from the text of the Constitution and from the contemporary exposition 
of the Constitution, such as the Federalist Papers, is to fulfill an 
``advise and consent'' role, and not to be a ``co-partner'' in the 
nomination process. As we explored in our hearing on 26 July, and as I 
tried to make clear in my written testimony submitted in connection 
with that hearing, the Senate's role is to reject a nominee where the 
President has failed to choose him or her based on his or her 
qualifications for the job, and has made a selection of a person who 
lacks the character or expertise for the job, or a person who has been 
chosen not because of qualifications, but because of particular 
personal, family, or social connections to the President or others. 
Where the President has proposed the kind of nominee you suggest, I 
believe that the President's choice is entitled to at least a 
presumption of appropriateness on the part of the Senate, if not, as 
has traditionally been true, some deference on the part of the Senate. 
The President's role is to select the nominees, and just as each branch 
is supposed to defer to the others in the case of specially-designated 
functions (for instance, there is a presumption of constitutionality 
with regard to acts passed by Congress when these are reviewed by the 
judiciary, and our tradition calls for the executive to carry out the 
laws passed by Congress and the orders of the Courts) so the Congress 
should, give a presumption of fitness for office to the President's 
nominees. As you imply, opponents of nominees to the bench should have 
the burden of proving a particular nominee unfit for the bench. It 
would be a strange legal system that gives defendants in criminal cases 
a presumption of innocence but presumes that judicial nominees are 
guilty of unfitness for the bench.

    Question 2. Do you view judicial philosophy as a better criteria 
for a Senator to consider in evaluating judicial nominees than 
political ideology, and do you think it is important to distinguish 
between terms such as these when discussing the Senate's role in the 
confirmation process?
    Answer. As I tried to make clear in my written testimony submitted 
in connection with the hearing on 26 June, I am convinced that 
``judicial philosophy'' is a much sounder criteria for a Senator to 
consider in evaluating judicial nominees than ``political ideology.'' I 
do think it is very important to distinguish these terms. As both Lloyd 
Cutler and C. Boyden Gray pointed out at the hearing on 26 June, it is 
difficult to imagine a better way to discredit the judiciary than to 
pick judges based on ``political ideology.'' Our whole republic, our 
whole national creed that ours is a government of laws not men, is 
endangered if we begin to pick judges based on ``political ideology.'' 
In order to implement the rule of law we must have judges who believe 
that objective determinations of the law and Constitution are possible, 
and that those interpretations are to be guided by the original 
understanding of the provisions to be interpreted. Any other ``judicial 
philosophy'' results in judges legislating, and not doing their 
constitutional task of interpreting the law. Accordingly, it is 
appropriate for the President to select judges who will interpret 
rather than make law, and it is appropriate for the Senate to satisfy 
itself that this is what the President has done. To ask for the 
selection of judges based on ``political ideology,'' however, suggests 
that the judge's politics, rather than his or her understanding of the 
law, will dictate results. This is profoundly wrong, at least if we 
believe that there is a difference between law and politics. It is true 
that there are some in the legal academy and, perhaps, in legal 
practice, who do not believe there is any difference between law and 
politics, but, as I have tried to make clear here and in my testimony, 
if there is no difference between law and politics our most basic 
governmental principles and beliefs for the past two hundred and twelve 
years have been wrong. They are not wrong, and there is a difference 
between law and politics, which it is the job of our high officials to 
recognize.

    Question 3. If Senators vote on judicial nominees based on the 
nominee's views on particular political and public policy issues, is 
there a danger that the Judicial Branch will be viewed as simply 
another political institution no different from the Legislative Branch?
    Answer. Yes, indeed, if Senators vote on judicial nominees based on 
the nominee's views on particular political and public policy issues, 
there is a very great danger that the Judicial Branch will be viewed as 
simply another political institution no different from the Legislative 
Branch. As I tried to make clear in my testimony submitted at the 26 
June hearing, there is no issue that could be more important to the 
future of the Republic than this one. As the recent Presidential 
campaign emphasized, and in particular, with regard to the campaign 
promise of the then Governor Bush to appoint judges who would interpret 
and not make law, we are at a crossroads involving the future of the 
rule of law. For many years we have seen too many courts assume the 
role (wrongly in my opinion) of social policy makers, a role that is 
supposed to be occupied in our system only by the legislature. One 
cannot have a democratic republic, as ours is supposed to be, when 
judges rather than legislatures make the law. We are supposed to be 
governed according to the principle of popular sovereignty, and when 
the judges create and implement policy it is they, rather than the 
people, who rule. If our people believe that the judicial branch is 
``just another political institution,'' it will be difficult if not 
impossible for the people to accept the responsibility to govern 
themselves. This is difficult enough as it is, and it is a national 
tragedy that most Americans seem so disappointed with American 
politics, and that so few involve themselves even in the most basic 
political processes, such as voting and service on juries. Anything 
that detracts from the rule of law, from the idea that ours is a 
government of laws not men, is a great danger to our way of life. 
Picking judges on the basis of political ideology, and viewing the 
judiciary as just another ``political institution'' is such a great 
danger.
    Thank you for the opportunity to submit these thoughts.

                                

    Response of Cass R. Sunstein to a question submitted by Senator 
                                Sessions

    Question.  Do you support Michael McConnell's nomination to the 
federal bench?

    Answer. I enthusiastically support the nomination of Michael 
McConnell to the federal bench. He is an extremely able and open-minded 
person.

                       SUBMISSIONS FOR THE RECORD

          Statement of the American Center of Law and Justice

    This statement was prepare by Jay A. Sekulow, Chief Counsel, James 
M. Henderson, Esq., Senior Litigation Counsel, and Colby M. May, Esq., 
Director, Washington D.C. Office of the American Center for Law and 
Justice.
                              Introduction
    A recurring and contentious question confronts anyone who considers 
the appropriate role of the United States Senate in the process of 
selecting officers of the United States, in particular judicial 
officers. Existing judicial vacancies and the constitutional 
methodology for filling them have come to the political foreground as a 
consequence of the recent change in the make-up of the United States 
Senate. The importance of the question and its answer have been 
highlighted as Senators have raised anew questions,\1\ Washington Post, 
May 26, 2001, at A13, about how the Senate will treat nominations by 
the President to fill up the judicial vacancies in the federal district 
and appellate courts, and in the Supreme Court of the United States.\2\ 
Legal Times Online, June 7, 2001. While there are, undoubtedly, many 
opinions on the question, the appropriate course, we think, is to look 
to the Constitution itself for the answer. In this respect we agree 
with the view expressed by Justice Scalia, dissenting, in Morrison v. 
Olson, 487 U.S. 654, 697 (1988). There, objecting to the rootless and 
unfounded approach taken by the Courts majority to answering the 
question whether the statute authorizing the appointment of independent 
counsels met constitutional requisites, Justice Scalia urged:
---------------------------------------------------------------------------
    \1\ For example, the Washington Post carried an Associated Press 
report on the impact of the change from Republican to Democrat control 
of the Senate that included the following:
    Cox becomes the first judicial casualty of the Democratic takeover. 
From the point when they learned that they would be in control of the 
Senate, Judiciary Democrats warned Bush that they would not let hard-
right conservative nominees through the Senate.
    ``Judges will have to be moderate,'' said Sen. Charles E. Schumer 
(D-N.Y.), who is in line to become chairman of the Judiciary 
subcommittee on courts ``Everything will have to be moderate.''
    \2\ The shift in the balance of power in the United States Senate 
caused by the decision of Senator Jeffords to leave the Republican 
Party, change his party affiliation to Independent, and vote with the 
Democratic Caucus in the Senate for organizational purposes, guarantees 
significant changes in the activities of the Senate Judiciary 
Committee, through which all judicial nominees must pass:
    A Crucial Shift at the Judiciary Committee by Jonathan Ringel
    In what turned out to be his last hearing as chairman of the Senate 
Judiciary Committee, Utah Republican Orrin Hatch noted on May 23 that a 
Justice Department nominee sitting before him had the glowing 
endorsement of Sen. Edward Kennedy. That's high praise, Hatch added, 
considering that the Massachusetts Democrat had chaired the panel 
himself, ``in the good old days.''
    ``Soon to return,'' quipped Kennedy. The very next day, Vermont 
Sen. James Jeffords' defection from the GOP set a new course for the 
committee-and for President George W. Bush's judicial candidates.
    ``This changes every little thing,'' said Sen. Charles Schumer (D-
N.Y.), a member of the committee and a vocal opponent of many of Bush's 
conservative picks. ``In fact, it changes the little things more than 
the big things.''
    It's the little things that count in the committee, the gateway to 
Senate confirmation for judicial and Justice Department nominees.
    From ``blue slips'' that can block a nominee from getting a 
confirmation vote to the role of the American Bar Association-and from 
the membership of the committee itself to the future composition of the 
federal district and circuit courts-most everything was promised a new 
look after Jeffords' stunning move.

        The ad hoc approach to constitutional [decision-making] has 
        real attraction, even apart from its work-saving potential. It 
        is guaranteed to produce a result, in every case, that will 
        make a majority of the Court happy with the law. The law is, by 
        definition, precisely what the majority thinks, taking all 
        things into account, it ought to be. I prefer to rely upon the 
        judgement of the wise men who constructed our system, and of 
        the people who approved it, and of two centuries of history 
---------------------------------------------------------------------------
        that have shown it to be sound.

    Morrison, 487 U.S. at 734. The quest must be to discover the answer 
to the question in the text of the Constitution, and where that text is 
at all unclear, to discover its meaning in the judgment of the wise men 
who constructed our system, and of the people who approved it. . . .''
    Together with the related segments of the Federalist Papers, a 
proper reading of the Constitution reveals a simple but grand plan for 
the selection and placement of officers of the United States. According 
to that plan, the President alone is endowed with the power to select 
appropriate nominees to the federal judiciary. That sole power of 
selecting candidates is clear and to balance against that selection the 
power of the Senate to refrain from confirming candidates unworthy of 
office by reason of character, incapacity or unfitness is also clear.
    Nominations: An Executive Prerogative Serving the Interests in 
                   Efficient and Effective Government
    In devising a structure for the government of the Nation, the 
Framers of the Constitution vested all executive power of the United 
States government in the President. The executive power shall be vested 
in a President of the United States of America. U.S. CONST. Art. II, 
Sec. 1. The Framers concluded that effective administration of the 
federal government not only required placing all executive power in the 
President, but also required delegation by the President of duties and 
responsibilities to others. For purposes of investing executive 
authority to act on behalf of the United States, the Constitution 
contemplates two kinds of ``officers of the United States'': principal 
officers and inferior officers.
    With respect to the former category, the Constitution grants to the 
president alone the authority to nominate the principal officers of his 
government. Thus, among other constitutional duties attendant to 
heading the executive branch the President is charged with selecting 
candidates to serve as the principal officers of it, including, 
``ambassadors'', ``public ministers and consuls'', ``judges of the 
Supreme Court,'' as well as ``all other officers of the United States, 
whose appointments are not herein otherwise provided for.'' \3\ U.S. 
CONST. Art. 11, Sec. 2. And, as will be shown below, the nomination of 
inferior officers belongs to the President unless Congress acts 
pursuant to the Constitution to delegate that responsibility elsewhere.
---------------------------------------------------------------------------
    \3\ An example of an officer for whom the Constitution does 
otherwise provide the means of selection is the President of the 
Senate. See U.S. Const. Art. 1, Sec. 3. (``The Vice President of the 
United States shall be President of the Senate, but shall have no vote, 
unless they be equally divided '').
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    After debating the possible alternatives to doing so, the Framers 
chose as the safest course to place within the sole hands of the 
Executive the power to nominate the principal ``officers of the United 
States'' and, during recesses of the Senate to fill temporarily such 
``vacancies that may happen. . .by granting commissions which shall 
expire at the end of their next session.'' Specifically, the Executive 
Article of the Constitution provides:

        The President. . .shall nominate, and by and with the advice 
        and consent of the Senate, shall appoint ambassadors, other 
        public ministers and consuls, judges of the Supreme Court, and 
        all other officers of the United States, whose appointments are 
        not herein otherwise provided for, and which shall be 
        established by law: but the Congress may bylaw vest the 
        appointment of such inferior officers, as they think proper, in 
        the President alone, in the courts of law, or in the heads of 
        departments.
        The President shall have power to fill up all vacancies that 
        may happen during the recess of the Senate, by granting 
        commissions which shall expire at the end of their next 
        session.

    U.S. Const. Art. 11, Sec. 2.
    This passage of the Constitution also indicates the Framers' 
intention to impose a two step process in the selection of officers of 
the United States: first, nomination; and second, appointment. 
Moreover, the Framers chose to repose all responsibility and 
prerogative for nomination of principal officers with the President, 
but to require that appointment by the President come only with the 
approval of the Senate.
    Of course, it was possible to devise in the Constitution other 
methods for selecting candidates to fill the offices of the United 
States. In Federalist Nos. 76 and 77, Aexander Hamilton addressed and 
explained the appointing power. In No. 76, Hamilton suggested that 
three basic approaches to the selection of candidates could be 
considered: ``t ought either to be vested in a single man, or in a 
SELECT assembly of a moderate number; or in a single man, with the 
concurrence of such an assembly.'' \4\ Antifederalist Nos. 76-77. For 
the choice made in the Constitution to share the power of appointment 
between the President and the Senate, the Federal Farmer found no sound 
reason. ``This mode, for general purposes, is clearly not defensible.'' 
Id. As Hamilton explained, however, granting the nomination power to a 
single man avoided problems presented when the power was shared across 
a group consisting of more than one person.
---------------------------------------------------------------------------
    \4\ Richard Henry Lee, writing as the Federal Farmer in the 
Antifederalist Nos. 76-77, considered that six basic arrangements for 
disbursing the appointments power were possible:
    In contemplating the necessary officers of the union, there appear 
to be six different modes in which, in whole or in part, the 
appointments may be made. 1. by the legislature; 2. by the president 
and the senate; 3. by the president and an executive council; 4. by the 
president alone; 5. by the heads of the departments; 6. by the state 
governments.
---------------------------------------------------------------------------
    First, sharing the power of appointment across a group bogs the 
process of filling offices of the United States at the nomination stage 
by increasing the number of people eligible to choose candidates. That 
approach could amplify certain consequences that could be injurious to 
the process. For example, whatever the abuses that one man might 
inflict in the process of selecting officers, the real probability is 
that such abuses would be amplified, not minimized, by spreading out 
onto a larger number of shoulders the burden of selection. Alexander 
Hamilton noted, in Federalist No. 76, the President, acting alone, 
``will have FEWER personal attachments to gratify, than a body of men 
who may each be supposed to have an equal number. . ..'' Consequently, 
Hamilton reasoned, ``one man of discernment is better fitted to analyze 
and estimate the peculiar qualities adapted to particular offices, than 
a body of men of equal or perhaps even of superior discernment.''
    Second, placing the power of appointment in an individual insures 
that the individual in whom that power resides will be held accountable 
for the appropriate exercise of that power. In other words, when the 
authority is exercised by a body of men, each may individually hide 
behind the collective judgment of the body. But where only one man is 
permitted to act in a matter, as is the case in the nomination of 
principal officers of the United States, then responsibility for 
carrying out that duty irresponsibly cannot be avoided by hiding behind 
the collective judgment of some group. As Hamilton put it, ``The sole 
and undivided responsibility of one man will naturally beget a livelier 
sense of duty and a more exact regard to reputation. He will, on this 
account, feel himself under stronger obligations, and more interested 
to investigate with care the qualities requisite to the stations to be 
filled, and to prefer with impartiality the persons who may have the 
fairest pretensions to them.'' The Federalist No. 76.
    The decision to vest sole power to nominate ``officers'' with the 
Executive was tempered, however, by then subjecting the Executive's 
power to appoint those officers to the ``advice and consent of the 
Senate.'' As a consequence of this construction, the Framers created a 
process for the filling of offices in which the need for consultation 
with the Senate was deliberately back-loaded. In this way, Hamilton at 
least, thought the Constitution would designedly insure that the 
President could place within the administration that he heads, capable, 
competent, and honorable men whose capacity to join him in service of 
the people of the United States he does not doubts.\5\ History has, as 
a general matter, born out Hamilton's judgment with respect to 
appointments to fill offices in the Executive branch.\6\ To a much 
lesser extent, history has born out that judgment with respect to the 
appointment of judicial officers.\7\
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    \5\ The Federal Farmer, to the contrary, feared senatorial 
participation in appointment. He was concerned: (1) that allowing the 
Senate to participate in appointment would take from it its pure and 
unbiased judgment regarding the performance of officers brought before 
it for judgment; (2) that doing so would make the Senate the real seat 
of federal government (``[t]he consequence will be that the senate, 
with these efficient means of influence, will not only dictate, 
probably, to the president, but manage the house, as the constitution 
now stands; and under appearances of a balanced system, in reality 
govern alone ''). See The Antifederalist Nos. 76-77. The former fear of 
the Federal Farmer, that the judgments of the Senate, which would 
otherwise be free from appearance of bias, would now suffer that 
appearance, was also considered a weakness in the plan by BRUTUS, 
writing in the Antifederalist No. 62, on the organization and powers of 
the Senate (``This body will possess a strange mixture of legislative, 
executive, and judicial powers, which in my opinion, will in some cases 
clash with each other'').
    \6\ See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989 
(Washington: GPO, 1991), vol. 11, at 41 (noting that, as of date 
written, Senate had confirmed ninety seven percent of cabinet 
nominees).
    \7\ See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989 
(Washington: GPO, 1991), vol. 11, at 41 (noting that, as of date 
written, Senate had confirmed eighty percent of Supreme Court 
nominees).
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WITH THE ``ADVICE AND CONSENT OF THE SENATE'': SENATORIAL PARTICIPATION 
                            IN APPOINTMENTS
    While, with respect to the principal officers of the United States, 
the President alone nominates, the President shares the appointment 
power with the Senate. See U.S. Const. art. II, sec. 2 (``[t]he 
President. . .by and with the advice and consent of the Senate, shall 
appoint''). The Constitution does not specify, however, the means by 
which the Senate shall provide advice and consent, and only hints at 
two possible considerations.
    First, in the Legislative Article, each House is empowered to make 
its own rules for operation: ``Each House may determine the rules of 
its proceedings, punish its members for disorderly behavior, and, with 
the concurrence of two thirds, expel a member.'' U.S. Const. art. I, 
sec. 5. In accord with that constitutional authority, then, the Senate 
certainly is authorized to determine its own rules for how to proceed 
in considering appointments and in the giving of their advice and 
consent.
    Second, in the Executive Article of the Constitution, the 
appointments clause is paired with the treaty making clause. See U.S. 
Const. art. II, sec. 2. Moreover, both the authority to make 
appointments and the authority to make treaties are reposed jointly 
with the President and the Senate. Compare U.S. Const. art. III, sec. 
2, c1.1 (treaty making clause) with U.S. Const. art. 111, sec. 2, c1.2 
(appointments clause). Only one point of distinction separates the two 
provisions. The treaty making clause requires that two thirds of 
Senators present must concur in the making of a treaty, but does not 
provide any numerical limitation with respect to the giving of advice 
and consent.
    Without more, the legislative assumption has been that the Senate 
may, in keeping with Article I, section 5, make its own rules governing 
the process of providing advise and consent. The Senate has exercised 
that constitutional authority to make rules for its proceedings by 
authorizing senators to place holds on the consideration of 
nominations. The Constitution does not grant to the President the power 
or right to direct the Senate to proceed differently than it chooses to 
do in advising and consenting with respect to pending nominations.
    Setting aside technical considerations about the number of Senators 
required to approve an appointment or the manner and timing of the 
provision of advice and consent, the most pressing question about the 
role of the Senate is the basis for consenting, or declining to 
consent, to the appointment of candidates nominated by the President. 
On this question, the Constitution is silent. Consequently, we can look 
for guidance in the ``the judgment of the wise men who constructed our 
system, and of the people who approved it. . ..'' Morrison, 487 U.S. at 
734 (Scalia, J., dissenting).
    In addition to his arguments in the Federalist Papers, Alexander 
Hamilton participated in the ratifying convention for the State of New 
York. There, in addressing the nature and construction of the Senate 
and its role in the general government he expressed a view that may 
inform one who considers this issue. In Hamilton's view, the Senate was 
constructed, not as a check against the Executive branch, but as a 
check against the State governments. See Elliot, The Debates in the 
Several State Conventions on the Adoption of the Federal Constitution, 
vol. 2, at 317 (Ayer Co. 1987). Thus, at least to Hamilton, ``advice 
and consent'' must have meant more than merely a means of obstructing 
the appointment of otherwise eligible persons to office.
    In the Federalist No. 76, Hamilton also makes the point that advice 
and consent is not a tool for subverting the Executive's sole authority 
to nominate:

        But might not [the President's] nomination be overruled? I 
        grant it might, yet this could only be to make place for 
        another nomination by himself. The person ultimately appointed 
        must be the object of his preference, though perhaps not in the 
        first degree. It is also not very probable that his nomination 
        would often be overruled. The Senate could not be tempted, by 
        the preference they might feel to another, to reject the one 
        proposed; because they could not assure themselves, that the 
        person they might wish would be brought forward by a second or 
        by any subsequent nomination. They could not even be certain, 
        that a future nomination would present a candidate in any 
        degree more acceptable to them; and as their dissent might cast 
        a kind of stigma upon the individual rejected, and might have 
        the appearance of a reflection upon the judgment of the chief 
        magistrate, it is not likely that their sanction would often be 
        refused, where there were not special and strong reasons for 
        the refusal.

    The Federalist No. 76.
    Of course, it is customary, though not constitutionally required, 
for the Executive to subject certain nominees for consideration by 
individual Senators. So called ``senatorial courtesy'' is a practice 
limited to instances in which the territorial jurisdiction of an office 
to which an appointment will be made falls within any particular state 
of the Union.\8\ In such circumstances, it is expected that the 
President will present his proposed nominees to the Senators of the 
state affected for their consideration. But expected courtesies, given 
or not, would not, in Hamilton's view, justify a vote not to confirm a 
nominee where the sole reason for opposition is the hope, hidden or 
expressed, that another, favored by the Senator, should have the 
office.\9\
---------------------------------------------------------------------------
    \8\ See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989 
(Washington: GPO, 1991), vol. 11, at 31 et sea.
    \9\ At the North Carolina ratifying convention, James Iredell 
expressed the view that Senators would risk being ``reprobated'' if 
they withheld their consent without just cause:
    As to offices, the Senate has no other influence but a restraint on 
improper appointments. The President proposes such a man for such an 
office. The Senate has to consider upon it. If they think him improper, 
the President must nominate another, whose appointment ultimately again 
depends upon the Senate. Suppose a man nominated by the President; with 
what face would any senator object to him without a good reason? There 
must be some decorum in every public body. He would not say, ``I do not 
choose this man, because a friend of mine wants the office.'' Were he 
to object to the nomination of the President, without assigning any 
reason, his conduct would be reprobated, and still might not answer his 
purpose. Were an office to be vacant, for which a hundred men on the 
continent were equally well qualified, there would be a hundred chances 
to one whether his friend would be nominated to it.
    Elliot, The Debates in the Several State Conventions on the 
Adoption of the Federal Constitution, vol. 4, at 134 (Ayer Co. 1987). 
Iredell was later appointed as one of the original associate justices 
to serve on the Supreme Court by President George Washington. See 
http://www.britannica.com/seo/J*/J*ames-iredell.
---------------------------------------------------------------------------
    Ultimately, in the Federalist No. 76, Hamilton offers what is the 
soundest approach to the exercise of advice and consent. Hamilton 
directed himself to the question of requiring the cooperation of the 
Senate in the appointment process. In his view, their cooperation was a 
salve against poor choices by the Executive:

        [T]heir concurrence would have a powerful, though, in general, 
        a silent operation. It would be an excellent check upon a 
        spirit of favoritism in the President, and would tend greatly 
        to prevent the appointment of unfit characters from State 
        prejudice, from family connection, from personal attachment, or 
        from a view to popularity. In addition to this, it would be an 
        efficacious source of stability in the administration.

