UNITED STATES OF A M E R I C A

Congressional RecordPROCEEDINGS AND DEBATES OF THE 101st CONGRESS

SECOND SESSION

VOLUME 136—PART 19OCTOBER 1, 1990 TO OCTOBER 8, 1990

(PAGES 26695 TO 28083)

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1990

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26959The bill clerk read as follows:A concurrent resolution (S. Con. Res. 147)

supporting the actions taken by the Presi-dent with respect to Iraqi aggression againstKuwait.

The PRESIDING OFFICER. Thequestion is on agreeing to the concur-rent resolution. The yeas and nayshave been ordered. The clerk will callthe roll.

The assistant legislative clerk calledthe roll.

Mr. SIMPSON. I announce that theSenator from California [Mr.WILSON], is necessarily absent.

The PRESIDING OFFICER. Arethere any other Senators in the Cham-ber desiring to vote?

The result was announced—yeas 96,nays 3, as follows:

[Rollcall Vote No. 258 Leg.]YEAS—96

AdamsAkakaArmstrongBaucusBentsenBidenBingamanBondBorenBoschwitzBradleyBreauxBryanBumpersBurdickBurnsByrdChafeeCoatsCochranCohenConradCranstonD'AmatoDanforthDaschleDeConciniDixonDoddDoleDomeniciDurenberger

Hatfield

ExonFordFowlerGarnGlennGoreGortonGrahamGrammGrassleyHarkinHatchHeflinHeinzHelmsHollingsHumphreyInouyeJeffordsJohnstonKassebaumHastenKerryKohlLautenbergLeahyLevinLiebermanLottLugarMackMcCain

NAYS—3Kennedy

McClureMcConnellMetzenbaumMikulskiMitchellMoynihanMurkowskiNicklesNunnPackwoodPellPresslerPryorReidRiegleRobbRockefellerRothRudmanSanfordSarbanesSasserShelbySimonSimpsonSpecterStevensSymmsThurmondWallopWarnerWirth

Kerrey

NOT VOTING—1Wilson

enforcement of sanctions, called for the im-mediate release of all hostages, and reaf-firmed the right of individual and collectiveself-defense; and

Whereas, in response to requests fromgovernments in the region exercising theright of collective self-defense as provided inArticle 51 of the United Nations Charter,the President deployed United StatesArmed Forces in the Persian Gulf region aspart of a multilateral effort: Now, therefore,be it

Resolved by the Senate (the House of Rep-resentatives concurring), That (a) the Con-gress strongly approves the leadership ofthe President in successfully pursuing thepassage of United Nations Security CouncilResolutions 660, 661, 662, 664, 665, 666, 667,and 670, which call for—

(1) the immediate, complete, and uncondi-tional withdrawal of all Iraqi forces fromKuwait;

(2) the restoration of Kuwait's sovereign-ty, independence, and territorial integrity;

(3) the release and safe passage of foreignnationals held hostage by Iraq;

(4) the imposition of economic sanctions,including the cessation of airline transport,against Iraq; and

(5) the maintenance of internationalpeace and security in the Persian Gulfregion.

(b) The Congress approves the actionstaken by the President in support of thesegoals, including the involvement of theUnited Nations and of the friendly govern-ments. The Congress supports continuedaction by the President in accordance withthe decisions of the United Nations SecurityCouncil and in accordance with UnitedStates constitutional and statutory process-es, including the authorization and appro-priation of funds by the Congress, to deterIraqi aggression and to protect Americanlives and vital interests in the region.

(c) The Congress calls on all nations tostrengthen the enforcement of the UnitedNations imposed sanctions against Iraq, toprovide assistance for those adversely af-fected by enforcement of the sanctions, andto provide assistance to refugees fleeingKuwait and Iraq.

SEC. 2. The Secretary of the Senate shalltransmit a copy of this concurrent resolu-tion to the President.

EXECUTIVE SESSION

So the concurrent resolution (S.Con. Res. 147) was agreed to.

The preamble was agreed to.The concurrent resolution, with its

preamble, reads as follows:S. CON. RES. 147

Whereas on August 2, 1990, the armedforces of Iraq invaded and occupied theState of Kuwait, too large numbers of inno-cent hostages, and disregarded the rights ofdiplomats, all in clear violation of theUnited Nations Charter and fundamentalprinciples of international law;

Whereas the President condemned Iraq'saggression, imposed comprehensive UnitedStates economic sanctions upon Iraq, andfroze Iraqi assets in the United States;

Whereas the United Nations SecurityCouncil, in a series of five unanimously ap-proved resolutions, condemned Iraq's ac-tions as unlawful, imposed mandatory eco-nomic sanctions designed to compel Iraq towithdraw from Kuwait, called on all statesto take appropriate measures to ensure the

NOMINATION OF DAVID H. SOUTER, OF NEWHAMPSHIRE, TO BE AN ASSOCIATE JUSTICE OFTHE SUPREME COURT OF THE UNITED STATES

The PRESIDING OFFICER. Underthe previous order, the Senate willnow go into executive session, and pro-ceed to the consideration of the nomi-nation of David H. Souter, to be an As-sociate Justice of the Supreme Courtof the United States.

The nomination will be stated.

SUPREME COURT OF THEUNITED STATES

The assistant legislative clerk readthe nomination of David H. Souter, ofNew Hampshire, to be an AssociateJustice of the Supreme Court of theUnited States.

The PRESIDING OFFICER. TheSenator from Delaware.

Mr. BIDEN. Mr. President, let mebegin by suggesting that the commit-tee has worked diligently over theweekend to provide all Members of theSenate with a copy of the committeereport laying out in some significantdetail the rationale for the commit-tee's position, along with the dissent-ing view that was put forward.

Mr. President, let me say before webegin this process, that neither JudgeSouter nor his chief supporter, my dis-tinguished colleague from the State ofNew Hampshire, has urged me aschairman of the committee to rushthis process. But the President hasurged us to rush the process.

The Supreme Court sat for the firsttime this year, yesterday. Today is thesecond day of their sitting. And al-though, God willing, if Judge Souterbecomes Justice Souter, he will sit foras long as his predecessor JusticeBrennan did, which would mean foranother 34 years. A couple days willnot make a difference. But apparentlyit makes a great deal of difference tothe President of the United States.

So I would say to my colleagues I donot want to in any way curtail anyonespeaking as long as they would likeand feel the need to speak on such animportant nomination. But there is arumor drifting around here that, if wedo not finish by 6 o'clock, somehow weare not going to get to vote on JudgeSouter.

I hope either we finish before 6, or,if we do not, we stay tonight until wefinish voting on such an importantmatter, particularly in light of the factthat the President has publicly goneon television and exhorted me aschairman of the committee to movethe process along.

We have waived the 48-hour rulethat is ordinarily observed from thetime a report on a nominee is submit-ted to the Senate until the time wetake up the nomination. Even thosewho have opposed Judge Souter, andstated so publicly, have participatedand are willing to allow the process togo beyond its ordinary timeframe; thatis, move faster than the rules call for.

So with that brief introduction, letme suggest that I hope that my col-leagues are prepared to come to thefloor to speak on behalf or, if they areopposed, in opposition to Judge Souterso we can move as rapidly as possible.

I have a relatively long, about a 20-minute statement, on behalf of JudgeSouter's nomination. But I see thatsome of my colleagues who wish tospeak are here. I will have time tomake the statement because I am herefor the duration.

So rather than take the time at theoutset, I yield to my distinguished col-league from South Carolina, if hewishes to speak first. If not, I wouldmove to recognize one of our col-leagues. But I will withhold my state-

26960 CONGRESSIONAL RECORD—SENATE October 2, 1990ment which I will make at some pointtoday on behalf of Judge Souter.

Mr. THURMOND. Thank you verymuch.

The PRESIDING OFFICER. TheSenator South Carolina.

Mr. THURMOND. Mr. President,today, the U.S. Senate is consideringthe nomination of Judge David H.Souter to be an Associate Justice ofthe Supreme Court of the UnitedStates. The Judiciary Committee hadearlier undertaken its task of holdingextensive hearings and reviewing thequalifications of Judge Souter, a mostimportant responsibility.

Last Thursday, the Judiciary Com-mittee considered this nominee. Thecommittee favorably reported thisnomination to the full Senate by avote of 13 to 1.1 repeat, a vote of 13 to1. This vote is certainly a strong rec-ommendation to the full Senate infavor of Judge Souter, an individualwho has outstanding qualities to serveon this Nation's highest court.

Briefly, I would like to comment onJudge Souter's confirmation hearingswhich spanned 5 days. The committeeconducted a hearing which was equita-ble, thorough, and diligent. JudgeSouter's 3 days of exhaustive testimo-ny provided the opportunity to care-fully examine and review his intellec-tual capacity, moral character, andpersonal and professional background.Additional witnesses who testifiedmade a contribution to the commit-tee's consideration of Judge Souter'snomination to this esteemed position.Finally, I would like to commend thedistinguished chairman of the Judici-ary Committee, Senator BIDEN, for hishandling of the hearing on this nomi-nee which was conducted in a fair andequitable manner.

My review of Judge Souter's back-ground convinces me that he possessesthe necessary qualities to be an out-standing member of the SupremeCourt. His intellectual credentials areimpeccable: Phi Beta Kappa, Rhodesscholar, magna cum laude graduate ofHarvard, law degree from Harvard,and graduate study at Oxford Univer-sity. His experience is extraordinary:Currently serving as a judge of theU.S. Court of Appeals for the First Ju-dicial Circuit; formerly an associatejustice of the New Hampshire Su-preme Court for 7 years; previouslyserved as a judge on the New Hamp-shire Superior Court for 5 years;served as the attorney general for theState of New Hampshire; held posi-tions as deputy attorney general, as-sistant attorney general, and practicallaw in the private sector.

Mr. President, the American Bar As-sociation carefully scrutinized the pro-fessional competence, integrity, andjudicial temperament of Judge Souter.The ABA determined that JudgeSouter deserved its highest rating

based on its extensive investigationwhich included such comments as:

Judge Souter is highly competent and pos-sesses the scholarly, analytical, and writingskills necessary to serve on the SupremeCourt.

As well, Judge Souter had previouslyreceived the highest rating from theABA for his current position on theFirst Circuit Court of Appeals.

Regarding the hearings on thisnominee, Judge Souter's impressivetestimony before the committee dem-onstrates he is a man of keen intellectwho is devoted to the law. His thor-ough understanding of the law and an-swers to the vast number of probingquestions on a wide range of legaltopics assures me that he possessesthe substantial knowledge and under-standing to make an outstanding Su-preme Court Justice. Judge Soutershowed that he clearly comprehendsthe majesity of our constitutionalsystem of government and spoke elo-quently about the lessons he haslearned during his years of service onthe bench. The first lesson, he said, is

Whatever court we are in * * * where weare on a trial court or an appellate court, atthe end of our task some human being isgoing to be affected.

The second lesson, he stated, isIf * * * we are going to be judges, whose

rulings will affect the lives of other people• * * we had better use every power of ourminds and hearts and * * * beings to getthose rulings right.

I strongly believe that Judge Souterwill temper scholarly, knowledgeabledecisions with sensitivity for those in-dividuals who will be affected bythem.

Many distinguished witnesses testi-fied in favor of Judge Souter. Severalof these witnesses have known JudgeSouter for years—they are well awareof the outstanding qualities that thisindividual possesses.

Governor Baliles, who was formerlyattorney general and a former Gover-nor of Virginia, stated:

Judge Souter is an individual who [will]bring objective intellect, integrity, and cen-tered view of judicial procedure to the Na-tion's highest Court * * * not a populist buta rationalist, one who is moderate in toneand expression.

Ms. Deborah Cooper, a lawyer in pri-vate practice in Lebanon, NH, testi-fied:

I have unshakable confidence that JudgeSouter * • * will approach the issues beforethe Supreme Court * • • not with a pre-es-tablished political agenda or ideology, butwith superior legal skills, intellect and un-paralleled integrity.

A former Attorney General of theUnited States also testified in hisfavor.

Members of the law enforcementcommunity strongly endorsed JudgeSouter, testifying, he is "extremelywell-qualified to serve on the highestcourt in the United States."

There were certainly many otherdistinguished witnesses who spoke outstrongly in favor of Judge Souter for aposition on the Supreme Court. Timedoes not allow me to reiterate all ofthat testimony.

Mr. President, the framers of ourConstitution created the judicialbranch as an impartial, independentbranch of government. A member ofthe Supreme Court must considerhundreds, even thousands of issuesduring his or her tenure. While anyone issue may now be more prominentthan others, as times change, so willthe issues before the Court. A memberof the Supreme Court makes decisionsin a vast array of areas and is not putin place to make short-term decisionsto satisfy any political constituency,any one individual, or any particulargroup. This nominee should be judgedon his integrity and intellectual andprofessional qualifications—not on hiswillingness to endorse the views or po-sition of any one particular person orpolitical constituency.

In summary, this nominee, as doesany nominee, comes to the Senatewith a presumption in his favor. Asthe President is called upon under ourConstitution to make judicial ap-pointments, I strongly believe it is upto the opponents of a nominee to over-come the presumption in his favor.The burden of proof is not placed onthe nominee to prove that he is fit toserve. Clearly, those few who opposeJudge Souter have not overcome thepresumption in his favor.

In closing, Judge Souter has beenthoroughly scrutinized by the Judici-ary Committee. He has received the bi-partisan endorsement by 13 of the 14members of the committee. Withoutquestion, he has a keen sense of jus-tice, a clear view of the concept of fair-ness, and a deep understanding of theimpact his decisions will have on theindividuals affected by them. JudgeSouter will make an outstanding addi-tion to the Supreme Court.

I urge the Members of the Senate tovote in favor of this nominee.

I yield the floor, Mr. President.The PRESIDING OFFICER. The

Senator from Delaware.Mr. BIDEN. Mr. President, I am

going to make my statement now, butbefore I begin, let me acknowledgesomething I think is probably uniquein the annals of American history, al-though I cannot swear to that at thismoment.

The reason that I yielded—in the or-dinary processes the chairperson ofthe committee speaks first on an im-portant matter like this—the rankingmember of this committee, SenatorTHURMOND, has sat on and deliberatedover and voted on, I suspect, althoughI am not certain, more Supreme Courtnominations than any other person inthe history of the United States of

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26961America. I just want to say that it isan extraordinary pleasure workingwith him and it is an extraordinaryundertaking working with him becauseyou never quite know exactly what heis going to do or say no matter howmany of these nominees he has delib-erated over. But one thing always iscertain, whatever he says always endsup on point.

I think it is 23 appointees, nominees,to the Supreme Court of the UnitedStates, that Senator THURMOND ofSouth Carolina has voted on.

And he pointed out to meMr. THURMOND. There were 105

nominees.Mr. BIDEN. See what I mean? You

never know exactly what is going tohappen. He just pointed out to methere were 105 nominees in our entirehistory. So about 20 percent, between20 and 25 percent of all the nominees,about 20 percent of all the nomineesthat have ever been nominated for theCourt, my friend from South Carolinahas voted on them.

We have not always voted the same.I suspect I will be observing himvoting on nominees long after I haveleft this Chamber, and I suspect wewill not agree on all the nominees. Butwe do agree on this one, and we haveagreed on more than we have dis-agreed.

Ten weeks ago, Mr. President, Presi-dent Bush began the solemn task offilling Justice Brennan's seat on theU.S. Supreme Court by nominatingJudge David Hackett Souter to assumethat high post. Today, the Senate ex-ercises its constitutionally assignedrole in the process by deciding wheth-er we will give our consent to thePresident's nomination.

Over these past 10 weeks, the mem-bers of the Judiciary Committee havedevoted literally hundreds of hours tostudying Judge Souter's record, hiscredentials, and his judicial opinions.We held extensive hearings on thisnomination—the third longest set ofhearings on any Supreme Court nomi-nee in our history.

And most importantly, we used thesehearings to question Judge Souter indepth on matters of judicial philoso-phy and constitutional law. JudgeSouter was questioned for the secondlongest time of any Supreme Courtnominee; for almost 20 hours, we hadan opportunity to examine this manand his views.

We had the need—the duty—to learnas much about Judge Souter as possi-ble. No nominee in a quarter centuryhad come to this committee with lessknown about his or her constitutionalphilosophy than David HackettSouter. And no nomination—at anytime since the 1930's—had come beforethe Senate at a moment of such im-portance, in terms of setting thefuture direction of the Supreme

Court, and, I might add, in turn, theUnited States of America.

At this critical moment—what Icalled a constitutional crossroads, 3weeks ago today—I referred to it asthat and I contend it is that, a consti-tutional crossroad—I mentioned tothis Chamber that our committee hadan obligation to learn all that it couldabout David Hackett Souter's constitu-tional philosophy.

And at this critical moment—andwhere I disagree with my friend fromSouth Carolina—the burden of proofrests, as it always has and alwaysshould, on the nominee to demon-strate that he is the person whom weshould confirm to sit on the Nation'shighest court.

As I see it, Judge Souter has metthis burden of proof with respect tosome matters; he has failed it with re-spect to others. His philosophy wasneither proven to be wholly inappro-priate or wholly acceptable for confir-mation.

In my "additional views" in the Judi-ciary Committee report, I have de-tailed my personal assessment of whatwe have learned about Judge Souter'sphilosophy in nine key areas. Today, Iwould like to briefly summarize theseviews, starting with the most positiveaspect of Judge Souter's record, atleast as far as this Senator is con-cerned.

First, in the area of freedom ofspeech, Judge Souter indicated hissupport for Justice Brennan's land-mark precedent of New York Timesversus Sullivan; for the SupremeCourt's ban on prior restraint of thepress; and for the Brandenburg deci-sion that permits speech that urgescivil disobedience.

Thus, Judge Souter showed a verystrong dedication to the key principlesat issue in this area.

In the field of free exercise of reli-gion, Judge Souter indicated that hehad "no reason to raise questionsabout the appropriateness of the strictscrutiny test" for laws that impair reli-gious practice. Thus, Judge Soutersuggested that he disagreed with theSupreme Court's recent and restricteddecision in Employment Divisionversus Smith, a decision that in myview undermines religious freedom inour country. And again I found his dis-agreement with that decision very en-couraging.

In the area of stare decisis, JudgeSouter detailed a philosophy thatshows what I beleive to be a proper re-spect for precedent. He particularlyemphasized that before the SupremeCourt reverses, a prior ruling, itshould take into account "whether pri-vate citizens * * * have relied upon[the precedent] in their own planningto such a degree that * * * it would bea great hardship in overruling it now."

This, in my view, favorably distin-guishes Judge Souter from other

nominees who said that they wouldlook only at whether the Governmentstructures and social institutions havebeen built up around a particular deci-sion before deciding to reverse thecase, and not whether or not individ-uals as well had come to rely uponthat decision, a distinction with a sig-nificant difference, as I read whatJudge Souter is saying.

Finally, for this side of the ledger—the ledger where he has, in my view,unquestionably met what I believe tobe the burden of proof he must meet—and most importantly, Judge Soutercategorically rejected the arch-con-servative judicial philosophy of origi-nal intent, a philosophy, I might add,were it to be adhered to by the Su-preme Court, would require the Courtto overturn, as Judge Bork accuratelystated, a couple dozen landmark deci-sions.

And that view of original intent, theview that the meaning to the constitu-tional provisions should be limited tothe specific intentions of the Framersof the Constitution at the time theywrote the Constitution, that is what Imean and most people mean by origi-nal intent.

This doctrine—was Judge Souterhimself acknowledged—would under-mine many of the most important de-cisions the Supreme Court has givenus through the years. To name a few,Brown versus the Board of Education,a decision outlawing, making it illegal,and recognizing as unconstitutionalthe doctrine of separate but equal;separate facilities for black children inAmerica were no longer deemed to beconstitutional.

Another decision where I beleive itwould overrule that view of the Con-stitution is the one person, one voteruling, those decisions which said thatthey can no longer allow one part of aState with a very small population tohave a disproportionate say in the af-fairs of that State, giving, in effect,the people in the metropolitan areasless than an equal vote with people inrural areas.

And there are the Court's prece-dents that outlawed discriminationagainst women, a whole number ofcases that over the past years haverecognized that the 14th amendmentembraces the notion that when theysay equality, we are talking aboutequality for men and women, equalityamong the sexes. All of those areas ofthe Court's decisions would be, in fact,in jeopardy if the doctrine of originalintent were adhered to by the Court orthis nominee.

And Judge Souter said that this"original intent" doctrine, and I amnow quoting him, is "not * * * the ap-propriate criterion for constitutionalmeaning."

In a response to my question, andthe question I asked was this: "Does

26962 CONGRESSIONAL RECORD—SENATE October 2, 1990the correct interpretation of a consti-tutional provision • • • change overtime?" Judge Souter responded: "Prin-ciples don't change, but our percep-tions of the world around us and theneed for those principles do."

As a matter of fact, the very thingthat gave me heart and gave my friendfrom Iowa, who is on the floor, causeand pause, the very thing that mademe look at Judge Souter and say,"Well, we have a Judge here that willinterpret the Constitution, use a meth-odology that is consistent with theway the Court has ruled in the recentpast, and is necessary for the well-being of America," is the very thingthat my friend from Iowa very skillful-ly questioned the Judge about, be-cause it gave him great concern.

In all of these critical respects that Ihave mentioned, Judge Souter clearlyproved that his judicial philosophywas sound and, I would argue, com-mendable. In all of these critical re-spects Judge Souter met his burden ofproof and then some.

In other areas, though Judge Soutercompiled a more mixed record in thisSenator's view. And these are the fourareas I would like to address for amoment. The first is that there is thefirst amendment prohibition on the es-tablishment of religion. In that areahis record is mixed, in my view. HereJudge Souter criticized the prevailingSupreme Court rule in Lemon versusKurtzman—which, by the way I mightadd is not an exceptional view; manypeople have criticized it—but he did sowithout indicating what guarantees ofreligious liberty he would impose in itsplace. As a result, we are left with avery unclear picture of how JudgeSouter approaches this importantquestion. We have very little idea ofhow high he thinks the wall of separa-tion between church and state oughtto be.

The second area that gives me con-cern is the area of race discrimination.Here, too, some things Judge Soutersaid were quite hopeful. He called thestruggle for racial equality the mosttragic problem confronting theNation, and he suggested that at leastsome types of affirmative action, sometypes of affirmative action programs,are permissible, in his view; againgiving me reason for hope, giving someof my colleagues pause for concern.Yet aspects of Judge Souter's recordas Attorney General and his testimonybefore our committee were troubling.Again, the record is a mixed one.

Third, there is the area of genderdiscrimination. Judge Souter criticizedthe Supreme Court's current middletier scrutiny for laws that discriminateon the basis of gender and even im-plied that the basis for his criticismwas that the Court's existing standardfails to provide adequate protectionfor women's rights. As the Chairknows; there are three general tiers of

scrutiny. Strict scrutiny—the Courtsays the State has to have some over-whelming right to be able to justifythe existing practice saying womencannot do something men can do. Themiddle tier level says, we will listen toit, but it better be a pretty strongreason why you are allowing a discrim-ination between men and womenbased upon something a woman maywant to do. And then there is the ra-tional basis test which basically says,if the State comes up with any reasonthat is rational. There used to be caseswhere a woman could not be a bar-tender, and the rationale was "unlessthey happened to be married to or thechild of the owner of the bar." A ra-tional basis test basically was, it is ra-tional to want women to be home, notin the bar. That is kind of a preposter-ous notion under our thinking today,if we would say women cannot be abartender based on that reason. Butunder a rational basis test, were one inexistence, the State would be able topass such laws.

So, which tier of scrutiny—veryhigh, middle, or low—that the judgewould apply in dealing with genderdiscrimination cases is of great conse-quence to the people of this country,obviously to the women of this coun-try. Yet I found, notwithstanding thefact he criticized the middle tier andimplied that his criticism was based onthe fact that one could not be certainenough, that it was not strong enough,he never did tell us what standard hewould apply. I found that disappoint-ing, his failure to clearly indicatewhether his standards in this areawould be in fact more or less rigorousthan the current law. The judge's tonesuggests that he was headed in theright direction, from my perspective—that is, it should be a very muchstronger test the State should have toprove in order to be able to discrimi-nate against women for anything—butwe do not know for sure whether hewants a test that is stronger orweaker. I would have felt much morecomfortable had he been willing to tellus. And had he told us, he would notin any way be telling us how he wouldrule in a future case. He would just betelling us what methodology he wouldapply in order to interpret the facts inany given case.

Finally, there is the area of privacyand reproductive choice, probably thesingle most significant area that JudgeSouter failed to speak to. Choice; hereJudge Souter did say some encourag-ing things. He agreed there is a mari-tal right to privacy and the right ofmarried couples to make choices aboutprocreation, to use his phrase, "at thecore of" the fundamental right to pri-vacy. That is, the right to determinewhether or not to become pregnant is"at the core of" the right to privacyrecognized in the marital right to pri-vacy.

He agreed that the Constitution pro-tects unenumerated rights, unlikesome who have come before us in therecent past, and, more specifically,that there is a substantive content inthe due process clause of the 5th and14th amendments, important guaran-tees of liberty for all Americans.

He even said he would give meaningto the words of the ninth amendment,which was the most refreshing of allthat I heard. One recent brilliantnominee said the ninth amendmentwas little more—and I think I amquoting precisely when I say "littlemore than a water blot on the Consti-tution." It was nice to see a justicecome along and say there was a ninthamendment and it meant somethingand it was another potential protec-tion for individual freedoms.

Perhaps most importantly to me,Judge Souter flatly rejected the posi-tion being advanced by Chief JusticeRehnquist and Justice Scalia for de-termining when in the future privacyrights will be recognized by the Court.Judge Souter said that he "could notaccept their view." I find that incred-ibly encouraging.

When we brought that out—I willnot take the time of the floor at thismoment, but in footnote 6 of the Mi-chael H. case, the very erudite and ar-ticulate Justice Scalia set out a ration-al for the conditions under which theCourt should go back in history to ex-amine the social mores of a society todetermine whether or not it was everintended to be protected. But it was aformula for disaster. By taking his ra-tional and applying it, it would bevery, very difficult—very difficult—foranyone in the future to find thatthere were rights of privacy that exist-ed that individuals have. It would havemade it very difficult, using JusticeScalia's rationale set out in footnote 6,to have come to the conclusion on anumber of cases that are already law.Loving versus Virginia, that outlawedthe antimiscegenation laws—applyingthe rationale as most understand it,set forward by Justice Scalia in foot-note 6, it would be very difficult tofigure out how anyone, that Court,could have come to the proper conclu-sion of saying antimiscegenation lawswere unconstitutional. So, when JudgeSouter, rejected that rationale, it wasa significant step, in my view, towardhis meeting the burden of proof that Ibelieve he need meet in order to be onthe Court.

But at the opposite end of the spec-trum, Mr. President, on the privacyarea, I found some troubling things. Ifound most troubling Judge Souter'sinitial refusal to discuss whether un-married persons have any fundamen-tal right of privacy and, worse still, hisultimate declaration that whethersuch rights exist, that is such rights ofprivacy for unmarried individuals—I

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26963asked whether they existed or not."Do unmarried individuals have rightsto privacy?" His ultimate declarationwas that whether such rights exist isan open question.

Mr. President, in my view this is notan open question. Individuals do havea constitutionally protected right ofprivacy and it is a fundamental rightof privacy, and the Supreme Court, in26 cases written by 10 different Jus-tices over the past 17 years, has recog-nized this fundamental right. In call-ing the existence of a right to privacyan open question, Judge Souter, I be-lieve, was plainly wrong.

Mr. GRAHAM assumed the chair.Mr. BIDEN. Mr. President, yet, be-

tween the privacy issues on whichJudge Souter met his burden of proofand the issues on which Judge Souterfailed is one vital privacy issue whichJudge Souter declined to speak to alto-gether. And that is whether a woman'sfundamental right not to be pregnantcontinues after her birth control fails.

