[Congressional Record Volume 140, Number 88 (Monday, July 11, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 11, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 THE NOMINATION OF JUDGE STEPHEN BREYER TO BE AN ASSOCIATE JUSTICE OF 
                           THE SUPREME COURT

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
briefly on the nomination of Judge Stephen Breyer for the Supreme Court 
of the United States. I am advised that we will not have opening 
statements tomorrow, so I thought it worthwhile to make a few comments 
this evening on that subject.
  I have awaited a quorum call most of the afternoon, and the Senate 
was virtually in continuous business. I understand the hour is late and 
I shall be relatively brief, but I think these are important remarks.
  In my view, the Senate has no duty which is more important than the 
confirmation of Supreme Court justices, and that is true because with 
so many 5 to 4 decisions, that fifth vote has enormous impact on every 
man, woman, and child in the United States and, very frequently, it has 
great impact on people around the world.
  That fifth swing, deciding justice, for that case has much greater 
power than the President of the United States, where there are many 
checks and balances on what the President does. The President serves 
for 4 years, or perhaps 8, but the Supreme Court justices serve much 
longer--several decades, in many, many instances. So their confirmation 
is of great importance.
  When the Constitution was drafted, the first article was devoted to 
the Congress; the second article was devoted to the executive branch, 
the President; and the third article was devoted to the judiciary. 
Since Marbury versus Madison was decided by the Supreme Court of the 
United States in 1803, the judiciary has been supreme. The judiciary 
has the final word, on a constitutional issue, that is it, in the 
absence of a constitutional amendment, which is very hard to enact. 
Even on nonconstitutional issues, the word of the Supreme Court is 
virtually the last word, although Congress may, but frequently does 
not, act.
  The power of the Supreme Court has become even more important in an 
era of much judicial legislation, far beyond the traditional concept of 
the judicial role of interpreting the law. In many ways, the Supreme 
Court of the United States has become a super legislature. This is of 
enormous importance in an era in which many cases come before the court 
where new concepts of constitutional law are engrafted that have not 
been provided for either by the Founding Fathers in intent or on the 
face of the document. This really constitutes public policymaking by 
the Supreme Court.
  In the United States today, the crime problem is of overwhelming 
importance. That proposition needs no amplification or embellishment. 
The death penalty is a very important deterrent to crime. More than 70 
percent of the American people favor the death penalty. When the issue 
comes before this body, characteristically, 70-plus Senators vote in 
favor of it. But in case after case, there is engrafted by the Supreme 
Court new constitutional rules which are not found on the face of the 
document, and are not derived from the Founding Fathers' intentions, 
but are really matters of public policy.
  We have vital interests, vital concerns on war powers. The 
Constitution vests the sole authority in the Congress of the United 
States to declare war. Yet, we see where there are conflicts which 
amount to wars, and it is very hard to get answers from the nominees 
when their confirmation is virtually assured on the appropriate meaning 
of the constitutional power to declare war or on any other question put 
to nominees.
  It has been apparent in the 14 years that I have been present--and 
tomorrow will mark the ninth Supreme Court confirmation since my 
election in 1980, that nominees for the Supreme Court of the United 
States answer as many questions as they really feel compelled to in 
order to be confirmed. When the nomination or confirmation of a nominee 
is virtually assured, it is very hard to get answers from the nominees. 
When Judge Scalia, now Justice Scalia, appeared before the Judiciary 
Committee, he would not answer even basic questions as to whether the 
decision in Marbury versus Madison was established constitutional law 
and not subject to challenge. When Justice Rehnquist, now Chief Justice 
Rehnquist, appeared before the Judiciary Committee, he would not 
respond to questions as to whether the Congress could take away 
jurisdiction of the Supreme Court on constitutional issues.
  A staff member on the Judiciary Committee acquainted me with an 
article written by William Rehnquist in the Harvard Law Record in 1958, 
long before William Rehnquist became a Supreme Court justice, in which 
he wrote that nominees should answer questions put to them by the 
Senate. When confronted with that article, he answered a few questions. 
He finally would answer a question saying that the Congress could not 
take away the jurisdiction of the Supreme Court on first amendment 
issues. And then he was asked about the fourth amendment and declined 
to answer; the fifth amendment, declined to answer; the sixth 
amendment, declined to answer. Then he was asked why he had answers to 
the first amendment and none on the fourth, fifth, and sixth. Again, he 
declined to answer.
  Judge Souter, now Justice Souter, appeared before the Judiciary 
Committee and was asked questions relating to the critical 
constitutional questions of the authority of Congress to declare war 
contrasted with the President's authority as Commander in Chief, and I 
asked whether the Korean conflict was a war within the meaning of the 
Constitution, and Judge Souter declined to answer. The general rule is 
that a Senator can ask any question he or she chooses, and the nominee 
has the standing to decline to answer any question, but the one line 
which is out of bounds, perhaps, is to ask a question on a case which 
may come before the Court.
  The Korean conflict case could not possibly come before the Court. In 
order to get some idea as to the thinking of Judge Souter on a very 
critical question that the Supreme Court of the United States may have 
to arbitrate between the Congress' authority to declare war versus the 
President's authority as Commander in Chief, that is a question which 
this Senator thought ought to be answered. But Judge Souter did not 
think so.
  Last year, when Judge Ginsburg, now Justice Ginsburg, appeared before 
the Judiciary Committee, a number of Senators commented on how few 
questions she answered. When I asked her about the death penalty and 
whether she had any conscientious scruples against it, she in effect 
told me it was none of my business and none of the Senate's business. 
The issue of whether a juror has conscientious scruples against the 
death penalty is traditionally recognized as a very relevant question. 
In a death penalty case, if the prospective juror answers in the 
affirmative that he or she has conscientious scruples against the 
imposition of the death penalty, that is grounds for disqualifying the 
juror for cause, not a peremptory challenge where the prosecutor and 
the defendant have substantial latitude on striking jurors without any 
specific cause.