    The Federalist No. 76. Thus, we see that for Hamilton at least, 
Senate advice and consent consisted of a process by which the natural 
tendency of giving the spoils of political victory to the Executive was 
ameliorated, and by which considerations of family, friendship, 
faction, and popularity could be subjugated by the quest for 
excellence. Moreover, in his view, the Senate's participation in the 
appointment process would serve to stabilize the administration.\10\
---------------------------------------------------------------------------
    \10\ 
---------------------------------------------------------------------------
    The quest for stability in administrations, however, has been the 
source of legislative abuse. During Andrew Johnson's administration, 
the Congress passed, over Johnson's veto, the Tenure of Office Act. 
That Act gave duration in office to persons confirmed by Senate vote, 
allowing them to retain their offices until a successor was both 
nominated and confirmed. It was Johnson's disregard for that Act that 
led to his impeachment and near removal from office. Ultimately, 
however, the Supreme Court concluded that the Act was unconstitutional. 
See Robert C. Byrd, ``Nominations,'' THE SENATE, 1789-1989 (Washington: 
GPO, 1991), vol.11, at 36; see also Myers v. United States, 272 U.S. 52 
(1926) (declaring tenure provision unconstitutional).
                               Conclusion
    Both the Executive and the Senate share a common duty to the people 
of the United States to place in offices of the United States persons 
of trustworthy character, and capable and suited to the performance of 
the duties of their office. The selection of suitable candidates for 
the principle officers of the United States is the Executive's alone 
(tempered by the practice of Senatorial courtesy in cases of such 
offices as fall alone within the boundaries of one state). But the 
appointment of the candidate to the office is a shared exercise. That 
exercise must be suited to the duty owed to the people of the United 
States.
    To deny the appointments of a President because the candidate is 
incompetent to serve is no abuse of the duty of advice and consent. To 
the contrary, it is the role of the Senate to prevent considerations of 
family, friendship and the like from being the basis upon which such 
appointments are made. But to deny the appointments of a President 
because the candidate, though fully suited to the tasks of the office, 
holds political opinions different from those of the Senate (or of 
individual senators) is precisely the abuse that Hamilton suggests the 
advice and consent provision was not intended to accommodate.

                                

 Statement of Professor Lillian R. BeVier, University of Virginia Law 
                                 School

    In connection with its hearing on Tuesday, June 26, 2001, entitled 
``Should Ideology Matter?'' Judicial Nomination 2001,'' I have been 
requested to submit this witness statement to the Senate Judiciary 
Subcommittee on Administrative Oversight and the Courts. It is an honor 
for me to do so.
    I was nominated by President George Bush to the Fourth Circuit 
Court of Appeals in October 1991. My nomination lapsed when President 
Clinton was elected thirteen months later. Despite the fact that I 
received a qualified rating from the ABA, and had the support of both 
my home state senators, then-Senator Robb and Senator Warner, the 
Judiciary Committee, chaired at that time by Senator Biden, refused to 
hold a hearing on my nomination. Not having been informed of the 
reasons why the Committee was unwilling even to give me a hearing, I 
prefer not to speculate about them. To the extent the reasons for 
refusing me a hearing reflected concern with my philosophy of judging, 
I would have valued at least a chance to answer their questions in a 
public forum and to get my views on record. While in my view it would 
have been improper for the Committee to have probed my political 
ideology or to have queried me about how I expected to rule on 
particular cases, I would have welcomed the opportunity to explain my 
judicial philosophy. In the paragraphs that follow I offer at least a 
partial explanation.
    Questions of judicial philosophy are not first and foremost 
questions about the merits of particular constitutional controversies. 
They are not primarily questions of what actual limits shall exist on 
federal legislative power or of how power between the President and 
Congress shall be divided in the federal system or of whether the 14th 
Amendment incorporates the provisions of the Bill of Rights into a 
``one-size-fits-all'' set of rules for the treatment of accused 
criminal defendants or even of whether the Constitution is color blind. 
Important as these questions are, questions of judicial philosophy are 
even more fundamental, for they raise issues not of what should be 
decided but who (i.e., what institution of government) should decide, 
what is the source of their power to do so, and by what criteria are 
their decisions to be guided and evaluated. At one extreme, shall it be 
the Justices of the Supreme Court who decide according to their own--or 
some law clerk or law professor's--notions of what is good for the 
country? Or , at the other end of the spectrum of views, shall it be 
the framers of the Constitution, the text they wrote and the intentions 
they embodied therein--with the current Justices acting as their agents 
to interpret as faithfully and impersonally as humanly possible the 
document the framers wrote?
    The arguments that are often put forth in behalf of some form 
judicial activism, or nonoriginalism, or a-originalism, are often 
intellectually sophisticated, sometimes eloquent, usually nonlegal. 
They self-consciously eschew ``formalism,'' and nearly always come 
adorned with practically irresistible rhetorical embellishments. They 
invoke the Constitution's ``aspiration to social justice, brotherhood, 
and human dignity;'' they insist that adhering to the values of 1789 
entails ``turning a blind eye to progress'' and that doing so ignores 
``the transformative purpose of the text.'' Anyway, they claim, it's 
either ``too difficult''--maybe it's impossible--to know what the 
framers meant by the words they chose; or it's just too horrible to 
contemplate the straight jacket that adhering to the Founders' commands 
would impose upon ``our'' ability to accomplish a ``progressive'' 
political and social agenda. Stripped of their considerable academic 
gloss, the arguments of the nonoriginalists tend to boil down to this: 
if the Supreme Court is constrained by an obligation of fidelity to the 
text of the Framers, then we might not be able to get the results we 
want when we want them. We might have to wait, and go through other 
channels, to secure the right to abortion, gender equality, the right 
to remain silent when questioned by the police (but NOT when you might 
be praying in school). And if the nonorginalists' arguments did not--
most of them--appear in law reviews and were not--most of them--made by 
law professors, you would hardly have a clue that they were supposed to 
be part of a debate about the legal authority of judges to accomplish 
those results. You'd think instead that the debate was strictly and 
purely a political or policy debate about what the law of today should 
be, and that any person in her right mind would agree that once 
``we've'' decided what we think the law should be, it follows a 
fortiori that judges can reach that result under cover of the 
Constitution.
    On the other hand, the arguments in behalf of orginalism or 
textualism or the structural constitution seldom stray far from the 
question of the legal authority of judges. They are utterly preoccupied 
with questions of the legitimacy of judicial power. That is why they 
begin from an uncompromising premise, and end with an uncompromising 
solution. The text of the written Constitution is law, right? Right. 
The Constitution is the sole source of the power of judicial review, 
right? Right. It confers power upon -and thus legitimates the power 
of--the Justices of the Supreme Court to set aside the acts of the 
other branches of the federal government and of the States, right? 
Right! But, being the sole source of the legitimacy of that power, the 
Constitution also specifies the limits of its legitimate exercise, 
right? Right! Those who argue in behalf of originalism or textualism or 
the structural constitution are not prone to talk about brotherhood, 
human dignity, moral evolution, adaptability, flexibility or any other 
of those neat progressive things. They tend to talk about LAW, and 
about the Courts legal authority to do ANYTHING. And when that's the 
framework--when that's the question--originalism, textualism, and the 
structural constitution seem axiomatic.
    The antagonists in the orginalism/textualism vs. nonoriginalism 
debate focus on utterly different issues. Originalists and textualists 
talk in terms of uncompromising first principles while nonoriginalists, 
unable to accept a regime that places such an obstacle in the way of 
judges' ability to achieve the results they desire in particular cases 
talk in terms of progress and flexibility and most especially of 
outcomes in pending cases and of what they want now.
    Originalism and textualism are the legal equivalents of abstinence 
from sex by unmarried teens: they are simple, straightforward, 
uncompromising solutions that pay heed to a command more permanent than 
that of the moment, that require self-restraint, that entail delayed 
gratification, but that do not erect permanent roadblocks to the 
eventual legitimate satisfaction of desire.
    Originalists and textualists tend to ground their arguments 
primarily on a foundation of legitimacy. They seem wedded to this 
question of principle, and to what the law requires. Even when they 
turn to instrumental defenses, they tend to stress originalism and 
textualism's legalistic'' virtues--of stability, predictability, and 
clarity. I endorse these virtues and think originalism serves them 
relatively well. But originalism and textualism possess two other 
virtues: the first is inter it . The second is deliberate 
impersonality--and hence the universal accessibility--of the decision-
making criteria they supply.
    First, integrity. Many proponents of originalism and textualism 
notice and bemoan the discrepancy between what the court does--and what 
its nonoriginalist cheerleaders urge it to do--and what it says it 
does. And the originalists urge upon the court the simple virtue of 
candor: as Judge Posner has noted, ``Originalism is the legal 
professor's orthodox mode of justification.'' So, originalists and 
textualists say, you should align your practice with your preaching. 
And to the extent it continues to condone this ``orthodox mode of 
justification'' while in fact rejecting its premise, the nonoriginalist 
position is irredeemably hypocritical and essentially dishonest.
    Nonoriginalists intone along with the rest of us that we are 
fortunate indeed to have a government ``of laws and not of men.'' But, 
whereas they appreciate that whenever the coercive power of the state 
(or of the Supreme Court exercising the power of judicial review) is 
brought to bear it must be wearing an apparent cloak of legal 
legitimacy, they in fact seem to have but little respect for law, at 
least insofar as law might be a constraint on either the Court or on 
their own arguments about what the court should, must, may do.
    I suggest that the hypocrisy of many of the nonoriginalist 
arguments--the deliberate masking of their real agenda, the lack of 
condor, the absence of respect or even acknowledgement of law as a 
constraint on themselves as well as others--all of these features exert 
a corrupting influence on the enterprise--on the very idea--of law 
itself. Thus, in my view, an important function of originalism is to 
exemplify, enforce, and sustain the rule of law.
    A second virtue of originalism and textualism is the impersonality 
of their decision-making criteria. In a way, to notice this aspect of 
orginalism or textualism is merely to work a variation on the familiar 
juxtaposition of the objectively specified, relatively determinate 
relatively disinterested nature of originalist or text-bound decision-
making criteria and the often arbitrary, unpredictable, unspecified, 
partisan, subjectively chosen criteria that nonoriginalists use. To 
speak of the impersonality of originalism's criteria is to invoke all 
the virtues of objectivity and by implication to deplore subjective 
judging. But it also is to emphasize the particular importance of 
impersonality as a characteristic of the criteria that judges use to 
decide cases. The outcome of any judicial process is supposed to be a 
function of impartial--i.e., unbiased, disinterested--judges deciding 
cases based on the evidence submitted in court and the arguments of 
counsel. Participation in the process by litigants is rendered 
meaningful by the fact that the playing field is supposed to be level: 
it is levelled by rules--rules of admissibility, rules of evidence; 
rules of decision specified in advance. These rules supposedly 
constrain ALL the players, including the judges. But when judges don't 
play by these rules--either because they change them in the middle of 
the game or because they simply pay them lip service while actually 
being guided by their own views of good policy, then the game is 
essentially rigged. Advocates whose cases are subjected to this kind of 
rigging are in much the same position as voters are when the other side 
stuffs the ballot box: they are for all practical purposes 
disenfranchised, their opportunity to make their case, to present their 
arguments, to persuade the court rendered chimerical by the fact that 
the outcome has already been decided, and on the basis of criteria they 
neither knew would govern nor could help to shape. What a charade the 
judicial process then becomes--how empty its promise of equal justice 
under law! You wonder why some of the advocates even bother to show up!
    It seems to me to be the essence of unfairness to litigants, who 
think they are getting their day in court and that their arguments are 
to a purpose, to have their cases decided by judges who in fact are 
listening only to their own inner voices, and who view themselves as 
being constrained only by their own sense of what's good for the 
country. Originalism and textualism are more fair to litigants than 
this if only because its decision-making criteria are deliberately 
external to the judges who apply them, they are accessible to all, and 
they constrain ALL the participants in the game--including, most 
especially, the referees.
    But when the issue of judicial philosophy is approached in more 
pragmatic terms, another reason emerges why courts should respect their 
own institutional limitations: the reason is that as social engineers 
on a grand scale they are simply incompetent. In other words, when one 
considers simply the quality of governance that is likely to emerge, 
there is good reason for courts to stay within the institutional 
boundaries that the framers established when they separated and divided 
power among the three branches. Institutional specialization has 
several under appreciated virtues, and asking courts to be the engine 
of social change in our complex society makes as much sense as asking 
your word processor to cook your dinner for you: it's just not the job 
it was designed to do.
    This submission is not the right place fully to develop this theme, 
but one or two observations may help make the point. Fist, the nature 
of and differences between the tasks that the Constitution assigns to 
the various branches--making, enforcing, and applying the law--are 
notoriously imprecise. Nevertheless, one can infer quite a lot about 
the kinds of tasks that the framers meant to assign to the judiciary by 
looking at how the judicial process works how do judges get their 
information, for example, and how does their agenda get set and who 
gets to participate in the process; who are judges accountable to and 
what kinds of arguments persuade them. One can get a sense of 
comparative institutional advantage with respect to certain kinds of 
questions by comparing the judicial with the legislative process along 
these dimensions. Very briefly, think for a moment about the 
implications of the fact that the judicial process is designed (and 
constitutionally limited by virtue of the case or controversy 
requirement) to resolve existing disputes between two parties. The 
court waits passively for the parties to bring the dispute before it, 
and when they do the court constrains their presentations by rules that 
limit them to presenting only relevant and probative evidence. The 
court decides the outcome based on supposedly preexisting rules as 
applied to facts that the parties prove and in response to arguments 
that the parties make. Persons who may be very substantially affected 
by the outcome but who are not parties to the suit have no claim on the 
court's time, and there is certainly no guarantee that the parties 
themselves will present the ``whole story'' about the implications of a 
court decision one way or another. The court's decisions have 
retroactive effect as a matter of course. Because judges in the federal 
system have life tenure, they are formally accountable to no 
constituency for their mistakes of either law or policy. Their 
professional colleagues might criticize them, and lawyers might scream 
bloody murder, and the press might go ballistic, and law professors 
might have a field day, but no formal mechanism of accountability 
exists.
    The most obvious difference in the institutional design of the 
legislative branch is of course the electoral accountability of 
legislators: formally, at least, they rish defeat at the next election 
should they make ``mistakes.'' But there are other equally important 
differences in institutional design: the legislature is not constrained 
in its agenda-setting as courts are-it has almost total discretion to 
set its own agenda, from war to welfare reform. The legislature is not 
constrained to make decisions based on relevant or probative evidence, 
nor must it remain neutral or free from partisan influences. Indeed, 
legislative decisions are paradigmatically the outcome of interest 
group pressures; log-rolling and interest group bargaining are the 
norm. Although legislatures are not constitutionally required to listed 
to all affected parties, they generally tend to try to do so (at least 
if the parties are well-enough organized to realize that their 
interests are likely to be affected by pending legislation). It is in 
the self-interest of legislators to obtain as much information about 
the likely impacts of what they plan to do before they do it, so that 
their chances for reelection are not jeopardized by unexpected fallout 
from their legislative product.
    The basic point is that one of the chief differences in 
institutional design between courts and legislatures has to do with 
their access to information about the nature of the problems that come 
before them. As compared to legislatures, the information that courts 
receive is backward looking, the data base upon which their decisions 
rest is extraordinarily limited, and there is no systematic way for 
them to acquire knowledge about the likely effects of their decisions. 
This fact alone suggests that, the more complex the problem, the more 
constrained should be the judicial role in solving it. The reason is 
that good decision-making requires more than good intentions. One of 
the principal problems that bedevils policymakers today, in fact, is 
that good intentions are almost always sabotaged by unintended 
unforeseen undesired and wholly unwanted consequences. This is because 
policymakers tend to assume that people will comply with their edicts 
and they forget to inform themselves about what will happen when people 
take quite reasonable and legal steps to avoid compliance.
    Well-intentioned decision-makers with laudable goals are not enough 
to insure good decision-making. Good decision-making cannot proceed in 
the absence of good information, for if you do not know what the facts 
are, if you've only been told part of the story, and if you cannot 
predict and have no way of calculating the likely effects of your 
decisions and the kinds of evasive actions your decisions will induce 
in affected parties, you are going to mess up! With complex social 
problems, courts-comparatively speaking-don't know enough and can't 
possibly find out enough because of the way their information-gathering 
processes have been designed. To acknowledge this fact says nothing 
about the judiciary's supposed comparative advantage at implementing 
values, and precious little about their universally acknowledged 
obligation to protect constitutional rights. It says a lot about their 
comparative disadvantage at knowing what they are doing and what the 
consequences are likely to be. And it suggests a very pragmatic reason 
why untethered judicial activism may create problems, and itself 
constitutes a powerful argument in behalf of a judicial philosophy of 
originalism, textualism and structuralism.

                                

  Statement of Detective Patrick Boyle, Philadelphia Police Department

    Senators, please allow me to introduce myself, my name is Patrick 
Boyle; I am a Detective with the Philadelphia Police Department. I 
.have been a member of the Police Department for 35 years. In 1997, I 
was invited to give testimony before a Congressional Committee and also 
a Senate Committee. The subject at both of those hearings was 
``Judicial Activism and Its Impact.''
    I was indeed honored to appear before both of those Committees. 
Once again, I have been asked to at least submit this written testimony 
before another Senate Committee at the request of Senator Jeff 
Sessions.
    ,Some of you may be wondering why a Police Detective would be asked 
to give testimony concerning the selection. and appointment of Federal 
Judges. Please allow me to explain. A Federal Judge in Philadelphia 
imposed a prison cap on the City of Philadelphia in 1987 or 1988. This 
action was taken without any court finding; that unconstitutional 
conditions or over crowding ever existed. The City of Philadelphia was 
convicted, as in the famous Irish ballad ``Joe McDonald'', without 
crime ox without trial. The Philadelphia District Attorney was denied 
the right to intervene and challenge the lawfulness of this decree. 
Mayor Rendell and the Justice Department asked the .federal court to 
end the prison cap, as a public safety consideration, but the court 
refused to even hear the merits of the motion. As an example of the 
effects of this decree, suspects charged with certain offenses were not 
incarcerated nor required to post any type of bond to ensure their 
appearance at trial. A sampling of the offenses are; car jacking, 
stalking, drug dealing, burglary, some robberies, firearms violations, 
Terroristic threats, auto theft, drunk driving manslaughter and 
vehicular homicide. Any person charged with any of these crimes was 
released without posting any bond and given a further court date to 
appear. I am sure that no one on this panel would be surprised at the 
results--no one came to court. This procedure was repeated over and 
over, arrested, bench warrant, arrested, bench warrant. On average 68% 
of all defendants failed to appear in court. The number of outstanding 
bench warrants rose from 18,000 in 1988 to close to 50,000 in 1994. In 
1991, over 8,000 defendants released under the ``prison cap'' were 
rearrested. for new charges including 77 murders, 850 burglaries and 
over 1,000 robberies.
    The year 1991 was the worst year of my life. In June of 1990 I was 
extremely proud when my Son, Daniel Boyle followed my footsteps into 
the ranks of the Philadelphia Police Department. Danny, after 
graduating from the Police Academy began working the streets of our 
City. On February 4, 1991 while working the midnight shift, Danny 
stopped a stolen vehicle traveling the wrong way on a one-way street. 
The operator of this vehicle jumped from the auto and immediately began 
firing a 9 mm handgun at my Son. One of the 13 shots struck Danny in 
the right temple. Danny died 2 days later on February 6, 1991. Dan 
served the City for one year and one day.
    Danny's killer was arrested, tried and convicted of .first-degree 
murder. At the end of the trial and after the jury imposed the sentence 
of death; the presiding Judge informed us in open court that this 
murder should never have happened, that Danny should be with us today 
but that the killer had been arrested and released time and time again 
because of the prison cap. As you can see by the statistics mentioned 
above we are not the only victims of this miscarriage of justice, many 
others have been affected by this outrage.
    This distinguished body now knows why I have been asked to submit 
my thoughts on the issue of Judicial Antiviam--I feel cure that no one 
condones what occurred to Danny or any of the other victims because of 
the prison cap. As you proceed with the hearings on the selection of 
Federal appointments to the bench please remember that you, the 
Congress of the United States of America, are empowered to enact our 
laws, not our Judges. I would be the last person on earth who would be 
pleased with any Judge that was so far to the right or to the left that 
he or she could infringe on our basic freedoms.
    While I am not a lawyer, I do have thirty-five years experience 
with the criminal justice system. You are our elected representatives, 
each of you have the responsibility to see that your powers of enacting 
our laws are not usurped by the appointments (for life) of Judges whose 
power seems, at least to me, in some cases unchecked. I fully 
understand the Political nature of all that goes on in our Capital but 
please remember the ramifications of your decisions will have a lasting 
effect on all of the Citizens of this great Country. I would never want 
any other parent to suffer the loss our family has had to endure 
because of an open door policy in the prison system, enforced by a 
Federal judge. Thank you.

                                

Article from Washington Post by Joseph A. Califano, Jr., Friday, August 
                                31, 2001

                        Yes, Litmus-Test Judges
    In considering presidential nominees for district and appellate 
judgeships, professional qualification alone should no longer be 
considered a ticket to a seat on the bench.
    For years partisan gridlock and political pandering for campaign 
dollars have led to failures of the Congress and White House, whether 
Democratic or Republican, to legislate and execute laws on a variety of 
matters of urgent concern to our citizens. As a result, the federal 
courts have become increasingly powerful architects of public policy, 
and those who seek such power must be judged in the spotlight of that 
reality.
    Years ago battles of the bench were pretty much limited to the 
Supreme Court: FDR's effort to stack the court with New Dealers, 
Johnson's attempt to name Abe Fortas chief justice, Nixon's push to 
seat Clement Haynsworth and Harrold Carswell, and the in-your-face 
street fights over Robert Bork and Clarence Thomas. Senate scrutiny was 
painstaking because the nine justices have such a potent voice in 
setting national policy.
    In those days, when it came to lower-court nominees, senators 
deferred to the wishes--and litmus tests--of their colleagues from the 
nominee's state and the president. Until Lyndon Johnson moved into the 
Oval Office, southern senators such as Mississippi's John Eastland, 
then Judiciary Committee chairman, insisted that presidents (including 
John F. Kennedy) nominate segregationist federal judges in their 
states. LBJ believed Kennedy had made a mistake in bowing to these 
senators. If there was to be a litmus test, it would be his.
    As a result, in selecting judicial nominees, those of us who helped 
check them out and interviewed them nailed down their views on civil 
rights, desegregation and racial justice. LBJ's insistence on this cost 
him the friendship of his mentor, Georgia senator Richard Russell, over 
a federal appellate court seat.
    The litmus test of recent years has focused on the pro-life or pro-
choice views of nominees. It is as inconceivable that Ronald Reagan 
would have sent the Senate a decidedly pro-choice nominee as it was 
that Bill Clinton would have named a pro-life one.
    Litmus tests are nothing new. What's new is the growing role of 
federal courts in crafting national policies once considered the 
exclusive preserve of the legislature and executive. As gridlock and 
big money have stymied the House and Senate and shaped the way laws are 
executed, concerned citizens have gone to court with petitions they 
once would have taken to legislators and executive appointees. As the 
federal courts have moved to fill the public policy vacuum, 
conservatives, liberals and a host of special interests have developed 
a sharp eye for those nominated to sit on the bench. So should the 
Senate.
    The failure of Congress to enact sensible public health policies 
regarding tobacco to protect our children from nicotine pushers sent 
anti-smoking advocates to federal court to draft a settlement agreement 
with provisions that read like sections of a federal statute. While 
Republican and Democratic administrations and Congresses have been 
fiddling over a patients' bill of rights, patients have gone to federal 
court for relief likely to have at least as much impact on health 
maintenance organizations as anything the politicians at both ends of 
Pennsylvania Avenue can cobble together.
    Despairing of more effective legislative or executive action, many 
cities are asking federal district judges for damages and court orders 
to restrict the way manufacturers sell handguns and other firearms. 
Federal District Judge Colleen Kollar-Kotelly's final orders to remedy 
Microsoft's monopolization may have more to say about the development 
of the Internet economy that any president, House speaker or Senate 
majority leader.
    When the executive does act, say on cigarette marketing or 
environmental protection, adversely affected businesses rush to court 
to overturn its actions and regulations. The big bankrollers of drug 
legalization like George Soros know the difference between a federal 
judge who can find a way to uphold state medical marijuana laws and one 
who will find that federal statutes preempt them.
    Environmentalists, prison reformers and consumer advocates have 
learned that what can't be won in the legislature or executive may be 
achievable in a federal district court where a sympathetic judge sits.
    Federal district judges are the lords of their realms, and unless 
they open the gates, it can be impossible for the litigating parties to 
get out once they enter the courtroom kingdom. These judges can hold 
cases for years, tying up businesses and regulating prisons, cities and 
schools with detailed court orders.
    The battle over who fills the record number of judicial vacancies 
has taken on an importance unimaginable just a generation ago. Who sits 
in federal district and appellate courts is more important than the 
struggle over the budget, the level of defense spending, second-
guessing the tax bill and whose fingers are poised to dip into the 
Social Security and Medicare cookie jars.
    President Bush and Republican Sen. Orrin Hatch understand this as 
surely as Democratic Senate Judiciary Chairman Patrick Leahy and 
subcommittee Chairman Charles Schumer do. Both sides know that many of 
the individuals who fill these seats will have more power over tobacco 
policy, prison reform, control of HMOs, the death penalty, abortion, 
environmental issues, the constitutionality of redistricting for House 
elections, gun control and the rights of women and minorities than the 
president or congressional leaders, and for a longer period of time.
    That's why professional qualifications should be only the threshold 
step in the climb of judicial nominees to Senate confirmation. There is 
not sufficient time to examine each lower federal court nominee with 
the penetrating policy MRI reserved for Supreme Court justices. But the 
Senate must take enough time to give these men and women the kind of 
searching review their sweeping power to make national policies 
deserves.
    The writer is president of the National Center on Addiction and 
Substance Abuse at Columbia University. He was Lyndon Johnson's special 
assistant for domestic affairs and secretary of health, education and 
welfare from 1977 to 1979.