As I explained in detail during thehearings, I felt that Judge Soutercould have told us far more about hisviews in this area without compromis-ing his judicial independence or indi-cating how he would vote on a requestto overrule Roe versus Wade. JudgeSouter's refusal to talk at all about hisphilosophy in this area frustrated Sen-ators and frustrated our ability to ex-ercise one of our constitutional re-sponsibilities and, needlessly so. Forexample, Judge Souter was not at allreluctant to tell us, at least in whatgeneral categories he would apply,what methodology he would apply ongender discrimination cases. Yet, hewould not discuss that at all in theseother cases.

The real issue here is, in the mostfundamental form without speaking toRoe is, if we recognize that a womanhas a fundamental right to determinein the first instance whether or notshe should become pregnant, and thatis basically what the Connecticut case,Griswold, was all about. A marriedcouple said as a married couple, wehave a right to use birth control. Con-necticut State law, to oversimplify it,said you do not. It went to court. Thecourt said there is a fundamental rightto determine questions of procreation.So if a husband and wife decide theydo not want to have a child at thatmoment and use a birth control deviceand that is recognized as a fundamen-tal right of privacy to use that, whathappens when it fails? Does that rightvanish the moment a woman becomespregnant? What constitutes the legaldefinition of pregnancy? When doesthat right expire? And does it continueto be fundamental or is it a mere liber-ty interest, as every justice has ac-knowledged it could be?

What about contraceptive devicesthat, in medical terms, impact uponending a pregnancy after the sperm

and the egg meet? What is that? Howdo you make those distinctions? Some-one constitutionally has to do that.We were not asking Judge Souter howhe ruled on any particular case, butwhen does that fundamental right, heacknowledges, exist. How does itexpire, if it does?

In sum, he did not speak to thatquestion, and I have not said thisbefore, but I say it now. I believe thereason many of us have given him abye, if you will, on insisting that heanswer every one of those questions, isnot because we did not have a right toask those questions, and we did askthem, but it became clear to me thatJudge Souter had concluded that hewould not speak to anything, anythingat all, that got him remotely close tothat issue.

And so, if you look at the sum of histestimony relative to privacy, relativeto what he did not speak to, it is atough decision, and I can see howsomeone could conclude that on thebasis of that, they would not vote forhim. I, on the other hand, concludedthat on the basis of the whole record,I would vote for him.

So, in sum, today the Senate hasbefore it a nominee who has satisfiedhis burden of proof with respect tosome issues, straddled the line onothers, failed in some, and left us witha question mark on still other matters.This mixed picture makes this nomi-nation a very, very hard case; hard forme, as one Senator and as chairman ofthe Judiciary Committee, to determinewhat my proper role and responsibil-ities command me to do. But afterweighing the evidence very closelyand, believe me, I have read andreread and listened and prepared aswell as I possibly could, I believe, andweighed as closely and as fairly as Icould, and studied the record as in-tensely as I could, I on balance havedecided to support the confirmation ofJudge Souter as an Associate Justiceto the Supreme Court.

Taking Judge Souter at his word andrereading those words quite carefullyseveral times, I have come to the beliefthat Judge Souter is not an ideologicalrightwing conservative. And I do notmean only that he has proved himselfnot to be an extremist.

Judge Souter went much furtherstill. He clearly distinguished himselffrom an even broader school of legalconservatism, including some conserv-ative positions now being taken bymembers of the current court. He re-jected Justice Scalia's cramped formu-la for determining when fundamentalrights and unenumerated rights couldbe acknowledged. He rejected two keyprinciples of rigid interpretism, sayingthat the due process clause does pro-tect substantive liberties and that themeaning of the constitutional provi-sions cannot be limited to the originalintent of the framers.

He rejected the Court's recent ma-jority opinion in the Smith case on re-ligious freedom, and he rejected theconservative view that courts muststay out of the realm of addressingprofound social problems. Indeed,Judge Souter insisted that the Courtmust intervene in these areas when avacuum of responsibility exists.

This repeated rejection of the pre-cepts of modern archconservative lead-ership of legal interpretism, proved tobe what Judge Souter was not;namely, he is not the sort of man who,if confirmed, would run roughshodover the important precedents handeddown by the Supreme Court over thepast three decades.

But that alone is not enough.Beyond proving what he was not,Judge Souter also proved to me af-firmatively that much about his phi-losophy, about his approach to dealingwith the issues of the future merit ourconsent to his confirmation.

Weighing most heavily on me in thisrespect were Judge Souter's followingstatements: That he believed thatjudges must vindicate rights not ex-plicitly stated in the Constitution;that the due process clause protectsunenumerated liberties; that a funda-mental right to privacy exists; that hewould use a broad and not narrowmethodology in deciding when thecourt should recognize such rights;and, lastly, but importantly, thatjudges must use the Bill of Rights toprotect the rights of minorities.

These statements, of course, give usno clear sense of how Judge Souter isgoing to rule on any particular case,and I want to emphasize that point. Ihave no notion how he is going to ruleon any particular case. None of ushere today, none of us, know howJudge David Souter will rule on anyspecific case if he becomes JusticeSouter. But this is how it should be.

As we emphasized over and overagain during our hearings, our com-mittee was not looking for case specif-ic commitments from the nominee.What Judge Souter's statements tothe committee do indicate is that hehas an approach on most issues farmore conservative than I would hopefor the court, nonetheless an accepta-ble one.

I said that this was true of mostissues. Unfortunately, Judge Souter'sflat refusal to discuss reproductivechoice leaves us with no indication atall where he will come out on thisissue and, indeed, it leaves us with noindication at all of even how he thinksabout this constitutional question.

What Judge Souter did tell us, how-ever, was this: "I have not made up mymind and I do not go on the Courtsaying that I must go one way or theother."

This statement goes a step beyondrefusing to tell us his view on repro-

26964 CONGRESSIONAL RECORD—SENATE October 2, 1990ductive freedoms and tells us, if JudgeSouter is to be believed, and I do be-lieve him—he was under oath—thathis mind is open.

I am not undecided on the underly-ing question to which he would notspeak. I strongly believe that awoman's right to choose is a funda-mental right, a fundamental right pro-tected by our Constitution.

I believe that any attempts to readthat right out of the Constitution aremisdirected and, if they were read outof the Constitution, would reflect amistaken understanding of the truemajesty of the liberty clause of the14th amendment to our Constitution.

But I also known that the Presidentof the United States has a diametrical-ly opposed view to mine. PresidentBush has pledged to see Roe overruledbecause he believes it to be wrong. Heobviously has no intention of submit-ting, and will never submit, a nomineewho adheres to my very different viewon this matter. I know that and we allknow that.

It is one thing to reject a nomineewho would come to the court opposedto reproductive freedom. If the Presi-dent attempted to send such a nomi-nee, one who shared his view, he orshe would get a serious fight up here.Although it is always dangerous topredict the outcome of this body, Isubmit that that nominee would haveat best an even chance of surviving theadvise and consent process of theSenate. That is just one person's view.

But if the Senate goes a step furtherand also rejects a nominee who genu-inely seems to be open minded on thisquestion, neither committed to thePresident's view nor the opposingview—if we make that a litmus test forconfirmation, particularly in light ofthe fact that the nominee has gone somuch further on so many other issuesthat I have mentioned earlier leadingus to the inescapable conclusion thathe is not of the school of thought thatviews the Constitution in suchcramped and narrow terms—we willhave an eight-member Court for aslong as the President is President.

Under the circumstances of sharp di-vision between the White House andthe Senate, I believe the best we canhope for is a judge who has an expan-sive methodology for interpreting pri-vacy rights generally and genuinely—and I emphasize genuinely—has anopen-minded view of a woman's priva-cy right after conception occurs.

Judge Souter is not the sort of judgeI would nominate had the Presidentasked me who to nominate, but I thinkhe is about the best that we canexpect, from my perspective, from thisadministration.

With this realistic lens as my per-spective, I will vote for Judge Souter'sconfirmation. I do not so enthusiasti-cally, although I have come to have anincredibly high regard for David

Souter as an individual. I do not do sowithout reservation, for I have statedthose reservations as clearly as I knowhow. But nonetheless, I will supporthim.

In closing, I express the hope thatthe administration will not learn thewrong lesson from what will probablybe a lopsided vote in Judge Souter'sfavor today.

Our overwhelming approval, in myview, is not a sign that the Senate in-tends to be lax about exercising itsadvise and consent power or intends touse that power only to screen out ex-tremist nominees. Rather, it is a signthat we take this power seriously andthat we intend to exercise it responsi-bly—and in doing so Judge Souter fallswithin the sphere of candidates ac-ceptable to the Senate.

Based on the statements made, Imight add, in the committee when wevoted, this vote could have very easilybeen an 8-to-6 vote instead of a 13-to-lvote, for there were five other Sena-tors who said this was an incrediblyclose call for them.

I believe the burden of proof—I willend where I began, and this is wheremy friend from South Carolina and Idiffer—I believe the burden of proof ison the nominee. Just as the burden ison the President to convince theAmerican people to vote for him to bePresident, is on every Senator andCongressperson to convince the peoplein their State to vote for them to havethis power, it is also a burden that ison the nominee to be given such awe-some power for a lifetime. Any futurenominee who fails to meet thatburden—and I emphasize again howclose I believe this nominee came tothat line—will be vigorously opposed,at least by this Senator. Other nomi-nees possessing a more cramped viewof the Constitution and an unwilling-ness to acknowledge broad, unenumer-ated rights already recognized, and inthe future probably needing to be rec-ognized, could well fall outside thesphere of acceptability. For example, anominee who criticizes the notion ofunenumerated rights or the right toprivacy would be unacceptable in myview and I do not believe would passmuster here. A nominee whose view ofthe 14th amendment's equal protec-tion clause has led him or her to havea cramped vision of the Court's role increating a more just society for womenwould be unacceptable in my view. Anominee whose vision of the firstamendment's guarantees of freedomof speech and religion would constrainthose provisions in their historic scopewould I believe be unacceptable tomany here.

But Judge Souter is not such a nomi-nee. His vision of the Constitution isnot mine, but it is clearly not that ofhardliners who believe that the Con-stitution is meant to be read very nar-rowly. Neither is he a man whom I

would nominate, but he is a manwhose nomination I will support.

m Today we make a determination thatwill alter the course of this Nation fordecades to come, for if we consent toJudge Souter's nomination we put himin a position of awesome power and re-sponsibility, a position he is almostcertain to hold for a long time aftermost of us are gone from the Senatefloor. No one knows, no one can imag-ine what questions will be before theSupreme Court in the year 2024, theyear until which Judge Souter willserve if he is confirmed today andmatches Justice Brennan's tenure onthe Court.

But if history is any guide, tomor-row's issues, whatever form they willtake, will pit government against per-sonal liberty. That has always beenthe case. It has always been the con-flict—government versus personal lib-erty. It will pit majority tyrannyagainst individual rights. That hasalways been at issue in our constitu-tional battles. It will pit the danger ofdiscrimination against the dream ofequality for all Americans.

For 200 years, Mr. President, the Su-preme Court has served as the court oflast resort in the struggles that I havementioned. For 200 years the SupremeCourt has been the final guardian ofour fundamental rights. So it was forour parents and our gradparents andso it should be for our children andour grandchildren for decades to come.If we confirm him today, Judge DavidSouter will decide what our Constitu-tion means for the next generation. Itis an awesome power, an awesomepower that we are giving one man.While he would not be my choice toexercise that power, I believe he is thebest we could hope for from this ad-ministration.

Thus, it is with a hopeful heart andwith open eyes that I will vote for theconfirmation of Judge David HackettSouter.

I now yield the floor.Several Senators addressed the

Chair.The PRESIDING OFFICER. The

Senator from Iowa.Mr. GRASSLEY. Mr. President, I

rise in support of the nomination ofJudge David Souter. I do so because Ibelieve he understands the proper roleof the courts—especially the SupremeCourt—in our constitutional system.

To me, this has always been thetouchstone of a great justice.

Early in the 19th century, when ourgreat experiment in democratic self-government was still new and fragile,the Supreme Court confronted an im-portant question concerning the powerof the central government. The casemoved Chief Justice John Marshall towrite that the "judicial power, as op-posed to the power of the laws, has noexistence. Courts are the mere instru-

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26965ments of the law, and can will noth-ing."

That was the constitutional deal asthat great Chief Justice saw it, and asit was universally understood whenour system was created. In return forlife tenure on the bench, and in theabsence of direct intervention by theother branches, the courts were toplay a limited and objective role, with-out any policymaking function.

That is the way it has to be in ourconstitutional democracy, becausenothing in the theory or history ofseparation of powers would makesense if the courts can simply hijackthe power of Congress to legislate, orthe power of the Congress, the States,and the people to amend the Constitu-tion. While the executive and the leg-islative check the excesses of eachother, and the judiciary checks themboth, there is no direct check on theunconstitutional decisions of the Su-preme Court. The only check on thesenine men and women is their ownsense of self-restraint.

But rather than the restraint of aJohn Marshall, we have labored underthe limitless authority of others, suchas a later Chief Justice, who used toask, of a position advanced before theCourt, not if it was constitutional, butmerely if it was good. The result: Thepersonal preferences, overriding thepeople's government, and nullifyingthe rule of law.

These judges—including some whohave served on the Supreme Court-seem to have forgotten that they areappointed, not anointed. Some are sointoxicated with power and good in-tentions that they forget any sense ofrestraint. Their actions call to mindthe warning of Daniel Webster t h a t -

Good intentions will always be pleaded forevery assumption of power. It is hardly toostrong to say that the Constitution wasmade to guard the people against the dan-gers of good intentions. There are men in allages who mean to govern well, but theymean to govern. They promise to be goodmasters, but they mean to be masters.

The other branches—especially Con-gress—have been all too willing con-spirators in this new order, largely outof self-interest. After all, if we con-sciously let the courts make all thecontroversial policy decisions, andallow the courts to enact an agendathat could never pass the legislature,we can tell our constituents to blamethe courts, rather than us. But wehave paid a heavy price for this con-spiracy. For if we are to expect thepeople to respect and obey court deci-sions, the people must believe that thecourts—and in particular the SupremeCourt—are governed by the rule oflaw, not a rule of man. Unfortunately,many people have lost faith in the ju-diciary as an impartial, nonpoliticalbranch. They see the courts not as anumpire, but a partisan player—onethat, to cite but one example, inten-

tionally favors a criminal defendantover a victim and the law enforcement.

Over the past 3 weeks, we heardmuch about rights; rights granted byGovernment and rights unenumerat-ed. But if our Constitution means any-thing it means that we have the rightto govern ourselves pursuant to therule of law. That law applies not justto people in Des Moines, or CedarRapids, or Council Bluffs in my homeState; it has to apply to the SupremeCourt as well. The Supreme Courtmust be every bit as governed by theConstitution as the rest of us are.

Judge Souter has earned my vote tobe Justice Souter because I concludethat he understands the limited roleof a judge in a constitutional democra-cy. I believe he understands what Jus-tice Frankfurter meant when the Jus-tice said that nothing new can beadded to the Constitution except bythe amendment process and nothingold can be removed except throughthat same process.

Let me underscore this: Irrespectiveof David Souter's impressive resumeand his great intellect, he would bedisqualified to be a Supreme CourtJustice unless he is both willing andable to subject himself to the self-re-straint which enables him to acceptthe Constitution as his rule for deci-sion, and makes him refrain from at-tempting to revise or update that in-strument according to his personalviews. If David Souter lacked eitherthe ability or willingness to exerciseself-restraint, he would not truly sup-port the Constitution, no matter hisrespect for that document or his oathof office that he will soon take.

Fortunately, in his 12 years as a trialand appellate judge, Judge Souter hasmany times demonstrated his commit-ment to judicial restraint and is fideli-ty to a written Constitution.

Mr. President, I questioned JudgeSouter closely on the issue of judicialrestraint. I was comforted to hear himstate that judges stray from their rolewhen they decide cases according totheir own views of public policy ratherthan according to the dictates of law.When I asked him about the potentialof judges to roam over the social land-scape to address problems and issuesat will, Judge Souter explained thatthe very legitimacy of judges in a de-mocracy rests on their appeal to a lawthat is outside themselves, as he testi-fied:

What we are trying to do to avoid thatroving quality, that knight errancy, is to tryto find an objective source of meaningwhich constrains us, as well as the rest ofthe Republic, which was intended by thepeople who drafted and the people whoadopted the constitutions and the statutesthat we are dealing with, because it is onlyif we try to search for a source of meaningoutside ourselves and our preferences or thepreferences that may be fleeting at themoment do we really deserve, as members ofa judicial system, the respect and the ac-

ceptance which ultimately is the foundationfor the rule of law in the Republic or in anyrepublic.

Mr. President, I followed up JudgeSouter's answer by seeking his reac-tion to the legal philosophy of JudgeRobert Bork, that—to quote Bork:

In a constitutional democracy, the moralcontent of law must be that of a framer orlegislator, never that of the morality of thejudge.

Judge Souter agreed entirely. As heelaborated, quote:

We have not been placed upon courts, ineffect, to impose our will. We have beenplaced upon courts to impose the will thatlies behind the meaning of those whoframed and by their adoption intended toimpose the law and the constitutional law ofthis country upon us all.

In the nominee's view, therefore, ajudge must follow the law, and not hispersonal views of morality or policy.In recognizing this fundamental limi-tation on a judge, Judge Souter hasdemonstrated that he possesses thesingle most important qualification forservice in the judiciary in our systemof divided powers.

Mr. President, a fair amount hasbeen made of Judge Souter's seemingendorsement during the hearings ofan activist judiciary when the politicalbranches of Government are slow toact. A close reading of the transcripthowever, belies this hope on the partof fans of judicial activism.

Judge Souter emphasized that thecourts are not super-legislatures, re-sponsible for addressing every social illor injustice, but rather play the morelimited role of protecting those liber-ties and rights conferred by the Con-stitution or otherwise retained by thepeople.

To be sure, I was troubled by his in-troduction of the concept of legislativevacuums that could be filled by courtswhen others were slow to act. Butupon my further questioning, JudgeSouter made an important distinc-tion—that the jurisdiction of the Fed-eral courts can never be derived fromperceptions of the moment about whatought to be done. As Chief JusticeHughes wrote:

Extraordinary conditions do not create orenlarge constitutional power.

Judge Souter agrees. As he put it:The Supreme Court should only act and

can only act when it has the judicial respon-sibility under the 14th amendment or anyother section of the Constitution.

Judge Souter thus believes thatcourts may act only when they are em-powered to do so, and not simply whenthey perceive that a social problemhas gone unaddressed or unremedied.

This principle of restraint is not, assome argue, a controversial or extremetenet of "modern arch-conservativelegal thought." Rather, it is the cor-nerstone or our constitutional system.It is the defining characteristic of the

26966 CONGRESSIONAL RECORD—SENATE October 2, 1990judiciary in our Government of divid-ed powers.

I am therefore encouraged by JudgeSouter's view of the properly limitedrole of the Federal courts.

Mr. President, Judge Souter's 12years on the bench shows a faithful-ness to the text and original meaningof the Constitution and statutes.

This is a most sound and appropriatemethod of judging. Judge Souter be-lieves that judges must decide casesaccording to principles of law not theirown personal predilections or prefer-ences. For example, in response to an-other of my questions, Judge Soutersaid:

It is essential for us to have some idea ofthe criterion that we are going to employ tofind values which are not simply reflectionsof our own feelings at the moment and ourown feelings about the desirability of theclaims that may be pressed before us.

Judge Souter also properly recog-nizes that a judge must always be onhis guard lest he substitute his ownviews for those of the framers of theConstitution or the Congress. JudgeSouter's colloquy with me on thispoint is revealing, and even reassuring.He said:

We have not been placed upon courts * • *to impose our will. We have been placedupon courts to impose the will that liesbehind the meaning of those who framedand by their adoption intended to imposethe law and the constitutional law of thiscountry upon us all.

Mr. President, this original meaningapproach is in the best traditions ofconstitutional adjudication. Its originscome right from the beginning of ourNation. As the great Justice JosephStory wrote in 1833:

The first and fundamental rule in the in-terpretation of all [written] instruments is,to construe them according to the sense ofthe terms and the intentions of the parties.

To this day, apparently, some insiston mischaracterizing this as an arch-conservative, or discredited philoso-phy. They are in error when theyallege that acceptance of originalmeaning would freeze the Constitutionas it was two centuries ago. No one ofthe interpretivist school believes this,and the critics know it.

The genius of the Constitution,which was contributed to its longevity,is that it was not meant to be a code oflaws covering all situations. The prac-titioners of original meaning under-stand this. Rather, they see the docu-ment as setting up a structure and aset of principles for governing. And itis these principles that judges likeDavid Souter are faithful to.

Thus, it is wrong to suggest thatthere is some inconsistency betweenJudge Souter's approach to Brownversus Board of Education and his dis-sent in Estate of Dionne. In Dionne,Judge Souter relied on historical evi-dence—in that instance reaching backto Magna Carta—in order to under-stand the meaning of a constitutional

provision that descended from theMagna Carta.

As Judge Souter explained to ourcommittee, the principle contained inthe New Hampshire constitution wasin his view a fairly narrow one. Hetherefore believed that the NewHampshire Supreme Court had nopower to broaden it, replacing theConstitution's principle with its ownfeelings. Whatever the historicalmerits of Judge Souter's explanationof the text in that case, I agree withhim that the court's responsibility wasto apply the original principle.

To be perfectly candid, I was notcomfortable with every answer fromJudge Souter. But I understand andappreciate that our committee hear-ings have increasingly become mattersof political theatre—where nomineesare now forced to show allegiance tocertain pet theories of Senators. Iplace more weight on 12 years as ajudge, over 3 days as a candidatebefore the committee. Having saidthat, I also assume that there will bedecisions by Judge Souter with whichI will disagree. But no Senator has aright to insist on his own issue-by-issue philosophy, at least not if judi-cial independence is to mean anything.

You see, to be a "conservative" whenit comes to the Court has nothing todo with particular outcomes, or evencounteracting the past liberal activ-ism. Conservative activism is no betterthan liberal activism.

Rather, a true conservative philoso-phy gives the constitution a full andconscientious interpretation, butwhere the constitution is silent, leavesthe policy struggles to the Congress,the President and the people of the 50States.

Many, however, who oppose thisnominee are frankly not interested ina justice who will respect the people'schoices, or even one who will be fair,open-minded, and without a privateagenda. Indeed, some are openly hos-tile to the idea of a Justice who willdecide cases as they come, withoutprejudgment. Rather, they want ajudge who will rule their way, everytime. No one—Senator or interestgroup—is entitled to this.

It is gratifying that the Senate is sooverwhelmingly rejecting the extrem-ist view, a view that unfortunately pre-dominated during the debate in thefall of 1987.

Finally, Mr. President, I must objectin the strongest possible terms to anew idea floated during these hear-ings, either implicit or explicit, that anominee must meet a burden of proofto be confirmed.

A nomination is not in any way atrial, nor should it be confused withone through the introduction of suchlegal terms. To speak in terms ofburden of proof begs other questions:Is it the burden of production or theburden of persuasion? Is the burden

met only by a preponderance of theevidence or must the nominee provehimself fit beyond a reasonable doubt?

As deployed in the committeereport, and that is in the additionalviews of that report, however, thiswhole subject becomes clear that anominee meets his burden only byagreeing with a Senator's views onpast precedents or legal philosophy.The burden of proof is thus simply alitmus test by another name. I rejectthis test and am confident that mostSenators do, as well.

Mr. President, I support the nomina-tion, and I yield the floor.

The PRESIDING OFFICER. TheSenator from Massachusetts.

Mr. KENNEDY. Mr. President, firstof all, I join those who pay tribute tothe chairman of the Judiciary Com-mittee for the manner in which heconducted the hearings, the forum ofthe hearings themselves, the balancethat he developed in the presentationsof a wide variety of witnesses. Both inregard to this nominee and I must sayalso with regard to the controversialnomination of Judge Bork, I think allof the members of that committee andall of us in the Senate owe a greatdebt of gratitude to our chairman,Senator BIDEN, and I think the Ameri-can people who had the good chanceto watch these hearings must alsoshare in that opinion, and I acknowl-edge the work of Senator THURMOND,as well. This has been a result of a bi-partisan effort of both the chairmanand the ranking minority member, andI pay tribute to his contribution in de-veloping these hearings.

From the beginning of our Nation,the Senate of the United States andthe President of the United Stateshave had a shared responsibility in theappointment of Justices to the Su-preme Court.

That responsibility is assigned to thePresident and the Senate by the spe-cific terms of the Constitution itself.

For 200 years, it has been among thehighest responsibilities that any Sena-tor has. Today, it is more importantthan ever, because of the central placeof the Supreme Court in the life andthe liberty of our Nation.

In fact, in the original drafts of theConstitution in 1787, the Founders ofour country gave the Senate the soleresponsibility for appointing Federaljudges. But in the final draft, after thegreat debates that determined thefuture course of our Nation, the con-cept of dual or shared responsibilitywas adopted, as one of the majorchecks and balances of our system ofGovernment. For two centuries, it hasensured that neither Congress nor thePresident has excessive influence overthe Supreme Court.

Today, as always, our responsibilityas Senators is to make our own inde-pendent assessment of the qualifica-

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26967tions of Supreme Court nominees. Inexercising that responsibility, ourchief obligation is to determine wheth-er the President's nominee possesses asufficient commitment to the core con-stitutional values at the heart of ourdemocracy. If we have serious doubtsabout the sufficiency of that commit-ment, our own responsibility as Sena-tors is clear.

We are not only entitled to rejectthe President's nominee—we areobliged to do so. No President has ablank check in appointing members ofthe Supreme Court.

As I stated at the outset of the hear-ings, Judge Souter has a distinguishedbackground. But aspects of his recordon the bench and in the New Hamp-shire attorney general's office raisedtroubling questions about the depth ofhis commitment to the role of the Su-preme Court and Congress in protect-ing individual rights and libertiesunder the Constitution.

Far from dispelling these concerns,Judge Souter's testimony before theSenate Judiciary Committee rein-forced them. In particular, my con-cerns center on the fundamental con-stitutional issues of civil rights, theright of privacy, and the power ofCongress and the courts to protectthese basic rights.

Judge Souter's record and testimonyon issues related to civil rights is par-ticularly troubling. As attorney gener-al of New Hampshire, Judge Souterdefended Gov. Meldrim Thomson's de-cision to refuse to provide data on theracial composition of the State govern-ment work force required by regula-tions of the Equal Employment Op-portunity Commission pursuant totitle VII of the Civil Rights Act of1964.

Attorney General Souter took theposition that it was unconstitutionalfor Congress to require employers tocompile and report such statistics. Noother State advanced such a speciousargument. His petition to the SupremeCourt even took the extraordinary po-sition that the EEOC was violating aworker's constitutional right to priva-cy by requiring employers to reportthe overall racial composition of theirwork force.

Judge Souter repeatedly defendedthe appropriateness of his actions asattorney general in challenging theEEOC regulation. It was only after re-peated questioning that Judge Souterfinally admitted that the courts hadbeen correct in rejecting his argu-ments.

His unenthusiastic after-the-fact en-dorsement of the Court's decision doesnot dispel the doubts raised by JudgeSouter's reactionary arguments in thecase.

Discrimination is a national prob-lem, and Congress is entitled underthe Constitution to seek national solu-tions.

Attorney General Souter's participa-tion and persistence in this case istroubling, because it suggests an ex-tremely narrow view of the power ofCongress to end race discrimination orother evils in our society.