  I make these references because they are illustrative of the 
difficulties of getting answers from nominees in a context where so 
many Senators comment in advance that the nominee is fine and the media 
reports, and accurately reports I think, that the confirmation of Judge 
Breyer is a foregone conclusion, which very dramatically limits the 
scope of the meaningfulness of the Judiciary Committee in the first 
instance and the Senate in the final instance performing this 
constitutional duty of confirmation, advice and consent, and this is 
the consent function in the face of a virtual coronation in advance.
  We have seen instances, Mr. President, and I shall mention only two 
instances briefly, of the super-legislature in action.
  The Civil Rights Act was enacted in 1964. Seven years later in the 
Griggs case the issue of business necessity on employment practices was 
decided by a unanimous Court with the opinion written by Chief Justice 
Burger. That decision stood for 18 years, ratified by congressional 
acquiescence without any action made to amend the Civil Rights Act of 
1964. Then in 1989 the Wards Cove decision came down, and the Supreme 
Court of the United States in what really constituted super-legislative 
action changed the definition of business necessity requiring 
congressional action with the Civil Rights Act of 1991 to reinstate the 
law to what Congress had intended.
  The Court interpreted that on public policy grounds. The Supreme 
Court in a matter of superlegislation changed the law.
  The family planning provisions were enacted in the 1970 legislation, 
and a regulation interpreting that law was issued in 1971 by the 
Federal agency that had helped draft the law the previous year making 
it clear that doctors could counsel women on planned parenthood on the 
abortion option. Then in 1988 the regulation was changed and the 
Supreme Court of the United States in the Rust decision decided that 
that change was appropriate because there had been a change in public 
opinion notwithstanding the fact that by 17 years of acquiescence the 
Congress had in effect given its imprimatur that the earlier regulation 
was the appropriate interpretation of the law.
  There is one other matter I want to comment on very briefly, Mr. 
President, and that is the trend on the Supreme Court to consist 
virtually exclusively of ex-judges. Eight of the current nine Supreme 
Court Justices came from appellate courts, seven from U.S. courts of 
appeal and one from a State appellate court, and Judge Breyer comes 
right in the same mold from a U.S. court of appeals.
  Many of us were disappointed and said so publicly, and I publicly 
expressed my disappointment, in not having Secretary of the Interior 
Babbitt nominated to provide some diversity to the court--someone who 
had been a Governor, a Secretary of the Interior, and a Presidential 
candidate, to give some broader diversity of experience.
  The need for diversity in experience was brought to the fore again 
recently when the Judiciary Committee held a confirmation hearing for 
Mr. Alexander Williams, who was nominated for the U.S. district court 
for the District of Maryland. He was opposed by the American Bar 
Association, which found him not qualified. This opposition raises the 
issue as to whether you have to be from a prominent law school and from 
a prominent law firm, a silk stocking lawyer, in effect, in order to 
become a Federal judge. And Charity Wilson, my staffer who wrote me a 
memo contrasting the pedigree of the Supreme Court justices, including 
the current nominee, Judge Breyer, made I thought a very telling 
analogy to the silk-stocking nominees who were characteristically 
approved by the American Bar Association and sit on the Federal courts 
with Mr. Alexander Williams who may have woolen socks, as Charity 
Wilson, my staffer, put it, ``woolen socks with a hole in them.''
  I think there ought to be emphasis by this body, Mr. President, and 
that is why I take a moment or two now and will take a few moments 
during the confirmation hearings to comment about the context of the 
Court where we do not have Justices who have had experience as trial 
lawyers, as assistant district attorneys, or as public defenders, 
people who have litigated extensively or have extensive pro bono work 
with a real feel for what goes on in America.
  It is true that the President has sole discretion in his nominating 
function, but it was equally true that the Senate has sole discretion 
in deciding what the confirmation standards should be. There are 
learned scholars, among them Justice Ginsburg, who commented about the 
equal standing of the Senate in making evaluations of the 
qualifications of judicial nominees.
  I raise these questions, Mr. President, not thinking that they are 
likely to have any telling effect on the proceedings as to Judge Breyer 
tomorrow but to try to at least have one Senator express a view as to 
the importance of the position of the Supreme Court of the United 
States where that fifth vote has more power than the President and the 
practice of coronating in advance so that the nomination proceedings 
themselves do not have the impact of the meaning they ought to have by 
virtue of ruling out so many of the questions which nominees ought to 
answer. When I say ought to answer it is their decision and it is a 
balance, and the eight nomination proceedings from 1981 through 1993 
show I think a pattern that the nominees answered as many questions 
that they feel they have to answer.
  I would hope in the future that we would have some greater diversity 
on the Court. I would hope in the future that there will be greater 
diversity on nominations. I would hope in the future that Senators 
refrain from giving approval in advance or coronating nominees in 
advance so that we can do our duty, that we can really find out about 
these nominees and improve the caliber of the Supreme Court of the 
United States, as our fuunction is a very, very important one because 
the justices of that court do have the last word on the meaning of the 
Constitution.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.

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