                                

   Statement of Ronald A. Cass, Dean, Boston University School of Law

    Thank you, Mr. Chairman and Committee members for giving me the 
opportunity to submit testimony on this important issue. Let me begin 
by emphasizing that this testimony reflects only my own, personal view 
s, not those of Boston University or any other entity.
                        Personal Qualifications.
    Before turning to the matter at hand, I will describe my 
background. I am presently the Dean of Boston University School of Law 
and the Melville Madison Bigelow Professor of Law at Boston University. 
I have been a lawyer for more than twenty-five years. I have practiced 
law and have served in government as an attorney and as a presidential 
appointee, gaining first-hand experience in one version of the Senate 
confirmation process. I also have taught and written about 
constitutional law, administrative law, the judicial process, and the 
performance and selection of judges. My most recent book, The Rule of 
Law in America (Johns Hopkins University Press, 2001), deals at some 
length with the manner in which judicial decisions are made. I am a 
past President of the American Law Deans Association, past Chair of the 
Section of Administrative Law and Regulatory Practice of the American 
Bar Association, a current member of the ABA's House of Delegates, and 
a member of the American Law Institute. These comments draw on my 
experiences in these different capacities but reflect only my own 
judgments. They have not been screened by and are not endorsed by any 
organization with which I am associated.
                    Antecedent Issue: What Judges Do
    The question before this Subcommittee plainly is not freestanding. 
The initial question respecting the confirmation of judges is not the 
assignment of burdens but description of the job that you are 
considering providing advice on and consent to--what, in other words, 
is it that federal judges do? There is a great deal of mythology on 
this matter. When that is put aside, the task of the Senate in the 
confirmation process becomes much easier to see.
    Despite the public attention focused on a small number of 
controversial decisions, the job of a federal judge almost entirely 
consists of the resolution of well-defined conflicts over the meaning 
of reasonably determinate legal authorities. Federal judges are not 
given a wide-ranging mandate to announce rules of their own choosing. 
They are instructed to decide which of two (or several) possible 
interpretations of law--of statutory directives, of constitutional 
provisions, or of prior judicial decisions--fits better with the 
governing legal authorities. And that, in fact, is what they do. 
Evaluation of the work of federal judges strongly suggests that they 
primarily (without exaggeration one might say almost exclusively) are 
engaged in the application of sound technical legal skills--the skills 
of reading, parsing, and interpreting legal authorities--to a shifting 
set of controversies.
    This is not necessarily a simple task. It can, in fact, be quite 
difficult. That is why you want judges with demonstrated competence at 
the skills that are needed for legal interpretation. That is why we 
care whether judges have been successful as scholars and lawyers in 
showing the ability to perform the interpretive task at the heart of 
the judicial enterprise. But there is incredibly widespread accord 
among judges that this is indeed what judges do.
    Because the judge's job is principally an exercise in the 
application of skills generally described as ``legal reasoning,'' 
little of what judges do is controversial so long as judges have the 
competence to perform their interpretive tasks. Most legal actions--
about 1.2 million in federal courts each year--are settled by the 
parties without a judge's decision. The cases that federal judges 
decide are less apt to be controversial because of different views of 
the law than because parties disagree with findings of fact. Because of 
that--and because appellate courts defer to lower court findings of 
fact--relatively few cases disposed of at the district court level are 
appealed. The lack of controversy over the typical federal court 
decision can be seen from statistics. Consider, for example, that 
almost 80 percent of the cases decided by the U.S. Court of Appeals 
(the level just below the Supreme Court) are disposed of without 
published opinion, indicating agreement that these are fairly simple 
decisions. For the remaining fifth of appellate cases that generate 
published opinions, the vast majority are unanimous decisions. Even 
where judges think an issue is important and not settled, they tend to 
agree on the correct outcome.
                     Ideology versus Interpretation
    There are, of course, commentators who argue that judges use 
ideology to decide important matters. That argument is a hardy 
perennial, and scholars have been attempting to understand judges' 
actions through the lens of ideology for many years. It is a remarkably 
unhelpful lens for all but the rarest judges or the rarest cases. 
Doubtless, there are some judges who use ideology as an element in 
their decisionmaking, and there are some decisions that are affected by 
judges' views on matters that cannot be described as technical, 
interpretive issues. But these are not the ordinary occurrence. They 
are unusual, and we should not design our procedures with respect to 
the selection and confirmation of judges as if this aberration were the 
norm.
    The evidence supporting the ideology argument is remarkably weak. 
If the argument is understood as a general statement that ideology 
provides a dominant explanation for judicial decisions, there is almost 
no credible evidence to support it. How would it explain, for instance, 
the incredibly high level of agreement among U.S. Court of Appeals 
judges from different backgrounds, different political affiliations, 
and different asserted ideologies? It is most often used in argument 
over the Supreme Court of the United States. That court culls its 
caseload of 70-100 cases a year (a mere eight one-thousandth of one 
percent of the total number of legal actions each year in the US) from 
thousands of petitions to select the most important and legally 
indeterminate cases. If any set of cases in any court in the nation is 
to provide evidence to support the ideological dominance claim, this 
should be it. Yet, even here the explanation falters. If ideology 
dominates other decisional factors, why is the Supreme Court unanimous 
in more than 40 percent of its cases for a typical term?
    There is a less aggressive argument for the role of ideology which 
is more plausible, but it still does not provide a good basis for 
abandoning the general understanding of what courts do. This less 
aggressive argument is that judges principally decide cases on the 
basis of technical considerations respecting legal authorities. They 
endeavor to make sense of the language used in statutes, constitutional 
provisions, and judicial precedents, using rules of construction that 
are relatively free of ideological freight. But, the argument goes, 
inevitably in some instances this approach has leeway for different 
outcomes there is space left among the legal authorities for different 
conclusions about the exact shape of the rule that governs a particular 
conflict. When that happens, judges must attempt to divine what is most 
reasonable, what best harmonizes the different strands of authority. 
That task ineluctably leads to consideration of policy issues, of 
values to be placed on different results, of weights to be given to 
competing interests. In that setting, even judges attempting earnestly 
to give a reasoned interpretation to legal texts will be influenced--
perhaps subtly, perhaps not--by their ideology.
    Of course, this version of the ideology argument is, on one level, 
correct. The less certain the outcome of a legal dispute governed by 
ordinary interpretive techniques that command widespread adherence, the 
more likely it is that other factors will come into play. The more the 
issue at hand requires consideration of factors that will receive 
different evaluations--factors that cannot be subjected readily to 
objective tests--the more likely it is that the judge's own subjective 
evaluation will be described as influenced by ideology.
    That, however, does not get the ideology proponents where they need 
to go. The explanation seems plausible in large part because it 
recognizes what should be evident to all observers of judicial 
decisionmaking: that the dominant influences on judicial decisions are 
the quality of the legal authorities and the competence of the 
decision-maker, not the decision-maker's political or other 
inclinations. The explanation, in other words, gains force largely 
because it adopts the position opposed to ideological dominance as its 
base. Moreover, the argument that is left now from the proposition that 
ideology governs judicial decisions is the tautological observation 
that when the usually dominant technical considerations don't give a 
clear answer, the answer will not rest purely on technical 
considerations. That is so, but so what? Almost any life experience of 
a decision-maker may exercise some influence over decisions that in 
some respect are ``up for grabs,'' but unless there is a clear and 
direct connection between some specific, discernable influence and a 
significant set of outcomes, there is little to be gained by pursuing 
the various possibilities. Any inquiry in this vein is apt to be more 
theatrics than analysis.
    Perhaps most critical to the flaw in the ideology argument is this: 
efforts to make judicial decisions seem the product of ideology must 
provide oversimplified definitions of ideology if they are to work. The 
effort is to tie judges to a political party or a specific perspective 
that can be defined in linear fashion--this judge has Republican or 
Democratic leanings, that judge is liberal or conservative, and so on. 
These characterizations may work tolerably well over a set of issues, 
but only as rough proxies for a more complicated set of views that do 
not graph cleanly in a linear mode. Consider, for example, Supreme 
Court Justice Antonin Scalia, frequently caricatured as the epitome of 
the ideological, conservative jurist, voting this past term that the 
Fourth Amendment to the Constitution prohibits police from conducting 
warrantless, thermalimage searches of homes. Or consider Justice David 
Souter, often described by conservative commentators as reflexively 
liberal, voting this past term to allow police to arrest and jail a 
woman whose children, in violation of the law, were not wearing 
seatbelts in their car. Neither of those votes fits the simple liberal-
conservative stereotype because the stereotype does not really explain 
the considerations that inform the justices' decisions. And it surely 
does not explain the considerations that typically inform other judges' 
decisions, even in difficult matters not covered by well-defined legal 
precepts.
    Once you abandon the fiction that the linear description actually 
tells you what is going on, however, the already weak argument for 
ideology's influence becomes much weaker. The more complicated set of 
views that may affect the judges' decisions will not look so much like 
ideology because it is complex. The complexity means that judges do not 
simply act on the basis of beliefs that fit readily with the sort of 
politically charged description of views that usually gets referred to 
as ideology--not even as a prompt for decision-making in difficult 
cases with open-textured legal authorities. They evaluate the pros and 
cons of arguments according to an enormously rich set of understandings 
of facts and values that cannot easily be conflated to an ideological 
bias. Even where judges must bring something to bear other than mere 
technical legal skills to generate a decision, ideology will be a poor 
explanation of their decision processes.
    So, why then, is the ideology argument--the assertion of ideology's 
prominent role in judicial decision-making--pressed by some very smart 
and thoughtful people? The fact that this argument has force among a 
certain group of commentators must be understood in light of the 
commentators' perspective. This is an argument that appeals to those, 
such as law professors, who professionally focus on the least 
predictable cases. Law professors spend most of our time on cases that 
are interesting to us for the same reason that ornithologists are 
intrigued by sighting the least common birds. There is little for 
professional critics to say about the application of well-established 
bodies of law to a reasonably ordinary set of facts. Unpredictable 
cases--ones in which either the law is much less well-specified than 
the norm or something has gone off the normal course in court--are the 
only cases we are apt to spend time and energy discussing.
    Yet it is a mistake to try to understand the legal system based on 
these cases as if they were the normal judicial fare. These cases are 
to the general population of legal cases as the rarest cancer cases are 
to matters of general public health. They are what matters to us, what 
interests us--and we come naturally to exaggerate their frequency and 
their importance, just as oncologists tend to see the world as if it 
were basically a cancer ward. For all of our fascination with cancer, 
it is dwarfed as a cause of death in the world by dysentery, diahhrea, 
malnutrition, and malaria. In the United States, it pales in comparison 
to heart disease. And survival to a much older age is more normal than 
early death from any of these causes. Cancer is a much more difficult 
disease to understand than dysentery and the like, which is why we 
worry about it and why doctors are interested in it. But we should not 
exaggerate its impact by mistaking it for the ordinary, expected state 
of the world. The same is true for legal matters where it looks like 
ideological considerations may play a role. The fact that such matters 
exist should not be taken as evidence that this is a common phenomenon 
or a significant problem.
                 Confirmation: What Should Senators Do?
    If judges generally base their decisions on sincere efforts to 
interpret governing legal authorities but at times cannot perform that 
task without importing other factual and normative assumptions, what 
should the Senate do in assessing judicial nominees? The first and most 
obvious lesson is that senators should pay careful attention to the 
technical legal qualifications of nominees. You should assure 
yourselves that judicial nominees have the skills they will be called 
upon to exercise on the bench and that there is a likelihood they will 
use these skills to perform the necessary interpretive tasks. Nominees 
who have had lackluster careers, who have not demonstrated a facility 
for legal analysis, or who have personal characteristics that will 
impede such analysis should be turned down. So, for example, in 
addition to assessing competence, senators might inquire whether 
nominees are unwilling to listen to others, for example, or have 
demonstrated biases that make it unlikely that some individuals will 
get a fair hearing.
    Surely, however, the President who nominates judges will care about 
their views and will endeavor to select judges whose views are 
sympathetic in some respect. Shouldn't the Senate seek the same 
assurances? Even if judges' decisions are not primarily--even if they 
are not significantly--the products of ideology, shouldn't senators 
have the right to ``level the playing field'' by keeping presidential 
prerogatives within bounds?
    First, one predicate for the questions presented above is 
undoubtedly correct: even if everything argued above about the 
extremely limited role of ideology in judicial decision-making is true, 
the presidential nomination process will be tilted toward people who 
generally share the President's outlook and inclinations. Those are the 
people who will always be most congenial to a President and who will 
have the greatest likelihood of sharing connections to people whose 
judgment the President trusts. Further, a President may care 
particularly about a set of views and endeavor to select nominees who 
share those views. A President who believes, for example, that the 
death penalty is a strong deterrent to the most abhorrent crimes well 
might endeavor not to appoint judges who are vehemently opposed to the 
death penalty. There is nothing untoward about this aspect of 
presidential selection of nominees. It is understood as part of what we 
get when we elect a President. Fear that a President may have views and 
associations too far from the comfort level of most Americans is 
frequently used as an argument against a particular candidate. Election 
certifies that the fear is not so widespread as to be a serious 
problem.
    The fact that the President's selections will have been screened in 
some respect for their views does not mean that the Senate must play 
the role of counterweight. To start, it is wrong to believe that the 
Senate gives the President a free hand in selecting nominees who will 
advance his interests if it forswears inquiry into such matters. 
Serious tests for competence and temperament rule out those nominees 
most likely to depart from straightforward application of governing 
law. Indeed, serious tests for competence and temperament are most 
likely to assure all parties that the judges who are confirmed, however 
they have come to be selected, will serve public interests over the 
long term, interests that are defined by our governing legal 
authorities.
    Note, too, that even if the President wants to select judges whose 
views are compatible with his on some margin, it is very difficult to 
do that in a way that will predictably affect judicial decisions. It is 
difficult because, as explained above, things other than a judge's 
personal views dominate judicial decision-making. It is difficult 
because it is not a simple matter to project current views to future 
decisions (witness the selections of Chief Justice Earl Warren and 
Associate Justice William Brennan by President Eisenhower). It is 
easier to screen out people with well-established views contrary to the 
President on some matter than to ``screen in'' people with compatible 
views. Even that limited screening, however, is not easy. Presidential 
viewpoint screening also is difficult because the more the selection 
process focuses on personal views, the more it creates disincentives 
for prospective nominees to be fully candid--disincentives that operate 
throughout the appointments process. Presidents with well-known 
perspectives on particular issues will induce more potential nominees 
to profess accord with those interests. The standard check on the bona 
fides of such statements is whether associates of the President who 
know the candidate will vouch for him. While standard, this is both a 
very poor check on the candidate's views and very largely redundant of 
the process that would be used in all events.
    Senatorial efforts to screen nominees' views are not likely to be 
very effective. The same problems that affect presidentialscreening 
affect senatorial screening. And the President, as the first-mover in 
this game, can continue to eliminate nominees who are thought most 
likely to disagree with the President on important matters.
    Second, and more important, the effort to check a candidate's views 
is fraught with peril. Most obviously, it leads almost inevitably to a 
more strategic and more hostile set of interactions between President 
and Senate. Although proponents of such screening commonly assert that 
it need not be so, those proponents--whether Republicans opposing a 
Democratic President or Democrats opposing a Republican President--
seldom have standing as voices of moderation. It is typically those who 
are most committed to opposition who suggest this tack while 
maintaining that it can be done in a collegial manner. The now long-
running argument about who first de-railed a nomination of a well-
qualified candidate and who did it to how many more or less is evidence 
of this problem.
    Further, the effort to check nominees' views compromises the 
Senate's ability to check nominees' legal competence and temperament. 
Not only will the effort to check views take time and energy away from 
other screening; it also will color other screening efforts. Once 
ideology becomes the focus, any discussion will be seen through that 
lens. Objections to competence will be less likely to be credited as 
sincere. And that will further undermine the Senate's ability to focus 
clearly and cogently on that issue.
    Perhaps most problematic, the process of publicly focusing on 
personal views will have adverse consequences for the legal system. It 
will convey to the public the false impression that ideology dominates 
judicial decision-making, which over time will undermine confidence in 
and respect for our legal system. That is not to anyone's advantage. 
Worse yet, the process also will induce judicial nominees to follow one 
of two routes, neither of which is attractive. One possible response is 
to duck--to avoid really saying anything about any issue. That almost 
surely will be seen as dissembling. The alternative is to try and have 
developed positions on the most important issues that might come before 
the nominee when on the bench. Of course, the nominee would then be 
making public statements about views on exactly the range of cases that 
are most politically sensitive--and that we most want judges to think 
hard about in the context of particular cases and arguments. We will be 
setting judges up either to make pronouncements they do not later 
follow or to make decisions in the wrong way about the issues we 
traditionally have entrusted to a case-by-case decision process that 
has served us well. These are bad alternatives. And they are the most 
likely alternatives. Grilling prospective judges about their views may 
look good at the time, but it has terrible effects on our legal system.
                               Conclusion
    The Senate's advise-and-consent role with respect to federal judges 
is a weighty one. It should focus on assuring that our judges have the 
legal skills and the temperament necessary to the tasks of legal 
interpretation that we have entrusted to our judiciary. The Senate 
should not attempt to divine a nominee's personal views, positions on 
legal issues, or ideology. That is not likely to be a useful role for 
the Senate and is very apt to have untoward consequences for our 
judicial system.
    I appreciate the opportunity to submit these remarks and would be 
happy to expand on any issue that interests the Committee.

                                

  Statement of Elena Ruth Sassower, Coordinator, Center for Judicial 
                          Accountability, Inc.

    Dear Chairman Schumer:
    As you know, the Center for Judicial Accountability, Inc. (CJA) is 
a national, non-partisan, non-profit citizens' organization, based in 
New York. Our purpose is to safeguard the public interest in meaningful 
and effective processes of judicial selection and discipline. On the 
federal level, as likewise on state and local levels, these essential 
processes take place almost exclusively behind closed-doors. For your 
convenience, a copy of CJA's informational brochure is enclosed--
similar to one I gave you, in hand, on March 20, 1998, when you were 
seeking election as a Senator from New York.
    In the twelve years since our founding in 1989, CJA has had 
substantial first-had experience with the Senate Judiciary Committee 
under both Democratic and Republican chairmen. Reflecting this is the 
enclosed copy of CJA's May 27, 1996 letter to then Judiciary Committee 
Chairman Orrin Hatch, as printed in the record of the Committee's May 
21, 1996 hearing on ``The Role of the American Bar Association in the 
Judicial Selection Process'' (Exhibit ``A-1''). The subject of that 
hearing was whether the ABA should continue to occupy a privileged, 
semi-official role. This, because the ratings of the ABA's Standing 
Committee on Federal Judiciary were allegedly tainted by ideological 
considerations and by ABA ``liberal'' policy positions.
    Inasmuch as CJA received no notice from the Senate Judiciary 
Committee of the June 26, 2001 hearing, ``Should Ideology Matter?: 
Judicial Nominations 2001'', held by the Subcommittee on Administrative 
Oversight and the Courts, which you now chair, I draw your attention to 
the final paragraph of CJA's May 27, 1996 letter to Chairman Hatch ``A-
I'', p. 127):

        ``Finally, we ask that this letter serve as CJA's standing to 
        be placed on a `notifications' list so that, in the future, we 
        are immediately contacted when matters bearing specifically on 
        judicial selection, discipline, and judicial performance are 
        being considered by the Senate Judiciary Committee or any of 
        its subcommittees.'' \1\
---------------------------------------------------------------------------
    \1\ This identical request was made in a May 22, 1996 letter to 
Kolan Davis, then Chief Counsel to the Subcommittee on Administrative 
Oversight and the Courts--with copies sent to Winston Lett, the 
Subcommittee's then minority counsel, and John Yoo, then General 
Counsel to the full Committee and his then minority counterpart, 
Demetra Lambros (Exhibit ``A-2''). Indeed, CJA's May 22, 1996 letter is 
largely identical to CJA's May 27, 1996 letter to Chairman Hatch, 
except that it does not particularize ``CJA's more recent contacts with 
the ABA's Standing Committee on Federal Judiciary, this year and last. 
. . .''