As attorney general, Judge Souterwas not merely acting as a lawyer forhis client, the Governor. True, he hadthat obligation. But he also had ahigher obligation. As part of his oathof office, he also made a commitmentto support the Constitution of theUnited States. Yet in this case, heshowed himself willing to make an ar-gument that no other State in theNation was prepared to make, an argu-ment that the Court flatly refused toaccept.

Similarly, in the area of votingrights, Judge Souter was quick to chal-lenge congressional legislation whenNew Hampshire's opposing practicewas at stake. In landmark legislation,the Voting Rights Act of 1965, Con-gress banned the use of literacy testsin States where the tests had beenused for discrimination.

Extending the act in 1970, Congressdetermined that literacy tests were in-herently discriminatory, and bannedthe use of literacy tests in voting na-tionwide.

New Hampshire had a literacy test,and in 1970, it refused to comply withthe Federal law. So the United Statesbrought suit to prohibit New Hamp-shire from enforcing its State test forthe 1970 elections.

In opposing the suit, Judge Souterrepresented the State and argued allthe way to the Supreme Court thatCongress did not have the constitu-tional authority to ban literacy tests,in the absence of evidence that thespecific tests had been used in a dis-criminatory fashion.

A three-judge Federal court rejectedthat argument, and struck down NewHampshire's literacy test. In Oregonversus Mitchell, the Supreme Courtruled unanimously—9 to 0—that theban on literacy tests was a constitu-tional use of congressional power.

As an assistant attorney general,Judge Souter participated extensivelyin the litigation over the New Hamp-shire test. What I find most disturbingabout his position on this issue wasthe conclusion, advanced in his briefs,that citizens who cannot read cannotcast meaningful ballots.

Judge Souter either chose to ignore,or was unaware, of ways in whichvoters who cannot read can be assistedin casting ballots. In fact, at the timehe filed his brief, people who couldnot read had been voting for years inother States, and blind voters wereguaranteed assistance at the polls inNew Hampshire.

His insistence that literacy testscould be used to exclude such votersdemonstrates a willingness to discrimi-nate against those who have been less

formally educated, but who can stillmake intelligent, well-informed deci-sions about candidates and issues inelections.

As Father Theodore Hesburgh,Chairman of the Civil Rights Commis-sion, noted in a letter to PresidentNixon when Congress was consideringthe Voting Rights Act of 1970:

The lives and fortunes of illiterates are noless affected by the actions of local, state,and federal governments than those of theirmore fortuante brethren. Today, with tele-vision so widely available, it is possible forone with little formal education to be a well-informed and intelligent member of theelectorate.

In fact, when the Federal districtcourt rejected Judge Souter's argu-ments and issued an order to suspendthe literacy test, New Hampshire didestablish procedures so that citizenswho could not read were still able tovote.

In this case, as in the case involvingthe EEOC, Judge Souter took the po-sition that Congress did not have thepower to deal with a serious nationalproblem. Also, as in the EEOC case,the Federal courts unanimously reject-ed his view.

Obviously, these are gray areaswhere plausible arguments can bemade that Congress has exceeded itsconstitutional powers. But in thesetwo cases, Judge Souter's positionswere categorically rejected by the Su-preme Court.

In effect, in challenging congression-al power in these two cases, he waswilling to defend the indefensible.

I asked Judge Souter about the liter-acy case during his confirmation hear-ings. Defending his view that the votesof people who cannot read woulddilute the votes of people who canread, he called it simply "a mathemati-cal statement * • * essentially a kindof statement of math."

The manner with which he dis-missed the right of the poor and uned-ucated in his State to vote is all themore troubling because his responsewas one of the rare spontaneous mo-ments of the hearing.

Prior to the committee hearing,news reports of a 1976 commencementaddress at Daniel Webster College byJudge Souter when he was AttorneyGeneral had received widespreadmedia attention. According to contem-poraneous reports of the address inseveral newspapers, Attorney GeneralSouter had described affirmativeaction programs as affirmative dis-crimination.

When questioned about the remarkat his confirmation hearing, JudgeSouter replied, "I hope that was notthe exact quote because I don't believethat." Judge Souter went on to ac-knowledge that he had seen the newsreports on his speech at the time hegave it, but did not indicate that hedenied the statement attributed to

26968 CONGRESSIONAL RECORD—SENATE October 2, 1990him or sought a correction. During histestimony, Judge Souter never deniedmaking the statement.

Instead, he attempted to defend hisremark by arguing that he had beenreferring to affirmative action pro-grams which were not linked to reme-dial purposes, but were merely distrib-uting benefits for the sake of reflect-ing some formula of racial distribu-tion.

Judge Souter's record on sex dis-crimination also raises troubling ques-tions. Until the 1970's, the SupremeCourt applied a weak standard to casesinvolving claims of such discriminationunder the equal protection clause.

The courts accepted any rationalbasis for laws that treated men andwomen differently. Under this ap-proach, women were routinely ex-cluded from many occupations andsubjected to forms of discriminationthat almost all of us would regard asintolerable today. I believe the chair-man of our committee reviewed theproblems caused by this approach inhis statement, for example, womenwere denied the opportunity to workin bars, and women were prohibitedfrom being on juries in this country.

In the 1970's, however, the SupremeCourt began to apply a higher stand-ard of review to classifications basedon sex, and struck down laws that dis-criminated against women. JudgeSouter challenged this new standardas Attorney General Souter, and in a1978 case, he urged the SupremeCourt to "define, shape, limit or eveneliminate" the standard.

The case involved the New Hamp-shire statutory rape law. A man con-victed under the statute claimed thelaw was unconstitutional, because itdid not apply to women. The SupremeCourt refused to review the case, but afew years later, in another case, theCourt made clear that under its higherstandard of review, statutory rape lawsare valid, even if they do not apply towomen.

It is disturbing that Judge Souter'sbrief suggested that the SupremeCourt eliminate the higher standardof review in sex discrimination cases.If he were genuinely concerned aboutthe rights of women, the obvious argu-ment to have made was that evenunder a higher standard of review,statutory rape laws are valid. But hedid not take that course. Instead, hesuggested that the Court go back tothe old law, which had permitted sexdiscrimination to flourish.

When asked during his testimonybefore the committee whether legisla-tive classifications based on sex shouldbe accorded heightened or intermedi-ate scrutiny under the three-tier equalprotection analysis applied by the Su-preme Court, Judge Souter endorsedsome type of scrutiny between theweakest level, or rational basis testand the highest level, or strict scrutiny

test. But he did not commit himself toa standard for sex discrimination thatis at least as exacting as the standardcurrently used by the Court to invali-date many gender-based laws. Thus,there is significant doubt that JudgeSouter will apply a sufficiently rigor-ous constitutional standard to makeprotection against sex discrimination ameaningful constitutional right forthe women of America.

On the issue of whether the Consti-tution protects a right to privacy,Judge Souter said he believes that"the due process clause of the 14thamendment does recognize and doesprotect an unenumerated right of pri-vacy." However, Judge Souter refusedto reveal whether he believed there isany fundamental privacy right outsidethe marital relationship. Specifically,in discussing the constitutional statusof abortion, Judge Souter would go nofarther than to say that abortion"would rank as an interest to be as-serted under liberty."

In his opening prepared statementto the committee, Judge Souter spokedisarmingly about his constant aware-ness that his decisions as a judgewould affect real people.

But when asked at the hearingabout the consequences facing womenif Roe versus Wade is overruled, hefirst described the situation as a prob-lem of federalism. Asked a second timeabout the impact on women, he de-scribed it as a law enforcement prob-lem. Finally he observed that "what-ever the Court does, someone's lives,and indeed thousands of lives, will beaffected, and that fact must be appre-ciated." Judge Souter said that he hadnot made up his mind about Roeversus Wade, but these answers aremore alarming than disarming.

In fact, Judge Souter's reluctantcomments, while ambiguous, suggestthat, in fact, he takes an excessivelyrestrictive view of the right to privacy,and that he is likely to side with theJustices on the Court who are pre-pared to overrule Roe versus Wade, orleave it as a hollow shell.

Judge Souter's reluctance to discussspecific constitutional issues relatingto abortion and the right to privacy,contrasted sharply with his willingnessto discuss, in great detail, his views onother constitutional issues likely tocome before the Supreme Court, in-cluding church-state issues and capitalpunishment.

I am troubled that if Judge Souterjoins the current closed divided Su-preme Court, he will solidify a 5-to-4anticivil rights, antiprivacy majorityinclined to turn back the clock on thehistoric progress of recent decades.

If so, literally millions of our fellowcitizens will be denied their rights asAmericans to equal opportunity andequal justice under law.

I hope I am wrong. But I fear I amright. To a large extent, in spite of the

hearings we have held, the Senate isstill in the dark about this nomina-tion. And all of us are voting in thedark. The lesson of the past decade ofthe Senate's experience in confirmingjustices to the Supreme Court, is thatwe must vote our fears, not our hopes.If nominees do not meet the test ofdemonstrating a convincing good-faith, in-depth, abiding commitmentto the core constitutional values of thekind so obviously at stake at this turn-ing point in our history. They can—and should—be rejected by the Senate.To apply a lesser standard is to failour own constitutional responsibilityin the confirmation process.

In my view, Judge Souter does notmeet that test. In good conscience, Icannot support this nomination.

The PRESIDING OFFICER (Ms.MIKULSKI). The majority leader is rec-ognized.

THE BUDGET RESOLUTIONCONFERENCE REPORT

Mr. MITCHELL. Madam President,as in legislative session, I note thepresence on the floor of the distin-guished Republican leader with whomI had a number of discussions todayregarding the procedure with respectto the budget resolution conferencereport.

I apologize to our colleagues for in-terrupting this debate. This will justtake a few moments.

Because there has been a great dealof interest by the press and, throughthe press, the public in the procedurethat we would use, I thought it wouldbe useful to bring the membership ofthe Senate up to date on how we areprogressing in that regard.

As the Members of the Senate know,we are dealing with a conferencereport on the budget resolution. Theoriginal schedule called for the Houseto take the matter up first, whichwould be the case in the ordinarycourse of events and, following actionby the House, to have the mattertaken up in the Senate.

It is my understanding that theHouse is now considering taking thematter up during the day on Thurs-day, which means that if the confer-ence report were approved in theHouse, we in the Senate would betaking it up sometime Thursday after-noon. I would like, if I might, to yieldto my distinguished colleague for fur-ther discussion in that regard.

Mr. DOLE. We had discussed thepossibility, maybe, of initiating theaction on the Senate side based on thehope that we have the votes on theSenate side, on each side of the aisle,to pass the conference report, andthen send it to the House where thatmay be more in doubt. But there aresome procedural difficulties that couldbe encountered there, as we have dis-

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26969cussed privately, and I would guess forthe present are still under review, as Iunderstand it, because there could bea motion to recommit offered; thatcould be amended. That could presentproblems.

But the important thing, I think, isthat we get to it as quickly as we canand act in a positive way because if notwe are going to be faced again onFriday with another continuing reso-lution and extending the debt ceilingand delaying sequester or letting theGovernment come to a halt. I hope mycolleagues in the Senate and my col-leagues in the House fully appreciatethe consequences if we do not act in apositive way.

Mr. MITCHELL. Madam President,I have discussed this with the distin-guished Republican leader and withthe Speaker today, both in person andby telephone. Just for the informationof Senators, under the rules of theSenate, conference reports are subjectto motions to recommit if the Househas not yet acted on the conferencereport. And of course such motions torecommit could include instructions.The instuctions themselves would besubject to amendment.

By contrast, if the House has al-ready acted, the conference is dis-solved and the matter is before theSenate not subject to either motionsto recommit or amendment and there-fore there would simply be one vote onit.

I want to make very clear we aretalking here about the budget resolu-tion which legally binds only as to theaggregate budget figures. The specificlaw changes which create, in effect,the subparts that lead up to thosetotals would not be effectivelychanged as a result of the budget reso-lution, but rather would be in the rec-onciliation bill which will follow. Andunder the agreement that we reachedon Sunday, would follow not laterthan October 19.

At that time, in the Senate the rec-onciliation bill will be fully open toamendment and debate. So I wantedto make clear we are not attempting inany way to foreclose Senators from of-fering amendments to the reconcilia-tion bill to change that. That is therelevant and appropriate stage in theprocess at which amendments can beoffered and both the distinguished Re-publican leader and I fully expect suchamendments to be offered. What weare trying to do not is to start theprocess in motion that will produce areconciliation bill and that requires asa first step enactment of the confer-ence report on the budget resolution.

So we are going to continue to con-sider the measure and determine themanner most likely to produce the de-sired result, which is the adoption ofthe conference report of the budgetresolution, enabling us to proceed tosend the matter to the committees

who will report back. And then we willhave a reconciliation bill on the floorthat will include all of the specific lawchanges and be open to amendment byMembers.

Mr. DOLE. If the Senator will yieldfor 1 additional moment, he put hisfinger on it in the last sentence or two.The ultimate, the bottom line, is to getthe conference report adopted and thereconciliation. The leadership alongwith the President has committeditself to this course. We want it to besuccessful. There is a lot riding on it.Not the leadership or not the Presi-dent, but there are lot of people in thecountry who I think are looking forleadership on this particular issue, aspainful as it may be to some. We haveto devise a strategy that will try tomake certain that will happen.

We are continuing to review it. Thenormal procedure would be it would goto the House and come to the Senate.I just urge my House colleagues tothink very seriously about the conse-quences—some of my House col-leagues.

Mr. MITCHELL. Madam President,if I might add, in conclusion, I sharethe concern of the distinguished Re-publican leader and hope very muchthat the conference report will be ap-proved in the House and in theSenate.

Again, so Members of the Senate un-derstand that they are not agreeing toa procedure that would prohibit allamendments. When we come backwith a reconciliation bill, as we have inthe past, that bill would of course besubject to the provisions of the BudgetAct, that is the time for debate wouldbe limited and there are certain testswhich apply to amendments to thatbill under the Budget Act. But withinthose constraints of the Budget Actwhich traditionally have applied tothe reconciliation bill, Senators wouldbe free to offer their amendments andhave them debated and voted on herein the Senate. That is, of course, theappropriate stage in the process to ac-complish that.

I am going to continue our discus-sions with the Republican leader andthe Speaker. I merely wanted throughthis exchange to inform Senators ofthe current state of the process andsummarize it. It now appears that theHouse will act on the conferencereport Thursday during the day andthen it will come to the Senate andhopefully we will have it on theSenate floor for action during the dayon Thursday. That is our present plan.That is of course subject to change.But I will keep Members fully advisedas soon as any final decision is made.

I thank the distinguished Republi-can leader and I thank particularly myfriend and colleague from Utah foryielding to permit us to have this ex-change.

NOMINATION OF DAVID H.SOUTER, OF NEW HAMPSHIRE,TO BE AN ASSOCIATE JUSTICEOF THE SUPREME COURT OFTHE UNITED STATESThe Senate resumed consideration

of the nomination.The PRESIDING OFFICER. The

Senator from Utah.Mr. HATCH. Madam President, I

have listened to the remarks madethus far. I do not think any personwants to see anybody go on the benchwho is a radical activist judge eitheron the left or on the right. I thinkwhat we want is we want judges whobasically are going to be people who Ithink, frankly, look, act, talk, andthink like Judge David HackettSouter.

He calls himself an interpretist. Iwould use the term interpretivist. Inother words, he indicates he is goingto determine the constitutional deci-sions that come before him, and thelegislative decisions and other deci-sions, based upon the original meaningof those documents.

That does not mean necessarily thathe is going to go back into the mind ofJames Madison and the other Found-ers. But he will follow the broad mean-ing, which the Founders anticipatedwithin their language that they usedin these various documents.

We are founders today as we passlegislation. Maybe not as significant oras important, but nevertheless ouroriginal meaning should be given greatweight with regard to constitutionalprinciples.

He knows that by going into theoriginal meaning, that those originalFounding Fathers knew that our coun-try was going to grow, it was going tobecome more modern, it was going tohave great inventions, it was going tobecome more sophisticated. So thatcomprises a broad set of consider-ations for anybody who really wantsto adhere to the original meaning ofthe Constitution.

He also understands that the Consti-tution provides for a means to over-come that which the Constitution doesnot cover. It provides a number ofmeans, but one in particular is in arti-cle V to the Constitution, which pro-vides for a means of amending theConstitution. He understands that ifthe Constitution is silent on someissue that is of overwhelming impor-tance to the public, that we can amendthe Constitution and that is the wayyou do it. You do not do it by ad hocactivist judicial decisionmaking fromone's own viscera. And unfortunatelythat is what has been going on for toomany years.

The right to amend the Constitutionis a safety valve that basically allowsus to make changes if we want to, or ifwe have to, if there is an overwhelm-ing support for it. And as we all know

26970 CONGRESSIONAL RECORD—SENATE October 2, 1990there have been 26 times that thatright has been exercised.

Judge Souter understands the needto protect the minority, as well as themajority, within the terms in the origi-nal meaning of the Constitution andthat which would be naturally extrap-olated from that original meaning.

David Hackett Souter, I am con-vinced—and I think most people whowatched the proceedings on televisionare convinced—is a person of integrity,competency, intelligence, compassion.He is a person who appears to be—andI think anybody watching would haveto conclude is—a kind person, consid-erate of other people. He is a person ofconsiderable eloquence, especiallywhen he is talking about the law ofthe land.

I think he showed that he is aperson of fairness—5 years on the trialbench, 7 years on the Supreme Courtof New Hampshire, and 1 year on theFirst Circuit Court of Appeals—and heis a decent man. He is a person whohas the health to do this job. He clear-ly stood up to all the pressures ofthose hearings. I think he is a personof humility. He is teachable. He issomeone who acknowledges thatothers might understand things evenbetter than he does form time to time,and he is willing to listen. He is aperson of independence.

With humility, he proved himself tobe a listener, somebody who was con-siderate of other people's views. Tome, that is pretty important.

He has shown through his lifetimethat he is a person of public spirit-serving on hospital boards, serving inhis own church and doing other thingsthat were in public spirit and he hasgiven a lifetime to public service—justexactly the type of person with abroad background that we need on theSupreme Court.

I have heard some of the criticismsthat have come up. Some of themhave come from my good friend fromMassachusetts. I hesitate to point outthat he stands alone on the JudiciaryCommittee, as the only one againstthis nomination made by the Presi-dent who had the support of 40 Statesin the last election.

No one who listened to JudgeSouter's testimony could believe thathe takes a limited view of the abilityof Congress to remedy civil rights; noone believes that unless you were notlistening or unless you just do notwant to listen.

As a matter of fact, he took just theopposite viewpoint, which was very in-teresting to a lot of people who werethere.

There was no objection raised heretoday that Judge Souter had arguedthat enlarging the franchise dilutesthe votes of those who previously wereentitled to vote. That objection is friv-olous. Voter dilution cases are stand-

ard forms of voting rights challengesrecognized by the Supreme Court.

I hasten to point out when he madethat statement in his brief, JudgeSouter was an advocate, arguing an ad-vocate's position based upon the thencurrent law as established by JusticeByron White and even Justice HugoBlack who made exactly the samestatements in opinions of the SupremeCourt; yet Judge Souter is now beingcriticized for, as an advocate, makingexactly the same point on appeal.

So I point out that he was an advo-cate at the time. Literacy tests at thetime were legal. No matter how muchwe dislike them today, they were legalat that particular time. He was swornto uphold the law, not to remake it.He was advocating for his State atthat particular time. He was an assist-ant attorney general of the State ofNew Hampshire, advocating a positionthat had already been advocated byhis predecessors and, I might hastento add, under the then existing law.

So it is not right to go back in hind-sight and say he should not have donethat; that that shows somethingwrong with him. Come on, that iswhat advocates do.

If we are going to start using a nomi-nee's briefs against him in the confir-mation process, we are going to be set-ting a shocking precedent. Every clientis entitled to zealous advocacy. It is anadvocate's job to make arguments tosway a court, including plausible argu-ments based on extension of principlesestablished by then current case law.It would be a very, very dangerousmessage to send to lawyers: If youhave any ambition to be a judge, youlawyers, do not represent controversialclients and be careful what you say onbehalf of a client because you mightbe held responsible for the fact thatthe law was as it was at the time youmade the statement.

In my view, positions taken by JudgeSouter in any legal brief representinga client are not fair game for inquiry,other than as a reflection of his writ-ing ability and his ability as an advo-cate. They are pieces of advocacy infulfillment of his duty as a lawyer tohis client. What is, in fact, importantis not what he said as an advocate butwhat he believes the role of the U.S.Supreme Court is or should be in ourFederal system.

Suppose the President nominates acriminal defense lawyer to be a Su-preme Court Justice? This person mayhave defended murderers, rapists,drug kingpins—you name it. It wouldhave been his job zealously to advo-cate their interests, extend the reachof procriminal defense legal theorieson the inadmissibility of physical evi-dence and the inadmissibility of thedefendant's own words. He may haveharshly cross-examined rape victims;he may have questioned them abouttheir own behavior in ways we might

find offensive in retrospect. Shouldthat lawyer be disqualified because ofhis or her advocacy on behalf of theirclients?

Virginia Attorney General Mary SueTerry has defended the male-only ad-missions policy at the Virginia Mili-tary Institute, a State institutionagainst a legal challenge by the Feder-al Government. Should this countagainst her in the nomination process,were she to be nominated to the Fed-eral court or Supreme Court?

One consequence of this trend isthat academic writings, even of a spec-ulative nature, even ones where thenominee has since changed his or hermind, can be misused to discredit anominee.

This can be a double-edged sword.Of course, if the traditional roles ofthe nomination process are perma-nently changed, are we now going towitness the misuse of a lawyer's role asan advocate in the nomination proc-ess? Will the message be not only donot write anything potentially contro-versial, but also do not representanyone or any institution who is con-troversial or unpopular? Do we wish todiscourage lawyers from taking thetough cases, from taking on such cli-ents if they have any, and especially ifthey have any aspirations to be ajudge? I hope not. That, too, in myopinion, is a double-edged sword andsomething we have to consider.

Mr. President, it seems to me thatseveral of my good friends on theother side of the aisle, particularly onthe Judiciary Committee, are rent byself-doubt, angst, and some guilt invoting for Judge Souter. I believe,however, it is fair to say, based on hisopinions, and testimony that JudgeSouter is clearly well within the rea-sonable and respectable range of anappropriate nominee. It also seems tome, Mr. President, that today's debateis largely about Judge Souter's nomi-nation and our colleagues, a few ofthem, are concerned. They are con-cerned about some of his opinions andhis testimony, because it has not fitevery niche that they want it to fit.

His nomination has really been con-ceded for some time, and it should be.He should be overwhelmingly con-firmed today. I think everybody knowsthat.

I want to respect my colleagues whohave stood up on both sides of the Ju-diciary Committee and have stood upfor Judge Souter, as they should. I ap-preciate it. But what we are hearingfrom some of my thoughtful friendson the other side of the aisle is reallyan opening salvo in the next round ifPresident Bush has an opportunity tonominate another person. It is prettymuch a foregone conclusion thatJudge Souter is going to be JusticeSouter after today.

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26971Accordingly, we have heard in the

last few weeks an exposition of viewson various legal and constitutionalissues in an effort to characterize andlimit the spectrum of constitutionalthought. Thus, at length, we havebeen treated to various legal thoughts:How certain cases should be decidedunder each school, which school isdoctrinaire, which is entirely OK. Inmy opinion, these are interesting butrelatively more edifying as an insightinto the views of those who expoundthem for anything else.

Even more disturbing, some of whatwe are hearing from the other side ap-pears to be in large part a thinly veiledextraordinary, unfortunate, and, inmy view, unconvincing effort to setthe parameters on President's Bush'snext Supreme Court nomination, if hehas the privilege of having one.

It may be that some pundits or in-terest groups will suggest that if sucha future nominee is thought to beclearly "more conservative than JudgeSouter," as measured according tomany of the notions we are hearingfrom Judge Souter's reluctant sup-porters in this body, no matter howreasonable and responsible the nomi-nee's views may be, such nominee is"automatically out of the main-stream."

The committee would be well ad-vised in such a case to determinewhether such suggestions themselvesemanate from the brackish backwa-ters, before assuming they constitutethe mainstream.

Madam President, it is not easy inthis day and age to get a person on theSupreme Court who fills the needs ofeverybody in this body. In fact, I ven-ture to say that nobody can meet thattest. If we are going to adopt litmustests as the way to determine whetheror not a person comes on the Court,and especially a single litmus test, nomatter how important it may be, thenI think that is a tremendous mistake.

Nobody knows what will happen tothese people once they go on theCourt, with experience, with time,with facts, with cases, with other prob-lems that come up. Nobody reallyknows how they are going to rule inthe future, and many Presidents havebeen upset at how some of their nomi-nees have ruled as they have watchedboth in the remaining years of theirPresidency, and after they are retiredfrom the Presidency.

The fact is it is ridiculous to imposeany single litmus test on any candi-date for this high office, this high po-sition. If we follow the lead of thelitmus testers, to preprogram the re-sponses in the judicial process, thenthe job could be done by computers,and judges would not really be neces-sary.

Yet what has made the SupremeCourt great for over 200 years—whathas allowed it to occupy such a distin-

guished, unique, and important placein American society—a role shared byno court in any other nation in histo-ry—is the quality of judgment thathas been shown by the persons whohave served with distinction on theCourt.

Madam President, I did not mean totake this much time. I do not see howanybody who watched the hearings,watched the difficult questions,watched the problems that wereraised, and watched Judge Souter inresponse to those problems and thosequestions, could conclude that he isnot a worthy person to go on the Su-preme Court of the United States ofthe America. I really have difficultyseeing why anybody would feel thatway.

On the other hand, I respect thefeelings of some of our colleagues whoare going to vote against Judge Souterfor whatever reason. I do not see a log-ical reason for it. I do not see a legalreason for it. I do not see a confirma-tion reason for it. Frankly, I hope thatthe litmus test mentality is not used inthe future, because if it is I can thinkof at least 150 litmus tests that peoplefeel strongly about around here thatwould make it almost impossible forany great nominee to make it on theCourt.

Judge Souter is a great nominee. Heis not just a nominee. I first becameacquainted with him when SenatorRUDMAN brought him to my attentionafter the Bork nomination failed. I amfully aware of his career from thatpoint. I have a tremendous and inesti-mable respect for this man. I expecthim to go on to become a SupremeCourt Justice who will please the vastmajority of people in this society, be-cause as I have said he is honest, he isdecent, he is a person of integrity, heis a person of competence, of ability,and all of those other wonderful at-tributes that I hope we can find inother Judges on any court in thiscountry, let alone the Supreme Courtof the United States of America.

Madam President, I hope our col-leagues will see fit to vote for JudgeDavid Hackett Souter to be a Justiceon the Supreme Court of the UnitedStates of America. It is the right thingto do. It is the important thing to do.This is an important office, and it isimportant that we dignify it with im-portant arguments. I have not seengood arguments used against him yet,either in committee, since the commit-tee has held its hearings, or on thefloor today.

Madam President, I hope our col-leagues will vote for Judge Souter.

The PRESIDING OFFICER. TheSenator from Wisconsin.

Mr. HEINZ. Madam President, willthe Senator from Wisconsin yield for abrief unanimous consent request?

Mr. KOHL. Yes.

VISIT TO THE SENATE BYCHILEAN DELEGATION

Mr. HEINZ. Madam President, as inlegislative session, earlier today I noti-fied the leadership that there ispresent in the Capitol today a delega-tion of senators from the Republic ofChile.

RECESSMr. HEINZ. Madam President, I ask

unanimous consent that we mightstand in recess for not to exceed 2minutes. The Senator from NewHampshire has indicated he wouldyield me 2 minutes, if such was neces-sary to accommodate the Senate. I askthat no time be taken from the Sena-tor from Wisconsin.

There being no objection, at 4:36p.m., the Senate recessed until 4:38p.m., whereupon, the Senate reassem-bled when called to order by the Pre-siding Officer [Mrs. MIKULSKI].

NOMINATION OF DAVID H.SOUTER, OF NEW HAMPSHIRE,TO BE AN ASSOCIATE JUSTICEOF THE SUPREME COURT OFTHE UNITED STATESThe Senate continued with the con-

sideration of the nomination.The PRESIDING OFFICER. The

Senator from Wisconsin is recognized.Mr. KOHL. I thank the Chair.Madam President, First, I congratu-

late Chairman BIDEN for his work onthe Souter nomination. The chairmanand his staff made a difficult processrun smoothly. The hearing was well-focused and illuminating on a host ofissues. His impartial and fair handlingof the hearing allowed us—on behalfof the American people—to conduct athorough examination of the nominee.

Madam President, I intend to votefor Judge Souter, but this was not aneasy decision. In the course of review-ing the nominee's record and listeningto him at the hearing, two differentpictures of David Souter emerged: onerevealed a conservative New Hamp-shire attorney general and jurist; theother, a reasurring pragmatist withoutan ideological agenda. I am voting toconfirm the second Judge Souter de-spite my reservations about the first.

As attorney general—where he wasrequired to be an advocate—JudgeSouter took several stands that he ac-knowledged he would not take today.He defended lowering the Americanflag on Good Friday; he supported thecontinued use of literacy tests for pro-spective voters; and he argued againstsupplying civil rights data to the Fed-eral Government as required by law.More than that, while on the NewHampshire Supreme Court, he issueda number of troubling rulings and dis-sents.

26972 CONGRESSIONAL RECORD—SENATE October 2, 1990In his testimony before our commit-

tee, however, we heard a differentJudge Souter. He demonstrated admi-rable personal qualities and expound-ed moderate judicial views.

Without question, Judge Souter re-vealed a remarkable intellect, one thatequals or even exceeds the traditional-ly high standards required of a Su-preme Court Justice. And he showed awarmth and humor that belied hisimage as a man out of touch withmodern life. In my opinion, JudgeSouter clearly has the competence,character, and integrity necessary tosit on our Nation's Highest Court.

At the hearing, Judge Souter's judi-cial philosophy was reassuring. He dis-played an understanding of and re-spect for the values which form thecore of our constitutional system ofgovernment.

Judge Souter firmly rejected thedoctrine of original intent, whichwould undermine many of the Court'smost important achievements. Brownversus Board of Education, which de-segregated public schools, would neverhave been decided if the SupremeCourt had interpreted the 14thamendment using original intent. Andour fundamental right to privacywould have been severely cramped hadthe Court applied this doctrine to theBill of Rights.

Fortunately, the Judge Souter whotestified before our committee doesnot seem locked to the past. I washeartened by his strong words ofpraise for former Justice WilliamBrennan, the Court's leading oppo-nent of original intent. David Soutertold us:

Justice Brennan is going to be remem-bered as one of the most fearlessly princi-pled guardians of the American Constitu-tion that it has ever had and ever will have.

And Judge Souter spoke of the need"to make the Constitution a reality forour time." Clearly, these are not thewords of a conservative ideologue.

Still, the hearing did not paint anentirely complete picture of JudgeSouter's judicial views. I would like tohave heard a clearer statement in sup-port of civil rights and the struggle forracial equality.

Similarly, I am concerned thatJudge Souter did not explicitly recog-nize—or even address—a woman's con-stitutional right to reproductivechoice. This fundamental right shouldnot hang by the thread of a shrinkingSupreme Court majority. And so Ihave joined as a cosponsor of the Free-dom of Choice Act, which would writeinto Federal statutory law the abor-tion provisions on Roe versus Wade.

Let me conclude on this note: It isnot just a Supreme Court seat that isat stake here; in my judgment it is alsothe entire confirmation process. I be-lieve the nominee was candid in histestimony, and I was persuaded bywatching and listening to him at the

hearing. But if Justice Souter turnsout to be a rigid ideologue—and notthe moderate that he appeared to b e -then both the Senate and the Ameri-can people will have been deceived.That would call into question thevalue of having nominees appearbefore our committee. We might bejustified—or even required—to ignorepersonal presentations entirely, andrely exclusively on the written record.

Madam President, in reaching mydecision, I had to determine whetherthe conservative public servant fromNew Hampshire matured into themoderate nominee who appearedbefore the Judiciary Committee. I be-lieve that he has. And while I wastroubled by parts of Judge Souter'srecord, I was impressed by the manhimself. And so, despite my reserva-tions, I will support Judge Souter assomeone who is capable of personalgrowth, shows an open mind and re-jects ideological extremism. I will votemy aspirations rather than my fears.

Thank you, Madam President.Several Senators addressed the

Chair.The PRESIDING OFFICER. The

majority leader.Mr. MITCHELL. Madam President,

I will shortly propound a unanimous-consent request setting the vote for 6p.m. I understand that has beencleared on both sides. We are nowchecking to make absolutely certainthat it is agreeable so that no Senatorfeels he or she has not had the oppor-tunity to speak. I will do that momen-tarily. In the meantime, I am pleasedto yield to other Senators.

The PRESIDING OFFICER. TheSenator from Pennsylvania.

Mr. SPECTER. Madam President, Ihave already spoken at some length onthe Senate floor on my view in sup-port of Judge Souter. So I will referanyone who might conceivably be in-terested in those views to the CONGRES-SIONAL RECORD on September 19, 1990,a week ago Wednesday.

But there are a few-other commentswhich I think appropriate to make atthis time, that relate to the very im-portant principle, that was establishedin our hearings, that a nominee shouldnot be required to answer the ultimatequestion on how the nominee wouldrule on a case which may come beforethe Supreme Court even where thatquestion is as important as the nomi-nee's views on what will happen toRoe versus Wade. The issue of choice,the issue of abortion is, I think, themost divisive issue which has confront-ed the United States since the coun-try's inception perhaps with the ex-ception of slavery, Madam President.There were many who came forwardand strongly urged that Judge Soutershould be required to say how hewould rule on Roe versus Wade.

It is my expectation that there willbe a very strong vote in support of

Judge Souter today. Certainly the voteon the Judiciary Committee of 13 to 1,where many who voted in favor ofJudge Souter were those individualswho were very strongly in favor of up-holding Roe versus Wade, establisheda very important principle that peoplein our society were willing to abide bythe system as to what would happenin the regular context where a casewas decided in the context of specificfacts, briefing, argument, consultationamong the Justices, and that a nomi-nee would not be required to answer aquestion as to how the nominee wouldrule on a case yet to come before theCourt.

Madam President, I have expressedmy view, both on this floor and other-wise, about my support of the choiceposition. Although I am very much op-posed to abortion as a personal matter,I do not think it is something that theGovernment can regulate. But, not-withstanding my own views on thesubject, I took the strong position thatJudge Souter should not be compelledto say how he would rule when theissue of Roe versus Wade came beforethe Court again.

At the same time, Madam President,I think it is important to emphasize,that if the Supreme Court moves fur-ther on the road to deciding ultimatepositions of public policy as asuperlegislature, that the SupremeCourt runs the risk of losing its stand-ing, and the nominees run the risk oflosing their standing to decline toanswer the ultimate questions.

This Senator is very much concernedabout a series of Supreme Court deci-sions illustrated by the Griggs case,the Wards Cove case, the NationalLeague of Cities versus Usury, andGarcia versus San Antonio Transit Au-thority, where the Court has moved inthe direction of being a superlegisla-ture.

The Civil Rights Act was passed in1964, and, in 1971, a unanimous Su-preme Court in the opinion written byChief Justice Burger, not known forany expansive interpretations, defineddiscrimination in the disparate impactsituation. I will not speak at lengthabout what that means, because it isnot necessary to illustrate the point.

Eighteen years later, last year, 1989,the Supreme Court of the UnitedStates reversed Griggs in Wards Coveand did so with five Justices changingthe law in the context where the Con-gress of the United States had let theGriggs opinion stand for 18 years,giving full force and vitality to what isrealistically a conclusive presumptionof congressional assent to the Griggsopinion as interpreting congressionalintent.

Four of those Justices who reversedGriggs had appeared in the JudiciaryCommittee during the course of thepast decade and put their hands on

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26973the Bible and had sworn not to be ju-dicial activists but to interpret ratherthan to make the law.

I would suggest, Madam President,that if the Court, if the Justices are tobecome superlegislators, they will notbe immune from stating their posi-tions on such issues, just as candidatesfor the Senate are not immune fromstating our position on matters ofpublic policy.

There is a similar issue involved inthe case of National League of Citiesversus Usury, where the SupremeCourt of the United States in 1975, de-fined the relations between Federaland State governments, local units ofgovernment. That position was re-versed in Garcia versus San AntonioTransit Authority, 9 years later, in1984. In writing in dissent, Chief Jus-tice Rehnquist and Justice O'Connor,in separate opinions, said that theGarcia opinion was really like a rail-road ticket. As Justice Roberts saidyears ago, "this day and this trainonly." Chief Justice Rehnquist andJustice O'Connor said, when the issuecame before the Court, with a changein membership and constituency, theopinion would be reversed.

I was on the point that if the deci-sions of the Supreme Court on impor-tant constitutional doctrines, like Fed-eral and State relations, depend uponthe constituency of the court, then Ithink nominees are going to be askedhow they are going to decide theseissues on public policy.

On the man himself, Madam Presi-dent, I think Judge Souter presents arecord of qualification. His record, aca-demically, in law school, Rhodes schol-ar, record as a practitioner, attorneygeneral, trial judge, State supremecourt justice, his judicial opinions, histestimony before the committee, wasexemplary.

I do not agree with some of my col-leagues who have supported JudgeSouter, based upon a change in posi-tion before the committee. I believethat Judge Souter took expansiveviews when he testified before the Ju-diciary Committee, but that is under-standable. The opinions of JudgeSouter were the basis for my relianceon evaluating Judge Souter, and hewas much more restrained and restric-tive in those opinions than the testi-mony he gave before the JudiciaryCommittee.

Madam President, even in thoseopinions, in the Richardson case,Judge Souter found a liberty interest.In the criminal law cases, he had agood balance recognizing defendants'rights as well as the interest of law en-forcement.

So whether you take the more ex-pansive views of Judge Souter testify-ing before the Judiciary Committee, orthe more restrictive views that he ex-hibited in his opinions, I believe he iswell within the continuum of constitu-

tional jurisprudence and ought to beconfirmed.

In view of the limitations of time, al-though there is much more that couldbe said, that summarizes my views. Ithank the Chair and yield the floor.

Mr. SIMON. Madam President, I risebriefly to explain my views to my col-leagues. I think there are three basicpoints.

One is, does Judge Souter meet thebasic standards that we are lookingfor? In terms of ability, in terms ofscholarship, in terms of someone whois willing to listen, it is very clear thathe does.

On two points I would like to haveseen a stronger nominee. One is, Iwant someone who is a champion ofcivil liberties. The second thing Iwould like is someone who will lead forthose less fortunate. Unfortunately, inthe Souter record there is no evidencethat Judge Souter will be a leader ineither of these areas.

The second question then is, if hedoes not meet these latter two stand-ards, should he be considered? If Iwere to go solely by the record, can-didly, I would vote against him. Buthis testimony showed an appreciablegrowth, if you want to make that as-sumption, or it showed political dex-terity, if you want to make that as-sumption. But his testimony clearlywas better than his record. If I hadgone just by his record, as I have indi-cated, I would have voted againstJudge Souter in committee, and Iwould be voting against him now.

In the area of civil rights, at leastone statement he made while he wasattorney general was a statement thatconcerned me. But in response to myspecific questions, he was more forth-coming and encouraging, though hemade one statement that still concernsme; and that is that there is no dis-crimination in New Hampshire. I wishthat were the case in any one of our 50States. It is more of an indication thathis continued growth is still in need.

On the much publicized Roe versusWade case, my own belief, my own im-pression, is that he will vote to sustainRoe versus Wade. It is made up of sev-eral reasons. One was his counseling ofa young woman who was about to havean illegal abortion under Massachu-setts law. The second was his vote as amember of the hospital board, wherethey authorized that hospital to haveabortions performed at that hospital.A third came in response to a questionby Senator SPECTER, in which JudgeSouter said, so far as he knew, thecourt had never taken away a rightthat had been given. Finally then, itwas the impression that I have fromhim of great reverence for precedent.

On the basis of those things, I willpersonally be surprised if he votes tooverturn Roe versus Wade, though noone can know the answer for sure.

Finally, we face a very difficult ques-tion. That is, is it likely that PresidentBush will send a nominess with moremoderate views than Judge Souter? Asyou look at the list of those who areconsidered, I have come to the reluc-tant conclusion that that is very un-likely. If I were to vote against thenominee, it would be a signal to thePresident that it does not matter whoyou send up, you are automaticallygoing to get votes against that nomi-nee from those who want to see theCourt as a champion of civil rights andcivil liberties.

Finally, I add, Madam President, thedeparture of Justice Brennan means,unquestionably, no matter what thevotes of Judge Souter, the Court isgoing to be shifting to the right. Thatmeans that the basic defense of civilrights and civil liberties, I think inevi-tably, is going to shift from the Su-preme Court to the Senate and theHouse. It makes our responsibilitiesmore awesome, and I hope we will liveup to those responsibilities. I will voteto confirm Judge Souter.

Mr. GORTON addressed the Chair.The PRESIDING OFFICER. The

Senator from Washington is recog-nized.

Mr. GORTON. Madam President,this Senator is pleased to report thathis impressions have been confirmed.Those are impressions of a man I metover a decade ago, David HackettSouter, a man who now awaits theadvice and consent of the Senate ofthe United States to confirm him asthe 105th Associate Justice of the Su-preme Court of the United States.

While I was attorney general of theState of Washington and president ofthe National Association of AttorneysGeneral, I first met David Souter, whowas then attorney general of NewHampshire. I was not happy to meetDavid Souter under those circum-stances, because my friend WARRENRUDMAN had just left that position. Heturned it over to an individual whom Idid not know, and about whom I knewnothing. But I learned quickly thatDavid Hackett Souter was a thought-ful, courageous, and intelligent man, aman of integrity and steadfast pur-pose.

The Nation watched as JudgeSouter's fitness for a seat on thebench was questioned by the SenateJudiciary Committee for the secondlongest period of time of any SupremeCourt nominee in history.

(Mr. SIMON assumed the chair.)Mr. GORTON. I believe we observed

the courage and independence of aman confronted on each side by thosewho wanted to hear clear and precon-ceived notions. I can say that had hetold the committee what many of itsmembers wished to hear, he would notgain this Senator's vote today tobecome Justice David Souter. Presi-

26974 CONGRESSIONAL RECORD—SENATE October 2, 1990dent Lincoln once observed under simi-lar circumstances, "We cannot ask aman what he will do, and if we should,and he should answer us, we shoulddespise him for it."

Why? Because the Constitution re-quires of our jurists the impartial bal-ancing on the scales of justice thefacts which are presented to them.Our Federal Code states:

Any justice, judge, or magistrate of theUnited States shall disqualify himself inany proceeding in which his impartialitymight reasonably be questioned. (28 U.S.C.455(a)).

To be impartial, a judge must di-vorce his personal feelings from thephilosophical analysis which he ischarged to employ for the benefit ofevery citizen. Impartiality is and mustbe a prerequisite to the grant of theawesome power of this position. Judi-cial independence fostered by that im-partiality is the touchstone by whichour law lives.

The report of the Judiciary Commit-tee on this nominee concluded:

We believe that Judge Souter struck anappropriate balance in this testimony; thathis testimony and the record before thecommittee enabled us fully to discharge ourconstitutional responsibility of advice andconsent; and that a requirement of greaterspecificity would gravely compromise the in-dependence of the judiciary and the separa-tion of powers. Such independence is explic-itly mandated by the Constitution, by Fed-eral statute, and by the canons of judicialethics.

I am proud to have witnessed JudgeSouter withstand the test. And I canthink of no qualities which are moreimportant for a position on the Su-preme Court of the United States thanthose which David Souter demonstrat-ed in those 20 hours, a constant will-ingness and ability to listen, to learn,to grow from experience. Judge DavidSouter has the integrity and the dedi-cation to ideals which made this coun-try great.

Mr. President, I think none of us,even Members of the Senate of theUnited States, can fully appreciate theawesome and lonesome responsibilityof being a member of the SupremeCourt of the United States and havingthe Constitution of this great countryin his or her hands. My conviction isthat David Souter can take on that re-sponsibility thoughtfully, responsibly,with an open mind, and with the abili-ty to contribute greatly to the develop-ment of legal institutions in this coun-try. Judge Souter has earned my votefor his confirmation, and I hope mycolleagues will find that he has alsoearned their vote as well.

The PRESIDING OFFICER. TheSenator from Colorado is recognized.

Mr. WIRTH. Thank you very much,Mr. President

I want to spend a few minutes shar-ing my own thoughts and experienceswith my colleagues about my own deci-

sion related to Judge Souter and thedecision facing the Senate this week.

As you know, I am not a lawyer andI therefore come at this with perhapsa bit of a different window than thosewho are looking at the record, readingcases, and so on.

I would like to do two things today.One, to talk a little bit about the issueof Roe versus Wade in front of us and,second, sketch what I think is a veryinteresting and informative profile ofDavid Hackett Souter as I gathered itover the last 10 weeks.

First, the issue of Roe versus Wadeis clearly the issue many of us, com-mentators and observers, have comeback to. This is one of the dominantissues of this time, if not the dominantissue on the Court right now. I wouldhope that David Hackett Souter willbe voting to uphold Roe versus Wade.I am sorry

(Disturbance in the Visitors' Galler-ies.)

Mr. WIRTH. Mr. President, theissue, as we all know, elicits all kindsof responses and emotions, and itwould be my hope that the concernfor precedents, the concern for priva-cy, would lead Justice Souter in thisdirection. I would also think it is abso-lutely appropriate for everybody to beasking questions on this front and Iam sorry we did not get more specificanswers on it but you know that is thejudgment that was made by DavidSouter.

Beyond question, the SupremeCourt is now at a crossroads. JudgeSouter's role on the bench may well bepivotal. Because I take the advice andconsent role of a Senator very serious-ly, I met with Judge Souter, have re-viewed the hearing record and some ofhis decisions and have spoken withmany people associated with him pro-fessionally. Given my division with thePresident on many of the issues theSupreme Court may hear, the best Icould hope for would be a skilledjudge who comes to the bench with anopen mind—I believe Judge Souterdoes just that.

I do have some reservations, similarto many of my colleagues. Upfront Imust admit that I hope he holds fastto the approach he cited when discuss-ing fundamental rights during hishearing. He stated that he would usethe approach identified with JusticeJohn Marshall Harlan—that the ques-tion of weighing the value of assertedrights cannot be approached withoutan inquiry into the history and thetraditions of the American people, inorder to try to find, on a historicallydemonstrable basis, their commitmentto a set of values which either do or donot support the claim that a particularright in question is fundamental.

During his testimony, Judge Souterstated that he has not made up hismind as to whether or not he wouldvote to uphold Roe versus Wade.

Judge Souter did not address the fun-damental right to privacy with asmuch clarity as I would have liked.But he did indicate his commitment tocertain matters of privacy, and I hopethat during what is expected to be along term on the bench, he continuesto support the fundamental individualrights.

When Judge Souter was asked aboutthe equal protection clause in the 14thamendment, he stated that his ap-proach in interpreting the Constitu-tion would be to determine the mean-ing or principle that the framers in-tended—not the specific applicationthey had in mind at the time. Shouldthis be the case, when a question ofprotecting individual rights of privacywere to come before the SupremeCourt, I expect that Judge Souter willset fit to see to decide the case withthe breadth of our time, not be limitedto the scope our framers had whenwriting the Constitution.

To go on, Mr. President, let me talka little bit about what I understandand have learned about David Souterover the last 10 weeks. David Souterand I were in the same class in college.We lived in the same living unit, a verylarge dormitory kind of unit that hadits own dining room, and so on. Therewere probably 350 undergraduates inthis unit. We were in the same class.We did not know each other. We knewwho the other person was but did notknow each other.

As an aside, I might say a friend ofmine came up and said, how could youvote for someone when you did noteven know him when you were there?I said he did not know me either. Ithink that is appropriate commentaryon the fact it is a large institution. Inany case, I was surprised it came up inthe same class.

So soon after his nomination wassent up, became public, I got on thetelephone and I made a variety of callsin August and let me flesh out, if Imight, the profile that emerged. Thiswas in early August. That profile, andthese are my notes that I picked upoff my desk the other day in summaryof all these conversations. I must havetalked to 10 or 15 classmates whoknew David Souter.

Smart, courteous, little fastidious,devotion to precedents, extraordinaryintelligence, great integrity, a manwho puts principle before expediency,a man of old New England values, in-tensely private. Asked a liberal Demo-crat, does Bush know any more thanwe do? How could he? He is an intense-ly private man, describing DavidSouter. Devoutly Episcopalian. An-other said, no reservations, an individ-ual of great principle and underlyinghumanity.

Another, without qualification. Andthen he said, I also am a liberal Demo-crat. He said my view of George Bush

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26975just jumped up. Sense of many as aperson, concerned sense of a personwho does not exist any more.

Said one, an individual who is joyouswithin his own house and his own li-brary. I believe he is truly interestedin judicial restraint, not an individualwho has commented to me andthrough the years on politics.

That was a profile in August as Italked to people. All of these individ-uals were close to David Souter andvery positive.

I picked this up again at the begin-ning of last week and made anotherround of calls and let me just sharethese last reactions and I will stop.

From one individual in our class whois a reporter for a major nationalnewspaper: He said, having calledaround himself—this is a secondary re-search—my general sense of those whoare—this is a man who chooses to livehis own life although he is not ahermit by any means, he maintainsfriendships of individuals who them-selves are from moderate and a pro-gressive stripe. The people who areclose to him are not ideologs. Hisfriends describe him as being bright,thoughtful and idealistic. This is aprofile from our classmate reporterwho had talked to other classmates.While he may be cautious, from a con-servative State, he is not a ReaganJustice, or someone you would thinkGeorge Bush would appoint.

None of the people had a conversa-tion with him about Roe versus Wade.I checked and cross-checked them forover an hour. None believed with hisown belief in precedents that he willoverturn Roe versus Wade, and hisown instincts will lead him in the di-rection of supporting precedent.

Men and women say the same thing.Among the people who know him wellI get the same reading. If I were a con-servative I would be petrified by thisguy. There is no guarantee he will dowhat they want, not a Scalia clone.

That is the secondary research ofthis last week from a reporter friendof mine, a classmate who talked to avariety of other individuals. I havedone a lot of my own primary researchand again let me close with reactionsof this week.

None of these people obviously do Iwant to identify. I asked one gentle-man who is again a liberal Democrat, aclergyman and a very, very thoughtfuland bright individual whom I knewalso 30 years ago. I asked him, wouldyou vote for David Souter? He said, Ithink I am sure I would vote yes. I wasa little surprised by this statement onBrennan; I did not know he would saythat. He is very honorable. He simplywould not fake it. I was asking whathe thought about the Souter testimo-ny on the girl at college, and so on. Hesaid he simply would not fake it. Whatyou see is who he is. When we wereundergraduates this classmate said he

lived and breathed the Supreme Courtand judicial process, so much that weused to call him then Justice Souter.He has great respect for precedent, heis a student of Holmes, did his seniorthesis on Holmes and Holmes' judicialphilosophy, has a deep abiding inter-est and respect for the Court andAmerican history; certainly not likelyto be an extremist in any way. Noth-ing would suggest that that is the case.With time, in fact, I believe he will bea coherent force on the Court.

He is a wonderful and amusingfriend. "Something I have alwayswanted to do," said David to me. AfterI called him when I heard about theappointment, he said, "This is some-thing I have always wanted to do. Butif it doesn't work out, I can be blissful-ly happy on this court in New Hamp-shire."

It is sort of an accident of fate thatsomeone who is so nonpolitical wouldbe washed up on these shores. As partof the research this last week, let meconclude with this morning's tele-phone calls, if I might, Mr. President.

"David Souter, simply stated, is oneof the greatest individuals I have everknown. He is extraordinarily brilliant,intellectually gifted in an openmindedway, not a bully like some who arethat smart. He can then carefully andcalmly come to a conclusion havingput his force of mind to work on it."

And "I am a liberal Democrat. Thiswill be one of George Bush's great ap-pointments."

"On predictability, on the issue thateveryone is talking and asking about,and given the caveats of SupremeCourt decisions—and having spent somuch time with him, as has my wifeand daughter; I am a lawyer—I do notthink he will kick over the traces. Hewill get people talking together likeJustice Powell."

And, "I imagine he will be a jealousguardian of individual liberties, sort ofa New England-like approach toguarding the individual against theState."

And, "Watching the hearings con-firmed what I know about him person-ally. What you see is what you get. Heis not partisan. He is not an ideolog.He is not a zealot. I did not vote forRonald Reagan or for George Bush.My guys have not done very well. Buteven given the presumption that theycan appoint anybody who they want,he is really a fine appointment."

I was very impressed, Mr. President,with this catalog of individuals, theperspective was very broad. Most ofthem are people who are more pro-gressive rather than conservative. Butthese are people who have knownDavid Souter for 30 years. Whatemerges is that profile that I have de-scribed. I am going to vote for DavidSouter. I believe that this profile isone that I can trust. I did the bestthat I could in the research available

to me, read the record, looked at thehearings, watched David Souter testi-fy, and I have talked to the lawyers.But maybe more importantly I haveput together this human dimensionwhich I wanted to share with my col-leagues and with the country today.

Thank you very much, Mr. Presi-dent.

I yield the floor.Mr. ADAMS addressed the Chair.The PRESIDING OFFICER. The

Senator from Washington is recog-nized.

Mr. ADAMS. Mr. President, I havepreviously stated my position withregard to the nomination of DavidSouter in the CONGRESSIONAL RECORDof September 27 at the beginning ofthat day on S14035.

But I felt that it was necessaryduring the course of this debate,during this executive session, that Ionce again make a few very brief re-marks to not reiterate what I statedon that day, which I still believe andfeel is an important part of thisrecord, but to simply state again theconcern and the real lack of substan-tial position that many of us feel withregard to nominee David Souter con-cerning his feelings on the right to pri-vacy and in particular the right to pri-vacy contained within the U.S. Consti-tution as it affects the right of womento make a choice on their reproductiverights.

I was very impressed with the com-ments of my very good friend, SenatorWIRTH, as to the personal integrityand the intelligence of David Souter. Ihave not doubted this. But it was re-freshing to hear his analysis of thepeople he had talked to and the hopethat he has that we will have—from aPresident who has deliberately statedhe wishes Roe versus Wade overturnedand has nominated this man—a manthat may indeed be another LewisPowell or a Blackmun and may be hisown person on the Supreme Court.

I am opposing the nomination ofDavid Souter because in this positionas a Senator of the United States, I am1 of 100 who give their advice andtheir consent to the creation, alongwith the President, of the thirdbranch of Government under thisConstitution. In the creation of thatbranch, we had, during the course ofour history, created some good, somebad, some mediocre Supreme Courts.

We have the present situation in theUnited States where we have a Presi-dent committed to one position. Wehave probably a majority of the U.S.Senate committed to another positionon this right to privacy as it affectsthe right to choose of over half of ourpeople. And we have a Supreme Courtthat has been appointed over a seriesof years that is either evenly balancedor is balanced in favor of overturninga basic right of privacy.

26976 CONGRESSIONAL RECORD—SENATE October 2, 1990As a lawyer and as a person who has

tried many lawsuits and been involvedin both the Congress—the House, theSenate—and in the administration as aCabinet officer, I take very seriouslythe duty that we are to give bothadvice and consent on a person who, inthis particular case, gave a very goodpresentation on nearly all matters.