    We did not learn of your June 26, 2001 Subcommittee hearing until 
June 25, 2001--and this, from a front-page item in the New York Law 
Journal, identifying it as ``a hearing to debate the criteria senators 
should use when voting on President Bush's judicial nominees''. I 
immediately called your office. After verifying that the hearing was 
focused on ideology, rather than more broadly on ``criteria''--as to 
which CJA would have requested to testify--I advised that CJA would be 
submitting a statement for the record of the Subcommittee's hearing. 
Please consider this letter, including the annexed substantiating 
exhibits, as CJA's statement for inclusion in the printed record of the 
June 26th hearing.
    In your Op-Ed article in the June 26th The New York 
Times, ``Judging By Ideology''--as likewise in your prefatory statement 
at the June 26th hearing--you confess that Senators 
privately consider a nominee's ideology, but that because of the taboo 
surrounding its consideration, they conceal their ideological 
objections to nominees by finding ``nonideological factors, like small 
financial improprieties from long ago''. You state, `got-cha' politics 
has warped the confirmation process and harmed the Senate's 
reputation.''
    While CJA agrees with this assessment and applauds, as long 
overdue, you readiness to explore the ideological views of judicial 
nominees--many of whom were, and are presumably chosen by Presidents 
precisely for their ideological views--we must point out that there is 
a more fundamental reason why the confirmation process is ``warped''. 
It it ``warped'' because--except when the Senate Judiciary Committee is 
searching for some non-ideological ``hook'' on which to hang an 
ideologically-objectionable nominee--the Committee cares little, if at 
all, about scrutinizing the qualifications of the judicial nominees it 
is confirming. Indeed, the Committee willfully disregards 
incontrovertible proof of a nominee's unfitness, as likewise, of the 
gross deficiencies of the pre-nomination federal judicial screening 
process that produced him.
    The Senate Judiciary Committee's failure to discharge its duty to 
investigate the qualifications of judicial nominees--notwithstanding 
its self-promoting pretense to the contrary--has been chronicled in the 
1986 Common Cause study, Assembly-Line Approval--which made a list of 
salutary recommendations, most of which appear to be unimplemented 
today. Other studies, also with unimplemented salutary recommendations, 
have included the 1988 Report of the Twentieth Century Task Force on 
Judicial Selection, entitled Judicial Roulette, with a chapter entitled 
``Senate confirmation: a Rubber Stamp?'', as well as the 1975 book by 
Ralph Nader's Congress Project, The Judiciary Committees, with a 
chapter entitled ``Judicial Nominations: Whither `Advice and 
Consent'?''. These are important resources for the further hearings 
that your prefatory statement announced would be ``examin[ing] in 
detail several other important issues related to the judicial 
nominating process''.\2\
---------------------------------------------------------------------------
    \2\ In particular, your upcoming, as yet unscheduled, two hearings 
on: ``(1) The proper role of the Senate in the judicial process. What 
does the Constitution mean by `advise and consent' and historically how 
assertive has the Senate's role been? '', and ``(2) What affirmative 
burdens should nominees bear in the confirmation process to qualify 
themselves for life-time judicial appointments? The Senate process is 
criticized for being a search for disqualifications. We should examine 
whether the burden should be shifted to the nominees to explain their 
qualifications and views to justify why they would be valuable 
additions to the bench.''
---------------------------------------------------------------------------
    CJA's own direct, first-hand experience with the Senate Judiciary 
committee provides additional--and more recent--evidence of the 
Committee's outright contempt for its ``advise and consent'' 
constitutional responsibilities and for the public welfare. CJA's 
experience with the Committee is also unique in that it involves more 
than opposition to specific nominees. It involves meticulously-
documented evidentiary presentations establishing critical deficiencies 
in the pre-nomination screening process, particularly relating to the 
American Bar Association. Specifically, CJA demonstrated, as to one 
federal District Court nominee, Westchester County Executive Andrew 
O'Rourke, appointed in 1991 by President George Bush, the gross 
inadequacy of the ABA's Standing Committee on Federal Judiciary's 
supposedly ``thorough'' investigation of his qualifications. As to 
another federal District Court nominee, New York State Supreme Court 
Lawrence Kahn, appointed in 1996 by President Bill Clinton, CJA showed 
that the ABA Standing Committee on Federal Judiciary had actually 
``screened out'' information adverse to his fitness. In other words, 
CJA's contacts with the Senate Judiciary Committee have concerned not 
just judicial nominees, but a more transcending dimension of the 
adequacy and integrity of the judicial screening process, with 
particular focus on the ABA.
    CJA regards it as a positive step that President George W. Bush has 
removed a wholly unworthy ABA from its preeminent, semi-official pre-
nomination role in rating judicial candidates. Indeed, by letter to the 
President, dated March 21, 2001 (Exhibit ``A-3''), CJA expressed 
support for such prospective decision, enclosing for his review a copy 
of our May 27, 1996 letter to Chairman Hatch (Exhibit ``A-1'') to 
illustrate the ``good and sufficient reason'' for removing the ABA from 
the pre-nomination screening process. Needless to say, inasmuch as the 
Senate Judiciary Committee--or at least the Democratic Senators--are 
now going to be utilizing the ABA to fulfill a post-nomination 
screening function, the readily verifiable evidence of the inadequacy 
and dishonesty of ABA investigations of judicial candidates--and of its 
dishonest refusal to in any way confront that evidence--are thresholds 
issues for the Committee in assessing whether, and under what 
circumstances, it can rely on ABA ratings.
    We do not know the state of the Senate Judiciary Committee's 
record-keeping. However, we respectfully suggest that you make it a 
priority to find out what has become of the voluminous correspondence 
and documentary materials that the Committee received from CJA. Most 
voluminous is CJA's 50-page investigative Critique on the 
qualifications and judicial screening of Andrew O'Rourke, substantiated 
by a Compendium of over 60 documentary exhibits, which we initially 
presented to the Senate Judiciary Committee as our ``Law Day'' public 
service contribution in May 1992. As reflected by CJA's May 27, 1996 
letter to Chairman Hatch (Exhibit ``A-1''), we transmitted a duplicate 
copy of the Critique and Compendium to him under that letter, along 
with three Compendia of Correspondence relating thereto. The most 
voluminous of these, Compendium I, collected CJA's correspondence with 
the Senate Judiciary Committee and Senate leadership following 
presentment of CJA's Critique. Compendium II collected CJA's 
correspondence with the American Bar Association about the Critique--
copies of which had been previously provided to the Senate Judiciary 
Committee.
    CJA's May 27, 1996 letter (Exhibit ``A-1'', p. 125) highlights the 
evidentiary significance of the Critique in establishing

        ``not the publicly-perceived partisan issue of whether the 
        ratings of the ABA's Standing Committee on Federal Judiciary 
        are contaminated by a `liberal' agenda. Rather, . . . the issue 
        that must concern all Americans: the gross deficiency of the 
        ABA's judicial screening in failing to make proper threshold 
        determinations of `competence', `integrity' and 
        `temperament'.'' (emphasis in the original)

    Further described by our May 27, 1996 letter (Exhibit ``A-1'') is 
that, based on our Critique, CJA had called for a Senate moratorium on 
the confirmations of all judicial nominations pending official 
investigation of the deficiencies of the federal judicial screening 
process. Copies of our May 18, 1992 letter-request for the moratorium, 
addressed to the Senate Majority Leader George Mitchell (Exhibit ``B-
1''). Such letter-request, which we had sent to every member of the 
Senate Judiciary Committee, stated:

        ``To the extent that the Senate Judiciary Committee relies on 
        the accuracy and thoroughness of screening by the ABA and the 
        Justice Department to report nominations out of Committee--with 
        the Senate thereafter functioning as a `rubber stamp' by 
        confirming judicial nominees without Senate debate--a real and 
        present danger to the public currently exists.
        It is not the philosophical or political views of the judicial 
        nominees which are here at issue. Rather, the issue concerns 
        whether present screening is making appropriate threshold 
        determinations of fundamental judicial qualifications--i.e. 
        competence, integrity, and temperament. Our critique of Andrew 
        O'Rourke's nomination leaves no doubt that it is no.'' 
        (emphases in the original)

    Thereafter, on July 17, 1992, The New York Times, published our 
Letter to the Editor, which it entitled ``Untrustworthy Ratings? '', 
about our Critique's findings--and about our request for a moratorium 
``[b]ecause of the danger of Senate confirmation of unfit nominees to 
lifetime Federal judgeships (Exhibit ``B-2'').
    The Senate Judiciary Committee's response to CJA's fact-specific, 
documented Critique was to refuse to discuss with us any aspect of our 
evidentiary findings--and to call police officers to have me arrested 
\3\ when, after months of Committee inaction and foot dragging, 
ignoring my many attempts to arrange an appointment with counsel, I 
traveled down to Washington in September 1992 to discuss the serious 
issues presented by the Critique and by the ABA's refusal to take 
corrective steps--while, meantime, the Senate was proceeding with 
confirmations of federal judicial nominees.
---------------------------------------------------------------------------
    \3\ See CJA's October 13, 1992 letter to then Senate Judiciary 
Committee Chairman Joseph Biden, annexed as Exhibit ``Z'' to CJA's 
Correspondence Compendium I.
---------------------------------------------------------------------------
    Likewise, the Senate Judiciary Committee's response to CJA's May 
27, 1996 letter (Exhibit ``A-1'')--copies of which CJA also sent to 
every member of the Committee--was to refuse to discuss the serious 
issues it presented with substantiating proof, to wit, ``that the 
problem with the ABA goes beyond incompetent screening. The problem is 
that the ABA is knowingly and deliberately screening out information 
adverse to the judicial candidate whose qualifications it purports to 
review.'' Summarized by the May 27, 1996 letter (Exhibit ``A-1'', p. 
126) were facts showing that the Second Circuit representative of the 
ABA's Standing Committee on Federal Judiciary had willfully failed to 
investigate case file evidence, transmitted by an October 31, 1995 
letter (Exhibit ``C''), of the on-the-bench misconduct of New York 
Supreme Court Justice Kahn,\4\ then seeking appointment to the U.S. 
District Court for the Northern District of New York, that the 
Chairwoman of the ABA's Standing Committee on Federal Judiciary was 
arrogantly disinterested in this willful failure to investigate--and 
that President Clinton subsequently appointed Justice Kahn to the U.S. 
District Court, presumably based on an ABA rating that Justice Kahn was 
``qualified''.
---------------------------------------------------------------------------
    *ERR14*\4\ That Second Circuit representative to the ABA Standing 
Committee on Federal Judiciary, Patricia M. Hynes, has since become--
and currently is--the Committee's Chairwoman. This because ABA 
``leadership;; has refused to address the evidence of Ms. Hynes 
misconduct in connection with her ``investigation of Justice Kahn's 
qualifications.
---------------------------------------------------------------------------
    CJA's May 27, 1996 letter expressly stated:

        ``Based upon what is herein set forth, we expect you will want 
        to afford us an opportunity to personally present the within 
        documentary proof--which we would have presented at the [May 
        21, 1996] hearing on ``The Role of the American Bar Association 
        in the Judicial Selection Process''--as to how the ABA fails 
        the public, which is utterly disserved and endangered by its 
        behind-closed-doors role in the judicial screening process.'' 
        (Exhibit ``A-1'', p. 127)
    I daresay most people reading the May 27, 1996 letter would have 
had a similar expectation--and especially, if they had before them the 
substantiating documentary proof it transmitted. Conspicuously, the 
``Editor's Note'', added to the end of the letter, as printed in the 
record of the Committee's May 21, 1996 hearing on the ABA's role, 
states: ``Above mentioned materials were not available at press time.'' 
(Exhibit ``A-1'', p. 127). This is most strange as all those materials 
were express mailed to the Committee together with the ``hard copy'' of 
the letter.
    The only response we received to our May 27, 1996 letter (Exhibit 
``A-1'') was a June 13, 1996 acknowledgement from Senator Strom 
Thurmond (Exhibit ``D-1''), whose form-letter text repeated, verbatim, 
the Senator's statement at the May 21, including that Congress has 
``adequate resources to properly investigate the background of 
individuals nominated to the federal judiciary'' and that the Senate 
``carefully review[s]'' these nominees, giving ``due consideration to 
the ABA's Standing Committee on Federal Judiciary, prior to a vote on 
confirmation''
    The only other response CJA received--a June 12, 1996 letter 
(Exhibit ``F'')--was, ostensibly, to CJA's April 26, 1996 letter to the 
Committee (Exhibit ``E''), requesting to testify in opposition to 
Justice Kahn's confirmation, as well as answers to various procedural 
questions. One of these procedural questions, as highlighted in CJA's 
May 27, 1966 letter (Exhibit ``A-1'', pp. 126-7), concerned the change 
in Committee policy to preserve the confidentiality of ABA ratings of 
judicial nominees until the confirmation hearing.
    By this June 12, 1996 letter, (Exhibit ``F'') Chairman Hatch 
denied, without explanation, CJA's written request to testify in 
opposition to Justice Kahn's Confirmation. Although confirming the 
Committee's ``practice'' of not publicly releasing the ABA ratings in 
advance of the confirmation hearing, Chairman Hatch did not identify 
how long such ``practice'' had been in effect and the reason therefor, 
which is what CJA expressly requested to know. He did however, admit, 
in response to another question in CJA's April 26, 1996 letter (Exhibit 
``E''), that ``[T]he Judiciary Committee has no written guidelines in 
evaluating judicial nominees. Each candidate is reviewed on an 
individual basis by each Senator.''
    CJA responded with a June 18, 1996 letter (Exhibit ``G-1''), 
requesting that Chairman Hatch explain his peremptory and precipitous 
denial of our request to testify and that he reconsider his denial 
based on facts therein set forth. We pointed out that he had not 
provided us with information as to ``what the criterion is for 
presenting testimony at judicial confirmation hearings''. Additionally, 
we pointed out that no one from the Committee had ever contacted us as 
to the basis of our opposition to Justice Kahn, which had not been 
identified by our April 26, 1996 letter (Exhibit ``E''), and that 
although such identification did appear in CJA's May 27, 1996 letter 
(Exhibit ``A-1'', p. 126), to wit, that Justice Kahn as a New York 
Supreme Court Justice had

        ``used his judicial office to advance himself politically. 
        Specifically,. . .[he] had perverted elementary legal standards 
        and falsified the factual record to `dump' a public interest 
        Election Law case which challenged the manipulation of judicial 
        nominations in New York State by the two major political 
        parties'' (emphases in the original),

    no one had ever requested that we furnish the Committee with a copy 
of the substantiating case file for review.
    Chairman Hatch never responded to this June 18, 1996 letter 
(Exhibit ``G-1''). Rather, on June 25, 1996 at 9:45 a.m., a Committee 
staffer telephoned us to advise that the Committee's confirmation 
hearing on Justice Kahn's nomination--whose date we had repeatedly 
sought to obtain from the Committee, without success--would take place 
at 2:00 p.m. that afternoon.
    Such last-minute notice gave us just over four hours to get from 
Westchester, New York to Washington, D.C.--a logistical impossibility 
by surface transportation. Throwing expense to the winds, we arranged 
with a car service to speed me to the airport for a noon flight. At the 
same time, we sought to clarify from the Committee whether, in making 
this expensive trip down to Washington, I would be permitted to 
testify. No clarification was forthcoming (Exhibit ``G-2'').
    The June 25, 1996 Committee ``hearing'' on Justice Kahn's 
confirmation--which was held simultaneously with the ``hearing'' for 
four other District Court nominees, and immediately following the 
confirmation ``hearing'' for a nominee to the Circuit Court of 
Appeals--fits the description of the Committee staffer quoted in the 
1986 Common Cause study, ``Assembly Line Approval'', who termed 
confirmation ``hearings'' ``as pro forma as pro forma can be. Apart 
from Senator Jon Kyl, who was chairing the ``hearing'' in Chairman 
Hatch's absence, Only one other Committee member, Senator Paul Simon, 
was present for the boiler-plate questioning of the five District Court 
nominees, who were called up en masse to respond, seriatim, in 
``assembly-line'' fashion, once the questioning of the nominee for the 
circuit Court of Appeals had been completed. Chairman Kyl then 
commended all the nominees as ``exceptionally well qualified'' and 
prepared to conclude the ``hearing''. This, without inquiring whether 
anyone in the audience had come to testify \5\ and without identifying 
whether the Committee had received opposition to any of the nominees 
and its disposition thereof.
---------------------------------------------------------------------------
    \5\ By contrast, page 234 of the Judiciary Committees describes the 
Committee's April 21, 1971 hearing to confirm seven judicial nominees. 
Senator Roman Hruska was presiding. ``Hruska asked if anyone in the 
room wished to speak on behalf of or against the nominee. The 
subcommittee the moved on to the next nominee.'' (emphasis added).
---------------------------------------------------------------------------
    It was then that I rose from my seat. The transcript of the June 
25, 1996 Senate Judiciary Committee ``hearing'' reflects the following 
colloquy between me and Chairman Kyl (Exhibit ``H'', pp. 790-791):

        Sassower: ``Senator, there is citizen opposition to Judge 
        Kahn's nomination''
        Sen. Kyle: ``Let me just conclude the hearing, if we could.''
        Sassower: ``We request the opportunity to testify.''
        Sen. Kyle: ``The committee will be in order.''
        Sassower: ``We requested the opportunity 3 months ago, over 3 
        months ago \6\--''
---------------------------------------------------------------------------
    \6\ Out of nervousness, I erred. April 19, 1996--the date I had 
contacted the Committee regarding CJA's request to testify in 
opposition--was not more than three months earlier. It was more than 
two months earlier.
---------------------------------------------------------------------------
        Sen. Kyle: ``The committee will stand in recess until the 
        police can restore order.''
        [Recess]
        Sen. Kyle: ``As the chair was announcing, we will keep the 
        record open for 3 days for anyone who wishes to submit 
        testimony, and that includes anyone in the audience, or 
        questions from the members of the committee to the panel. 
        Should you have any additional questions, of course you are 
        welcome to discuss with staff any other questions you have 
        concerning the procedure.
        The full committee will take up the full slate of nominations 
        both for the circuit court and for the district court at the 
        earliest opportunity. I cannot tell you exactly when, but I 
        will certainly recommend that it be done at the earliest 
        opportunity and I do not see any reason for delay.
        Senator Simon, do you have anything else that you wish to 
        add?''
        Sen. Simon: ``No. I think we have excellent nominees before us 
        and I hope we can move expeditiously.'' \7\
---------------------------------------------------------------------------
    \7\ This statement by Senator Simon should be viewed not only in 
the context of the opposition to Justice Kahn and request to testify, 
which I articulated in his presence only moments earlier, but in the 
context of his counsel's representation to CJA in a October 8, 1992 
letter, returning the copy of the Critique we had hand delivered to his 
Senate office. ``While the [ABA] rating does carry weight, I can assure 
you that information provided by individuals who know the nominee, who 
have practiced before him or her, or otherwise have and interest and 
contact us is given every consideration.'' (emphases added) See 
Exhibits ``U'' and ``Y'' to CJA's Correspondence Compendium I.
---------------------------------------------------------------------------
        Sen. Kyle: ``I certainly reflect that same point of view. Thank 
        you again for being here. We thank everyone in the audience, 
        and I again would say there are 3 days for anyone in the 
        audience to submit and additional statements if you have them. 
        Thank you. The committee stands adjourned.''

    It must be noted that in the ``recess'' noted by the transcript 
(Exhibit ``H'', p. 791), which was truly momentary, at least one police 
officer rushed to me and threatened that I would be removed if I said 
another word. This officer was one of about five other police officers 
who were waiting at the side of the room, summoned, I believe, by the 
Committee's Documents Clerk for the purpose of intimidating me. This, 
because I had refused to be intimidated by the Clerk's inexplicable 
surveillance of me, which included his shadowing me about the Senate 
Judiciary Committee's hearing room, from the time I walked in bullying 
me and gratuitously warning he was going to have me removed.
    As the audience dispersed and Chairman Kyl approached the judicial 
nominees to congratulate them, I tried to speak with him about the 
serious nature of CJA's opposition to Justice Kahn. Chairman Kyl just 
waved me off: By then, the Committee's Documents Clerk was again at my 
side, threatening to have me removed for harassing the Committee. I 
told him then--as I had previously--that I had no desire to harass 
anyone, but simply wished to discuss CJA's opposition with the 
appropriate individuals. Indeed, I searched in vain for Committee 
counsel to speak with about CJA's opposition and request to testify. 
This included approaching the fifteen or so persons who had sat in the 
chairs behind those reserved for the Senators at the dais. None would 
identify themselves as counsel or staff with whom I could speak. Nor 
could I find any counsel with whom I could speak in the Committee's 
adjoining office. Meantime, the Committee's Document Clerk, with three 
police officers in tow, was again trailing and bullying me.
    In the end, I obtained from the Documents Clerk the until-then-
withheld ABA's rating for Justice Kahn, showing that, of all the 
judicial nominees up for confirmation, Justice Kahn had received the 
lowest ABA rating: a mixed rating with a majority voting him 
``qualified'' and a minority voting him ``not qualified''. However, no 
sooner did I leave the Committee's office, indeed, in the corridor 
directly outside the Committee's door, I was arrested by Capitol Hill 
police on a completely trumped up charge of ``disorderly conduct''--and 
hauled off to jail.
    The shocking particulars of the orchestrated intimidation and abuse 
to which I was subjected at the Senate Judiciary Committee's June 25, 
1996 ``hearing'' on Justice Kahn's confirmation are chronicled in CJA's 
June 28, 1996 letter to Chairman Hatch (Exhibit ``I-1''), which was 
submitted for ``the record''.\8\ This letter, additionally, recites the 
no less shocking fact that on June 27, 1996, the Committee, without 
waiting the announced three days for ``the record'' to be closed and 
written submissions received, voted to approve Justice Kahn's 
Confirmation.\9\ Thus, CJA's June 28, 1998 letter begins:
---------------------------------------------------------------------------
    \8\ CJA's June 28, 1996 letter is printed in the record of the 
Committee's June 25, 1996 ``hearing'' on Justice Kahn's confirmation 
(at pp. 1063-1074), but nit with its annexed exhibits. According to the 
``Editor's note'' appearing at the end of the letter, ``Exhibits A 
through I are retained in the Committee files'' at p.1074).
    \9\ See Exhibit ``J-7'', p. containing a summary of the minutes of 
the Committee's June 27, 1996 meeting pertaining to the judicial 
nominees.

        ``This letter is submitted to vehemently protest the fraudulent 
        manner in which the Senate Judiciary Committee confirms 
        presidential appointments on the federal bench and its abusive 
        treatment of civic-minded representatives of the public who, 
        without benefit of public funding give their services freely so 
        as to assist the Committee in performing its duty to protect 
        the public from unfit judicial nominees.
        This letter is further submitted in support of [CJA's] request 
        for immediate reconsideration and reversal of the Committee's 
        illegal vote yesterday, approving confirmation of Justice 
        Lawrence Kahn's nomination as a district court judge for the 
        Northern District of New York. . .such Committee vote was taken 
        prior to the expiration of the announced deadline for closure 
        of the record and without any investigation by the Senate 
        Judiciary Committee into available documentary evidence of 
        Justice Kahn's politically-motivated, on-the-bench misconduct 
        as a New York state court judge, for which he has been rewarded 
        by his political patrons with a nomination for a federal 
        judgeship.