I think he will make an excellentjudge on the first circuit, and after anumber of years might well be consid-ered, as he has made decisions on Fed-eral cases involving the Constitution,for a Supreme Court position by thisPresident. And it may well be, as myfriend, Senator WIRTH said, that wehave gotten lucky and that this is aperson that would be far better thanany other we might ever get.

But I am struck by the fact that wehad testimony—and I followed it care-fully—with regard to David Souter'sposition on the death Penalty. Ihappen to agree with his position onthe constitutional effect of the deathpenalty. But 2,000 people on deathrow know where he stands on that andhis general philosophy—not a particu-lar case but his general philosophy—and yet over 100 million law-abidingwomen in the United States of Amer-ica do not know what his position is onwhat had been a settled fact of law forover 17 years in Roe versus Wade anda basic right that we very often—98men in this body, and 8 on the Su-preme Court—pass on the rights thatwe know not all about.

So this is a very important questionfor a lot of people, and a lot of peopleview this not as some deep politicalquestion but as a deep constitutionalquestion—the fundamental right ofprivacy. I am always struck by thosewho would deregulate everything inthis country but would regulate awomen's most private rights.

I am concerned and, therefore, Ishall vote against the nomination ofDavid Souter. I hope that I am provenwrong and that the statement thatwas just made on the floor that thismight be a great surprise to all of usand this might be a person who wouldvote to uphold, by stare decisis or oth-erwise, a constitutional interpretationthat has existed for 17 years.

The Constitution, Mr. President, ofthe United States is a shield not asword. It is a shield for individualsagainst the power of the State. It is ashield, in this case, for over half of ourpopulation, who happen to be female,from having their right of privacydeeply invaded and regulated, whetherit be by the State or by the FederalGovernment. And it is something thatvery often is debated without theirpresence being a major factor.

I, therefore, feel in the case of DavidSouter, this body should wait awhile.Let him show his mettle on the FirstCircuit. Because an appointment tothe Supreme Court is very different

than an appointment to any othercourt in the land. A person appointedneed not be a lawyer. A person ap-pointed need not have any particularset of qualifications. A person appoint-ed becomes one of nine, rather than535, or rather than an individual, asone of the three parts of the U.S. Gov-ernment.

The decisions that will be made bythis appointee will probably last inthis country for the next 30 years. TheSenate has to give its advice and itsconsent. My advice is that we appointsomeone who will uphold the tradi-tions of the Court and use the Consti-tution as a shield, particularly as it in-volves the rights of the women in thiscountry. My consent is withheld be-cause I have not been convinced thatthis would occur. I hope it will.

As I said in my earlier comments inthe CONGRESSIONAL RECORD severaldays ago, if I am proven wrong and heprotects these fundamental rights ofthe women of our country, I willappear on this floor and I will offerhim a personal apology that I mis-judged him. But all I have at thispoint is the judgment that I canrender based upon the testimony thathe gave, the testimony that othersgave, and the record that he has. Imust admit that record is very limitedso far as the Court is concerned.

So let us all hope David Souter iswhat he appears to be; according toSenator WIRTH, a person of independ-ence, a person who will follow the tra-ditions of the Constitution, who willtreat it as a shield, who believes in theright of privacy and will enforce itand, therefore, will not go to theCourt and join a group to overturn a17-year-old decision.

I realize many if not most of my col-leagues may disagree with me on this,but I have felt it very important thatthe President of the United States un-derstands and that my colleagues un-derstand that many of us, as a matterof conscience, cannot support thisnomination.

I yield the floor.The PRESIDING OFFICER. The

Senator from Wyoming is recognized.Mr. SIMPSON. Mr. President, obvi-

ously I am supporting the nominationof Judge David Souter. I think the re-marks of Senator WIRTH of Colorado

. were so appropriate and very movingto talking with regard with the peoplewho know him best. That is the test ofany human being. I think that is oneof the most impressive relations ofsupport that I have heard on any nom-ination. And to speak as a classmate ofthe man, men who knew him, and theother classmates as they rememberhim, and many happening to be of lib-eral Democratic philosophy, that Ithink says it all.

I have a strange view of politics. Ialways like to see how a person does inhis home precinct as he runs for politi-

cal office. How does he do right thereamong the people who supposedlyknow him best? I think that is a prettygood test, and one we should use.

I must also respond to the commentsof some who suggest that JudgeSouter came to the confirmation proc-ess bearing some burden of proof. Thisis a particularly inappropriate use ofthat phrase, in my opinion. TheSenate Judiciary Committee was notsitting as some omniscient body sittingin judgment of executive nominations.Our proper role, under the advice andconsent clause of article II, section 2,of the Constitution, in my view, is toprovide an additional, more personal,information gathering mechanismthrough which our colleagues, the fullSenate, may make an informed deci-sion whether or not to confirm a nomi-nee. Our job was to look not only tothe nominees paper trail, academiccredentials but to also try to see intothe nominee's heart. I commented onthose perceptions last Thursday andwill not restate those here. I am trou-bled, however, about this perceptionthat a nominee must prove somethingto the committee and the Senatebefore he or she is fit to assume a posi-tion on the Supreme Court.

I just want to comment briefly onthe burden of proof issue that cameup, and continues to pop up. It is mypersonal view there is no burden ofproof on a nominee to assure theSenate that he or she will vote in themanner dictated by the particular pol-itics of the moment, either accordingto some specified political philosophyor to a specific outcome on any par-ticular issue, abortion being a classicexample.

I happen to feel that a womanshould have the choice, indeed, in thatghastly situation known only to them.But if there is indeed any form ofburden of proof, that burden is, in mymind, upon any Senator who comesinto the confirmation process with apersonal agenda. That is where theburden of proof falls, heavily andclearly.

The burden is on those who wouldvote against the nominee only becausethey disagree with the choice made bythe American people when they elect-ed the President of the United States.The burden is on those Members whoapproach the process with a closedmind, or who have made up theirmind. It is their burden to prove to theAmerican people that they are dis-charging their constitutional duties,rather than acting most energeticallyout of personal bias or purely politicalmotives.

I think it is unfortunate the confir-mation process has indeed becomeoverly permeated with politics in thepartisan sense. It will always necessari-ly be present, but not as an overween-ing component.

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26977We expect our judges and Justices to

approach cases with pure objectivity.We demand they shed their personalfeelings while sitting in judgment ofothers and while passing on the impor-tant constitutional issues of the day. Iam concerned we in the Senate, whileconsidering the equally crucial ques-tion of confirmation of a Presidentialnominee to our highest Court, appearreluctant to impose upon ourselves anequally stringent standard of objectivi-ty in performing our duties under theadvise and consent clause.

So any burdens, I think, are uponthose who seek for any reason to de-stroy the presumption in favor of thePresident's appointment.

That is not to say we should not becritical. It is not to say we should notquestion. We do not blindly accept,but we should never demand to knowhow a future case will be decided as acondition to a favorable confirmationvote, because such conditioning, in myopinion, undermines the basic require-ment that our judges approach eachcase objectively and that their deci-sions in those cases be based purely onthe law.

I hope we will have a successful vote.I know we will, in a few moments. I amconvinced that the record leads—andany thoughtful person who reads itwill be led—to only one conclusion, theconclusion reached by an overwhelm-ing vote of the committee, by a 13-to-lvote of my colleagues: That David H.Souter will be one splendid and fineaddition to the Supreme Court; and, asJustice Souter, he will not be swayedin his decisions by sheer numbers. Heis not afraid to depart from the major-ity of his colleagues if his interpreta-tion of the law leads to a result differ-ent from others. He will listen.

We hear that again and again. Thatis a key aspect of this man. He will setaside his own personal and politicalbeliefs when deciding cases broughtbefore him. He will not legislate, norwill he be afraid to make the political-ly unpopular decisions if the law re-quires a politically unpopular result.

David Souter will be a Justice—aJustice in the purest and finest senseof that word—and our country will bewell served by his presence on theCourt. He is a most impressive man, asincere and authentic and kind humanbeing. He will be a tremendous Justice.He is going to make us all very, veryproud. I say God bless him in his de-liberations on that bench, and in hisstewardship of our enduring Constitu-tion.

Go back and look at his openingstatement before the committee. Thatsaid it more beautifully than I can.

I thank the Chair.Mr. DECONCINI . Mr. President,

there are several major issues of theutmost importance presently facingthis body and the American public.The controversy in the Persian Gulf

has yet to be resolved and requires ourconstant attention. The budgetsummit agreement is on the mind ofevery Member in this body. Both ofthose issues involve two of Congress'smost important powers: The power todeclare war and the power of thepurse. Today, Mr. President, we exe-cute a power entrusted to the Senatethat can weigh just as heavily as thosetwo other powers. For through ourrole of advice and consent on SupremeCourt nominees, we determine, withthe President, which individuals willbe interpreting the Constitution forfuture generations.

President Bush has nominatedJudge David Hackett Souter to a posi-tion of extraordinary importance inour country. I spent a great deal oftime prior to his confirmation hear-ings studying the record of JudgeSouter. I was indeed impressed withhis background. As a member of theJudiciary Committee, I with my col-leagues questioned him on the greatconstitutional issues of our day. In theend, I felt secure that Judge Souterwould protect the rights embodied inour Constitution that we all so cher-ish. For that reason I decided to voteto confirm his nomination.

In Judge Souter, President Bushnominated an individual who appearedto possess the intellect, integrity, ex-perience and judicial temperament toserve on the Supreme Court. The com-mittee hearings gave him the opportu-nity to confirm those impressions.

I was very impressed with JudgeSouter's testimony before the commit-tee. I was especially pleased by hisopenness in answering committeemembers' questions, He heeded theadvice of several of my colleagues andmyself to be forthcoming. Yet he drewa reasonable line in his response.Judge Souter adequately and properlyprotected his need to withhold an-swers in certain areas that will stillcome before the Court. At the sametime, he discussed at length his ap-proach to constitutional interpretationand his legal opinion on settled law.

The hearings made clear that JudgeSouter did not have a hidden agendahe would attempt to impose upon theCourt. Instead, Judge Souter is a pro-ponent of judicial restraint. He re-spects and defers to precedent. He un-derstands the respective powers of thethree branches of Government. Mostimportantly, he understands the roleof the Court in our system and itsduty to protect individual liberties. Hewill not attempt to protect the"haves" at the expense of the "havenots."

Mr. President, no one in this bodywill ever be satisfied with every re-sponse of a nominee. I would haveliked to have heard Judge Souter'sown standard for gender discrimina-tion under the equal protection clauseof the 14th amendment. But I feel

confident that he will not attempt todismantle the protections the Courthas provided in this area.

We have no absolute assurances howany nominee or sitting Supreme CourtJustice would vote. The Constitutiondoes not entitle the Senate to such aguarantee. Our ability to predict a Jus-tice's future decisions is limited. Jus-tices have changed their positionsfrom time to time. Throughout theircareers they face constitutional issuesnever contemplated at the time oftheir nomination. Thus, the ultimatequestion we as Senators must ask our-selves is whether we feel secure en-trusting him with the tremendous re-sponsibility of protecting the rightsembodied in our Constitution. I amconfident that Judge Souter will guardthese rights judiciously.

Changes in the Court's compositionare disruptive but inevitable. JusticeBrennan's retirement is indeed a turn-ing point in the history of the Su-preme Court. Although I disagreedwith some of Justice Brennan's deci-sions, no one can deny his mark on theCourt or his place in history. In thatrespect, Judge Souter, as he so candid-ly admitted, has some pretty big shoesto fill. He will, I believe, serve theCourt and out country well.

Mr. President, I hope that theSouter nomination will serve as an ex-ample for President Bush and futurePresidents on the nomination process.President Bush fulfilled his appoint-ment duty by presenting us with anominee who possesses competence,integrity, judicial temperament, andexperience. Through the committee,the Senate fulfilled its role of examin-ing and questioning the nominee onthe great constitutional issues of ourday. We conclude that duty today byexercising our advice and consent au-thority. Chairman BIDEN and theranking member, Senator THURMOND,of the Judiciary Committee should becommended for conducting very thor-ough hearings. I believe the committeeasked extensive but fair questions andI further believe that Judge Souter re-sponded with fair and thoughtful an-swers.

I have concluded that PresidentBush chose Judge Souter because hewill be an openminded jurist. And,most importantly, as he so oftenstated during the hearing, he willlisten. He was not chosen to turn backthe clock on the great constitutionalprinciples of our day. Through thehearings the Senate and the Americanpublic heard an individual with a greatunderstanding of the Constitution andthe role of the Court in protecting ourindividual liberties.

Mr. President, today this body willbe entrusting Judge Souter with a po-sition of immense power. Soon, he willbegin making decisions affecting thelives of each of us far into the future.

26978 CONGRESSIONAL RECORD—SENATE October 2, 1990His decisions will also impact on ourchildren and their children. Wecannot reverse the course that JudgeSouter will pursue. Thus, we can onlybe secure in believing that we madethe right decision based on what weknow today. I am secure in voting toconfirm Judge Souter to the SupremeCourt. And I am confident he will ful-fill our expectations.

Mr. BIDEN. Mr. President, to bringthe Chair and my colleagues up todate here, I think we only have threemore people who wish to speak on thisnomination. One is on his way, as Ispeak—Senator CRANSTON—who indi-cates he would like to speak on thenomination for about 10 minutes. Andthen I believe the only two people leftwho indicated a desire to speak on thenomination—I say this for the conven-ience of my colleagues in determiningwhen the vote is likely to take place-is the distinguished Senator from NewHampshire, the real justice. I shouldnot be so facetious. We have all beenkidding him so much because he hasan intense interest in and is a closefriend of the nominee.

The Senator from New Hampshire ison the floor and, after Senator CRAN-STON speaks, he will be the last speak-er on the Republican side, and thenSenator MITCHELL would like to close.He indicates he has about 7 minutesworth of comments. So if all goes wellin the next few minutes, we should beable to be voting on this nominationby 6 o'clock, hopefully maybe as earlyas 10 minutes of 6. In the meantime, Isuggest the absence of a quorumawaiting the arrival of the Senatorfrom California.

The PRESIDING OFFICER. Theclerk will call the roll.

The legislative clerk proceeded tocall the roll.

Mr. BIDEN. Mr. President, I askunanimous consent that the order forthe quorum call be rescinded.

The PRESIDING OFFICER. With-out objection, it is so ordered.

Mr. BYRD. Mr. President, as theSenate deliberates on the nominationof Judge David H. Souter to serve asan Associate Justice of the U.S. Su-preme Court, I am reminded of astatement uttered by one of our great-est Presidents, Abraham Lincoln,nearly 136 years ago. Referring to thegreat strife that was dividing ourNation at that time. Lincoln stated,"No man is good enough to govern an-other man without that other's con-sent."

Although circumstances differ,President Lincoln's statement stillrings true today. In considering thenomination of Judge Souter to serveon our Nation's Highest Court, we areoffering the Senate's consent—thepeople's consent—to selecting JudgeSouter to decide some of the most im-portant and controversial issues that

will be coming before the SupremeCourt.

This is a very sobering responsibil-ity, and one that I do not take lightly.The cases that will be considered bythe Supreme Court this coming year,and the next several years, are sure tobe among the most contentious formany decades. During this term alone,the Supreme Court will be decidingcases involving such controversialissues as abortion, sex discrimination,punitive damages, and challenges tothe death penalty. Therefore, I amconcerned that the individual who re-ceives my consent—indeed, the Sen-ate's consent—brings an open mindand a tempered judicial willingness tothoroughly review the facts and cir-cumstances of these cases.

Mr. President, I have reviewed JudgeSouter's background. I am much im-pressed by his academic and profes-sional credentials. Judge Souter's testi-mony before the Senate JudiciaryCommittee indicates that he possessesan agile legal mind and a keen intel-lect, reflective of a well-reasoned andexperienced judicial philosophy. JudgeSouter has the background and thelegal knowledge that should serve himwell in deciding vital constitutionalissues of our time. He received thehighest judicial rating possible fromthe American Bar Association's judi-cial screening panel. Judge Souter'sacademic record is flawless, boastingtwo undergraduate degrees—one fromHarvard and one from Oxford wherehe studied as a Rhodes Scholar. Subse-quently, Judge Souter earned his lawdegree at Harvard University, wherehe was named Phi Beta Kappa.

Judge Souter's professional back-ground demonstrates a commitment topublic service that is lacking in manylawyers with his distinguished academ-ic credentials. He served as an associ-ate with the New Hampshire law firmof Orr and Reno for 2 years aftergraduating from Harvard. He thenturned to public service, as both assist-ant attorney general and associate at-torney general for the State of NewHampshire before being named attor-ney general of that State in 1976. In1978, Judge Souter was appointed tothe New Hampshire Superior Court,and 5 years later, he was appointed tothe New Hampshire State SupremeCourt. Most recently, Judge Souterwas appointed to the First Circuit U.S.Court of Appeals, where he has beenserving since this past April.

Mr. President, I do not casually offermy support to any nominee. Aftermuch study and review, I am satisfiedthat this nominee is eminently quali-fied and will provide a well-reasonedand an aptly tempered approach tothe cases that will be coming beforehim. I approve of Judge Souter be-cause he offers a unique combinationof qualities that will serve him well onthe U.S. Supreme Court. I recall a

statement that he made during hisconfirmation hearings that a few of ushere in the legislative branch would dowell to remember. He said, " * • • atthe end of our task some human beingis going to be affected * * *," andjudges, therefore, "had better useevery power of our minds and ourhearts and our bodies to get those rul-ings right."

I am certain that Judge Souter willwrestle to the utmost to get those rul-ings right. His brilliant legal mind,combined with his human approach tothe law, will serve our country well. Ihope my colleagues will join with mein offering their consent for approvalof this nominee.

Mr. DURENBERGER. Mr. Presi-dent, I rise to support the nominationof David Souter to the U.S. SupremeCourt.

Judge Souter will replace a legend,Associate Justice William Brennan,who after 34 great years on our Na-tion's Highest Court has steppeddown. Justice Brennan's powerful in-tellect, winning personality, and will-ingness to take on the tough issueshave served the Nation well and willbe hard to replace. He has left a legacyof wisdom and service that will grow inhistory. His shoes cannot be filled byanyone, nor should they be.

On July 23, 1990, President Bushnominated David H. Souter to fill Jus-tice Brennan's vacated Supreme Courtseat. I believe the President's choice isa wise one and am very glad that hehas acted so swiftly to fill the seat.The Court will be asked to addressmany complicated and importantissues this fall and it is very importantthat all nine chairs be filled.

I take my constitutional role of ad-vising and consenting on judicial nomi-nees very seriously. It is one of themost important responsibilities as-signed to each Senator and one that Ihave devoted a great deal of time to inthe last couple months. Accordingly, Ihave evaluated Mr. Souter's nomina-tion very carefully. I listened to hishearing testimony, and that of otherwitnesses, read many pertinent docu-ments, and spoken with many Minne-sotans about Souter's nomination.

Mr. President, shortly after I waselected to the U.S. Senate in 1978 Iwas faced with my first appointment.President Jimmy Carter had nominat-ed Congressman Abner Mikva to theU.S. Court of Appeals for the Districtof Columbia. I grappled with thechoice of standards for evaluating ju-dicial nominees. Article II, section 2 ofthe Constitution provides that thePresident's power to appoint impor-tant public officials is to be exercised"by and with the advice and consentof the Senate." Alexander Hamilton,in No. 76 of the Federalist Papersstated that the purpose of advice andconsent was "to prevent the appoint-

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26979ment of unfit characters." Senatorshave interpreted this power in differ-ent ways.

Under one standard, the one I havecome to use, it is the Senate's role toevaluate the nominee on the basis ofhis competence and integrity. Thisstandard is premised on the view thatthe President, elected by all thepeople, was empowered by the Consti-tution to appoint officeholders whowould further his philosophy andgoals. The other standard, a distinctlyminority and different view, was thata Senator would vote his perferenceon the political views of the nominee.The second standard was, and is, verytempting. Abner Mikva's views weremuch more liberal than mine. But,after careful analysis I decided thatpolitics did not belong. As I stated atthe time:

The power to "advise and consent" on ju-dicial nominations has never been viewed asauthority for the Senate to substitute itsjudgement for the President's on the quali-fications of a nominee. For two centuriesthat power has been regarded as authoriz-ing rejection of nominees for only two rea-sons—lack of integrity or lack of compe-tence. No judicial nominee has even been re-jected simply because the Senate disagreeswith his political views.

So, I swallowed hard and voted toconfirm Abner Mikva. I have em-ployed that standard for every judicialnomination since. I did for JudgeBork, and I will apply it to the JudgeSouter's nomination today.

In sum, my constitutional advise andconsent role is to evaluate a nominee'sfitness to serve as a judge. My goal isto insure that members of the Su-preme Court are able jurists, honest,and will fairly interpret the Constitu-tion and laws of the land. I do nothave a litmus test; such tests are notappropriate. I do not look for a politi-cal agenda or philosophical bias. Com-petence and integrity are what matter.

Mr. President, Judge Souter is com-petent and has an unblemished histo-ry of legal and public service. Hiscareer is one of high intellectualachievement and personal integrity.While watching his confirmation hear-ing before the Senate Judiciary Com-mittee, Judge Souter showed me thathe is a man of deep intellectual char-acter; a man who will approach everycase presented to the High Court witha willingness to listen carefully to bothsides, and then cast his vote basedupon the principles embodied in ourConstitution. He does not bring a per-sonal or political agenda to the court.The only agenda Judge Souter has isto interpret the Constitution and lawconsistent with the principles of fair-ness and justice.

I was most struck by a commentJudge Souter made about the awe-some power that any judge must have,especially a member of the SupremeCourt. Let me quote Judge Souterwhen he described his judicial role:

"Whatever court we are in • * * atthe end of our task some human isgoing to be affected. Some human lifeis going to be changed by what we do• • • (therefore) • • • We'd better useevery power in our minds and ourhearts and our beings to get those rul-ings right."

Mr. President, I conclude DavidSouter is fit to serve on the SupremeCourt of the United States. This veryintelligent, scholarly, and refreshinglyprivate man well understands the im-posing authority, power, and responsi-bility that he will have on the highestcourt in our land. He will not abusethat awesome power, but will interpretthe Constitution of this land fairlyand with compassion. These are theessential characteristics of a judge andmake him fit to serve, and serve wellon the Supreme Court.

Mr. HEINZ. Mr. President, on July23, 1990, President Bush nominatedDavid Hackett Souter, presently a sit-ting justice on the U.S. Appeals Courtfor the First Circuit, to fill the Su-preme Court seat left vacant with theretirement of Associate SupremeCourt Justice William Brennan.

As is the case with every recent Su-preme Court vacancy, Judge Souter'snomination has engendered publicdebate and public scrutiny. The publichas a compelling interest in the char-acter and capabilities of individual jus-tices who would serve on the SupremeCourt, the highest court in the land. Anomination to the U.S. Supreme Courtis a lifetime appointment, and the ninejustices of the Court are, therefore, aselect group. Together, they representthe final arbiters of the Constitution,the framework of our democracy andthe guarantor of our individual liber-ties.

Because of the importance of the po-sition, the Senate is required, underthe Constitution, to give the Presidentour advice and consent to the nomina-tion. I approach this decision with anespecially keen sense of responsibility.The process is demanding and chal-lenging. In the discharge of my duties,I owe to my constituents, and JudgeSouter, an impartial and fair decisionin casting my vote.

In the 2V2 months since the Presi-dent nominated him, the Nation haslearned a lot about David Souter, theperson and the jurist. His entire lifehas been put under a microscope, leav-ing not a single aspect of his careeruninvestigated. The Senate JudiciaryCommittee and numerous interestgroups examined hundreds of his deci-sions as a member of the SupremeCourt of the State of New Hampshire.They probed the actions he took andthe briefs he wrote as attorney generaland assistant attorney general of NewHampshire. They looked into his fi-nances, his education, and his pas-times. The committee itself questionedJudge Souter for 20 hours in open ses-

sion—more time spent before the com-mitte by any other Supreme Courtnominee in history save one.

Mr. President, the record demon-strates that Judge Souter is eminentlyqualified to sit on the Supreme Court.As an alumnus of Harvard College andLaw School, a Rhodes scholar, privatepractitioner, New Hampshire attorneygeneral and State supreme court jus-tice, Judge Souter has shown thescholarship, legal acumen, profession-al achievement, integrity, fidelity tothe law and committment to the con-stitution to serve on our highest court.

A standard I have applied in allnomination considerations is to deter-mine whether the nominee is an ex-tremist or activist. If so, the nomineeshould be rejected. I believe this test isfair and impartial, preventing extre-mism of both the right and left, eithera conservative activist or liberal activ-ist from joining our highest court. Inresponding to direct inquiries fromcommittee members, Judge Souter ar-ticulated a judicial philosophy that iswithin the mainstream of constitution-al thought. His answers on the issuesof original intent, stare decisis, statu-tory construction and judicial re-straint revealed a judge committed torendering an honest interpretation ofconstitutional rights and liberties. Hestrongly and convincingly indicatedhis commitment to precedent regard-ing previous interpretations of the Billof Rights, due process and the equalprotection clause of the Constitution.

One of the highly controversial as-pects of this nomination revolvedaround how Judge Souter would ruleon cases coming before the Courtwhich challenged the premise of theSupreme Court's decision in Roeversus Wade. Several Senators direct-ly, and some others indirectly, askedJudge Souter his position on this con-troversial case. Judge Souter declinedto answer this line of questioning, as ishis perogative, since cases concerningabortion rights are scheduled to beheard by the Supreme Court in thenear future. Judge Souter did com-ment on the constitutional underpin-nings to that decision—the right toprivacy. He stated that he believedthat there is a fundamental if unenu-merated right to privacy in the Consti-tution, and that the right of marriedcouples to make choices about pro-creation is at the core of that funda-mental right. His response may nothave satisfied either side of the abor-tion debate, but it did reveal a personwith a scholarly appreciation of thecompeting constitutional interests andwith the integrity to render judgmentin accordance with those interests.

Finally, Mr. President, I found thisnominee to be both learned and elo-quent. In his opening statement, and Irecommend it to all my constituentsinterested in gaining a measure of this

26980 CONGRESSIONAL RECORD—SENATE October 2, 1990man, Judge Souter acknowledged thatthe actions of a jurist cannot be ren-dered without thought to its effect. Herecognized that his actions will affecthuman beings, that some human life isgoing to be affected in some way. Hiscomments suggest to me a man who iscapable of bringing depth and compas-sion to the Supreme Court.

Therefore, Mr. President, I will votein favor of the nomination of David H.Souter to the Supreme Court of theUnited States.

Mr. DOLE. Mr. President, after 3days of testimony and 18 hours ofoften grueling congressional question-ing, Judge David Souter has demon-strated to America that he deserves aseat on our Nation's highest court.

Throughout his legal career—as NewHampshire attorney general, as an as-sociate justice on the New HampshireSupreme Court, and as the author ofmore than 200 judicial opinions-Judge Souter has consistently distin-guished himself with his keen intel-lect, with his evenhandedness, andwith his commitment to the rule oflaw.

Most importantly, Judge Souter un-derstands that in a three-branch de-mocracy such as ours, the role of aFederal judge is to interpret the Con-stitution strictly, and not to legislateone's own personal or political agendafrom the bench.

So, Mr. President, it is no wonderthat the American Bar Association hasgiven Judge Souter its highest ra t ing-well qualified.

And it is no wonder that—lastweek—the Judiciary Committee gaveJudge Souter its stamp of approval—for the second time in less than a year.

JUDGES, NOT POLITICIANS

Throughout the confirmation proc-ess, Judge Souter has consistently re-fused to answer specific questionsabout specific cases now pending onthe Supreme Court's docket.