    Because this Committee has deliberately refused to undertake 
essential post-nomination investigation, even where the evidence before 
it shows that appropriate pre-nomination investigation was not 
conducted, this letter is also submitted in support of [CJA's] request 
for an official inquiry by an independent commission to determine 
whether, when it comes to judicial confirmations, the Senate Judiciary 
Committee is anything more than a facade for behind-the-scenes 
political deal-making. In the interim, [CJA] reiterates its request for 
a moratorium on all Senate confirmation of judicial nominations. Such 
moratorium was first requested more than four years ago by letter dated 
May 18, 1992 to former Majority Leader George Mitchell []. Copies of 
that letter were sent to every member of the Senate Judiciary 
Committee--including yourself.'' (emphases in the original)
    Once again, as with CJA's May 18, 1992 moratorium -request (Exhibit 
``B-1'') and CJA's May 27, 1996 letter to Chairman Hatch (Exhibit ``A-
1''), CJA sent copies of the June 28, 1996 letter (Exhibit ``I-1'') to 
every member of the Senate Judiciary Committee. Additionally, copies 
were sent, both my mail and fax,\10\ to then Senate Majority Leader 
Trent Lott and then Senate Minority Leader Thomas Daschle (Exhibit ``I-
2'').\11\
---------------------------------------------------------------------------
    \10\ The July 1, 1996 fax cover sheets to CJA's June 28, 1996 
letter read ``Formal Request for Senate moratorium on all judicial 
confirmations and, in particular, opposition to confirmation of 
Lawrence Kahn (for N. District--NY).''
    \11\ Although CJA never got around to sending a copy of the June 
28, 1996 letter to its first indicated recipient, President Bill 
Clinton (Exhibit ``I-1'', p. 12), we would certainly be pleased if 
Senator Hillary Clinton, and indicated recipient of this letter, shared 
it with the former President.
---------------------------------------------------------------------------
    Within the next days, CJA unexpectedly received information further 
underscoring the Committee's profound dysfunction and bad-faith. This 
information was from two New York citizens active in the fight for good 
government and constitutional reform, Bill Van Allen and Faye Rabenda. 
They advised me that on June 7, 1996--which was just five days before 
Chairman Hatch's June 12, 1996 letter denying CJA's request to testify 
(Exhibit ``F'')--they had made a trip to Washington to apprise the 
Committee of their strong opposition to Justice Kahn's confirmation. 
This, based on his politically-motivated decision-making in a public 
interest case involving local corruption in Duchess County. Although 
such opposition, coming from individuals who were separate and 
unrelated to CJA, should have had the effect of reinforcing CJA's 
opposition, likewise based on Justice Kahn's politically-motivated 
decision-making in a public interest case, also involving corruption, 
the Committee did not react accordingly. Instead, just as the counsel 
for the Committee had never interviewed CJA and requested from us the 
substantiating case file evidence, so likewise, they had not 
interviewed these individual citizens and requested their 
substantiating case file evidence. Indeed, the Committee did not even 
notify Mr. Van Allen and Ms. Rabenda of the June 25, 1996 ``hearing'' 
on Justice Kahn's confirmation or invite them to submit written 
opposition.
    As a result of this unexpected information, which I learned of on 
or about Friday, July 12th, I telephoned the Senate 
leadership on Monday morning July 15th. It was then that I 
learned from the office of then Senate Majority Leader Lott that an 
``agreement had been reached'' between Republicans and Democrats for 
Senate confirmation the next day of judicial nominees--Justice Kahn, 
among them. This is reflected by fax CJA's July 15, 1996 memo to 
counsel to the Senate Judiciary Committee (Exhibit ``J-1''), faxed to 
the Committee's office and the offices of the Senate Majority and 
Minority Leaders (Exhibits ``J-2'', ``J-3''), as well as by CJA's July 
15, 1996 letter to Senator Herbert Kohl, a Committee member, (Exhibit 
``J-4'')--copies of which were faxed to the Senate Judiciary Committee 
and Senate Majority and Minority Leaders. Evident from CJA's July 15, 
1996 letter to Senator Kohl is that no counsel at the Senate Judiciary 
Committee had seen fit to speak with me--and that I could not even 
obtain confirmation that, as requested by our memo-fax to counsel 
(Exhibit ``J-1''), the evidentiary materials we had transmitted under 
our May 27, 1996 letter (Exhibit ``A-1'') would be immediately 
transmitted to the Majority Leader's office:

        ``We do not know the status of our transmittal inasmuch as the 
        Senate Judiciary Committee receptionists have refused to even 
        verify that our fax has been given to its counsel--whose 
        identity I was told is `confidential'-- and have refused to 
        confirm that the materials will, as requested, be transmitted 
        [to the Majority Leader's Office. . .''

    CJA also phoned Mr. Van Allen and Ms. Rabenda, who then contacted 
the Committee, by phone and in writing (Exhibit ``K''), requesting that 
it provide the Senate Majority Leader with any ``documentation created 
by the Senate Judiciary Committee staff relating to [their] strong 
opposition'' to Justice Kahn's confirmation, including relating to 
their June 7th visit to the Committee when they ``spoke for 
approximately 5-10 minutes with a ``staff member''.
    The upshot of CJA's vigorous efforts to prevent the Senate rubber-
stamp confirmation of Justice Kahn's nomination, including a great many 
long distance phone calls, only partially reflected by the annexed 
phone bill (Exhibit ``J-6''),\12\ was that, upon information and 
belief, that nomination, as well as the others, were approved by the 
usual undebated vote on July 16, 1996 in Executive Session (Exhibit 
``L'').
---------------------------------------------------------------------------
    \12\ I made contemporaneous notes of some of my July 15-16, 1996 
phone conversations. These are retyped and annexed as Exhibit ``J-7''.
---------------------------------------------------------------------------
    The flagrant misfeasance of the Senate Judiciary Committee and 
Senate leadership, chronicled by the annexed exhibits and further 
established by the voluminous correspondence and other materials that 
should be stored somewhere in the Senate Judiciary Committee, serves no 
purpose but to enable Senators to continue to ``wheel and deal'' 
judicial nominations, cavalierly using them for patronage or for 
trading with their congressional colleagues and the President for other 
valuable consideration or promises thereof.
    Obviously, a Senate Judiciary Committee which so shamelessly spurns 
the evidence-based presentations of a non-partisan, non-profit 
citizens' organization, whose advocacy meets the highest standards of 
professionalism, is not treating with greater respect and decency the 
average citizen who comes forward to oppose confirmation of individual 
judicial nominees. This certainly is reflected in the way the Committee 
treated good government activists Bill Van Allen and Faye Rabenda 
(Exhibit ``K''), whose opposition to Justice Kahn should have been 
viewed as reinforcing CJA's own.
    Hopefully, with your chairmanship of the Subcommittee on 
Administrative Oversight and the Courts--and your vision of this and 
the upcoming three hearings ``at least'' as an ``important dialogue'' 
on the Senate's role in judicial nominations--essential reforms will be 
made in how the Senate Judiciary Committee--and the Senate--discharges 
its ``advise and consent'' function. Certainly, the absolute necessity 
that the Committee and Senate scrutinize the competence, integrity, and 
temperament of judicial nominees is reinforced by the fact that the 
mechanisms for disciplining and removing incompetent, dishonest, and 
abusive federal judges from the bench are verifiably sham and 
dysfunctional.
    On this vital subject, I would note that when I handed you a copy 
of CJA's informational brochure on March 20, 1998--following your 
lecture at Ansche Chesed Synagogue on New York's Upper West Side--I 
also gave you a copy of CJA's published article, ``Without Merit: The 
Empty Promise of Judicial Discipline'' (The Long Term View, 
Massachusetts School of Law, Vol. 4, No. 1 (Summer 1997)). It exposes 
the facade that passes for the federal judicial complaint mechanism 
under 28 U.S.C. Sec. 372(c) and the House Judiciary Committee's non-
existent capacity and willingness to investigate judicial impeachment 
complaints (Exhibit ``M-1''). A copy of this important article had been 
sent to the House Judiciary Committee--of which you were a member--
under a March 10, 1998 memorandum addressed to the House Judiciary 
Committee's Chairman and members, a copy of which I also handed you 
(Exhibit ``M-2'').
    In the event you harbor the unwarranted belief that the House 
Judiciary Committee is any different from the Senate Judiciary 
Committee in its flagrant disrespect for fully-documented 
presentations, enclosed is CJA's statement for the record of the House 
Judiciary Committee's June 11, 1998 ``Oversight Hearing of the 
Administration and Operation of the Federal Judiciary'', held by the 
Courts Subcommittee (Exhibit ``N-1''). Its opening sentence expressly 
identifies that it is presented

        ``so that members of Congress and the interested public are not 
        otherwise misled into believing that the House Judiciary 
        Committee or its Subcommittee is meaningfully discharging its 
        duty to oversee the federal judiciary. It is not.''

    Described therein is the refusal of the House Judiciary Committee 
to respond to CJA's March 10, 1998 memorandum (Exhibit ``M-2/M-1''), as 
well as CJA's March 23, 1998 memorandum, which transmitted to the House 
Judiciary Committee readily-verifiable proof that the mechanisms for 
ensuring the impartiality of federal judges and, where necessary, for 
disciplining and removing, them have been reduced to ``empty shells''. 
This, in addition to describing the refusal of the Courts Subcommittee 
to permit CJA to testify at its June 11, 1998 ``oversight hearing''--
where the only witnesses allowed to testify were representatives of the 
judiciary. The House Judiciary Committee's response to this written 
statement was to exclude it from the printed record of its June 11, 
1998 ``oversight hearing''--which it did wholly without notice to CJA 
(Exhibit ``N-2'').
    Since your Subcommittee on Administrative Oversight and the Courts, 
assumedly, has concurrent jurisdiction with the House Courts 
Subcommittee, CJA respectfully requests that while you are clarifying 
with the Senate Judiciary Committee as to the whereabouts of CJA's 1992 
Critique and voluminous correspondence, you also clarify with the 
Courts Subcommittee of the House Judiciary Committee as to the 
whereabouts of CJA's voluminous document-supported correspondence, 
establishing that the federal judiciary has gutted the federal statutes 
relating to judicial discipline and refusal, and that the House 
Judiciary Committee has abandoned its oversight over federal judicial 
discipline, including its impeachment responsibilities. Needless to 
say, if these Committees are unable to locate this important 
documentation, CJA will furnish you with duplicate copies.
    We look forward to testifying at upcoming hearings of your 
Subcommittee--which should be on issues of both federal judicial 
selection and federal judicial discipline. As the situation currently 
exists, with the Senate Judiciary Committee willfully disregarding its 
duties to scrutinize qualifications of judicial nominees and the House 
Judiciary Committee willfully disregarding evidence of serious judicial 
misconduct, the lives and liberties of this nation's citizens are at 
the mercy of judges who should not be on the bench in the first place 
and who grossly abuse their judicial powers without the slightest fear 
of discipline, let alone removal.
    We welcome your able leadership. Ensuring that the public is 
protected by properly functioning processes of federal judicial 
selection and discipline should be a top priority.

                                

Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of 
                                  Iowa

    Today, the Subcommittee will hear witnesses discuss whether 
ideology matters in the judicial selection process. Let me briefly 
state some of my thoughts on this issue.
    Our Constitution gives the President the sole power to nominate 
judges. But the Constitution provides the United States Senate with the 
role of ``advise and consent.'' And whether a nominee comes from a 
Democratic or Republican President, I've consistently applied the same 
criteria in my determination to vote against or to confirm a nominee: 
does that individual have the requisite intellect, knowledge, 
integrity, judicial temperament, and philosophy to serve on the federal 
bench?
    These individuals need to have demonstrated that they will follow 
the law--that is, the text and intent of the Constitution and the 
statutes ratified and enacted by the people. They need to have a 
healthy respect for case precedent. And above all, they need to clearly 
understand their role in the third branch of government: interpreting 
the law, rather than creating the law.
    In addition to being faithful to the Constitution, judicial 
nominees must be impartial and appear impartial. Judges must 
impartially decide the cases that come before them. I've asked this 
question before: if a nominee tells Congress how he or she will decide 
particular cases, how can litigants who appear before the nominee as a 
judge be confident that the judge will be impartial?
    I believe that Senators can ask certain general questions to 
prospective nominees: how they generally approach constitutional 
adjudication and statutory construction, the role of case precedent, 
and other similar issues. But using a political ideology litmus test is 
mentally at odds with the Senate's role in the confirmation process and 
certainly it violates the fundamental idea of separation of powers. 
Such a test will lead to a politicizing of the independent judiciary. 
Rather, the Framers envisioned Senate confirmation as a tool for 
weighing the qualifications--not the ideology--of a candidate.
    I also want to note that as the Chairman of the Administrative 
Oversight and the Courts Subcommittee in this last Congress, I examined 
the appropriate allocation of judgeships and the prospect of growth in 
the federal judiciary. I've come to the conclusion that Congress should 
expend funds to fill an existing vacancy or to create a new judgeship 
only after a comprehensive determination has been made that such 
actions are absolutely essential for the court to properly administer 
justice.
    I look forward to the witnesses' testimony.

                                
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    Statement of Thomas L. Jipping, M.A., J.D., Director, Judicial 
   Selection Monitoring Project, Free Congress Research & Education 
                               Foundation

    Mr. Chairman and members of the subcommittee, my name is Thomas L. 
Dipping and for nearly 12 years I have directed the judicial selection 
project at the Free Congress Research & Education Foundation. Since 
1996, nearly 800 grassroots organizations have signed a statement of 
basic principles about the judiciary's proper role. I have submitted 
the letter, which Senators have received periodically, for the record 
with the cumulative list of signatories.
    Since the late 1980s, the judicial selection debate has become more 
confused, with new terms added and familiar terms acquiring new 
meaning. Whether ideology matters in judicial selection, then, requires 
defining ``ideology.'' Those who would answer in the affirmative mean 
political ideology, or the ultimate results of judicial decisions. This 
hearing, then, is really asking whether federal judges should be 
selected based on how they will rule on particular issues in cases that 
come before them.
    The answer is no. Judges should be chosen on the basis of judicial 
philosophy, the way they reach results, not on the basis of political 
ideology, what those results are likely to be. Law is different than 
politics. The people have the power to make law, judges do not.
    Government acting without lawful authority is, by definition, 
acting without the ``consent of the governed'' which the Declaration of 
Independence identifies as the source of its ``just powers.'' The 
Constitution's separation of powers, established by America's founders 
``to ensure protection of `our fundamental liberties','' \1\ gives law-
making power to the legislature and judicial power to the judiciary. 
These are not the same thing. Alexander Hamilton warned that ``'there 
is no liberty if the power of judging be not separated from the 
legislative and executive powers.\2\
---------------------------------------------------------------------------
    \1\ Gregory v. Ashcroft, 501 U.S. 452,458 (1991), quoting 
Atascadero State Hospital v. Scanlon, 473 U.S. 234,242 (1985).
    \2\ A. Hamilton, The Federalist No.78 (C. Rossiter ed., 1961), at 
466, quoting Montesquieu, The Spirit of Laws (1758) (T. Nugent trans., 
Rothman 1991), at 152.
---------------------------------------------------------------------------
    The terms ``restraint'' and ``activism'' denote judicial 
philosophy. Judicial restraint observes that separation of powers, 
judicial activism does not. A judge restrained by law that is made by 
the people takes that law as it is and applies it faithfully to reach 
whatever results that application produces. An activist judge takes the 
opposite approach, changing the law as necessary to achieve preferred 
results. For the restrained judge, the proper means legitimates the 
result; for the activist judge, the preferred end justifies the means.
    The terms ``conservative,'' ``liberal,'' or ``moderate,'' in 
contrast, describe political ideology and denote results rather than 
the process of reaching results. Judges can reach conservative or 
liberal results by either a restrained or activist process. The 
political ideology ends, however, do not justify the judicial 
philosophy means. No matter how pleasant or favorable the result, it is 
illegitimate if reached through improper activist means. Similarly, no 
matter how unpleasant or unfavorable the result, it is legitimate if 
reached through proper restrained means.
    For example, the Supreme Court was correct in Now v. Scheidler,\3\ 
unanimously concluding that the Racketeer Influenced and Corrupt 
Organization (RICO) Act can apply to social protesters. The statute 
simply did not contain any exemption and the Court lacked authority to 
create one. only Congress can change the law in this regard. This 
``liberal'' result was the product of judicial restraint.
---------------------------------------------------------------------------
    \3\ 510 U.S. 249 (1994).
---------------------------------------------------------------------------
    Similarly, the Supreme Court was wrong in Troxel v. Granville,\4\ 
concluding that a state statute providing broad opportunities for child 
visitation violated a constitutional right of parents to direct the 
upbringing of their children. No such substantive, enforceable right 
exists in the U.S. Constitution. The Court created it in the 1920s. As 
Justice Antonin Scalia put it in dissent, ``[i]f we embrace this 
unenumerated right, I think it obvious. . .that we will be ushering in 
a new regime of judicially prescribed, and federally prescribed, family 
law.'' \5\ No matter how attractive this might appear, courts--as 
opposed to legislatures--have no power to do it.
---------------------------------------------------------------------------
    \4\ 530 U.S. 57 (2000).
    \5\ 530 U.S. 57, 93 (2000) (Scalia, J. dissenting).
---------------------------------------------------------------------------
    As political or social conservative, I must admit that a liberal 
result achieved by judicial restraint is legitimate and a conservative 
result achieved by judicial activism is not.
    Conditioning judicial appointments on expected results requires 
determining what to expect. The process of demanding and extracting 
commitments or promises from judicial nominees about the decisions they 
would render as judges creates a myriad of problems that undermine 
``our fundamental liberties.''
    First, it requires judges to violate their judicial oath before 
they take it. That oath requires them to ``administer justice without 
respect to persons'' and to impartially discharge'' their judicial 
duties. Public positions on issues that will arise in future cases make 
these goals impossible.
    Second, it directly threatens judicial independence, ``the most 
essential characteristic of a free society.'' \6\ The American Bar 
Association's Commission on Separation of Powers and Judicial 
Independence identified as a threat to judicial independence that ``the 
Senate may seek. . .assurances from nominees, as a prerequisite to 
confirmation.'' \7\ Indeed, conditioning confirmation on promises or 
commitments of future decisions--that is, on ideology--is perhaps the 
single greatest threat to so-called ``decisional independence.''
---------------------------------------------------------------------------
    \6\ Ervin, ``Separation of Powers: Judicial Independence,'' 35 Law 
& Contemporary Problems 108,121 (1970).
    \7\ American Bar Association, An Independent Judiciary (1997), at 
24.
---------------------------------------------------------------------------
    To conclude, judicial philosophy matters because the way judges 
achieve results, conservative or liberal, matters. If ideology matters 
in choosing judges, freedom no longer matters for anyone.

                                

 Statement of Hon. Edward M. Kennedy, a U.S. Senator from the State of 
                             Massachusetts

    Mr. Chairman, thank you for holding this important hearing on the 
confirmation process. The advice and consent role of the Senate in the 
appointment of justices and judges is one of our important 
responsibilities, and it serves the nation well.
    In fact, the judicial confirmation process was debated heatedly by 
the Framers of the Constitution. Some even suggested that the Senate 
should have sole responsibility for the appointment of judges. The 
division of responsibility that we have today was a key part of the 
``checks and balances'' compromise that shapes many aspects of our 
democracy.
    Over the years, there have been many major debates over judicial 
nominees, especially to the Supreme Court. During the first 100 years 
after ratification of the Constitution, 21 of 81 Supreme Court 
nominations--one out of four--were rejected, withdrawn, or not acted 
on. Since 1968, one-third of all nominees to the Supreme Court have 
failed. During these confirmation debates, ideology mattered. John 
Rutledge, nominated by President George Washington, failed to win 
confirmation as Chief Justice in 1795 when Alexander Hamilton and other 
Federalists opposed him because of his position on the Jay Treaty. A 
nominee of President James Polk was rejected because of his anti-
immigration positions. A nominee of President Hoover was not confirmed 
because of his anti-labor views. The Senate failed to elevate Justice 
Abe Fortas to Chief Justice in 1968 when Senate Republicans 
filibustered President Johnson's nomination because of his decisions on 
defendants' rights and free speech.
    Ideology is no less important when the Senate considers nominations 
to other federal courts. Intelligence, integrity, and temperament are 
important issues, but the Senate also has a responsibility to determine 
whether the nominee is committed to values at the core of the 
Constitution.
    Senate confirmation hearings are not rubber stamps. It isn't enough 
for a nominee to tell us that Brown v. Board of Education was correctly 
decided. We must know if a nominee has a commitment to progress in the 
area of civil rights and other rights cherished by millions of 
Americans. The burden is on the nominee and any doubts must be resolved 
in favor of the Constitution. These are lifetime appointments, and the 
Senate has few responsibilities that are more important for the nation 
than assuming the high quality of federal justice.
    Thank you Mr. Chairman, and I look forward to the testimony of 
today's witnesses.

                                

Statement of Robert S. Litt, former Deputy Assistant Attorney General, 
Criminal Division and Principal Associate Deputy Attorney General, U.S. 
                         Department of Justice

    Mr. Chairman, members of the Subcommittee:
    Thank you for this opportunity to provide my views on the need for 
a moratorium in federal executions. A moratorium is essential to ensure 
both that the death penalty is carried out in a fair and non-
discriminatory manner, and that the public is confident that it is.
    Let me begin with my views on the death penalty generally. Were I a 
member of Congress, I would not vote for the establishment of the death 
penalty. I have been both a prosecutor and a defense lawyer. Our 
criminal justice system contains numerous safeguards to protect the 
rights of a defendant and to ensure that justice is done, but it still 
depends ultimately on the actions and judgments of humans. None of us 
is infallible; our justice system is therefore not infallible. We 
confront its fallibility almost daily, with the overturning of 
convictions of defendants--including defendants who have spent years on 
death row. Just last week, in fact, a Florida man was released after 
serving 22 years in jail for murders he did not commit.
    We therefore can never be certain that every person sentenced to 
death is guilty of the crime with which he or she is charged. Mistakes 
have happened in the past; they will happen in the future. I am 
sufficiently troubled by the likelihood that the government would take 
the life of an innocent person that I would not vote for a death 
penalty statute.
    However, the Congress has established a federal death penalty, 
which the courts have upheld. I joined the Department of Justice aware 
of the federal death penalty statutes and committed to my 
responsibility to enforce the laws that Congress enacted. Indeed, while 
I was at the Department, I was involved in several matters in which the 
Department sought the death penalty, and did so conscientiously and in 
accordance with Congress' intent.
    Any death penalty statute, however, must be implemented in a manner 
that is fair and non-discriminatory. Since the Supreme Court struck 
down the then-existing death penalty statutes in 1972, it has been 
clear that, in order to be constitutional, the death penalty cannot be 
applied in an arbitrary or discriminatory manner. I think that everyone 
agrees on this, regardless of his or her views on the death penalty.
    Unfortunately, we cannot say with assurance today that the federal 
death penalty is carried out in a consistent and non-discriminatory 
fashion. While I was at the Department of Justice, Attorney General 
Reno asked for a review of information concerning defendants who were 
subject to the federal death penalty. That review revealed unexplained 
racial and geographic disparities. Attorney General Reno and Deputy 
Attorney General Holder therefore asked for a more comprehensive 
analysis.
    The results of the fuller analysis were released last September, 
and they confirmed the disparities that we had observed two years 
earlier. From 1984 through 2000, approximately 70% of the defendants 
against whom the Department sought the death penalty were African-
American or Hispanic. Moreover, a few jurisdictions, mostly in the 
South but also including Puerto Rico, accounted for a disproportionate 
number of death penalty cases. In short, these statistics raised the 
disturbing possibility that whether a defendant was sentenced to death 
might depend less on the defendant and his offense than on where he was 
prosecuted and what his race or ethnic group was.
    Of course, taken alone, these statistics do not demonstrate that 
there is intentional or systemic discrimination in the application of 
the federal death penalty statute. There might be legitimate reasons 
for these stark disparities. But without further analysis, we cannot 
rule out that there may be some systematic factors operating in a 
discriminatory fashion. And there can be no disputing that an African-
American or Hispanic should not be more likely to receive the death 
penalty simply because of his or her race or ethnicity. Fairness and 
justice require that we look further into these disparities.
    In response to the troubling questions raised by the September 2000 
survey, Attorney General Reno and Deputy Attorney General Holder 
ordered the Department to conduct a variety of other studies. Most 
importantly, they asked the National Institute of Justice to assess the 
relationship between the state and federal criminal justice systems and 
how they affect the imposition of the death penalty. To ensure the 
integrity of the investigation and the reliability of the results, the 
Attorney General requested that outside experts be included. And while 
the Attorney General did not ask for a moratorium on federal 
executions, she did not need to: President Clinton delayed the only 
execution scheduled to occur during his Administration in order to 
permit the Department to carry out these studies.
    The present Attorney General has taken a somewhat different 
approach. First, the Attorney General delayed for several months 
proceeding with the National Institute of Justice study. I am pleased 
that the Department has finally decided to move ahead with this study. 
If properly carried out, it will be our best source of information 
concerning the reasons for the disparities identified above.
    Second, the Department of Justice recently released a summary of 
its further analysis of the data collected by Attorney General Reno and 
Deputy Attorney General Holder, supplemented by some additional 
material. Unfortunately, I do not think that the most recent report is 
as convincing as the Department claims. It is not possible to evaluate 
the report in full, as the Department has not released the underlying 
data but only its own analysis. Nonetheless, some of the shortcomings 
of the report are obvious. While others have discussed them in more 
detail, I would like to highlight some points that I find particularly 
significant.
    The new report relies heavily upon the observation that, of those 
defendants who are charged with capital offenses, the death penalty was 
sought for a higher proportion of white defendants than minorities. But 
resting on this point ignores an extremely significant question: why 
are 80% of those defendants who are charged with federal capital 
offenses African-American or Hispanic? Indeed, the fact that the 
Department, through a process that is designed to be race-blind, 
decides that more minorities than whites should be dropped from the 
death penalty process, itself suggests the possibility that too many 
minorities are initially being charged with capital crimes. The 
Department's report offers some speculations as to the reasons why such 
a high proportion of capital defendants is African-American or 
Hispanic, but a thorough and impartial study is needed to determine 
whether or not the Department's speculations are grounded in fact.
    Second, why do a significantly higher percentage of white 
defendants than minority defendants escape the death penalty through 
plea bargains? The Department's report noted this disparity, and 
Attorney General Ashcroft has commendably taken steps to try to bring 
greater uniformity to the plea process in future capital cases. But 
this does not answer the question of whether there were serious 
problems between 1988 and today, which could affect not only to the 19 
men presently on federal death row, but the dozens of other federal 
capital cases pending resolution.
    In addition, the Department's analysis did not satisfactorily deal 
with the issue of geographic disparity. The Department's position is, 
essentially, that each of the districts which charges a comparatively 
high number of capital cases has reasons for doing so. But without 
looking at those districts that do not charge as many capital cases, to 
see if the same factors are applicable there, the Department cannot 
establish that the death penalty is being applied with the consistency 
that fundamental fairness and constitutional principles of equal 
justice require.
    For example, the Department noted that most of the very large 
number of capital cases from the Eastern District of Virginia resulted 
from drug murder cases. It explained the basis for charging these cases 
federally by reference to certain deficiencies in state criminal 
procedure. But these deficiencies exist in other states as well, 
including, perhaps, states where the federal prosecutors did not seek 
the death penalty with such frequency. Without comparing similar 
districts we cannot tell whether or not the factors mentioned by the 
government are actually the reason for the disparities. Nor does the 
report adequately explain why some districts seek the death penalty in 
a much higher proportion of capital cases than other districts.
    In short, the Department's recent report, in my view, does not 
dispel the shadow of unfairness and inconsistency in the application of 
the death penalty. More study is needed so that we can be certain that 
a defendant's race or ethnicity, or the state where the crime was 
committed, play no role--conscious or otherwise--in the decision 
whether or not to seek the death penalty. Indeed, the Department 
recognizes the need for further analysis, since it has now committed to 
going forward with the National Institute of Justice study.
    However, the Department has refused to delay executions until these 
studies are completed, and I find this rush to execution inexplicable. 
There is much to be gained and nothing lost by halting executions until 
we are fully satisfied that no subtle or systematic discrimination 
infects the administration of the federal death penalty. Would not the 
interests of justice be better served by awaiting the results of the 
Department's studies studies that could have been underway by now if 
the present Administration had not delayed them? And, equally 
important, given that many African-Americans and Hispanics question 
whether the criminal justice system treats them fairly, doesn't the 
public perception of justice require that we be satisfied, before 
anyone is executed, that the death penalty was sought against that 
person by a fair and unbiased process?
    It is no answer to say, as the Attorney General does, that Juan 
Garza is guilty and deserves to die. The need for a moratorium on 
executions has nothing to do with Juan Garza's individual case, but 
relates to the fairness of the system. We do not permit the conviction 
of a defendant who was tried by a jury from which members of one race 
were excluded, regardless of how guilty he or she is. We should not 
permit the execution of a defendant who was selected for the death 
penalty by a discriminatory process, regardless of how guilty he or she 
is.
    Mr. Chairman, I recognize and sympathize with those who believe 
that, if we are to have a death penalty, it should be carried out with 
reasonable promptness. But the death penalty is uniquely irremediable 
in the criminal justice system. If the studies requested by Attorney 
General Ashcroft determine that there is no discrimination in the 
application of the federal death penalty, then executions can go 
forward. But if the Department of Justice studies find that the federal 
death penalty operates in a discriminatory manner even if there is no 
intentional discrimination by individual members of the Department we 
will not be able to undo the death of those who were executed as a 
result of an unfair process. For this reason, I believe that there 
should be a moratorium on all executions until the Department completes 
the studies it has undertaken. If the studies demonstrate that the 
system is discriminatory, the moratorium should remain in effect until 
the system is fixed.
    Thank you for this opportunity to be heard.