This reticence may disappoint someof the beltway special-interest groups,but it does not disappoint the Ameri-can people.

The American people have alwayscherished, and jealously guarded, theindependence of their Federal judici-ary. And they understand that this in-dependence is endangered—gravely en-dangered—by the brazen intrusion ofspecial-interest politics into the confir-mation process.

To his credit, Judge Souter hasgamely resisted these political pres-sures. And, for this, he has earned theSenate's—and the Nation's—respectand gratitude.

Mr. President, it is my hope that theexperience of this nomination willhelp set the standard for Senatereview of future Supreme Court nomi-nees.

Without a doubt, Senators have aconstitutional obligation to probe anominee's judicial and legal philoso-

phy. They have the right to ask toughquestions. And they may properly ex-amine personal qualities that are ofcritical importance to a nominee's fit-ness to serve—qualities like open-mindedness, integrity, a commitmentto equal treatment under the law forall Americans, and an ability to under-stand real life people and their real-life problems.

These topics are all fair game. Andno Senator should feel reluctant topress a nominee hard in these areas,and to reject that nominee if he or shefalls short of the mark.

But, Mr. President, no nominee tothe Supreme Court—or to any court,for that matter—has the obligation toexplain how he or she will vote onceconfirmed.

Simply put, Federal judges shouldjudge only from the Federal bench.They should not, and must not, pre-judge cases from the bench of aSenate confirmation hearing.

In a recent article, former Chief Jus-tice Warren Burger gave us all amplewarning about the dangers of trans-forming Federal judges into politi-cians.

And I quote:No nominee worthy of confirmation will

allow his or her position to become fixedbefore the issues are fully defined in detailbefore the Supreme Court with all the nu-ances that accompany a constitutional case.Presidents and legislators have always hadplatforms and agendas, but for judges theonly agenda should be the Constitution andthe laws agreeable with the Constitution.

THE SUPREME COURT'S FALL TERM

Mr. President, yesterday, the Su-preme Court began its fall term. Thereare many important cases now pend-ing on the Court's docket—cases in-volving the death penalty, the right tolegal counsel, school desegregation,and the constitutionality of punitivedamage awards.

With these important issues nowunder consideration, the SupremeCourt deserves a ninth Justice whohas the intellectual capacity to hit theground running, to make a contribu-tion to the intellectual life of theCourt right from the start.

By any standard, Judge Souter hasdemonstrated an intellectual ability,skills as a lawyer and jurist, and aquiet, but firm, personal and judicialtemperament that leave little doubtthat he will make a significant contri-bution to the Court from day one.

Very simply, Judge Souter deservesto be confirmed by the Senate, and hedeserves to be confirmed today.

Finally, Mr. President, I want tothank the distinguished chairman ofthe Judiciary Committee, SenatorBIDEN, and the committee's rankingmember, Senator THURMOND. Theyhave conducted fair and comprehen-sive hearings. And they have greatlyassisted the Senate in discharging itsconstitutional responsibilities.

I also want to congratulate my goodfriend and colleague, Senator WARRENRUDMAN. As most of us know, SenatorRUDMAN'S interest in this nominationextends beyond "advice and consent"to the bonds that flow from of a longand enduring friendship.

The success of Judge Souter beforethe Judiciary Committee, and almostcertainly before the Senate latertoday, is as much a testament to thequalities of the Senator from NewHampshire as it is to the considerablequalifications of this fine nominee.

Mr. PACKWOOD. Mr. President, Irise today to discuss the nomination ofJudge David Souter to be an AssociateJustice of the U.S. Supreme Court.

No duty of a U.S. Senator is moreimportant or deserving of careful con-sideration than that of a nominationto the Supreme Court. If confirmed, anominee may well serve for decades,and his or her written opinions andability to persuade fellow Justices willprofoundly affect our lives, and thelives of future generations.

In the days since the Senate Judici-ary Committee completed its hearingson Judge Souter, I have given thisnomination a great deal of thought.

First, I have examined transcripts ofJudge Souter's testimony before thecommittee.

Second, constituent organizationshave shared their concerns with meabout this nominee. This input waswelcome and helpful in directing myattention to aspects of Judge Souter'srecord as well as the hearing proceed-ings.

Third, I have listened with interestto the reasoning of my Senate col-leagues as they announced their re-spective positions on this nomineee.

Ultimately, of course, each Senatormust keep his or her own counsel in amatter of this magnitude. I welcomethis opportunity to share my decisionon this nomination and the thinkingwhich led me to it.

First, and I will not belabor thispoint because so many other Senatorshave covered it quite eloquently,Judge Souter has a superb educationalbackground and impressive legal expe-rience. The number of years he servedas a State court judge, and State attor-ney general, leave no doubt of his legalcompetence.

In addition, those who know JudgeSouter personally, gave him positivereferences almost without exception.This is true of: hearing witnesses; thejudge's friends and associates whohave been quoted in the media; and in-dividuals of long acquaintance withJudge Souter who personally sharedwith me their high regard for him.

Judge Souter's associates find himpersonable, compassionate, and pos-sessed of great integrity.

As important as outstanding profes-sional competence and excellent char-

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26981acter are, those qualities alone do nota Supreme Court Justice make. TheSenate's constitutional duty to provideadvice and consent in the matter ofSupreme Court nominations demandsthat we look beyond these qualities tothe most critical issue: what kind ofsteward of the Constitution would thisnominee be?

There is absolutely no doubt thatthe next Justice to the confirmed willbe the deciding vote on a number ofissues of critical importance to Ameri-cans.

Keeping this in mind, as well as theduty of Congress to safeguard consti-tutional rights, I reviewed with par-ticular interest Judge Souter's testi-mony on privacy, gender discrimina-tion, civil rights, and freedom of reli-gion.

Judge Souter was questioned onfreedom of religion by committeemembers concerned about two of hisactions as State attorney general:

First, his defense of an executiveorder calling for the lowering of flagson Good Friday, and

Second, his statement that the be-liefs of Jehovah's Witnesses who re-fused to display the words "Live freeor die" on their license plates were"mere whimsy."

Mr. President, I, too, felt concernabout these positions which the judgehad taken. Freedom of religion, one ofthe basic tenets on which our Nationwas founded, means nothing if a Statecan establish one sect as more legiti-mate by its actions, or prevent the freeexercise of religion. I was thereforegratified to note that the hearingrecord reflects that Judge Souterwould apply strict scrutiny to lawsthat impair the free exercise of reli-gion. His answer about the reasoninghe would apply in cases where a Stateis alleged to violate the establishmentclause was somewhat less clear. How-ever, on balance, I am satisfied thatthe positions he took as Attorney Gen-eral would not be reflected in his phi-losophy as a Justice.

Civil Rights is another area I redflagged for careful review, due in partto Judge Souter's now-famous allegedquote that "affirmative action is af-firmative discrimination." I was alsointerested in the novel position hetook as State attorney general thatemployee privacy rights prohibitedthe State from revealing its minorityhiring practices to the Federal EqualEmployment Opportunity Commis-sion. However, Judge Souter's testimo-ny again did much to allay my con-cerns. He did not reject the concept ofaffirmative action, and indicated thathe would find it appropriate in certaincircumstances. He also showed, in myview, a sensitivity to the degree thatrace discrimination affects our Nation,recognizing it as a tragedy. Finally, heleft no doubt that Brown versus Board

of Education is to him a matter ofwell-settled law.

On the issue of gender discrimina-tion, Judge Souter indicated dissatis-faction in his testimony, as he has inhis writings as an attorney and ajudge, with the so-called middle tier ofconstitutional protection generallyused. He is not the first to find faultwith this standard. More important tome than his criticism of midlevel scru-tiny, is what standard of protection hewould apply in gender discriminationcases: Strict scrutiny? The rationalbasis test? Or a newly fashioned, moreacceptable middle tier standard? Thisissue is of more than academic concernto American women, and I wish therecord were more illuminating in thisregard.

Finally, let me address the issue ofthe constitutional right to privacy. Inthis area of the law, more than anyother, Judge Souter was reluctant todiscuss his views, and he has beenwidely criticized for this. Judge Souteragrees that there is a fundamentalmarital right of privacy as found inGriswold versus Connecticut, whichincludes the right to use contracep-tives. However, he stopped short of ex-pressing his opinion of the reasoningin Eisenstadt versus Baird, in whichthe court found that the right to usecontraceptives extends to unmarriedpersons.

He did this, I believe, out of an over-abundance of caution rather than anydesire to frustrate the factfinding ef-forts of the committee. It is obviousfrom the record that Judge Souter be-lieved that any discussion of a casecoming anywhere near Roe versusWade in the line of privacy casesmight cause him to comment on themerits of Roe. I disagree with his posi-tion that answering the committee'squestions on Eisenstadt would havebeen improper. However, each nomi-nee must decide for him or herselfwhat the bounds of propriety are fordiscussing issues they feel may comebefore the court.

I also disagree with Judge Souter asto whether the right to choose recog-nized in Roe is a matter of settled law.However, in the face of my dissatisfac-tion and disagreement with some ofhis responses in this area, I keepcoming back to one statement hemade. In response to Senator KOHL'Squestion: "Do you have an opinion onRoe versus Wade?" Judge Souter re-plied, "I have not got any agenda onwhat should be done with Roe versusWade, if that case were brought beforeme. I will listen to both sides of thatcase. I have not made up my mind, andI do not go on the court saying, I mustgo one way or I must go another way."

My distinguished colleagues, basedon what we know of Judge Souter'scharacter, and the totality of his testi-mony, I take him at his word. Andknowing that he is of an open mind on

the question of abortion, I find en-couragement in his statements abouthow he would evaluate a claim that aparticular right is fundamental. JudgeSouter voiced approval for JusticeHarlan's approach, taking into consid-eration the history and traditions ofthe American people. If he appliesthat analysis, the right to choosemust, I believe, be found to be funda-mental because the legal structuresagainst abortion in this country are ofcomparatively recent origin. Indeed, atthe time our Constitution was written,abortion was permitted under thecommon law.

Further, I am convinced that JudgeSouter is cognizant of the legal chaosthat would ensue if the right to chooseis struck down. He testified that thepractical consequence of overturningRoe would be "a range of protectionafforded which would raise complicat-ed federalism issues." When asked bySenator METZENBAUM whether hewould consider consequences, such asthe death of women from botched ille-gal abortions, in determining whetherthe right to choose is fundamental,Judge Souter indicated strongly in theaffirmative.

Although I take these as encourag-ing signs that this nominee would rec-ognize that the right to choose is fun-damental, I am not so naive as toassume what his decisions in individ-ual cases would be on this or any otherissue. To paraphrase an apt statement,which one Senator made in committee,I cannot be accused of making my de-cision on Judge Souter based on thesingle issue of abortion, because I donot know where he will come down onthat issue. I do not believe we will besent a nominee in the foreseeablefuture whose position on Roe andabortion will be easily discerned.Given those circumstances, and basedon the totality of the record, I willvote to confirm Judge David Souter tothe U.S. Supreme Court.

This does not mean that I believe itis inappropriate to ask nomineeswhere they stand on the right tochoose. Nor does it mean that if anominee clearly indicated that he orshe would overturn Roe that I wouldnot mount a vigorous campaignagainst that nominee's confirmation.However, this nomination is not theoccasion to wage that battle. Therecord simply does not indicate to methat Judge Souter would go to theCourt with the intent to overturn Roe,or that he has an agenda to weakenconstitutional protection against dis-crimination or freedom of religion.

Mr. President, I will vote to confirmJudge Souter, believing that the schol-arly mind and compassionate heartwhich he evidenced during the confir-mation hearings, will serve him andthe American people well in his yearson the Court.

39-059 O-91-10 (Pt 19)

26982 CONGRESSIONAL RECORD—SENATE October 2, 1990Mr. McCONNELL. Mr. President, I

rise today in support of the confirma-tion of U.S. Court of Appeals JudgeDavid H. Souter as an Associate Jus-tice to the Supreme Court of theUnited States.

Before addressing the nominee'squalifications, I would first like tospeak to the standard by which I ex-amine nominees to the highest courtin the land.

Over 20 years ago, as a legislative as-sistant in the Senate, I began toreview and study the intent of ourFounding Fathers in this importantconstitutional process. As a result, Idevised a standard that I believe to bethe Senate's role in this process. It wasduring this time that I wrote a lawreview article on this topic. Mr. Presi-dent, I request that my article,"Haynsworth and Carswell: A NewStandard of Excellence," KentuckyLaw Journal (Volume 59, 1970-71), beincluded in the RECORD at the conclu-sion of my remarks.

The PRESIDING OFFICER. With-out objection, it is so ordered.

[Article not reproducible in theRECORD.]

Mr. McCONNELL. Mr. President, anexamination of the Senate's historicrole in this confirmation processshould begin with the political writ-ings contemporaneous with the draft-ing and approval of the Constitution.In the Federalist, No. 76, in discussingthe nomination process, AlexanderHamilton clearly defines the limits ofthe Senate's "advice and consent"power:

To what purpose then require the coop-eration of the Senate? I answer, that the ne-cessity of their concurrence would . . . be anexcellent check upon a spirit of favoritismin the President, and . . . prevent the ap-pointment of unfit characters from Stateprejudice, from family connection, personalattachment, or a view to popularity.

Clearly, a test of ideology and poli-tics was not contemplated. Also, thevery structure of the proposed govern-ment, and the relationship of eachbranch to the other, supports thisview. The framers intended for threeseparate and independent branches ofgovernment. The judiciary was to befree from political influences, insulat-ed from the whims of a changing ma-jority and answerable only to the lawand a public that expected the judicialbranch to despense justice free fromthe taint of popular politics. Any at-tempt to deny confirmation on thebasis of a philosophy, that is withinthe mainstream of American politicaland judicial thought, is an assault onthis tripartite structure of govern-ment. It is clear under our form ofgovernment that the advice and con-sent role of the Senate in judicialnominations should not be politicized.

Therefore, from Hamilton's descrip-tion of the Senate's role in the nomi-nation process, I have identified five

basic criteria for reviewing nomina-tions to the Supreme Court: Compe-tence, temperament, judicial proprie-ty, judicial achievement, and personalintegrity.

Obviously, there are other theoriesto apply regarding the correct confir-mation test, at various times duringthe history of Senate confirmationproceedings of Supreme Court nomi-nations, the personal or political phi-losophy of the nominee has becomethe principle, and sometimes the only,criteria for fitness to the Court. Mostrecently, we went through the shame-ful debacle of the Bork confirmationprocess. The Bork proceeding was,thus far, the nadir of the 20th-centuryversion of the bitter battles of the18th and 19th century where judicialnominees were rejected because ofpartisan and ideological differences.The political judgment of a nominee'sfitness for judicial office has foundmodern day validation in the writingsof Yale Law School Professor CharlesBlack.

In my opinion, Senator KENNEDYstated the correct view during the con-firmation of Justice Thurgood Mar-shall. Justice Marshall's nominationwas strenuously opposed by Senateconservatives. The senior Senatorfrom Massachusetts said:

I believe it is recognized by most Senatorsthat we are not charged with the responsi-bility of approving a [Supreme Court Jus-tice] only if his views always coincide withour own. We are not seeking a nominee forthe Supreme Court who will express themajority view of the Senate on every givenissue, or on a given issue of fundamental im-portance.

We are interested really in knowingwhether the nominee has the background,experience, qualifications, temperament,and integrity to handle this most sensitive,important, responsible job.

There is no doubt that fundamentaldifferences continue to exist as towhat standards of fitness to apply.However, unlike the competency, in-tegrity criteria, the successful applica-tion of the political fitness test re-quires an environment of intense polit-ical activity. As the Bork nominationproved, an extensive record of writtenachievement can create such a fertileenvironment.

However, the ideological litmus testmay be applied differently when thenominee has neither written norstated sufficient views on particularissues. Thus, the mechanism for deter-mining whether the candidate willpass the political litmus test, mayitself become the test. For example,during the Souter hearings, ideologicalopposition evolved to opposition basedupon the nominee's failure to answerspecific questions relating to issuesthat are most certainly to come beforethe Court.

With this new approach, those op-posed to Judge Souter have tried toapply their political litmus test in a

different fashion. Unhappy that thenominee has not provided any so-called controversial material—dis-agreement with the questioner's posi-tion—upon which to oppose the nomi-nee, some would reject him for notcommenting on issues of a future casebefore the Court. It started with gen-eral concerns about the open-minded-ness of the candidate:

David Souter must assure the Senate andthe public that he has an open mind, is for-ward-looking and has a vision of the Consti-tution which respects individual rights. Ifhe fails to meet this burden, the Senateshould withhold its consent. (Nan Aron, Di-rector, Alliance For Justice)

Later, the demand for DavidSouter's personal views on specificconstitutional issues arose.

While I agree that a nominee shouldhave an open mind, any questioningbeyond a genuine effort to determinethis openness is clearly inappropriate.Likewise, any attempt to elicit a spe-cific response regarding an issue whichis reasonably expected to come beforethe Court in the future is fundamen-tally unfair to any future parties and aviolation of the judicial canons ofethics.

Moveover, such tactics begin to im-pinge upon an even greater principle,the constitutional doctrine of separa-tion of powers. Warren E. Burger, incommenting on what he characterizesas a new assault on the independenceof the judiciary, refers to this line ofquestioning as an inquisition. Hestates that the practice of calling uponSupreme Court nominees to answerquestions in advance of how theywould vote on specific constitutionalissues is demeaning to, and a corrosiveaction upon, the Court and its neces-sary independence:

Does such an inquisition not demean andundermine our historic separation ofpowers? If Senators can commit a futurejustice as to how he or she will decide a par-ticular case, who then is construing theConstitution? Where does this place thehigh duty of constitutional interpretation?

Now the question is whether the Ameri-can people are witnessing a confirmationprocess in which special interest groupshave flooded Senators with questions de-manding advance commitment from thenominee as to what his or her vote will beon some pet subject.

Justice Burger was further quoted assaying:

Of course, no nominee worthy of confir-mation will allow his or her position tobecome fixed before the issues are fully de-fined in detail before the Supreme Courtwith all the nuances that accompany a con-stitutional case.

To expect a nominee to make commit-ments, or even to engage in substantive dis-cussion of a case yet unseen, borders on thepreposterous. Judges, like Senators andPresidents, while entertaining general im-pressions on a subject, have been known tochange their minds when they have all thefacts and circumstances as distinguishedfrom some hypothetical proposition.

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26983Lloyd N. Cutler, counsel to former

President Jimmy Carter, in a writtenarticle disapproving of this type ofquestioning of Judge Souter, wrote:

As Prof. Charles Black has noted, theCourt is the great legitimator of our govern-ment, the final arbiter of whether or notthe executive and legislative branches haveexceeded or abused their limited powers. Toperform this vital function, the Court mustbe, and must appear to be, as independentof the President and of the Congress as hu-manly possible. While the President mustappoint and the Senate must confirm orreject the nominee, it is vital to the integri-ty of the process that neither they nor therest of us insist on knowing in advance howa new Justice is going to vote in a particularcase.

The key to the Court's critical constitu-tional role lies in the mystery of its futureactions. If the Justices appear to have com-mitted their votes to the President, who ap-points them, or to the Senate which con-firms them, we will no longer trust them asour ultimate authority on the Constitution'smeaning.

In August, speaking before theAmerican Bar Association, SupremeCourt Justice John Paul Stevenswarned against either the executive orlegislative branches trying to deter-mine in advance the views of the nomi-nee:

You really wouldn't want a judge whowould say in advance how he or she wouldvote on particular issues. That's not part ofthe independent judiciary that's such an im-portant part of our tradition and our histo-ry.

I continue to believe that the Senateshould reject the political litmus test.I also believe the Senate should rejectany test requiring a nominee to statein any substantial way how he or shewill vote on a particular issue thatmay come before the Court.

Mr. President, regarding JudgeSouter's qualifications, it is quite obvi-ous that after 5 days of hearings and40 witnesses, Judge Souter's competen-cy is certainly not in doubt. The Amer-ican Bar Association's standing com-mittee on the Federal judiciary hasgiven him its highest rating, "wellqualified." As both a lawyer and judge,his peers have spoken of his brillanceand his outstanding intellectual capac-ity.

As to the second criterion, judicialachievement, Judge Souter is also veryqualified. He has served with distinc-tion in the following New Hampshireoffices—assistant attorney general, at-torney general, State superior judge,and State supreme court judge. Mostimportantly he has a depth of judicialexperience including the hands on ex-perience of a trial judge, a significantskill and perspective to take to theHigher Court. With his current posi-tion on the U.S. Court of Appeals,Judge Souter has 12 years on thebench. In fact, he has more judicialexperience than all but one of the cur-rent Justices had at the time of theirconfirmation. John Broderick, a

former New Hampshire Bar Associa-tion president, said of his judicial abili-ty, "he's a judge's judge, extraordinar-ily talented and impeccably fair."

Judge Souter clearly meets the ex-acting standard of excellence. Aca-demically, Judge Souter, a Phi BetaKappa, graduated magna cum laudefrom Harvard College. Afterward hestudied at Oxford University for 2years as a Rhodes scholar. He complet-ed his academic and professional stud-ies at Harvard Law School. A "firstrate scholar," says a former presidentof the New Hampshire Bar Associa-tion.

Last, a thorough examination of hisbackground has found his judicial pro-priety and personal integrity to beabove reproach. Even his most severecritic makes no challenge regardingJudge Souterh's personal or profes-sional honesty. The ABA's standingcommittee stated that "Judge Souter'sintegrity, character, and general repu-tation appear to be of the highestorder and without blemish."

In conclusion, Mr. President, underthese standards of fitness I will vote toconfirm Judge David H. Souter as As-sociate Justice to the Supreme Court.

Mr. COATS. Mr. President, in thelast several years the Senate's consti-tutional role of advise and consent haslost its way in a thicket of policy de-bates and partisan agendas. Recentconfirmation fights have scarred theprocess with bitterness and distortion.Senate hearings have become politicalinquisitions, rehashing the shifting de-bates of current elections.

But with the nomination of JudgeSouter, we have the opportunity todefy the recent past.

To begin with, we must relearn abasic principle, a principle concerninghow the Senate should treat the Presi-dent's Supreme Court appointments.A principle about what the power ofnominations means.

This is not a debate we conduct in avacuum. The doctrine of advise andconsent was given considerable atten-tion by the founders. Alexander Ham-ilton wrote that the Senate should ap-prove a president's nominee unlessthere were "Special and strong [em-phasis mine] reasons for refusal." Andfurther, that when the Senate over-steps its proper bounds, the result is"the full display of all the private andparty likings and dislikes, partialitiesand antipathies, attachments and ani-mosities, which are felt by those whocompose the assembly."

Senator George Cabot of Massachu-setts wrote in 1799, "I have always re-jected the idea of non-concurrencewith a nomination merely because thenominee was less suitable for theoffice than thousands of others: Hemust be positively unfit for office, andthe public duty not likely to be per-formed by him, to justify in my mindthe non-concurrence. It has always ap-

peared to me that a departure fromthis principle would soon wrest fromthe President altogether the essenceof nominating power, which is thepower of selecting offices."

A judicial nomination is not properlya political struggle for the direction ofthe court between executive and legis-lature. That decision was made in anational election 2 years ago. Thepresident has earned the right tomake his choice under the Constitu-tion. The Senate, quite simply, has nopolitical role in this process at all. Thecriteria for our judgment is character,experience, and intelligence—theseminimum standards of fitness. Theselimited determinations exhaust ourappropriate involvement.

But with Judge Souter, we can saymore than the undisputed fact he is fitfor office. We can say he will bring ex-ceptional talents, temperament, andknowledge to the court. This nomineemerits more than grudging accept-ance. He deserves our strong support.

His academic record is unexcelled.His service to New Hampshire as attor-ney general was outstanding. Histenure on the New Hampshire su-preme court was distinguished. He is ascholar of the law and an individual ofpersonal loyalty and religious convic-tion.

But above all, he takes it as his pur-pose to ensure fidelity to the words ofthe Constitution and the originalintent of the framers. In a 1986 caseJudge Souter wrote that "the court'sinterpretive task is to determine themeaning of * * * [constitutional lan-guage] as it was understood when theframers proposed it."

Some have attempted to define thisapproach as a variety of extremism.But it was once the dominant view ofconstitutional law.

Justice Nathan Clifford, in 1874,summarized this attitude, "courtscannot nullify an act of the legislatureon the vague ground that they think itis opposed to a general latent spiritsupposed to pervade or underlie theConstitution. * • * Such a power isdenied to the courts, because to con-cede it would be to make the courtssovereign over both the Constitutionand the people, and convert the gov-ernment into a judicial despotism."Justice Felix Frankfurter, about 90years later, reflected, "as a member ofthis court I am not justified in writingmy private notions of policy into theConstitution, no matter how deeply Imay cherish them or how mischievousI may deem their disregard."

I am convinced that the job of thejudge is the application of the law, notthe creation of new laws. The Su-preme Court should be an instrumentto check Federal expansion, not an in-strument of Federal expansion. It is aprinciple, by every indication, thatJudge Souter supports.

26984 CONGRESSIONAL RECORD—SENATE October 2, 1990The alternative is to turn the court

into a source of unpredictable inter-ventions in policy debates. Judgesbecome oriented toward political out-comes. Courts become political tribu-nals, and the consequences for democ-racy are profound.

Important decisions are taken out ofthe hands of voters and put into thehands of unelected judges. "If this isall that judges do," wrote AlexanderBickel, "then their authority over us istotally intolerable and totally irrecon-cilable with the theory and practice ofdemocracy." Justice Hugo Black, whowas occasionally guilty of the sin hecondemns, warned that the Nationcould "cease to be governed by the lawof the land and instead become onegoverned ultimately by the rule ofjudges." He preferred to put his faithin the words of the written Constitu-tion itself rather than to rely on theshifting, day-to-day standards of thefairness of individual judges." Abra-ham Lincoln said that under an activ-ist court, "the people will have ceasedto be their own rulers, having to thatextent practically resigned their gov-ernment into the hands of that emi-nent tribunal."

We cannot predict what decisionsthe court will be forced to make infuture years. Issues change fromdecade to decade, even from year toyear. The things that seem most im-portant today may be relegated tofootnotes in the dissertations writtenwhen the century turns. The most im-portant attribute of a judge is his judi-cial philosphy and temperament, nothis stand on current and shifting polit-ical debates.

By this standard, the president hasmade an excellent choice. He has ap-pointed a candidate of judicial distinc-tion and judicial restraint—a judgewho will leave to legislators the busi-ness of legislation. And I hope theSenate will respond with its carefulconsideration and overwhelming sup-port.

Mr. COHEN. Mr. President, the Sen-ate's role in judicial appointments, andparticularly the appointment of mem-bers of the U.S. Supreme Court, is oneof its most important functions. In ful-filling its constitutional duty of adviceand consent, the Senate shares withthe President the critical responsibil-ity of shaping the quality of the Fed-eral judiciary and, therefore, the qual-ity of justice in our Nation.

Although there may appropriatelybe a strong presumption in favor of aPresidential nominee, each Senatorhas an obligation to evaluate thequalifications and competence of thoseindividuals nominated by the Presi-dent in order to meet the responsibil-ity imposed by the Constitution. Afterreviewing with some care DavidSouter's academic and professionalqualifications, and his writings andtestimony before the Judiciary Com-

mittee, I believe that Judge Soutershould be confirmed for a seat on theU.S. Supreme Court.

The Judiciary Committee's hearingson the Souter nomination werelengthy and comprehensive. With fewexceptions, the members of the com-mittee and those who watched thehearings were impressed with JudgeSouter's intelligence, his thoughtful-ness and his strong streak of independ-ence. His background is equally im-pressive, from his notable educationalcredentials to his experience as a Stateattorney general, trial judge, and NewHampshire Supreme Court justice.