                                

 Statement of John McGinnis, Professor, Benjamin N. Cardozo School of 
                                  Law

    Thank you for the opportunity to submit this statement to your 
committee. I am a law Professor at the Benjamin N. Cardozo School of 
Law who has written about the judicial appointments process. Here I 
summarize my views for your committee. A longer discussion together 
with citations can be found in John O. McGinnis, The President, the 
Senate, the Constitution and the Confirmation Process: A Reply to 
Professors Strauss and Sunstein, 71 TEX. L. REV. 633 (1993).
    I limit myself to three propositions. First, the President has sole 
authority to nominate judges and has no obligation to take advice from 
the Senate. Second, the President has an obligation to take into 
account the nominees' views on how to interpret the Constitution. Such 
urisprudential views should be sharply distinguished from political 
ideology, because a theory of constitutional jurisprudence is a theory 
of interpretation, not a theory for getting politically pleasing 
results. Third, the Senators are of course free to take into account 
the jurisprudential views of the nominee as well, but once again that 
should be distinguished from a checklist of the nominee's positions on 
the most political controversial issues of the day. The structure of 
the Constitution suggests the Senate will succeed in blocking 
presidential nominees only for weighty and substantial reasons.
                        1. The President's Role
    The Appointments Clause assigns to the President the sole 
responsibility for making nominations to the judiciary. Contrary to the 
claims of some scholars, a constitutional prenomination advisory role 
for the Senate is utterly belied by the text and the purpose of the 
clause. Similarly, the overwhelming weight, if not the unanimity, of 
historical sources that bear on the clause's meaning argue against such 
a role.
    The Appointments Clause provides in relevant part: ``[The 
President] shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law . . . .'' The very grammar 
of the clause is telling: the act of nomination is separated from the 
act of appointment by a comma and a conjunction. Only the latter act is 
qualified by the phrase ``advice and consent.'' Furthermore, it is not 
at all anomalous to use the word ``advice'' with respect to the action 
of the Senate in confirming an appointment. The Senate's consent is 
advisory because confirmation does not bind the President to commission 
and empower the confirmed nominee. Instead, after receiving the 
Senate's advice and consent, the President may deliberate again before 
appointing the nominee.
    The purpose of dividing the act of nomination from that of 
appointment also refutes any notion of a prenomination role for the 
Senate. The principal concern of the Framers regarding the Appointments 
Clause, as in many of the other separation-of-powers provisions of the 
Constitution, was to ensure accountability while avoiding tyranny. 
Hence, they gave the undiluted power of the nomination to the President 
so that the initiative of choice would be a single individual's 
responsibility, but provided the check of advice and consent to 
forestall the possibility of abuse of this initiative. Gouverneur 
Morris described the advantages of this multistage process: ``[A]s the 
President was to nominate, there would be responsibility, and as the 
Senate was to concur, there would be security.''
    The Federalist., also understands the power of nomination as an 
exclusively presidential prerogative.'' Indeed, Alexander Hamilton 
answers critics who would have preferred the whole power of appointment 
to be lodged in the President by asserting that the assignment of the 
power of nomination to the President alone assures sufficient 
accountability:

        [I]t is easy to show that every advantage to be expected from 
        such an arrangement would, in substance, be derived from the 
        power of nomination which is proposed to be conferred upon him; 
        while several disadvantages, which might attend the absolute, 
        power of appointment in the hands of that officer would be 
        avoided. In the act of nomination, his judgment alone would be 
        exercised; and as it would be his sole duty to point out the 
        man who, with the approbation of the Senate, should fill an 
        office, his responsibility would be as complete as if he were 
        to make the final appointment.

    Thus, a constitutional prenomination role for the Senate would be 
at odds with the Framers' interests in assuring the President's 
undivided accountability for the initial choice.
    Closely related to the Framers' interest in assuring accountability 
was their interest in avoiding an appointment that would be the result 
of secret deals. Once again The Federalist is instructive. In defending 
the clause's structure of presidential nomination and public 
confirmation, Hamilton contrasted it with the appointments process by a 
multi member council in his own state of New York. Such a council 
acting in secret would be ``a conclave in which cabal and intrigue will 
have their full scope . . . . [T]he desire of mutual gratification will 
beget a scandalous bartering of votes and bargaining for places.'' 
Delegates to the Constitutional Convention had expressed similar 
concerns. Thus, the assertion of a prenomination role for the Senate 
runs afoul of the Framers' concerns about selection by multi member 
bodies. If the Senate had a formal prenomination advisory role, the 
Senate leaders and the President might well be tempted to make a deal 
that would serve their parochial interests and then be insulated from 
all but pro forma scrutiny.
    Other contemporaneous commentary on the Appointments Clause 
repudiates any special prenomination role for the Senate. For instance, 
James Iredell a leading proponent of ratification in North Carolina and 
subsequently a Supreme Court Justice observed at his state's ratifying 
convention,

        As to offices, the Senate has no other influence but a 
        restraint on improper appointments. The President proposes such 
        a man for such an office. The Senate has to consider upon it. 
        If they think him improper, the President must nominate 
        another, whose appointment ultimately again depends upon the 
        Senate.

    Jefferson also makes plain that for once his view on an issue of 
constitutional interpretation coincides entirely with that of Hamilton: 
``The Constitution itself indeed has taken care to circumscribe [the 
appointments process] within very strict limits: for it gives the 
nomination of the foreign Agent to the President, the appointment to 
him and the Senate jointly, fire commissioning to the President.''
    Finally, the construction of the Appointments Clause that reserves 
the act of nomination exclusively to the President is supported by the 
practice of the first President and Senate. In requesting confirmation 
of his first nominee, President Washington sent the Senate this 
message: ``I nominate William Short, Esquire, and request your advice 
on the propriety of appointing him. ``The Senate then notified the 
President of Short's confirmation, which showed that dray too regarded 
``advice'' as a postnomination rather than a prenomination function: 
``Resolved, that the President of the United States be informed, that 
the Senate advise and consent to his appointment of William Short 
Esquire . . . .'' The Senate has continued to use this formulation to 
the present day.
    President Washington made his view that the Senate has no 
prenomination role even more explicit when he wrote in his diary that 
Thomas Jefferson and John Jay agreed with him that the Senate's powers 
``extend[] no farther than to an approbation or disapprobation of the 
person nominated by the President, all the rest being Executive and 
vested in the President by the Constitution.''
    Washington's construction of the Appointments Clause is the same 
one embraced by his successors. Not one subsequent President has 
recognized a constitutional role for senatorial advice prior to 
nomination. To be sure, some Presidents have consulted with key 
Senators and a few with the Senate leadership, but they have done so 
out of comity or political prudence and never with a declaration of 
constitutional obligation. Because the branches are not 
``'hermetically' sealed from one another,'' informal interchange 
between the branches can be expected and does not support any 
constitutional role for the Senate in the prenomination process.
  II. The President's Obligation to Consider Jurisprudential Views of 
                                Nominees
    Once it is understood that the power of nomination is textually 
committed solely to the President, it is clear that any analysis of the 
structure of the Appointments Clause must begin not with the advice and 
consent function of the Senate but with the nomination power of the 
President. In this, as in all other acts of exclusive presidential 
authority, the President must be guided by his robust oath to 
``preserve, protect and defend the Constitution of the United States.'' 
Thus, the President appears to be under a constitutional obligation to 
nominate as judges individuals who he believes will interpret the 
Constitution in a manner that generally accords with his view of its 
lawful construction. A President who nominated a jurist whose 
constitutional views differed fundamentally from his own would abrogate 
this most solemn oath.
    That the President has constitutional obligations in his act of 
nomination is neither startling nor anomalous. Substantial evidence 
indicates that the Framers contemplated that the President would take 
account of his constitutional responsibilities when carrying out his 
presidential duties. For example, the Framers clearly understood that 
the President would veto unconstitutional laws. It was even 
contemplated that the President would refuse to execute laws that 
violate the Constitution. Indeed, the President's constitutional 
vigilance is essential to the entire governmental structure because the 
ultimate protection against constitutional error is the power of the 
people to overturn error, using the democratic process to influence the 
composition of the political branches. Thus, when a President 
campaigns, as Presidents Reagan and George W. Bush did, on pledges to 
promote judges of a particular constitutional philosophy, they are 
making a pact with the people concerning the exercise of one of their 
fundamental presidential responsibilities.
    To acknowledge the central importance of the President's nominating 
a jurist with what the President believes are correct constitutional 
principles is not to suggest that the President should investigate a 
potential nominee's views on particular cases. A federal judge's task 
is not to make a series of unconnected policy pronouncements on 
individual issues, but to apply a coherent body of interpretative 
principles to the full range of constitutional (and statutory) 
questions that come before the court. One of the advantages of the 
independent and life-tenured judiciary provided by Article III of the 
Constitution is that it is at least relatively shielded from partisan 
and policy pressures that may distort the application of even firmly 
held principles in particularly controversial cases. Thus, it is wholly 
appropriate for the President to satisfy himself as to the nominee's 
views at a level of generality commensurate with a proper understanding 
of the Article III judiciary's comparative advantage in principled 
decisionmaking.
    Thus, I believe it would be misleading to say that a President 
committed to the Constitution makes ideological appointments. Ideology 
is a word more suited to politics. Constitutional interpretation should 
know no ideology. The Constitution is the document that holds us 
together as Americans despite political and ideological differences. Of 
course, there may be disagreements about interpretative principle but 
these disagreements are different from ideological disagreements, 
because they should not be rooted in a desire for particular results, 
but in a theory of the how the constitution is best construed. In 
considering judicial nominees, we should be mindful of Chief Justice 
John Marshall's famous exhortation that ``we should never forget it is 
a constitution we are construing.'' Discussions of judicial nominees 
should be discussed in terms of constitutional construction, not 
ideology.
    Moreover, even if adherence to a proper view of constitutional 
construction is a necessary qualification for nomination, it is hardly 
a sufficient one. Judicial temperament is also important, for it is 
only such temperament that allows a judge to resist the improper 
pressures, both from the outside world and within himself, that can 
interfere with the proper application of interpretative principles. 
Furthermore, once the President has ascertained that the nominee shares 
his basic constitutional principles, he is at liberty to take political 
considerations, such as geography and other kinds of political 
diversity, into account to guide his final choice. He may, of course, 
consult members of the Senate or anyone else in performing this 
political calculus.
          III. The Senate Role in Evaluating Nominees' Views.
    The Senate has the ability to evaluate the nominees' 
jurisprudential views as well. It is important to note two 
considerations in this regard. First, the Framers created a 
constitutional structure that makes it difficult for Senate to 
successfully oppose a President of ordinary political strength for 
narrow or partisan reasons, thus permitting the initiative of choice to 
rest with a single national leader who is more likely than a 
legislative body to select a candidate of consistent constitutional 
principle. Second, the Senate, like the President, should distinguish 
between jurisprudential views and ideology if we are to fulfill the 
promise of a judiciary that operates according to law rather than 
politics.
    The structure of the Constitution suggests that Senators may 
evaluate the jurisprudential views of nominees. Senators too have taken 
an oath ``to support the Constitution ``It is thus reasonable to infer 
that the Framers located the process of advice and consent in the 
Senate as a check to prevent the President from appointing jurists of 
unsound principles as well as jurists of unsound character or 
competence.
    The Framers did not, however, expect the Senate to exercise so 
independent a choice that it would rival the President in determining 
the nature of appointments. As noted earlier, the Framers expressly 
contrasted the role of the President, who was given a role of plenary 
choice in the appointments process, with that of the Senate, which was 
given only the power of rejection. Given that the Senate was not to 
exercise choice itself, it appeared to Alexander Hamilton that a 
nominee should be rejected only for ``special and strong reasons.'' 
Moreover, according to The Federalist, the Senate must persuade the 
public that its reasons compelled rejection, for otherwise the 
``censure of rejecting a good [nomination] would lie entirely at the 
door of the Senate.'' Thus, the original understanding of the 
Appointments Clause does not contemplate rejections for reasons of 
partisanship or disagreement over the nominee's likely vote in a single 
case, because these reasons would be neither special nor strong.
    The Framers, however, did not depend on exhortations in The 
Federalist alone to prevent the Senate from refusing confirmations for 
other than weighty and publicly compelling reasons. The first of these 
structural advantages is the President's power of repeated nomination. 
The Federalist is quite explicit in noting that this authority will 
tend to discourage rejections for less than publicly compelling 
reasons. In particular, this structural advantage ensures that it will 
be futile to reject a candidate for reasons of jurisprudential point of 
view unless the Senate can bear the burden of persuading the public 
that the interpretative principles espoused by the nominee are unsound. 
If it fails to make that case and rejects the nominee for a pretextual 
reason (e.g., disagreement with some past political position of the 
nominee or his express views on some particular case), the President 
would generally be in a position to find a second candidate without 
these putative defects who generally shares the President's 
jurisprudential ``point of view.''
    The President's second structural advantage is the unitary nature 
of the executive office as compared to the diffuse and variegated 
nature of the Senate--even when it is controlled by the opposition 
party. The notion that the Senate should have an essentially coequal 
role in the confirmation process is based on the notion that a 
government where the Senate is controlled by one party and the 
executive by another is a government equally divided.'' The President, 
however, is a single individual possessed of a single view of the 
Constitution, whereas the Senate is a body composed of many individuals 
with a wide range of views, including members with views like that of 
the President. When the President has a substantial basis of party 
support in the Senate and thus a nucleus of probable supporters, he 
will be in a position to persuade those in the other party whose 
constitutional views are most like his own to support his nominee. 
Thus, the image of a divided government with the Presidency and the 
Senate in the hands of different parties as a government in any sense 
equally divided when it comes to an analysis of the Appointments Clause 
and the confirmation process is a fundamentally false image, as 
recognized by George Mason: ``Notwithstanding the form of the 
proposition by which the appointment seemed to be divided between the 
Executive & Senate, the appointment was substantially vested in the 
former alone.'' Moreover, the President's advantage in the process is a 
considered feature of the Framers' design: they knew how to create a 
process by which the power of the Executive and the Senate would be 
rendered more equal. Because of their substantial fear of foreign 
entanglements, for instance, they required a two-thirds majority of the 
Senate to ratify treaties before they become the law of the land.
    The final presidential advantage is the stronger mandate that 
generally flows from his role in the structure of the Appointments 
Clause. Because it is known that the President bas the initiative of 
choice in the appointment of Supreme Court Justices, the 
jurisprudential views of prospective appointments are likely to become 
a campaign issue between candidates with differing constitutional 
philosophies. On the other hand, because each Senator is only one voice 
of many in ratifying the President's choice, the issue of judicial 
appointment is generally of less importance to the rational voter than 
are issues over which the Senator is likely to possess more initiative. 
Accordingly, as a general matter the President can rely on a greater 
mandate for his choice than a Senator can for his opposition.
    Second, we will have a better judiciary if the Senate focuses on 
character and jurisprudential views rather than ideology as 
encapsulated by political disagreements on the divisive issues of the 
day. An inordinate emphasis in confirmation hearings on single issues 
presented in largely political terms (currently the issue of most 
prominence is abortion) endangers the distinction between law and 
politics because it may suggest that a judge is charged with making 
policy on a set of discrete issues rather than applying a coherent body 
of legal theory to all cases. Moreover, the aspects of the modern 
confirmation process that resemble a political campaign may encourage 
Presidents to seek easy confirmations (and by doing so, conserve their 
political capital) by choosing nominees with characteristics likely to 
command political support rather than outstanding jurists with 
consistent constitutional principles.
    A focus by the Senate on ideology so defined is likely to 
exacerbate the tendency to evaluate the nominee on the basis of 
politically driven issues and result in less distinguished nominees 
given that judicial distinction of any sort is unlikely to arise from a 
jurisprudence aligned most closely with politically popular positions 
on the controversies of the day. Indeed, the Framers rejected the 
multimember council as a means for selecting appointees at least in 
part because of their concerns over the effects of political horse 
trading on the quality of nominees. Moreover, the dangers that a 
greater senatorial role poses to any jurisprudence of consistent 
principle can also readily be understood in terms of the fundamental 
tenets of republican theory outlined by Madison in The Federalist No. 
10. Senators represent smaller political entities than the President 
and thus are more likely to be responsive to particular factions 
intensely interested in the outcome of a particular case. The 
President, representing the nation as whole, is in a better position to 
rise above faction and make his choice on the basis of a consistent 
jurisprudential position that will apply across the full range of 
cases. Thus, a larger role for the Senate is likely to lead to a 
greater focus on the nominee's position on the current political 
controversies of the day or his membership in an ethnic group or some 
political faction rather than on more appropriate matters such as the 
soundness and coherence of the nominee's jurisprudential views and the 
quality of his legal reasoning.
                               Conclusion
    The Constitution assigns fundamentally different responsibilities 
to the President and the Senate in the appointment of judges. Both may 
consider the jurisprudential views of nominees but the structure of the 
Appointments Clause gives the President a substantial advantage in 
having his views prevail. Finally, the modern confirmation process 
shows the risk of substituting ideological and issue driven evaluation 
of nominees for inquiries into their character and jurisprudential 
views.

                                

                     People for the American Way Foundation
                                                       July 3, 2001

Senator Charles E. Schumer, Chairman
Subcommittee on Administrative Oversight
and the Courts
313 Hart Senate Office Building
Washington, D.C. 20510

    Dear Senator Schumer:

    As a member of the bipartisan Task Force on Federal Judicial 
Selection of Citizens for Independent Courts, I am writing to clarify 
several aspects of the testimony at the hearings held by the 
Subcommittee on June 26 with respect to the report of the Task Force. 
Some of the testimony at the hearing, particularly the testimony of 
Clint Bolick who specifically identified me as a member of the Task 
Force, may have left mistaken impressions concerning the Task Force 
report, which should be clarified for the record.
    First, the Task Force report clearly states that it is appropriate 
for Senators to consider ideology, in the sense that you defined it at 
the hearing, in reviewing judicial nominations. The Task Force report 
criticized the use of ideology in the ``pejorative'' sense of ``fixed 
or rigid ideological commitments to certain results whatever the facts 
or law of the case,'' which are ``often connected to partisan 
differences.'' But in the broader sense that you used the term 
``ideology'' at the hearings, the Task Force specifically stated that 
``it is appropriate to encourage reviewers to investigate the ideology 
of candidates for federal judgeships.'' In particular, the Task Force 
stated that:

        (I]t is both appropriate and important for reviewers to ask 
        questions designed to flesh out a candidate's underlying 
        philosophical and normative commitments. These could include, 
        but would not necessarily be limited to, questions about a 
        candidate's general attitudes about justice, about reasoning 
        from precedent, about major constitutional values such as 
        liberty and equality, and about leading cases in our legal 
        culture.

    A complete copy of the Task Force report, as printed in 2000 by 
Citizens for Independent Courts as part of Uncertain Justice, is 
enclosed with this letter for inclusion in the record of the 
Subcommittee's hearings.
    Second, Mr. Bolick's testimony claims that the Task Force ``decries 
the blue-slip process. With all due respect, this is an inaccurate 
characterization. The task Force did not condemn the blue-slip process 
itself, but instead was concerned about the recent abuses of that 
process, which contributed to delays of more than four years in 
considering some of President Clinton's judicial nominations. As the 
New York Times wrote in April, appropriate and judicious use of the 
blue-slip process can produce positive results, including helping to 
``secure a balanced array of nominees that includes centrists along 
with conservatives.'' A copy of a recent People For the. American Way 
Foundation memorandum on the blue-slip process is enclosed with this 
letter for the record.
    I hope that this letter will be helpful. to the Committee in its 
deliberations. Please do not hesitate to contact us if we can provide 
any further information.
    Thank you.
            Sinecerely,

                                         Elliot M. Mincherg
                                 General Counsel and Vice-President

                                

Statement of Roger Pilon, Vice President for Legal Affairs at the Cato 
    Institute & Director of Cato's Center for Constitutional Studies

    Timed nicely for Sen. Charles Schumer's hearings this afternoon on 
judicial ideology and the Senate confirmation process, Democratic party 
elder Joseph A. Califano Jr., placed an op-ed in last Friday's 
Washington Post entitled, ``Yes, Litmus-Test.ludgcs.'' The wraps are 
now fully off the Democrats' plan to block President Bush's nominees 
for the federal courts unless they meet a Democratic ideological litmus 
test. Early in the year, still smarting from the Supreme Court's ruling 
in Bush v. Gore, academics like Yale Law School's Bruce Ackerman urged 
Senate Democrats to reject every Bush nominee to the bench until the 
White House had a legitimate occupant. That was too much, of course. 
But Senate Democrats, once they regained power, did the next best 
thing. They've turned the judicial confirmation process into a full-
blown ideological affair, with today's only the latest in a series of 
hearings not on the Bush nominees but on judicial ideology and the 
Senate's confirmation role.
    Califano now gives us the rationale for it all. Gridlock and big 
money, he says, have long kept Congress from legislating on a wide 
range of urgent matters. As a result, concerned citizens have been 
plying the courts with petitions they once took to the legislative and 
executive branches, making the courts ``increasingly powerful 
architects of public policy.'' Indeed, ``who sits in federal district 
and appellate courts is more important than the struggle over the 
budget, the level of defense spending,'' and virtually everything else 
going on in Washington today. For we've all learned, he continues, 
``that what can't be won in the legislative or executive may be 
achievable in a federal district court where a sympathetic judge 
sits.'' Thus, it's time for the Senate to step in, not to legislate but 
to determine, on explicitly ideological grounds, who the judicial 
architects will be, who will be ``setting national policy'' from the 
bench.
    What a striking picture. Everything is politics. Nothing is 
principle. Indeed, it is not a little noteworthy that over the entire 
article, devoted to our most basic political arrangements, the word 
``constitution'' appears not even once. That's no accident. The 
Constitution sets forth the principles and the rules under which we're 
supposed to be governed. It divides and separates power, assigning 
different tasks to different parts of government.
    But on Califano's view, judges don't apply law to decide disputes, 
as the Constitution contemplates. ``Sympathetic judges'' make law, like 
so many legislators, ``setting national policy'' in the process. As for 
our nominal legislators, the Senate is reduced to vetting and electing 
our true rulers. One imagines that the word ``constitution'' doesn't 
appear in Califano's article because the document is an embarrassing 
relic, utterly inconsistent with his picture of a thoroughly 
politicized judiciary.
    Yet for all that, Califano's picture, unfortunately, is too close 
to the truth to be ignored. The lesson he and his fellow Democrats have 
drawn from it is wrong--unless, of course, they like the picture. But 
we are today, in all candor, a very long way from living under 
constitutional principle.
    The main origins of the problem are in the Progressive Era of a 
century ago, when the social engineers of the time sought to do through 
government what the Constitution left to be done in the private sector. 
Things came to a head during the New Deal when a frustrated Franklin 
Roosevelt attempted to pack the Supreme Court, an event Califano notes 
without comment. The scheme failed, but FDR won the day when a cowed 
Court began rethinking the Constitution, effectively eviscerating 
constitutional limits on federal power. Although the Court that 
emerged, by virtue of its deference to the political branches, was 
called ``restrained,'' it was, in truth, ``activist''--finding 
congressional and executive powers nowhere granted, ignoring individual 
rights plainly in the Constitution. And the Court's rethinking led 
ineluctably to the shift of power to the judicial branch.
    The shift had two aspects. First, with the political branches now 
free to rule almost every aspect of our lives, it was only a matter of 
time before their ever-expanding product ended up in the courts, with 
the courts asked to sort out the mess Congress was making of things. 
But second, those who had long pushed such programs didn't always win 
in the political branches. When that happened, they turned increasingly 
to the courts, trying to win there, from ``sympathetic judges,'' what 
they had failed to win politically. Regrettably, the Warren and Burger 
Courts, already deferring to the political pursuit of ``social 
justice,'' were too often only too willing to step into the fray, 
imagining themselves to be a legislature of nine.
    The Rehnquist Court, by contrast, has taken modest steps over the 
past decade toward resurrecting constitutional principles of limited 
government. However modest, those steps have alarmed liberal Democrats. 
They can't imagine anyone thinking that Congress's powers are limited. 
They can't imagine that if an end is worthy, Congress might still not 
have the power to pursue it. They can't imagine that James Madison, the 
principal architect of the Constitution, was serious when he wrote in 
Federalist #45 that the powers of the new government would be ``few and 
defined.''
    Do we want to ensure the separation of powers and an independent 
judiciary? Do we want to restore limited constitutional government and, 
let's be clear, the rule of law? Those are the stakes in the current 
debate. If Senate Republicans are serious, they cannot pretend 
otherwise as the confirmation battles unfold.

                                

  Statement of Hon. Paul Strauss, Shadow U.S. Senator elected by the 
                   voters of the District of Columbia

    Chairman Feingold, and Members of the Senate Subcommittee on the 
Constitution, Federalism, and Property Rights, I am Senator Paul 
Strauss, the United States Senator elected by the voters of the 
District of Columbia, and an attorney who practices in our local 
courts.
    I appreciate the opportunity to provide this statement on behalf of 
my constituents, the citizens of Washington, D.C. I am testifying in 
order to raise my voice in favor of a moratorium on the federal death 
penalty, until a full investigation into racial disparities in the 
system can be conducted. I commend the leadership for bringing this 
issue the attention that it deserves.
    It is especially disturbing that seventeen of the nineteen people 
on federal death row are minorities. One of the issues that was brought 
up is that the racial disparities on federal death row, which seem to 
be greater than those in the state system might be due to the federal 
prosecution of local crimes. It has been noted that, in fact, many of 
the federal death penalty cases are for crimes related to federal crack 
cocaine prosecutions.
    one of the witnesses, Mr. McBride, a former federal prosecutor from 
the Eastern District of Virginia who has tried federal capital cases, 
has stated that the federal government only steps into local cases when 
there is a request for such action from state prosecutors. In the 
District of Columbia, it appears that a different rule applies.
    The residents of Washington, D.C. have consistently raised their 
voices in opposition to the death penalty. First, in 1992, they voted 
against it in a referendum, with a margin of two to one.\1\ Then, in 
2000, the city council passed a resolution once again reaffirming 
opposition to capital punishment. The city has certainly not asked for 
federal intervention in order to have the death penalty imposed on its 
residents.
---------------------------------------------------------------------------
    \1\ On November 3, 1992, 66,303 voted in favor of the death 
penalty, while 135,465 voted against it.
---------------------------------------------------------------------------
    Recently, however, the Federal Government has seen fit to prosecute 
Tommy Edelin, a District of Columbia resident, on charges of capital 
murder, for crimes commited within the District of Columbia. Many see 
his case as a test case for federal involvement in prosecuting crimes 
committed within Washington, D.C. This case is not an issue of a crime 
committed against the federal government, or on federal property, but 
is an issue of a crime committed against the people of the District of 
Columbia.
    While I recognize that national sentiment seems to be in favor of 
the death penalty, if local residents do not wish to see capital 
prosecution for local crimes, then the death penalty should not be 
forced upon them, whatever the national sentiment is. In light of 
recent information showing possible racial disparities in 
implementation of the federal death penalty, it seems that by 
prosecuting residents of the District of Columbia, which has a large 
minority community, these disparities will only increase.
    Although my main concern is with the representation of the ideas 
held by my constituency, I recognize the larger issue as well. The 
debate about the death penalty as a whole is perhaps one of the most 
divisive in our society today. Many people are adamantly opposed to its 
continued use, and see it as cruel and unusual punishment, while even 
more see it as a useful tool in the spectrum of punishments for crimes. 
It is obvious that the debate on that issue will not end anytime soon.
    The death penalty is the obviously most permanent form of 
punishment that we have in this country. There should be no room for 
error in its implementation, and not even an appearance of bias in its 
prosecution. To continue to have a perception of bias would cause 
further doubts in an institution that many Americans already see as 
flawed.
    Those who see the federal death penalty as fair and unbiased would 
be wise to listen to the testimony of David Bruck. When he spoke about 
the situation in south Africa during apartheid, he spoke of judges who 
said much of what many Americans are saying now: ``blacks commit more 
crime.'' in hindsight, and to many at the time, that statement seems to 
be farcical. While I am not saying that we live under apartheid in this 
country, long term prejudices against African-Americans and other 
minorities cannot be declared ``cured'' just because we wish that to be 
the case. The exact opposite must be assumed.
    While we are loathe to admit it, many Americans still harbor 
prejudice against those that they see as ``other.'' that prejudice has 
an effect on the decisions of federal juries, which are more likely to 
consist of people who have had vastly different life experiences from 
those being charged, especially in drug cases.
    in light of the execution of Juan Raul Garza, a man of Hispanic 
heritage, on June nineteenth-the second federal execution in one month-
I strongly urge the federal government to call an immediate moratorium 
on all federal executions. We should not let another person be executed 
before a review of the uncertainty surrounding the even handedness of 
the federal death penalty. In addition, as an advocate for the 
residents of the District of Columbia, I raise the additional concern 
of the federalization of what, rightfully, should be seen as a local 
decision against capital punishment. On behalf of my constituents, I 
thank you for bringing this issue to national attention, and for 
allowing me the opportunity to make these comments.

                                

  Statement of Hon. Strom Thurmond, a U.S. Senator from the State of 
                             South Carolina

    Mr. Chairman:
    The Senate should take its role in the confirmation process very 
seriously. We must make certain that the men and women who are 
appointed to the Federal Bench are people of high character, good 
judgment, and great legal ability.
    In my view, ideology matters to the extent that it demonstrates 
that a nominee may be a judicial activist. Judges must understand that 
they have a limited role in the federal system. Their job is to 
interpret the laws, not make the laws. They should never impose their 
personal views of what they think the law should be, regardless of 
whether those views are conservative or liberal.
    Of course, senators have the right to vote against nominees for any 
reason. However, as I have said in the past, I believe that the 
President is entitled to some deference in the choices he makes for the 
federal courts. The standard should not be whether we personally would 
have chosen the same person, or whether the candidate meets some 
political litmus test. The real question should be whether the 
individual is qualified and will exercise judicial restraint.
    I believe that President Bush has nominated a fine group of 
candidates who will serve our nation with distinction. These nominees 
would fill some of the 107 current judicial vacancies, which is a 
vacancy rate of 12.5%. A few years ago, some argued that there was a 
vacancy crisis in the federal courts with numbers lower than these. 
They constantly blamed Republicans for not acting on President 
Clinton's nominees. However, when the final numbers were in, it became 
clear that the Judiciary Committee under Republican leadership was very 
fair to President Clinton, and I hope the same can be said about 
President Bush in a few years.
    President Clinton had 377 judges confirmed, which is only five less 
than President Reagan. This is true even though Republicans controlled 
the Senate during six of President Clinton's eight years, just as we 
did during six of President Reagan's eight years at a time when I made 
confirmations a top priority of the Committee. At the end of the 
Clinton Administration, there was a 7.8% vacancy rate, which is lower 
than the 11.5% vacancy rate at the end of the earlier Bush 
Administration or the 12.5% vacancy rate that exists today.
    This hearing should help demonstrate that the judicial confirmation 
process is one of the top responsibilities of this Committee. Yet, this 
year, we have not scheduled any judicial nominations hearings, except 
one that then-Chairman Hatch postponed at the request of the Democratic 
side. It is true that the Senate is still being reorganized, but other 
Committees, such as Armed Services and Veterans Affairs on which I also 
serve, have continued to hold nominations hearings while the 
reorganization is still underway. In fact, this Committee is currently 
holding legislative and oversight hearings on various topics, including 
this hearing today and one tomorrow.
    I look forward to us having hearings as soon as possible on the 
many judicial nominees who are pending.

                                

                                   Department of Government
                          The University of Texas at Austin
                                   Austin, Texas 78712-1087
                                                      June 22, 2001

Senator Charles E. Schumer
Committee on the Judiciary
Subcommittee on Administrative Oversight and Courts
524 Dirksen Senate Office Building
Washington, D.C. 20510

    Dear Senator Schumer,

    Thank you for the opportunity to contribute written testimony to 
the subcommittee hearing on ``Should Ideology Matter? Judicial 
Nominations, 2001.'' This is a extraordinarily important topic. I 
believe that my article, ``Constitutional Abdication: The Senate, The 
President, and Appointments to the Supreme Court'' 47 Case Western 
Reserve Law Review 4 (Summer 1997) may be helpful to your 
deliberations. I would be delighted to have the article included in the 
written record of the Hearing.
    In the article, I argue that the norm of deference to the President 
regarding appointments to the Supreme Court is, in fact, a form of 
constitutional abdication. Deference to the President on appointments 
to the court is a relatively recent practice. For more than half of our 
history as a nation, the Senate acted as more robust and responsible 
coordinate branch of government. In the article, I contrast older 
constitutional actions of the Senate with modern confirmation cases and 
attempt to articulate the constitutional bases for a more assertive 
Senate. In a nutshell, my argument is that the best understandings of 
separation of powers require the Senate to consider the full array of 
considerations that are available to the executive, when Presidents 
make nominations to the Court. Senators are not merely permitted but, 
in my view, duty bound to inquire about and assess ideology, 
constitutional philosophy, political views and any other matter that is 
arguably relevant to the nominee's suitability for appointment.
    Both this letter and my article are submitted in my personal 
capacity as a scholar in the fields of American political development 
and constitutional theory. I am affiliated with the University of Texas 
at Austin as Associate Professor of Government, but I do not represent 
the University and, to my knowledge, the University takes no position 
on matters before this committee.
            Yours sincerely,

                                           Jeffrey K. Tulis
                                                Associate Professor

                                

                                  University of Connecticut
                            Department of Political Science
                       College of Liberal Arts and Sciences
                                                      June 25, 2001

Subcommittee on Administrative Oversight and the Courts
Committee on the Judiciary
United States Senate
Washington D.C. 20510

    Dear Mr. Chairman and members of the subcommittee

    Thank you for inviting me to provide a written statement concerning 
the selection process for United States Supreme Court nominees. For 
most of the past decade I have been conducting research on the process 
by which presidents--often with the assistance of other executive 
branch officials arrive at their respective decisions as to who to 
nominate to the Supreme Court. In this regard I have paid special 
attention to the factors that influence the internal vetting process 
for names, and the creation of administration ``short lists'' for all 
high Court vacancies. Although I recognize that other scholars may 
submit lengthy expositions on such an important subject, in this letter 
I will err instead on the side of brevity. Certainly I would be happy 
to elaborate in even greater detail on any aspect of judicial selection 
if and when thus subcommittee determines that a more comprehensive 
discussion is warranted.
    I understand that your subcommittee is particularly interested in 
the role that ideology has played in the selection and nomination (pre-
confirmation) process. That subject was the focus of my most recent 
book, Pursuit of Justices: Presidential Politics and the Selection of 
Supreme Court Nominees (University of Chicago Press, 1999). After 
reviewing carefully the selection tactics of nine modern presidents 
over the past half century, I concluded that ``ideological 
considerations'' (defined broadly to include political and/or 
philosophical approaches to the law that might help guide a nominee's 
vote in future cases) have influenced nearly every modern president's 
deliberations concerning prospective nominees to the U.S. Supreme 
Court. To be sure, ideology has not always, been the dominant factor in 
the selection process; but it has at least shaped (and in some eases 
outright altered) this decisionmaking process in most instances.
    Even casual observers of the Nixon and Reagan Administrations' 
selection processes might have guessed that those two presidents would 
emphasize ideological concerns in making their high Court selections. 
Both Reagan and Nixon openly confessed their frustrations at certain 
Supreme Court precedents. and each promised that he would name Supreme 
Court nominees who would adopt a more ``conservative'' approach to 
judging. (The Nixon and Reagan administrations' hostility to Miranda 
and other liberal Warren-Court precedents left little doubt that 
ideological concerns would come to influence their respective selection 
processes). Even more striking, however, is the fact that other 
presidents--including Presidents Truman, Eisenhower, and Ford--all 
quietly considered the ideology of prospective nominees as well, 
despite public protestations to the contrary. And President Johnson 
took private delight at the prospect of erecting impenetrable liberal 
voting blocs on the Supreme Court. Of the modem presidents then, only 
John Kennedy appears to have ignored ideological concerns on the whole 
in the nominee selection process.
    Consider even more closely the role that ideology has played in 
modern presidents' selection processes:

         President Truman is commonly thought to have settled 
        on nominees to the high Court based on friendship and personal 
        loyalty alone. Certainly loyalty was one critical element in 
        Truman's calculus: Chief Justice Fred Vinson and Justice Tom 
        Clark were members of the president's poker-playing inner 
        circle, while Justices Harold Burton and Sherman Minton had 
        been friends with Truman since his early days as a senator from 
        Missouri. But out of Truman's vast array of friends--many of 
        whom were esteemed lawyers--why did these particular men get 
        the nod? In Tom Clark's case at least, the candidate's ideology 
        was a significant factor: not only was Clark an unwavering 
        supporter of Truman's policies, but he had also established 
        himself as a firm believer in the inherent power of the 
        president to act in emergencies.\1\ With several controversial 
        administration programs working their way up though the courts; 
        President Truman wanted to appoint a justice committed to a 
        theory of broad executive powers under the Constitution.
---------------------------------------------------------------------------
    \1\ Five months before his Supreme Court nomination, Tom Clark had 
written a memo to the president in which he had asserted that the 
president's power to act in emergencies was ``exceedingly great,'' even 
apart from any specific stanitory authority. Memorandum on ``inherent 
Executive power to Deal With National Emergencies,'' Justice Department 
Folder, Baldfdge Papers, Harry S. Truman Library, Independence, Mo.
---------------------------------------------------------------------------
         President Dwight Eisenhower publicly complained about 
        the highly political Supreme Court selection processes of his 
        two Democratic predecessors. In fact, the Eisenhower 
        administration's determination to incorporate the ABA into the 
        formal selection process, along with its preference for proven 
        judges with experience on the bench, were both spurred by the 
        president's expressed desire to rid the process of undue 
        ideological and partisan influences. Behind the scenes, 
        however, ideological considerations affected many of President 
        Eisenhower's selections for the high CourtPrivately, Eisenhower 
        criticized liberal Justices like Frank Murphy and Wiley 
        Rutledge. confiding to friends that he wanted to rid the Court 
        of ``such left-wingers.'' Governor Earl Warren's reputation had 
        been carved out of his work as a prosecutor in California and 
        as an advocate of Japanese internment in his home state. 
        Similarly, William Brennan and John Marshall Harlan had once 
        made their names in the legal world as highly respected 
        corporate lawyers. Eventually fnistrated by the liberal voting 
        patterns of Chief Justice Warren and Justice Brennan, 
        Eisenhower beseeched Attorney General William Rogers to be 
        careful with later vacancies to avoid ``the disappointment'' of 
        those earlier choices. His public comments notwithstanding, 
        President Eisenhower did not just want ``professional judges'' 
        on the high Court-he wanted (and openly sought) judges who 
        would adhere to his own moderate-to-conservative views on 
        issues that came before the Court.
         Like Tnunan, President Lyndon B. Johnson was accused 
        of using the high Court as a depository for his closest and 
        most trusted friends. Of the three separate individuals Johnson 
        nominated to the high Court during his five years in office, 
        two (Abe Fortas and Homer Thornberry) had been longtime friends 
        of Johnson; the other (Thurgood Marshall) had shown his loyalty 
        to the president by forfeiting a lifetime appointment on the 
        U.S. Court of Appeals to serve as solicitor general diving the 
        Johnson Administration. Yet President Johnson was acutely aware 
        of how his Supreme Court selections might tip the ideological 
        balance of the Court. In 1967 Johnson spoke openly to aides 
        about the possibility of making Judge William Henry Hastic (and 
        not Marshall) the first African-American to sit on the U.S. 
        Supreme Court. But Nicholas Katzenbach and other aides helped 
        convince the president that Hastie's more moderate ideology 
        might pose a problem for his liberal constitueneics.\2\ In a 
        telephone conversation with acting Attorney General Corn Clark, 
        President Johnson seemed almost to revel in the possibility 
        that Marshall's nomination might secure the Courfs ultra-
        liberal voting bloc, remarking: ``we'd put Marshall on the 
        Court . . . and my judgment is with Hugo Black, Bill Douglas, 
        the Chief [Earl Warren], Abe Fortas . . . they'll just have a 
        field day.'' \3\
---------------------------------------------------------------------------
    \2\ Nicholas deB Katzenbach, interview by David A--Yalof, June 6, 
1996, Princeton, NJ.
    \3\ Phone conversation between Ramsey Clark and Lyndon Johnson, 
Tape No. K67.01, January 25, 1967, 8:22 p.m., Lyndon Babies Jobnson 
Library, Austin, Tex.
---------------------------------------------------------------------------
         During his 1968 presidential campaign, Richard Nixon 
        openly blamed the Warren Court for much of the civil unrest 
        that had afflicted America's cities. Nixon promised that as 
        president, he would appoint only ``law and order'' judges to 
        the Supreme Court who would ``strictly interpret the 
        Constitution and not ``make law.'' And to the extent that 
        partisan politics allowed him any room to maneuver, Nixon 
        proved true to his word. Chief Justice Warren Burger first drew 
        Nixon's attention by virtue of his reputation as an outspoken 
        judge who had criticized Warren Court decisions favoring the 
        accused. Justice Lewis Powell reaped the benefits of his past 
        positions as president of the American Bar Association in the 
        late 1960's: from That high visibility legal perch, Powell had 
        decried the ``crisis in law observance'' and openly criticized 
        Mirunda v. Arizona, which he felt unduly limited reasonable law 
        enforcement activities. Even Justice Harry Blackmun, who would 
        later become a steadfast member of the court's liberal wing, 
        initially impressed Nixon as a conservative ideologue, albeit 
        one who was confirmable. While on the U.S. Court of Appeals for 
        the Eighth Circuit, Blackmun had issued a controversial ruling 
        limiting the application of civil rights laws.\4\ Blackmun had 
        also sided with prosecutors who brought questionable charges 
        against criminal defendants: and had been the first circuit 
        judge in the nation to uphold the constitutionality of the 1961 
        federal anti-racketeering law.\5\
---------------------------------------------------------------------------
    \4\ Sec Jones v. Alfred Mayer. 379 F.2d 33 (8th Cir. 
1965)
    \5\ Bass v. United States, 324 F.2d 168 (8th Cir. 1963)
---------------------------------------------------------------------------
         President Gerald Ford persevered in the face of severe 
        political obstacles towards the end of 1975: he was an 
        unelected president with low approval ratings facing a hostile 
        Democratic Senate less than a year before his first 
        presidential election campaign. Ford had originally advocated a 
        less political approach to judicial selection, and he had 
        placed his trust in Edward Levi, who he considered to be the 
        epitome of an ``apolitical attorney general.'' Yet Ford was 
        equally determined to name a candidate with legitimate 
        conservative credentials when a vacancy arose on the Court that 
        November. In fact, a leading candidate for the vacancy would be 
        Solicitor General Robert Bork, who administration officials 
        believed ``would provide strong reinforcement to the court's 
        most conservative wing.'' \6\ Ultimately, President Ford tapped 
        U.S. Court of Appeals Judge John Paul Stevens to the high Court 
        in a clear nod to confirmation realities. But ford never lost 
        sight of his desire for a nominee with conservative leanings: 
        at the time, Attorney General Edward Levi had described Stevens 
        as a ``moderate conservative'' \7\ and the president was 
        convinced Stevens provided him with the most viable means of 
        naming a conservative to the Supreme Court before the upcoming 
        1976 election.
---------------------------------------------------------------------------
    \6\ Memo, Edward H--Levi to Gerald R. Ford, November 10, 1975, 
Supreme Court Nominations-Letters to the President, 10 November 1975-12 
November 1975 file, Richard Cheney files, Gerald R. Ford Library, Ann 
Arbor, Michigan.
    \7\ Id.
---------------------------------------------------------------------------
         President Reagan's high Court selection process 
        emphasized ideology to an unprecedented degree among modern 
        presidents. In a 1985 memorandum identifying attributes of 
        ``the ideal Supreme Court candidate,'' one high-ranking 
        administration official identified numerous ideological 
        criteria including (1) the refusal to create new constitutional 
        rights for the individual; (2) deference to state in their 
        spheres; (3) appropriate deference to agencies, (4) a 
        disposition towards 'less government rather than more'; and (5) 
        appreciation for the role of free market in our society. 
        Reagan's aides then scoured the judicial landscape for 
        individuals whose ideological approaches to judging matched as 
        many of these criteria as possible. Viewed from this 
        perspective, U.S. Court of Appeals Judges Antonin Scalia and 
        Robert Bork enjoyed unparalleled records as ideologically 
        conservative jurists, and each received a nomination to the 
        Court during Reagan's second term in office. Although a 
        fallback candidate in late 1987, Judge Anthony Kennedy had been 
        listed along with five other judges as exhibiting all the 
        necessary conservative qualities. Before being nominated to the 
        Court in 1981, Sandra Day O'Connor as well was forced. to 
        answer probing questions about her views on abortion and other 
        hot button issues.
    Numerous lessons can be learned from a comprehensive study of 
modern presidents' selection processes for Supreme Court nominees. 
Certainly, presidential statements, about the selection processes 
cannot always be taken at face value: even those presidents that 
publicly disclaimed the role of ideology in their respective selection 
processes remained cognizant of important issues that might come before 
the court, and of the impact various candidates might have on the 
Court's overall ideological balance. Additionally, it is not enough to 
simply writc off various candidacies as simply ``responses to the 
realities of confirmation politics.'' At any given time there exists a 
pool of literally dozens of candidates capable of fulfilling any of 
numeious criteria for the Court, political or otherwise. Discerning why 
the president chose ``that particular friend'' or ``that particular 
confirmable candidate'' for a Supreme Court vacancy requires that we 
analyze other critical factors that may simultaneously infltrate the 
decisiomnaking process. And in most instances since World War II, 
ideology has played an especially significant role in thus process.
    The papers from George H. W. Bush's presidency are only beginning 
to be made available to scholars, and papers from the Clinton 
presidency will not be available even in limited form until 2006 at the 
earliest. Consequently, it is difcult to discover at this point with 
any reasonable certainty what drove those two recent presidents to 
choose the Supreme Court nominees they did. Still, secondary sources 
and early interview data confirm the presence of the same historical 
tend described above: ideological considerations continue to play a 
significant role in the selection process for modem presidents.
    Thank you again for allowing me to submit this statement to your 
subcommittee. If you desire any further elaboration or detail on these 
or any other aspects of recent selection practices, I would be more 
than happy to provide you with such information.
            Sincerely,