The Standing Committee on theFederal Judiciary of the American BarAssociation unanimously found JudgeSouter to be "well qualified," its high-est rating. The president of the NewHampshire Bar Association testifiedthat "those of us who have witnessedJudge Souter's judicial performancefirsthand can, in good conscience,report to this committee that he pos-sesses * * * a first-rate legal mind, aflexible and curious appetite for thelaw, an unbiased ear for argument, anuncommon civility and * * * a quietcompassion."

There is, of course, uncertainty onhow Judge Souter will rule on issuesof considerable importance, particular-ly the issue of abortion. Many individ-uals and organizations who support awoman's right to choose, includingmyself, have reservations about whatJudge Souter will do once he is on theCourt. However, I am convinced byJudge Souter's testimony that hebrings no personal agenda to theCourt, and that he will be an openminded, fair and compassionate jurist.

I do not believe that Judge Souter'sintelligence, his integrity, his respectfor the rule of law and the Constitu-tion, or his commitment to the funda-mental principles of justice and equali-ty can be questioned. It is by thesestandards, together with professionalcompetence, that Judge Souter andother nominees to the Federal judici-ary should, in my opinion, be judged. Ibelieve Judge Souter has demonstrat-ed the kind of qualities that will makehim a fine addition to the U.S. Su-preme Court.

Mr. ROBB. Mr. President, I rise todeclare my support for the confirma-tion of Judge David H. Souter to theSupreme Court of the United States.

I followed Judge Souter's testimonybefore the Judiciary Committee withinterest. He was questioned at greatlength and, at times, sharply. Yet I didnot hear anything which would causeme to vote against his nomination.

Judge Souter's objective academicqualifications are superb. More per-suasive, though, was the subjectiveevidence offered on his behalf by anumber of witnesses, including twoformer Democratic attorneys general

of Virginia, one of whom was my suc-cessor as Governor.

Many people have raised concernsnot about what was said in the Judici-ary Committee, but about what wasn'tsaid. While I share the concerns ofmany about critical issues, includingthe right to privacy, I was impressedby Judge Souter's apparent willingnessto listen to the arguments presentedto him. In casting my vote on hisbehalf, I add my fervent hope thatJudge Souter's openness and willing-ness to listen remain hallmarks of hisservice as Associate Justice of the Su-preme Court.

Mr. HATFIELD. Mr. President, Iwill vote to confirm the President'snomination of Judge David Souter tothe Supreme Court when the Senateturns to this matter later today. Likethe majority of my colleagues, I wasenormously impressed by JudgeSouter's personal decency, intellectualcapacity and legal expertise during hisrecent testimony before the SenateJudiciary Committee. I will cast myvote for Judge Souter with full confi-dence that his will be a voice of reasonand fairness on the bench in the yearsahead.

The fact that this nomination comesat a time when our Nation's attentionis focused on Roe versus Wade hasforced all of us to think long and hardabout how we view the Supreme Courtand how we approach the Senate'sconfirmation process. I want to sharebriefly with my colleagues somethoughts on this nomination, on thisprocess and on the complicated andsometimes polarizing times in whichwe live.

Undoubtedly, there are organiza-tions and individuals who will accusethose of us who vote to confirm JudgeSouter of being insensitive to theirconcerns and to their depth of com-mitment. That charge cuts to theheart of what I believe is a very seri-ous misunderstanding of this confirm-tion process.

If part of our constitutional respon-sibility to give our advice and consentregarding a judicial nomination in-volved making sure that the nominee'sviews on specific issues match ourown, I am afraid I would never be ableto support a judicial nomination. I cer-tainly would not be able to supportthis one. Why? Because I know whereJudge Souter stands on an issue I careand feel deeply about: the death pen-alty. Unlike abortion rights activistswhose opposition to this nominationstems from the fact that they do notknow where Judge Souter stands onRoe, I know where he stands on thedeath penalty. He stands firmly on theother side of the issue. As deeply andstrongly as some people feel about RoeI feel just as deeply and strongly thatthe death penalty is not merely wrongbut fundamentally immoral.

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26985Perhaps there are those who will

argue that my opposition to the deathpenalty is somehow rendered meaning-less by my willingness to confirm a Su-preme Court nominee who disagreeswith my position—just as there arethose who will question the commit-ment of abortion rights Senators whovote for a nominee whose position onabortion they do not know. But, Mr.President, I do not exaggerate when Isuggest that this single-minded vision,if it prevails, could destroy our democ-racy.

Our population is infinitely diversein race, ethnic origin, economic status,religion, and personal values. OurStates and regions are equally diversein history, geography, and economicbase. This pluralism and individualismargues against our survival as a nation.But we have survived—despite oftenbitter debate and a bloody Civil War.We have survived because our forefa-thers gave us a constitutional govern-ment based on pluralism and individ-ualism, and a Supreme Court free ofdaily political pressures.

To apply a single-issue litmus test toa Supreme Court nominee would be tocontravene the fundamental principlesof American democracy. As the Orego-nian stated in its September 20, 1990editorial "• * • spokesmen for abor-tion-rights and women's groups arewrong in trying to make Souter's posi-tion on Roe versus Wade [sic] the soletest of whether he should be con-firmed." I agree and refuse to applysuch a test in the case of JudgeSouter.

Unfortunately, Mr. President, I amconvinced that the highly charged po-litical atmosphere in which JudgeSouter has found himself is largely aproblem of our own making. On onehand, I give great credit to my col-leagues who refuse to allow this nomi-nation, and indeed this entire process,to become a series of political litmustests. But on the other hand, I am in-creasingly convinced that the very factthat all judicial nominees are nowgreeted with more questions about pol-itics than about principles is a directindictment of us and of what thisprocess has become.

We have allowed this political polar-ization to occur—indeed we have fos-tered an environment in which single-issue politics flourishes and prevails—by being more interested in duckingthe tough issues than a taking respon-sibility for them. This legislative pa-ralysis has resulted in people lookingto the courts for political activism.That is not only wrong, it is also dan-gerous.

We live in enormously complicatedand increasingly polarized times. Butthat fact simply underscores theurgent need for both the continued in-tegrity of the Supreme Court and forCongress to take responsibility for thetough issues at hand. Voting to con-

firm Judge David Souter's nominationwill ensure the former. But only wecan ensure the latter.

Ms. MIKULSKI. Mr. President, theConstitution requires that Members ofthe U.S. Senate advise and consent toa Presidential nomination for a vacan-cy on the Supreme Court.

Once consent is given, a SupremeCourt Justice may serve for the rest ofhis or her life, virtually unaccountableto any person or group.

This is as it should be. We don'twant our Supreme Court to be swayedby momentary Presidential passions,or forced to choose between justiceand votes.

In return for our consent, however,the Members of the U.S. Senate havea right to know for whom we arevoting.

I have no doubt that Judge Souter isprofessionally competent. Nor do Iquestion his personal integrity.

But I cannot cast my vote to confirma man who has been silent, vague, orevasive every time he has been askedif he would uphold fundamental con-stitutional rights—rights of concern toevery -American and particularly ofconcern to America's women.

Judge Souter has refused to discusshow the Constitution's guarantee ofequal protection under the law pro-tects women against gender discrimi-nation; and he has refused to discussthe fundamental right of privacy.

Through most of the Senate's con-firmation hearings, Judge Souter daz-zled us with his wit and intelligence.He discussed at great length manyareas of the law with which he willhave to deal. He spoke on issues of de-segregation, the death penalty, andthe separation of church and state.

But whenever questioning turned tothe constitutional rights of women theeloquent Judge Souter became the in-tractable and laconic New Englanderof legend.

And so today, we do not know if Jus-tice Souter would vote regardingwomen under the protection of theConstitution.

We don't know if Justice Souterwould vote to protect a woman's rightto decide when and if to bear a child.

Mr. President, women were not evenallowed to vote in this country until1920. Only 16 women have ever stoodon the floor of this Chamber as a U.S.Senator. Only in the last generationhave many women truly started togain control over their lives, their ca-reers, and their families.

And we still have far to go.We have worked too hard and come

to far to accept silence and evasionfrom a Supreme Court nominee.

The U.S. Senate represents 250 mil-lion Americans. We cannot act ontheir behalf without candor and frommen like Judge Souter.

I respectfully submit that it is notacceptable for a Supreme Court nomi-

nee to conceal his views of the criticalconstitutional issues of the right ofprivacy.

I cannot make a leap of faith forJudge Souter. I will vote against hisconfirmation.

Mr. KERRY. Mr. President, as I con-template a vote on this nomination, Iknow that Judge Souter will be con-firmed overwhelmingly. I doubt therewill be more than 10 votes againsthim. So I am voting on a nominationthat is not in doubt.

Judge Souter has been impressive inthe confirmation process. He is obvi-ously extraordinarily bright and ar-ticulate, and worthy of the highregard in which he has long been heldby my friend Senator RUDMAN, whom Irespect greatly.

There is no question of the potentialfor Judge Souter to make a significantcontribution to the Supreme Court, inthe tradition of Justice Harlan—a goalhe has set for himself.

He may well be as some have said,"the best nominee we could expectfrom this President."

But while there is a great deal thatcommends this nonimee to me andurges me to vote for him, I want myvote to underscore my deep concernabout two areas.

On civil rights and on women'srights there are significant questionsabout Judge Souter which loom largeenough to justify a vote against thisnominee. This seat is a critical seat onthe court at a critical moment in itshistory.

Many of my colleagues have come tothe floor and bemoaned the gaps intheir knowledge and in the recordabout Judge Souter's philosophy inthese areas. They have also expressedconcerns about some of the things hedid say.

For example, in his testimony, JudgeSouter distinguished between "maritalprivacy" which he stated "can andshould be regarded as fundmamental"and other privacy, "not every aspect of[which] may rise to a fundamentallevel."

Judge Souter suggested that in theprivacy area, one had to engage in abalancing test, under which any fun-damental State interest can be bal-anced against the fundamental inter-est of the individual to determinewhich interest shall prevail—the indi-vidual's right of privacy, or the "fun-damental right" of the State, whichJudge Souter did not define.

There are two problems here, andboth are serious.

First, because Judge Souter is vagueas to what might constitute a "funda-mental interest" of the State, intheory, he might find that almost anyinterest of the State could be deter-mined to be "fundamental." JudgeSouter's balancing test here might beinterpreted as requiring only some-

26986 CONGRESSIONAL RECORD—SENATE October 2, 1990thing more than a rational relation-ship test. The test implies that JudgeSouter might well agree to loosen cur-rent constitutional restraints on theability of Government to intervene inpeople's private lives.

Second, Judge Souter explicitly,carefully, and definitively distin-guished the right of privacy of peoplewho are married from those who arenot. The former have a fundamentalright, according to Judge Souter, look-ing back to the intent of the FoundingFathers; the latter have some rights,but these may not be fundamental,Judge Souter testified.

This is an odd and disturbing distinc-tion. Unfortunately, Judge Souter re-fused to answer other questions whichwould have more fully explained thepractical meaning of the distinction,so it is difficult to understand themeaning of the distinction. Neverthe-less, it is a troubling one.

These are examples only, but theysuggest why so many of us find thisnomination to be, as in the words ofSenator BIDEN, "a hard case," requir-ing a difficult choice.

In the past, I have voted for Justiceswhose judicial philosophies were farfrom the approach that I would like tosee taken by the Supreme Court, in-cluding Justice Scalia and JusticeKennedy.

Today, I have decided to make a dif-ferent choice to carry out my responsi-bility of advise and consent. I choosewith my vote to express my concernabout the future of civil rights andwomen's rights, and therefore willvote against this nomination.

Mr. HUMPHREY. Mr. President, myremarks will be brief, since JudgeSouter's eminent qualifications forconfirmation as a Supreme Court Jus-tice have been thoroughly demonstrat-ed and discussed.

Needless to say, New Hampshire isextremely proud of Judge Souter. Hislegal and judicial accomplishments,and his lifelong commitment to publicservice, were already well-establishedbefore the confirmation hearingsbegan.

But if there were any doubts aboutJudge Souter's fitness for the HighCourt, they were demolished by hisimpressive demonstration of legalknowledge and unflappable judicialtemperament during the ordeal of con-firmation hearings. Once his testimo-ny was completed, even the skepticsunderstood what those from NewHampshire have known for years:Judge Souter has the "right stuff" toserve with distinction on the U.S. Su-preme Court.

Of course, no nominee for the Su-preme Court can be "all things to allpeople", and Judge Souter is no excep-tion. To his credit, he declined to yieldto the demands of those who sought apre-conf irmation commitment on cru-cial issues that will be coming before

the Supreme Court in future cases.Ironically, Judge Souter's demonstra-tion that he would listen with a fairand open mind to the arguments onsuch issues was attacked as groundsfor opposing him by those who de-manded a pledge to rule their way infuture abortion cases.

I am pleased to see that these bla-tant assaults on the principle of judi-cial independence have failed to carrythe day. Many of the same groupsthat conspired to defame Judge Bork 3years ago have called for the rejectionof the moderate Judge Souter becausehe has declined to endorse their liber-al agenda before taking a seat on theCourt.

Although a few Members haveheeded that call, I am confident thatan overwhelming majority of theSenate will reject it. Any other resultwould cause irreparable damage to ju-dicial independence.

In that regard, it is also important torecognize that portions of JudgeSouter's testimony were of little com-fort to those who seek a more conserv-ative judiciary. I readily admit thatsome of his testimony was a bit dis-turbing to this Senator. For example, Ido not share his assessment that Jus-tice Brennan has been a peerless de-fender of the Constitution—at leastnot the Constitution that I know. Histestimony also indicated that JudgeSouter needs to be more sensitive tothe dangers of judicial usurpation oflegislative powers. I suspect that thismay be attributable to the fact that hehas spent his judicial career in the rel-atively sane environment of the NewHampshire courts. After a few monthsexposure to the excesses of some ofthe Federal courts, I am confidentthat he will develop a keener apprecia-tion of this problem.

While Senators on both sides of theaisle may have their individual reser-vations on various issues, it is clearthat Judge Souter is a sound and solidchoice for the Supreme Court at thistime. The American people entrustedPresident Bush with primary responsi-bility for selecting Supreme Court Jus-tices in the last election, and he haschosen well.

Judge Souter has demonstrated arare combination of qualities whichwill serve the American people well—akeen understanding of the Constitu-tion coupled with a strong sense offundamental fairness. I strongly sup-port his confirmation and urge my col-leagues to do the same.

Mr. LIEBERMAN. Mr. President,after careful consideration, I have de-cided to support the nomination ofJudge David Souter to the U.S. Su-preme Court. This is based upon myown conversations with Judge Souter,the material we have received fromboth supporters and opponents of hisnominations, Judge Souter's testimonybefore the Judiciary Committee and

the committee's report and additionaland dissenting views.

I have concluded that Judge Souteris extremely well-qualified for the po-sition of Associate Justice of the U.S.Supreme Court. He has received thehighest rating of the American BarAssociation's Standing Committee onthe Federal Judiciary. His long experi-ence as an attorney general, a trialjudge, and a State supreme court jus-tice gives him a great deal of perspec-tive on, and sensitivity to, the effect ofhis decisions on litigants and the judi-cial system. He clearly is very intelli-gent, and capable of rendering well-reasoned decisions solidly grounded inboth the facts of the case and the lawas he interprets it.

I. of course, have no greater insightthan any of my colleagues into whatresult Judge Souter would reach inspecific future cases. I neverthelesswill vote to give advice and consent tohis nomination because I believe thathe will approach the issues before himwith an openmind in an attempt toreach a fair and reasoned conclusion.A judge must decide each case in thelight of the facts and arguments pre-sented, and the law as it stands at thetime judgment is rendered. I believeJudge Souter will do this, that he willnot decide these cases in the abstract,and that he will not join the SupremeCourt with an agenda to fulfill.

I am comfortable that, in voting toconfirm Judge Souter, we will place onthe Supreme Court a man who will ap-proach the new legal issues of thenext century in a careful, methodical,and analytical manner. I believe JudgeSouter will serve with honor and dis-tinction. I will, therefore, vote to con-firm Judge Souter as an Associate Jus-tice of the U.S. Supreme Court.

Mr. HEFLIN. Mr. President, I cometo the floor today to reaffirm my an-nounced position on the confirmationof Judge David Souter to be Justice onthe U.S. Supreme Court. I strongly be-lieve that Judge Souter has the neces-sary qualities to be a Justice on theCourt, and I will vote in favor of hisconfirmation.

I believe that Judge Souter willbring to the Supreme Court strongcredentials will serve him well over thecourse of his tenure on the Court. Hisacademic background is clearly out-standing, and his legal experiencemore than adequately qualifies him tosit on this Nation's Highest Court.Further, I believe that Judge Souterwill bring the reflected values of asmall town that is tightly knitted, thatcares about its neighbors, and that re-flects traditional American concepts ofrespect for the rights of others and re-spect for a fair and just society.

I accept Judge Souter's responses tothe committee's questions on a widerange of legal issues. I believe that hewill respect precedent and be a faith-

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26987ful guardian of the Constitution. Fur-ther, I know that Judge Souter willbring a historical perspective and aclear-headed approach to the analysisof issues which will come before him.

In conclusion, I wish to add my voiceto the chorus of support which hasfollowed this nominee, and I urge mycolleagues to vote in favor of his con-firmation.

Mr. CONRAD. Mr. President, I riseto speak in support of the nominationof David H. Souter to be an AssociateJustice of the U.S. Supreme Court.

Judge Souter was nominated byPresident Bush to replace one of thiscentury's most vigorous defenders ofindividual liberties, Justice WilliamBrennan. In his 34 years on the Su-preme Court, Justice Brennan au-thored more than 1,200 opinions. Heleaves a legacy that extends fromBaker versus Carr—a decision thatenunciated the one-man, one-voteprinciple and opened the courts to liti-gation over voting rights—to the caseNew York Times versus Sullivan—acase which is the basis for the expan-sion of first amendment speech andpress guarantees that we have seen inthis century. Justice Brennan's princi-pled application of constitutional pro-tections has made this country abetter place to live for many Ameri-cans.

Justice Brennan's departure alsomeans that his replacement will steponto a court fiercely divided overissues like the separation of churchand state, the question of exclusion ofillegally seized evidence from Stateand Federal trial proceedings, and theissue of privacy, to name just a few. Itis indeed a pivotal time for the U.S.Supreme Court.

Mr. President, in the fall of 1987, theSenate and this Nation experiencedone of the most divisive confirmationbattles in our history. It was duringthat year—my first in the Senate—that I realized that there were fewSenate responsibilities more solemnthan the constitutional duty of adviseand consent. Nominees to the HighCourt face the prospect of decidingcases when every Member of this bodyis long gone. They may cast decidingvotes on issues which we cannot evenimagine today. Our decision to ap-prove a nominee cannot be amended.There is no omnibus bill to revisit ap-proval of a nominee. It is a decision wecan only make once, and it must bewisely made.

I hold deeply to the view that theSenate has a coequal role in the nomi-nation of Supreme Court Justices. Itsurprises advocates who argue forPresidential deference to know that inone early draft of the Constitution,the U.S. Senate was the body whichchose nominees to the High Court.The current partnership between theSenate and the White House was set-

tled on to provide an appropriate bal-ance between the branches.

While the Constitution confers onthe Senate the duty to share the re-sponsibility of nominating a Justice, itdoes not give guidance on the criteriafor evaluation of such nominees. EachSenator must develop his own stand-ards. The nominee must be intelligent,honest, and competent. The nomineemust also possess a deep understand-ing of the constitutional issues thathave been crucial in this nation sinceits inception: State and Federal powersand the rights and liberties of all indi-viduals.

Our duty in this body, then, is toelicit the views and thoughts of Su-preme Court nominees. Accordingly, Iclosely followed the nomination ofJudge Souter. I watched or reviewedthe tesimony from his confirmationhearings. I solicited the views of mem-bers of the bar of my own State ofNorth Dakota. I conferred with Mem-bers of this body on the nomination ofJudge Souter. And, finally, I was for-tunate to have the opportunity tomeet and spend some time with JudgeSouter.

From this examination, a very clearpicture of Judge Souter has emerged:A highly intelligent, dedicated juristwho has an impressive command ofthe issues that may come before theU.S. Supreme Court.

Judge Souter is clearly qualified toserve on the Supreme Court. His legalcareer is very impressive, and his expe-rience spans almost all aspects of thelegal profession. His decision to dedi-cate much of his career to public serv-ice is laudable. Colleagues who haveopposed him in Court, or who havelost cases before his court, have uni-versally applauded his intellect, hisdedication to fairness, and his judicialtemperament.

His appearance before the SenateJudiciary Committee demonstratedthat he possesses an impressive com-mand of modern constitutional issues.He spoke knowledgeably about issuesthat have occupied the Court in the20th century, including the separationbetween church and state; civil rights;Federal affirmative action programs;the guarantees of free speech and thefree exercise of religion; the constitu-tionality of the death penalty; the re-lationship among the various branchesand levels of Government; the powersand limits on powers of the State; andthe rights and liberties of individuals.

I will vote to confirm Judge Souter,but I had one concern. While I under-stand the Judge's personal view thathe could not comment on issues whichmight prejudge cases that could comebefore the Court, I was dismayed withwhat I thought was selective applica-tion of this principle.

For instance, when asked by SenatorSPECTER about his view of the free ex-ercise clause as expressed in the case

involving the use of peyote by drugcounselors, Judge Souter said:

On the free exercise question, I have to becircumspect to a point because I believe thatthe Smith case is subject to a motion for re-hearing presently before the Court. But Ithink there are some things that with a rea-sonable degree of specificity I can say.

The first is that I do not come here andprior to the decision of that case or after it Ihave not had personal reason to want to re-examine the strict scrutiny test which hasbeen applied in a lot of cases since Shurbert.I recognize the reasoning of the majorityopinion. I mean I can follow it; I understandwhat the Court was saying in the Smithcase. But I also recognize I think the factthat case could also have been examinedunder the Shurbert standard. As you men-tioned or indicated a moment ago, that, ofcourse, is exactly what Justice O'Connor didin her concurring opinion in that case.(Transcript, September 14, pp. 47-48)

This amplification of views on thefree exercise clause is utterly appropri-ate, in my view. And, yet, in responseto questions in any way related to Roeversus Wade or the War Powers Reso-lution, for example, Judge Souter in-voked his prohibition on responding.In response to the very next questionposed by Senator SPECTER, JudgeSouter stated:

The first is, of course—and I know yourecognize this—that because of the reasona-ble likelihood that the constitutionality ofthe War Powers Resolution could comebefore the Court in some guise, I cannotgive an opinion on the constitutionality ofthat.

Judge Souter, in fact, refused to re-flect in any way on some key constitu-tional questions. I agree that heshould not have to indicate how hewould vote in particular cases, but hecould discuss his views on many issueswithout revealing the way he mightvote.

This pattern greatly concerns me be-cause I fear it may betray a lack ofcandor on issues which might provokeopposition from this body. I opposethe single-issue politics which mayhave fostered this strategy, yet I be-lieve Judge Souter could have forth-rightly replied to many of the ques-tions that he declined to answer with-out jeopardizing his independence orintegrity on the bench. His refusal toanswer these questions has left theSenate to consider his nominationwithout knowing his views on the piv-otal issues of civil rights and race andgender discrimination, the right to pri-vacy, Federal powers, biomedicalethics, and many others. He has triedto calm the fears of concerned Sena-tors by assurances that he will listen. Ibelieve that he will listen, but I fearthat he has not fully revealed viewsthat should appropriately be dis-cussed.

I hope, Mr. President, that I amwrong and this was not a concertedstrategy, but I must agree with my col-leagues on the Judiciary Committee

26988 CONGRESSIONAL RECORD—SENATE October 2, 1990and express my dismay at JudgeSouter's unwillingness to answer cru-cial questions on some major constitu-tional issues of our day.

Mr. President, despite this concern, Ishall support the nomination of JudgeSouter to the U.S. Supreme Court. Ifound him in our meeting together tobe an open, learned individual. I be-lieve his statement that he shall listento those who come before the Court. Ibelieve that he truly understands thatmillions of Americans' lives may be af-fected by decisions he renders. This isan awesome responsibility, and he hasconvinced me that he is worthy of thetrust and confidence of the Americanpeople.

Mr. NUNN. Mr. President, I risetoday to announce my support for thenomination of Judge David H. Souterto the U.S. Supreme Court. I believethat he is a well-qualified individualwho will serve with distinction on ourNation's highest court.

Judge Souter has an impressive aca-demic record and a career of distin-guished public service. Following hisgraduation from Harvard College in1961, he was selected as a Rhodesscholar and attended Magdalen Col-lege, Oxford, between 1961 and 1963.He then enrolled in Harvard LawSchool and was graduated in 1966.

In his first job out of law school,Judge Souter practiced law in a pri-vate firm in Concord, NH, and 2 yearslater began 10 years of service withthe State attorney general's office. In1976, he was appointed attorney gen-eral for the State of New Hampshire, aposition he held for 2 years until hewas appointed to the superior courtbench. Five years later, he was namedan associate justice of the New Hamp-shire Supreme Court. Earlier thisyear, President Bush nominated JudgeSouter to the First Circuit Court ofAppeals.

I believe that Judge Souter's lifetime commitment to public servicemakes him a good candidate for theSupreme Court. From my review ofthe Judiciary Committee's hearingrecords and from my conversationswith colleagues, I am convinced thatJudge Souter will not be an ideologuewith an agenda, but rather a temper-ate jurist. I believe that he has the in-tellect and integrity to fulfill his con-stitutional duties as an Associate Jus-tice of the Supreme Court.

Finally, I believe that Judge Souterwill not be judicially rigid. Instead, itis my hope that he will decide thecases that come before him with ahealthy application of common sense.It is my view that our Founding Fa-thers intended to set forth generalprinciples which would remain thefoundation of our Nation and thatthey viewed the Constitution as aliving document to be interpreted withcommon sense in light of changing cir-cumstances and conditions. Mr. Presi-

dent, I Relieve that Judge DavidSouter will use such a standard andwill serve our Nation well.

Mr. DOMENICI. Mr. President, Irise today to express my support ofthe confirmation of Judge DavidSouter to be an Associate Justice ofthe U.S. Supreme Court.

Under the Constitution, the Senatehas the duty to offer advice and con-sent on judicial nominees. Our pri-mary concerns when confirming anominee for the Supreme Courtshould not focus on specific issues, butrather on the nominee's ability toserve on our Nation's Highest Court.

The Senate must determine whetherthe individual that the President hasnominated has the competence, integ-rity, temperament, and respect for thebasic principles of our constitutionalsystem necessary to serve as a Justiceof the Supreme Court. I am convincedthat Judge Souter possesses thesequalities.

First, a Justice must be a person whohas exhibited exceptional competencein the law: He or she should belearned in the law and have extensiveexperience in the practice of the law.

Judge Souter graduated magna cumlaude and Phi Beta Kappa from Har-vard University in 1961. He continuedhis education as a Rhodes scholar atOxford University in England andthen returned to Harvard, where heearned his law degree.

After 2 years of private law practice,Judge Souter entered public service.He was an assistant attorney generalof New Hampshire for 3 years, deputyattorney general for 5, and attorneygeneral—the State's chief law enforce-ment official—from 1976 to 1978.

In 1978, he was appointed to theNew Hampshire Superior Court onwhich he served for 5 years until hewas appointed to the New HampshireSupreme Court. In 1990, Judge Souterwas unanimously confirmed by theSenate to be a judge on the U.S. Courtof Appeals for the First Circuit, wherehe currently serves. With his 12 yearson the bench, Judge Souter has morejudicial experience than all but one ofthe current Justices has at the timethey were appointed to the SupremeCourt.