                                       David Alistair Yalof

                                

Statement of Ernest A. Young, Assistant Professor of Law, University of 
                            Texas at Austin

    My name is Ernest A. Young. I am presently an Assistant Professor 
of Law at the University of Texas at Austin. Prior to that, I graduated 
from Dartmouth College and Harvard Law School and served as a law clerk 
to the Honorable Michael Boudin of the United States Court of Appeals 
for the First Circuit and the Honorable David Souter of the United 
States Supreme Court. I have also practiced law in Dallas, TX and 
Washington, D.C., and taught at Georgetown University Law Center and 
Villanova University School of Law. At Texas, I teach courses on 
Constitutional Law and Federal Courts. I have written extensively on 
constitutional and statutory interpretation,\1\ federalism,\2\ federal 
jurisdiction,\3\ and conservative jurisprudence.\4\ I recently 
participated in a panel discussion at the University of Chicago Law 
School on ``conservative judicial activism,'' and I have been invited 
to take part in a symposium on the same topic at the University of 
Colorado in October of this year.
---------------------------------------------------------------------------
    \1\ See, e.g., Adrian Vermeule & Ernest A. Young, Hercules, 
Herbert, and Amar:: The Trouble with Intratextualism, 113 HARV. L. REV. 
730 (2000); Ernest A. Young, Constitutional Avoidance, Resistance 
Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549 
(2000).
    \2\ See, e.g., Lynn A. Baker & Ernest A. Young, Federalism and the 
Double Standard of Judicial Review,--DUKE L. J.--(forthcoming Oct. 
2001); Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and 
the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 1701 (2001); 
Ernest A. Young, State Sovereign Immunity and the Future ofFederalism, 
1999 SUP. CT. REV. 1.
    \3\ See, e.g., Mitchell N. Berman, R. Anthony Reese, & Ernest A. 
Young, State Accountability for Violations of Intellectual Property 
Rights: How to ``Fix'' Florida Prepaid (And How Not To), 79 TEX. L. 
REV. 1037 (2001); Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. 
REV. 273 (1999).
    \4\ See, e.g., Ernest A. Young, Alden v. Maine and the 
Jurisprudence of Structure, 41 WM. & MARY L. REV. 1601 (2000); Ernest 
A. Young, Rediscovering Conservatism: Burkean Political Theory and 
Constitutional Interpretation, 72 N.C. L. REV. 619 (1994).
---------------------------------------------------------------------------
    I am grateful to the Subcommittee for the opportunity to place in 
the record a few comments on the phenomenon of ``conservative judicial 
activism'' as it relates to the judicial appointments and confirmation 
process. It is very much in vogue these days to accuse the current 
Supreme Court of ``conservative judicial activism,'' \5\ and it is not 
surprising that these debates about the current Court's role should 
spill over into discussions about what sort of people should join the 
ranks of the federal judiciary. The problem is that neither 
``conservative'' nor ``judicial activism'' are terms that are easy to 
define. I want to spend the bulk of my space here exploring the 
different things that we might mean by ``judicial activism,'' in hopes 
of helping the participants in this debate avoid talking past one 
another. My conclusion is that we are unlikely to come up with a 
consensus definition of what judicial behavior is ``activist'' and what 
is not. Most of the time, participants in both academic and political 
debates use ``judicial activism'' as a convenient shorthand for 
judicial decisions they don't like. For that reason, the term may not 
be that useful in discussions about what sort of judges we want.
---------------------------------------------------------------------------
    \5\ See, e.g., Peter M. Shane, Federalism's ``Old Deal'': What's 
Right and Wrong with Conservative Judicial Activism, 45 VILL. L. REV. 
201 (2000). This sort of criticism has been going on for over half a 
decade. See, e.g., Linda Greenhouse, Farewell to the Old Order in the 
Court: The Right Goes Activist and the Center is a void, N.Y. TIMES, 
July 2, 1995, Sec. 4 (Week in Review), at 1.
---------------------------------------------------------------------------
    That conclusion has two implications, I think, for the Senate's 
role in helping to decide who shall sit on the federal bench. First, 
the Senate should take charges that the federal courts are currently in 
a uniquely ``activist'' phase--and that this ``new'' development 
warrants a particularly searching review of Republican nominees for the 
bench--with a grain of salt. The activism of the decisions coming from 
the federal courts these days is largely in the eye of the beholder; 
moreover, those decisions actually point in a variety of political 
directions.
    Second, if we cannot distinguish criticisms of ``judicial 
activism'' from disagreements on the merits of particular cases, there 
is probably no way to avoid exploring the substance of particular legal 
issues in confirmation hearings. Because ``activism'' and ``restraint'' 
come in so many guises, particular nominees should not be rejected out 
of hand simply because their beliefs or prior positions may fit one or 
more definitions of ``activism'' on particular issues. The same 
position, after all, may plausibly indicate ``restraint'' when viewed 
from another angle. The important question is whether the nominee's 
views make sense on the merits.
                   I. What is ``Judicial Activism''?
    Debates about the law frequently involve charges of ``judicial 
activism,'' but those charges are rarely accompanied by any attempt to 
define the term with any sort of precision. There's a reason for that: 
It's awfully hard to do. I want to start with three different 
definitions of ``judicial activism,'' each of which has some intuitive 
appeal:

         striking down laws
         refusing to adhere to precedent
         straying from the text and original intent of the 
        Constitution

    The first of these--a court's willingness to strike down laws on 
constitutional grounds--is frequently used as a measure of 
``activism,'' probably because it is the easiest to measure 
empirically. And yet it is not hard to come up with examples where this 
definition makes little sense. Consider last year's decision in 
Dickerson v. United States.\6\ Dickerson involved the constitutionality 
of 18 U.S.C. Sec. 3501, a federal statute enacted in the wake of the 
Miranda decision that required federal courts to admit confessions into 
evidence if they were ``voluntary,'' based on the sort of totality-of-
the-circumstances inquiry that Miranda had eschewed. The statute had 
lain defunct for 30 years, ignored by the Justice Department due to 
doubts about its constitutionality, until the Fourth Circuit invoked it 
on their own motion and forced the issue. The Supreme Court held the 
statute unconstitutional in Dickerson, and yet there were no cries of 
judicial activism; indeed, one suspects that the Court would have been 
accused of being activist if it had not struck the statute, for 
refusing to adhere to its 34-year-old precedent in Miranda. The fact 
that Miranda itself was considered an activist decision only heightens 
the confusion.
---------------------------------------------------------------------------
    \6\ 530 U.S. 428 (2000).
---------------------------------------------------------------------------
    In other situations this measure is simply unhelpful. In this 
term's Good News Club decision,\7\ for example, the Court struck down a 
New York public school's policy of excluding religious groups from 
using school buildings after hours, despite the fact that secular 
groups were allowed to do so. The School's justification for the 
policy, however, was that it was necessary to prevent an Establishment 
Clause violation. So which result is activist: Striking down the 
policy, as the Court did, on free speech grounds, or upholding the 
policy on the ground that failing to have such a policy would itself be 
unconstitutional under the Establishment Clause? \8\ Each possible 
holding would involve declaring that a particular public policy (either 
inclusion or exclusion of believers) is unconstitutional.
---------------------------------------------------------------------------
    \7\ Good News Club v. Milford Central School, No. 99-2036 (June 11, 
2001).
    \8\ The same situation was presented in Rosenberger v. Rector and 
Visitors of Univ. of Va., 515 U.S. 819 (1995). In both cases, the Court 
could have avoided both alternatives by refusing to find that the 
school policy discriminated against religious viewpoints--thereby 
avoiding the need to find an Establishment Clause interest to support 
the policy. But to my mind, the argument that there was no viewpoint 
discrimination in the cases was far less plausible than the claim that 
the alternative to the school's policy--allowing religious worship on 
school property--presented an Establishment Clause problem.
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    For a more familiar example, consider a decision by the current 
Court to overrule Roe v. Wade \9\ and Planned Parenthood v. Casey.\10\ 
Surely such a decision would be criticized by supporters of those 
decisions as activist; in fact, fear of such criticism seems to have 
been a powerful part of the Court's stare decisis analysis in Casey. 
But it was Roe and Casey that struck down legislative acts; a decision 
overruling those decisions would amount to a refusal to invalidate 
legislative restrictions on the right to an abortion. This example 
points toward the second intuitive definition of judicial activism--a 
refusal to follow settled precedent--and demonstrates how it may 
conflict with the first definition. Dickerson is another example of 
such conflict; the Court's adherence to the settled Miranda precedent 
required it to invalidate an Act of Congress.\11\ On the other side of 
the coin, several members of the current Court have refused to adhere 
to the Court's recent precedents on state sovereign immunity, precisely 
because the dissenters viewed those precedents as activist 
decisions.\12\ In all these areas, then, both sides can be plausibly 
charged with ``judicial activism,'' depending on which definition one 
uses.
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    \9\ 410 U.S. 113 (1973) (striking down Texas law prohibiting 
abortion).
    \10\ 505 U.S. 833 (1992) (refusing to overrule Roe).
    \11\ See also Texas v. Johnson, 491 U.S. 397 (adhering to settled 
First Amendment precedent and striking down Texas's flag desecration 
statute). Once Johnson itself was on the books, that precedent in turn 
required the Court to invalidate a federal flag--burning statute in 
United States v. Eichman, 496 U.S. 310 (1990).
    \12\ See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 98 (2000) 
(Stevens, J., dissenting) (``The kind of judicial activism manifested 
in cases like Seminole Tribe represents such a radical departure from 
the proper role of this Court that it should be opposed whenever the 
opportunity arises.'').
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    What about the third definition: refusal to adhere to the text and 
original understanding of the Constitution? This is also a frequently 
used indicator of ``activism,'' and yet it may radically conflict with 
the other two that I have discussed. For example, Justice Thomas has 
recently argued that the Constitution's text and the original 
understanding of its structure would require both a dramatically 
narrower reading of the federal Commerce power than current doctrine 
provides for,\13\ as well as substantially stricter limits on 
Congress's ability to delegate authority to federal administrative 
agencies.\14\ It is difficult to dispute the Justice's history, yet I 
think it is fair to say that most academic observers would see adoption 
of Justice Thomas's views as judicial activism of the most radical 
kind.\15\ The reason is that limiting the Commerce Clause to regulation 
of buying and selling (as opposed to manufacturing, agriculture, and 
all other forms of economic activity) or outlawing the delegation of 
legislative power would not only require overruling at least 70 years 
of judicial precedent, but would also throw open to constitutional 
question a substantial portion of the U.S. Code. Once again, then, each 
side of this debate can plausibly call the other ``activist.'' Justice 
Thomas may charge his critics with ignoring the text and history of the 
Constitution; the critics can point to the disruptive consequences of a 
return to the original understanding.
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    \13\ United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., 
concurring).
    \14\ Whitman v. American Trucking Assn's, 121 S. Ct. 903, 919 
(2001) (Thomas, J., concurring).
    \15\ In fairness, Justice Thomas himself has recognized the radical 
reshaping of present doctrine that adoption of his views might require, 
and for that reason has suggested only that the Court should consider 
the issue in a proper case.
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    I want to consider one final kind of ``activism'' that has more to 
do with the way the courts decide cases than with the substance of the 
decisions they reach. The idea is well captured by Professor Cass 
Sunstein's distinction between judicial ``minimalism'' and 
``maximalism.''\16\ A minimalist judge decides cases narrowly, leaving 
as much as possible undecided for consideration in the next case. A 
maximalist judge, on the other hand, announces sweeping rules in each 
case, reaching out to decide issues that could have been avoided or put 
off for another day.\17\ McCulloch v. Maryland \18\ and Roe v. Wade 
were maximalist decisions, announcing sweeping principles all at once; 
the Court's decision five years ago in Denver Area Telecommunications 
Consortium v. FCC,\19\ in which the Court refused to state categorical 
rules to govern public- and leased-access cable channels, preferring to 
proceed on a case-by-case basis in the face of a rapidly evolving 
technological and regulatory environment, is a good example of 
minimalism.
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    \16\ See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 
HARV. L. REV. 6 (1996); CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL 
MINIMALISM ON THE SUPREME COURT (1999).
    \17\ I am speaking here primarily of a judge's approach to defining 
the content of constitutional rights and limitations. Similar issues of 
``activism'' arise on the remedial side, when the judge has to devise 
ways to enforce the Constitution as he has interpreted it.
    \18\ 17 U.S. (4 Wheat.) 316 (1819).
    \19\ 518 U.S. 727 (1996).
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    When we call the Court ``activist'' because it ``reached out'' to 
decide an issue not strictly before it, or announced a principle 
broader than the case required, or tried to definitively settle an 
issue before society was ready for it to be settled, we are complaining 
about judicial maximalism. But maximalism has its own problems as a 
definition of judicial activism. For example, as Professor Sunstein 
points out, both United States v. Lopez,\20\ invalidating the federal 
Gun Free School Zones Act on Commerce Clause grounds, and Romer v. 
Evans,\21\ striking down Colorado's anti-gay amendment to its state 
constitution, were extremely narrow decisions. Nonetheless, both 
decisions are frequently cited as instances of judicial activism on the 
grounds that they invalidated legislative acts, departed from 
precedent, or contravened the Constitution's text and history.\22\ 
(These two decisions illustrate, moreover, that the current Court's 
``activism'' may point in both politically ``conservative'' and 
``liberal'' directions.\23\)
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    \20\ 514 U.S. 549 (1995).
    \21\ 517 U.S. 620 (1996).
    \22\ See, e.g., Donald H. Zeigler, The New Activist Court, 45 Am. 
U. L. REV. 1367, 1389 (1996) (``United States v. Lopez is another 
striking example of judicial activism.''); Louis Michael Seidman, 
Romer's Radicalism: The Unexpected Revival of Warren Court Activism, 
1996 SUP. CT. REv. 67 (arguing that the Romer opinion ``recaptures the 
moral drama and ambiguity of Warren Court activism years after the 
culture had seemingly discarded it'').
    \23\ Other examples of politically ``liberal'' decisions 
invalidating public policies on constitutional grounds by the current 
Court are not hard to find. See, e.g., Legal Services Corp. v. 
Velazquez, 531 U.S. 533 (2001) (striking down federal limitations on 
ability of Legal Services program grantees to challenge welfare reform 
policies); Stenberg v. Carhart, 530 U.S. 914 (2000) (invalidating state 
ban on partial birth abortions); United States v. Playboy Entertainment 
Group, 529 U.S. 803 (2000) (striking down federal statute requiring 
scrambling of sexualy-explicit programming); Saenz v. Roe, 526 U.S. 489 
(1999) (striking down California durational residence requirement for 
public benefits under the Privileges and Immunities Clause); Reno v. 
ACLU, 521 U.S. 844 (1997) (striking down the federal Communications 
Decency Act limiting children's access to indecent material on the 
internet); United States v. Virginia, 518 U.S. 515 (1996) (striking 
down single-sex policy at Virginia Military Institute). One could go on 
and on with this list.
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    In the end, it's hard to escape the conclusion that ``judicial 
activism'' is a lot like Justice Stewart's famous definition of 
obscenity: We know it when we see it.\24\ There was, of course, an 
element of truth to Justice Stewart's observation; it's notoriously 
hard to define obscenity in any precise way, and yet most of us would 
agree that, practically speaking, we can identify many or even most 
instances of obscenity when we encounter them. The same is true here: 
The term ``judicial activism'' captures the important truth that there 
is a point at which judging shades over into politics, and it's 
probably easier to agree on examples than on definitions.
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    \24\ See Jacobellis v. Ohio, 378 U.S. 184, 197 (1954) (Stewart, J., 
concurring). That definition, of course, is itself frequently cited as 
an instance of judicial activism in the sense of a judge reading his 
own values into the Constitution.
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    The problem is that, because the definitions of judicial activism 
are so manipulable, it's easy to cry ``activism'' whenever one simply 
disagrees with how a court has interpreted and applied the law. My own 
view is that ``activism'' has become an epithet with very little 
substantive comment, and it is thrown about as a shorthand way of 
criticizing decisions with which one disagrees on the merits. As 
Justice Ginsburg observed at her own confirmation hearings, judicial 
activism is ``a label too often pressed into service by critics of 
court results rather than the legitimacy of court decisions.'' \25\ 
This is not to deny that the disagreements underlying a claim of 
``activism'' may be quite important; the point is simply that the 
reference to ``activism'' itself adds little of substance to that 
disagreement. Better, I think, to cut straight to the issues of 
substantive disagreement. Court decisions should be evaluated on their 
merits, and discussions of whether they are activist or not seem likely 
to be relatively unhelpful in that discussion.
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    \25\ Quoted in Ziegler, supra note 22, at 1367-68.
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                       II. The Role of the Senate
    I am not a scholar of the judicial confirmation process, and others 
can no doubt provide more informed guidance on, for example, the 
original understanding of the Senate's role. The observations I have 
just made, however, do suggest two points concerning that role:
    First, arguments by scholars on the Left that the Rehnquist Court's 
``conservative judicial activism'' somehow justifies a uniquely non-
deferential role for the Senate in the confirmation process seem 
misplaced.\26\ It is impossible to say that the present Court is 
uniquely ``activist'' without some agreed definition of what that term 
means, and agreement on that issue is hard to come by. Moreover, the 
Court has decided any number of cases which meet one or more 
definitions of judicial activism but which point in politically 
``liberal'' directions--last term's invalidation of a state ban on 
partial-birth abortions and 1997's rejection of the federal 
Communications Decency Act being only two of the most prominent 
examples.\27\
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    \26\ See, e.g., Cass R. Sunstein, Tilting the Scales Rightward, The 
NEW YORK TIMES, April 26, 2001, at A23.
    \27\ See Stenberg v. Carhart, 530 U.S. 914 (2000); Reno v. ACLU, 
521 U.S. 844 (1997), as well as the cases cited in note 23, supra. Even 
in the area of criminal procedure--a hallmark of Warren Court 
activism--the Rehnquist Court has hardly led a monolithic assault on 
the rights of criminal defendants. See, e.g., Kyllo v. United States, 
No. 998508, 2001 U.S. LEXIS 4487 (June 11, 2001) (holding that police 
use of thermal imaging technology to detect criminal activities inside 
a home without entering it amounted to a ``search'' under the Fourth 
Amendment); Penry v. Johnson, No. 00-6677, 2001 U.S. LEXIS 4309 (June 
4, 2001) (overturning death sentence because jury was improperly 
instructed on mitigating factor of mental retardation); Williams v. 
Taylor, 529 U.S. 362 (2000) (upholding habeas corpus petitioner's Sixth 
Amendment claim of ineffective assistance of counsel).
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    Second, there is likely to be no escape from a substantive inquiry 
into a nominee's views on particular legal issues. It is tempting, of 
course, to try to compromise between offering the President a blank 
check, on the one hand, and contentious hearings on particularly 
divisive issues, on the other, by avoiding legal substance and simply 
trying to weed out the ``activists.'' No definition of ``activism,'' 
unfortunately, is sufficiently persuasive to bear the weight of such an 
inquiry. It is better to forthrightly discuss the merits of legal 
issues than to mask such debates by unilluminating charges and 
countercharges of ``activism.''
    This is not to say that there is no such thing as ``judicial 
activism''--in other words, that the so-called problem of activism is 
not something that we need to worry about. Of course it is. There are 
crucial differences between judging and political decisionmaking, and 
when judges forget that fact they may usurp powers more properly left 
to the People's elected representatives. The problem, rather, is that 
such usurpation may take any of the forms I have discussed striking 
down laws, overruling precedent, departing from text and history, 
deciding cases too broadly-and that on the other hand many decisions 
that take these sorts of actions are not ``activist'' in any way worthy 
of criticism. It is very difficult to identify instances of judicial 
misbehavior without first evaluating whether a given decision was right 
or wrong on the merits; only then can one ask whether it was so wrong 
that the decision overstepped the bounds of the judicial role. That is 
why it seems best to focus on the merits of legal issues rather than 
treating ``activism'' as a separate issue.
    I also do not mean to suggest that, in considering the substantive 
views of nominees, the Senate should not be prepared to give some 
degree of deference to the President's choices. The need for such 
deference stems from the practical necessities imposed by divided 
government: The system needs judges, and it will not get them if the 
participants in the confirmation process cannot find some common ground 
through compromise and mutual forbearance. In the end, the most 
important task facing the Senate may be that of finding a way to de-
escalate from the highly politicized judicial confirmation process that 
we have seen in the past decade and a half.
    Regardless of the degree of leeway that the Senate is prepared to 
give the President, however, Senators must still have some criterion 
for evaluating individual nominees. On that issue, I have argued that 
the important question is whether the nominee's views make sense on the 
merits--not whether those views are ``activist'' or ``restrained.'' The 
former issue, of course, may itself be a highly contentious one. But at 
least it is the right question, and that is a start.

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