During his confirmation hearings,Judge Souter demonstrated an impres-sive knowledge and command of con-stitutional law. Clearly, by reason ofhis intellect, his education, and his ex-perience, Judge Souter possesses thecompetence that the American peopledemand of their Supreme Court Jus-tices. That is why the American BarAssociation gave Judge Souter itshighest rating and declared him to be"well qualified" to serve on the Su-preme Court.

Second, a Justice must be a personwith unquestioned integrity: He or sheshould be honest, ethical, and fair.

Those who know Judge Souterbest—his peers in the legal professionin New Hampshire—are united in theiropinion that Judge Souter is an impec-cably fair man who adheres to thehighest ethical standards of the legalprofession. His honesty is beyond re-proach.

Third, a Justice must be a personwith a judicial temperament: He orshe should be even-tempered, firm,compassionate, and able to listen todifferent points of view.

Judge Souter ably demonstratedduring his confirmation hearings thathe has the right temperament to serveas a judge. His answers were calm andthoughtful. He engaged in a scholarlydiscussion with the members of theJudiciary Committee, listening totheir viewpoints and explaining hiswith utmost courteousness. JudgeSouter also movingly demonstratedthat he is a man of compassion whenhe related his experience of advising awoman who was confronted with anunwanted pregnancy.

Some would question whether an un-assuming man who would rather livein a small town, who enjoys the soli-tude of nature, who prefers books totelevision, who goes to church everySunday, and who is devoted to hisfamily and friends has sufficient real-life experiences to function effectivelyas a judge.

Frankly, Mr. President, I'm not sureI understand this criticism. In anyevent, Judge Souter—as an active andinvolved member of his communityand as a practicing lawyer and ajudge—has been exposed to a broadspectrum of real-life problems. Heknows that deciding a case is not anabstract intellectual exercise, butrather is a serious activity that can po-tentially affect millions of people. AsJudge Souter testified:

Whatever court we are in, at the end ofour task some human being is going to beaffected. Some human life is going to bechanged and we had better use every powerof our minds and our hearts and our beingsto get those rulings right.

Fourth, a Justice must be a personwho respects the basic principles ofour constitutional system: He or sheshould not be burdened by an ideologythat would prevent him or her frombeing an impartial judge.

During his confirmation hearing andthroughout his 12 years as a judge,Judge Souter demonstrated a pro-found respect for and devotion to thephilosophical underpinnings of ourAmerican democracy—federalism, sep-aration of powers, freedom of speechand religion, individual rights, equalprotection, due process, and the ruleof law.

I am convinced that he will adhereto the doctrine of judicial restraintand will interpret and apply the laws,not impose his own political views. He

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26989has an independent mind and has noideological agenda that he seeks to ful-fill, except to preserve the Constitu-tion of the United States.

Mr. President, in the case of JudgeDavid Souter, President Bush hasnominated an individual who has dem-onstrated throughout his lifetime thathe possesses those traits. He is ex-tremely well-qualified to sit on the Su-preme Court, and I will vote to con-firm him.

Mr. BUMPERS. Mr. President, fewevents in my career have struck asclose to home as Justice Brennan's de-cision to retire. The Senate's duty toadvise and consent to a successor to aJustice of such unique stature is espe-cially heavy. That successor will likelybe serving out a life term at the top ofour third branch of government longafter most of us in this body are gonefrom here. When Justice Brennan an-nounced his retirement, I hoped thePresident would put aside any ideolog-ical agenda and try to find the bestqualified person in the country forthis job. I have no way of knowingwhether Judge Souter is that personor not.

Many things in his record commendhim for service on the Court. First, hewill be the first former trial judge inrecent memory to serve on the Na-tion's Highest Court. As a former triallawyer, it gives me great comfort tothink that someone who has actuallytried lawsuits will be sitting in judg-ment over important cases. One of themost well-founded criticisms of theCourt, it seems to me, is that too oftenthe Justices have little familiaritywith the realities of trial practice.

Without belaboring the facts, JudgeSouter has an enviable record of ac-complishment as a lawyer. He wasgraduated from Harvard Universityand Harvard Law School. He has beendeputy attorney general, attorney gen-eral of New Hampshire, a trial judgeand State supreme court justice, andearlier this year he was confirmed bythe Senate as U.S. circuit judge forthe First Circuit.

My hesitation is not over any qualmsabout Judge Souter's character. Fromevery report, he is a man of unques-tioned integrity and certainly has anoutstanding educational and profes-sional background. He appears to be avery traditional New Englander, con-servative in his appearance, mannerand thinking.

I am somewhat reassured that JudgeSouter is highly recommended by a re-spected Senator on the other side ofthe aisle, WARREN RUDMAN.

I have studied the record of the con-firmation hearings before the Judici-ary Committee. It goes without sayingthat when the Constitution is beingdiscussed I pay attention to what'sbeing said. Judge Souter said littlewith which I would disagree, and hewas genial and accommodating. Frank-

ly, his answers were not very reassur-ing for the right wing of the Presi-dent's party.

Yet, still, there are those who say heis a wolf in sheep's clothing who willgive a narrow berth to constitutionalliberties. There are at least two kindsof conservatives—those who believethe State can do no wrong and thosewho believe that governmental re-straints on the individual must bestrongly justified. For too long, theformer have dominated the debate.Judge Souter seems to have a Jeffer-sonion streak about him.

I cannot see into David Souter'smind and know what he will do whenfaced with issues surrounding Roeversus Wade and its progeny. TheCourt has already ensured, however,that there will be plenty such cases onthe docket. We have seen draconianmeasures enacted in Guam and Louisi-ana, and more are sure to come. WhileI wish I knew more of Judge Souter'strue feelings on a number of issues, Ithink he acquitted himself wellenough in his hearings to receive thebenefit of the doubt. I will resolve thatdoubt in his favor.

Mr. KERREY. Mr. President, I planto vote to confirm Judge Souter as aAssociate Justice of the SupremeCourt.

This is my first vote on a SupremeCourt nomination, and I wish to setout the standards that I believe shouldguide such decisions. I believe thereare three. While I have reservationsabout Judge Souter's record, which Iwill discuss, I believe he has met thesethree standards.

The first standard I would invokeasks whether the nominee has a dis-tinguished judicial record. WhileJudge Souter's credentials as a nomi-nee do not rise to the level of some ofthe titans of the Supreme Court's his-tory, his record is nonetheless distin-guished. He has served as a State at-torney general; a State superior andsupreme court justice; and a judge forthe Federal court of appeals. He isknown in the legal community for aninquiring and exacting legal intellect.He received the highest rating fromthe American Bar Association's Stand-ing Committee on the Federal Judici-ary. His personal integrity and ethicalstandards are beyond reproach.

The second standard asks whetherthe nominee is within the Nation's ju-dicial mainstream. Judge Bork wasnot. Judge Souter is. In the hearings,he accepted certain high standards ofprotection for the essential freedomsof speech and religion. He indicatedhis support for certain remedies forracial discrimination. He committedhimself to the important concept ofdeference to precedent, and rejectednotions that we should in all casesreturn to the "original intent" of theConstitution's framers. Judge Souteris, to be sure, a very conservative

jurist. But that is hardly surprising orobjectionable given that he was nomi-nated by a conservative President.

The final standards asks whetherthe nominee has the judicial tempera-ment necessary to sit on our highestcourt. As I will explain, I am con-cerned about Judge Souter's sensitivi-ty to political, social, and economic mi-norities. I am troubled he was willingto act as an advocate, as New Hamp-shire attorney general, for some offi-cial initiatives that smacked of intoler-ance. Yet Judge Souter's judicialrecord, which I believe is far more im-portant, suggests that he receives theopinions of all parties before him withan attentive, fair, and open mind. Thewillingness to listen respectfully to di-verse arguments is essential to thecredibility of our judicial process.

While I will vote for confirmation, itis with reservations. First, I have seri-ous reservations about Judge Souter'sposition on abortion. My reservation isthat I, like the rest of America, do notknow what his position is on the rightof women to make the most funda-mental choices about reproduction.That is a troubling gap in the record. Iam troubled that this nominee and theadministration that nominated him donot recognize the right to make such achoice as fundamental. I am troubledthat on the difficult choice over abor-tion they are willing to substitutetheir moral judgments for those of in-dividual Americans.

At the same time, I find it comfort-ing that Judge Souter recognizes animplicit constitutional right of privacyas "fundamental." And I must takeJudge Souter at his word when he sayshe has not made up his mind concern-ing Roe versus Wade. We can onlyhope the Court's other eight Justiceswill approach this divided and divisiveissue with equally open minds.

Second, I have reservations aboutthe level of Judge Souter's sensibilitiesabout society's treatment of women,racial minorities, and religious minori-ties. Our society today is not the socie-ty of 1789. One of the journeys of ourtime has been toward expanded par-ticipation in our economy and societyby those who had been excluded in thepast. Judge Souter's experience andviews, to the extent he revealed themduring his confirmation hearings,seem remote from that defining Amer-ican odyssey.

Let me cite one example. At onepoint in the hearings, Judge Soutersaid, "the State of New Hampshiredoes not have racial problems." Per-haps Judge Souter was characterizingwhat others would say about his homeState; there is some possibility of thatfrom the context. Perhaps all JudgeSouter meant is that New Hampshireis racially homogeneous in relativeterms. I can understand that. I amalso from a State that has a relatively

26990 CONGRESSIONAL RECORD—SENATE October 2, 1990small proportion of residents who areracial minorities.

Yet one of the Constitution's chiefmissions is to protect those who arenot part of the majority. Thus itspeaks to the rights of political, social,and racial minorities of all sizes—notjust those who are near-majorities. Iam aware that even in Nebraska thereare racial problems. Yet the recordsadly suggests it might surprise JudgeSouter to learn, as I did, that over adozen racial discrimination complaintswere brought over the past year to hisState's human rights commission, andthat his State has seen many seriousracial incidents over the years, as thetestimony of witnesses during thehearings made clear.

I hope Judge Souter will hear thismessage from me and others as hetakes his seat on the Supreme Court:Racial discrimination, unfortunately,still exists in every town in America.Sexual discrimination and harassment,unfortunately, still exist in every in-dustry. I hope Judge Souter's constitu-tion, like mine, listens for the voices ofvictims of discrimination and hassomething to say to their pain.

Subject to those reservations, Mr.President, I will cast my vote in favorof confirming Judge Souter's nomina-tion.

Mr. WARNER. Mr. President, I riseto join in this debate, for a secondtime, to express my respect for thework done by the Senate JudiciaryCommittee and to encourage Senatorsto give their support for this outstand-ing nominee for the Supreme Court ofthe United States.

During the consideration of thisnomination, I have solicited the viewsof a wide range of my fellow Virgin-ians. Clearly the majority—a very sig-nificant majority—express confidencein Judge Souter's ability to serve ourNation in this position.

Today, I ask the Senate to considerthe opinions of a man whom I respectgreatly— Andrew Miller, Esq. In 1978this distinguished former attorneygeneral of Virginia opposed me in theelection for the seat in the U.S. SenateI am now privileged to hoid. Our cam-paigns were fair, by today's standardunbelievably fair and honest. I won bya narrow margin, which reflects theconfidence and respect many Virgin-ians held, and still hold, for AndrewMiller.

In the time that has ensued, Mr.Miller has worked with me on anumber of public issues. He is verysuccessful in the private practice oflaw and continues to contribute of histime and wisdom for the public better-ment of others.

I greatly value his friendship andhave confidence in his views on thisnomination.

Mr. President, I will now read to theSenate a letter from Andrew Miller tothe President of the United States:

WASHINGTON, DC,September 24, 1990.

The PRESIDENT,The White House,Washington, DC.

DEAR MR. PRESIDENT: AS a former Attor-ney General of the Commonwealth of Vir-ginia, I write in support of your nominationof David H. Souter as an associate Justice ofthe United States Supreme Court. I becameacquainted with Mr. Souter shortly after Iwas sworn in as Attorney General of theCommonwealth of Virginia in January 1970.At that time he was serving as an AssistantAttorney General of the State of NewHampshire. From 1970 to 1975, we workedclosely together in representing the inter-ests of the Atlantic Coastal States in thecase of United States v. Maine, et al., 420U.S. 515 (1975).

During this period, I became very im-pressed with Mr. Souter's legal abilities. Notonly was he willing to work hard but his in-tellectual brilliance, scholarly research andthoughtful analysis all contributed to theenhancement of the States' position. Whilethe Supreme Court ultimately decidedagainst the States, the Court had greaterdifficulty in doing so as a consequence ofMr. Souter's contributions in the drafting ofthe States' papers. Moreover, on a personallevel, I found our association extremelypleasant because of his courteous and con-siderate demeanor.

While Mr. Souter has held a variety ofpublic offices, in the discharge of his re-sponsibilities he has never been political.Indeed, he has not sought opportunities toexercise legislative or executive authority.As you know, the Attorney General of NewHampshire is appointed, not elected by pop-ular vote. During his tenure in that office,and subsequently on the bench, I know ofno instance in which his integrity was ques-tioned. He has chartered his course as alawyer and judge dedicated to excellence inthe performance of duty in the justicesystem.

As a judge Mr. Souter has understood therole of oral argument in ensuring that issuesare fully examined. He also has recognizedthat not every issue brought before a Su-preme Court has constitutional implica-tions. I believe that as an Associate Justicehis State background will bring a useful per-spective to the Court's deliberations. I amalso confident that he will not engage inpublic rhetoric about his fellow justices orabout political leaders, which circumspec-tion should benefit the Court institutional-ly.

The foregoing views are undoubtedlyshared by many others who have known Mr.Souter for an extended period of time. I feelcompelled to write this letter of endorse-ment, however, out of my own experience asAttorney General, in light of some of theconcerns expressed in the confirmationprocess about his performance as AttorneyGeneral of New Hampshire. The gist ofthese concerns appears to be that Mr.Souter as Attorney General defended Statepolicies with which those expressing theconcerns did not agree.

If such expressions of concern were in-tended to be justifiable criticism, they werewide of the mark. All Attorneys Generaltake an oath to uphold the Constitution ofthe United States and their respectiveStates. What engenders constitutional liti-gation, of course, are differences of opinionas to the meaning of the Constitution to beupheld. Assuming that the State's policy isnot frivolous, an Attorney General has a

legal and moral obligation as its chief legalofficer to advocate that position, whetherestablished by its legislature by statute orits governor by executive order.

As is the case with any lawyer represent-ing a client, an Attorney General may noton occasion agree with his client's, i.e., theState's, policy. His individual views are notrelevant to his obligation to see that theState's position is fairly and effectively pre-sented before the judicial tribunal where itis being challenged. Thus, in defending poli-cies of the State of New Hampshire withwhich he or others disagreed, Mr. Souter farfrom breaching his commitment to upholdthe Constitution was in fact discharging hisconstitutional obligation as Attorney Gener-al of that State. This is so even though incertain instances the judiciary ultimatelydecided that the questioned policies of NewHampshire failed to pass constitutionalmuster.

I respectfully submit that the fact thatthese State positions did not withstand judi-cial scrutiny has nothing to do with wheth-er Mr. Souter withstands Senatorial scruti-ny. As the confirmation record demon-strates, he has passed personal and profes-sional muster with distinction. Those of uswho have worked with him and had thepleasure of this acquaintance over the yearsare not surprised.

Sincerely yours,ANDREW P. MILLER.

Mr. President, I will vote for this dis-tinguished American and urge othersto do so.

Mr. BIDEN. Mr. President, in the in-terest of time, but also in the interestof clarity and fairness, this is usuallydone after the vote takes place, but Iwould like to do it prior to the vote be-cause these people very seldom get therecognition they deserve.

I would like to recognize for particu-lar thanks staff people who played akey role in putting these hearings to-gether. They devoted hundreds ofhours and late nights to making thecommittee's consideration of JudgeSouter's nomination orderly and fair:John Bauer, Jamie Daniel, JohnDichtl, Ted Hosp, Kim Kachmann,Lisa Meyer, Ross Mansbach, AnneRung, Henry Noyes, Phil Shipman,Pam Yonkin, Brooke Thomas, JustinTillinghast, and Grace Lescelius.

And special thanks to two staffmembers who put in countless hoursto make sure that the hearings wentsmoothly: Joel Feyerherm and SallyShafroth, who has done so much forthe committee for so long. They reallywent above and beyond the call ofduty.

These attorneys and professionalson the Judiciary staff helped us studyJudge Souter's record, assemble thatrecord, and conduct a thoughtful anal-ysis of it. Their intellectual skill andcontribution was first rate: ScottSchell, Annette Anthony, HarrietGrant, and Andy Tartaglino.

Five professional staff people de-serve particular credit for their contri-butions:

Paul Bland, our committee's chiefnominations counsel, who supervised

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26991our study and review of Judge Souter'srecord and writings. His performanceon this nomination, as with the manyothers he has worked on, was superb.

David Strauss, a University of Chica-go law professor who joined our staffto work on the Souter nomination, anddid a fantastic job of working withconstitutional scholars and conductingvital research into the complex consti-tutional questions at issue here.

Chris Schroeder, of Duke UniversityLaw School, who volunteered his timeto help with briefings, and the prepa-ration of materials for the hearings.As always, Chris' intellectual insightswere of great value.

Jeff Peck, our committee's generalcounsel, who spearheaded my prepara-tion for the hearings. Quite simply,there is no constitutional lawyer any-where in this country who hasthought as intelligently or deeplyabout the role of the Senate in con-firming Supreme Court Justices.

And last, but not least, Diana Huff-man, the committee's staff director,who supervised the committee's prepa-ration for the hearings, and the con-duct of those hearings. Her tirelessand savvy work in putting togetherthe hearings was essential in our suc-cess in balancing the committee's needto be thorough with its duty to be fair.

Now I see my colleague from Califor-nia is here, and I yield the floor.

The PRESIDING OFFICER. TheSenator from California is recognized.

Mr. CRANSTON. I thank the distin-guished chairman of the JudiciaryCommittee for his courtesy.

Mr. President, last Monday, Septem-ber 24, I addressed the Senate at somelength on the reasons why I will vote"no" on the nomination of DavidSouter to succeed Justice WilliamBrennan as an Associate Justice of theU.S. Supreme Court. My view of myconstitutional responsibilities to exer-cise advice and consent to a lifetimeappointment to the highest court ofthe land compels me to vote no. I amnot voting against Judge Souter be-cause we disagree on the issue of abor-tion or on the Supreme Court's deci-sion in Roe versus Wade, since I haveno idea what his position is on abor-tion or Roe versus Wade.

I am voting no because I have noidea what his position is on the levelof scrutiny to be applied in right-to-privacy cases. I am voting no because Ihave no idea what his position is onthe constitutional right of individuals,married or unmarried, to use contra-ceptives. No Member of the Senate, tomy knowledge, knows the answer toany of these questions because JudgeSouter has declined to answer them.He did not decline to answer questionson other important constitutionalissues ranging from the constitutional-ity of capital punishment to his viewson cases involving the religious free-dom provisions of the first amend-

ment, but on constitutional issues in-volving the right to privacy of millionsof American men and women, we knowlittle.

Mr. President, Judge Souter told theJudiciary Committee that he did notknow how he would rule on any pro-spective future specific case involvingreconsideration of Roe versus Wadeand would listen to the argumentsmade on both sides. That is a positionwhich any judicial nominee is obligat-ed to take. Indeed, any nominee whocannot make that commitment shouldbe rejected out of hand. A commit-ment not to prejudge an issue prior tohearing the arguments is an essentialelement of justice. No member of theJudiciary Committee of the U.S.Senate asked Judge Souter to statehow he would rule on any prospectivecase.

I am voting against Judge Souter'sconfirmation because he has asked usto take him on faith in this criticalarea of constitutional rights. That Icannot do. Many, many Senators haveexpressed similar concerns aboutJudge Souter's refusal to answer ques-tions in this important area of consti-tutional law. Many who will vote forhim have expressed the hope thatthey are making the right choice andthat he will not cast a fifth vote onthe Court which will dismantle thelong line of cases recognizing and se-curing the right of Americans to priva-cy in matters relating to procreation,including the right to abortion.

I intend to do more than just hopefor the best. Mr. President, to the mil-lions of American women who fearthat by its action today in confirmingJudge Souter, as is about to happen,the U.S. Senate is placing their lives injeopardy, I make this pledge to them:If the unhappy day comes when DavidSouter casts a fifth and deciding voteto overturn Roe versus Wade, I willtake action to bring before the Senatethe Freedom of Choice Act. The Free-dom of Choice Act is legislation I haveintroduced which will make freedomof choice Act would have the effect ofnullifying a Souter vote to overturnRoe versus Wade. This legislation pro-vides simply that a State may not re-strict the right of a woman to chooseto terminate a pregnancy before fetalviability, or at any time, if necessary,to protect her life or her health.

Mr. President, Congress has the au-thority under section 5 of the 14thamendment to the Constitution toenact legislation to protect the libertyinterests of Americans where the Su-preme Court cannot find a specificright protected under the Constitu-tion.

Many Members of the Senate fromboth sides of the aisle who are com-mitted to protecting the rights ofwomen to make these most fundamen-tal decisions for themselves free ofGovernment interference have already

joined as cosponsors of this importantlegislation. I hope that other Memberswho share these concerns will join ascosponsors of this legislation and helpus work to ensure that this countrydoes not return to the dark days ofback alley abortions and Governmentinterference with private, personal de-cisions of Americans.

I yield the floor.The PRESIDING OFFICER. The

Senator from Rhode Island is recog-nized.

Mr. PELL. Mr. President, the Senatewill today undertake its constitutionalobligation to advise and consent onthe nomination of Judge David Souterto be an Associate Justice of the Su-preme Court.

Such votes are never easy to cast.Because each Justice has the ability toaffect—indeed, to alter—the veryfabric of our Nation, I believe thatevery Senator has a deep responsibil-ity to evaluate thoroughly every nomi-nee before deciding how to vote.

As you know, Mr. President, the Ju-diciary Committee held 5 days of hear-ings to examine Judge Souter on hisqualifications and record. In addition,numerous distinguished witnesses rep-resenting themselves and/or their or-ganizations testified for and againstthis nominee. In my view, each witnesscontributed to the mosaic that theSenate has created on the very privateJudge Souter.

I must say that I share the frustra-tion of those Senators and witnesseswho wanted to learn more. Whilequestions were asked and answerswere given, many of us continue tofeel uncertain about the real views ofa man who could change the course ofour history. In particular, I wanted toknow more about his views in theareas of privacy—including a woman'sright to choose an abortion, racial andgender discrimination, and religiousfreedom.

In the absence of certainty, Mr.President, I must rely on the twothings that a Senator must always relyon: Judgment and experience. Duringmy almost 30 years in the Senate, Ihave faced votes on more than a dozendifferent nominees to the SupremeCourt. I have also seen those nomi-nees, once on the Court, both pleaseand disappoint the American peopleand the Senators who voted to con-firm them. It is my fervent hope thatJudge Souter, whom I believe will beconfirmed by the Senate, will bring tothe Court and to the Nation compas-sion, understanding, and wisdom.

In deciding how to vote, Mr. Presi-dent, I have also looked back on myprior decisions. Over the years, I havevoted both for and against variousnominees to the Court. I have votedagainst nominees when it was clear tome that the national interest would beharmed, and I have voted for nomi-

26992 CONGRESSIONAL RECORD—SENATE October 2, 1990nees—even those who do not share myviews or philosophy—when I was con-fident that the nominee was profes-sionally and personally qualified.

Mr. President, unlike some of mycolleagues, I do not subscribe to thetheory that Senators should not in-quire into a nominee's personal views.Rather, I believe it is incumbent uponeach Senator to ensure that the Su-preme Court is composed of judges ofcompassion, intelligence, and integrity.If intensive questioning is the bestway—or the only way—to make thisdetermination, then it is fair and nec-essary that it be done.

Still, it is often difficult to tell, inadvance of Senate confirmation,whether a nominee has the qualitiesthat are necessary in a guardian of ourconstitutional rights and liberties. Inthis instance, I have concluded—fromthe Judiciary Committee hearings anda review of the record—that JudgeSouter seems to be a person of integri-ty who has the professional and per-sonal qualifications necessary to sit onthe Nation's highest court.

In reaching this decision, I havebeen cognizant of—and troubled by—the concerns of individuals and organi-zations who share my views on issuesof great consequence to our society. Ihave weighed carefully those con-cerns, and I appreciate the effort andcommitment of many who have sharedtheir concerns with me. In my view,however, Judge Souter—the nomineeof a Republican President who waselected on the coattails of the mostconservative President in recent histo-ry—is probably the best and mostmoderate nominee we can expect fromthis administration.

Mr. President, I think it is entirelypossible that Judge Souter will servethis Nation well. I hope that the Judi-ciary Committee hearings, and thewords and advice of concerned Sena-tors and citizens, will help JudgeSouter remember every day that heserves on the Court his own eloquenttestimony: "if [judges] * * * are goingto change * * * lives by what we do, wehad better use every power of ourminds and our hearts and our beingsto get those rulings right."

I wish Judge Souter well, and wishfor the country that the Senate is vin-dicated in its decision to confirm thisnominee.

Mr. SYMMS. Mr. President, I rise onthis second day of the SupremeCourt's 1990-91 term to announce mysupport for the nomination of U.S.Circuit Judge David H. Souter to be anAssociate Justice of the U.S. SupremeCourt. President Bush announced hisnomination of Judge Souter just 10weeks ago yesterday, and I am pleasedthe majority leader and SenatorBIDEN, the chairman of the JudiciaryCommittee, have brought the nomina-tion to the full Senate in time for Jus-

tice Souter to be seated for all but afew days of the Court's new term.

I have reviewed Judge Souter'srecord as a jurist in both the Federaland New Hampshire State courts and,prior to that, as the attorney generalof New Hampshire. In addition, I waspleased to be able to watch a good dealof the Judiciary Committee's confir-mation hearings.

Clearly, there are a few issues, suchas abortion, on which Judge Souterdoes not have a well-established recordof personal opinion or judicial deci-sions. And that fact probably serveshim well in this confirmation process.On the other hand, there are manylegal and constitutional issues whereJudge Souter's writings from thebench or as attorney general have lefta paper trail that was explored indepth during the Judiciary Commit-tee's hearings and by which Senatorscan garner a pretty clear picture ofthe kind of jurist this man is likely tobe.

As attorney general, Judge Souterwas a staunch defender of the right oflaw-abiding citizens to be protectedagainst society's criminal element. Hedemanded respect for State law andthose who threatened public orderwere dealt with firmly and fairly. Hewas a no-nonsense chief prosecutor forthe State, and the citizens of NewHampshire benefited greatly by theattention Attorney General Souterpaid to the serious responsibilities ofhis office.

As a judge, he has written numerousdecisions involving important constitu-tional issues such as freedom of asso-ciation, due process rights, and protec-tion against unwarranted search andseizure and self-incrimination, as wellas legal issues relating to importantquestions of family, labor, and crimi-nal law. What this record establishesclearly is that David Souter is a care-ful, precise, keenly intellectual juristwho believes in the court's limited con-stitutional role as the interpreter,rather than the creator, of law. He ac-cepts and applies traditional standardsof statutory and constitutional inter-pretation by referring to "the planmeaning of the language employed,"and in constitutional cases, he applies"the clear rule that 'the language ofthe Constitution is to be understood inthe sense in which it was used at thetime of its adoption.'"

In a response to a question on theJudiciary Committee's questionnaireregarding his general approach tojudging, Judge Souter said:

The obligation of any judge is to decidethe case before the court, and the nature ofthe issue presented will largely determinethe appropriate scope of the principle onwhich its decision should rest. Where thatprinciple is not provided and controlled byblack letter authority or existing precedent,the decision must honor the distinction be-tween personal and judicially cognizablevalues. The foundation of judicial responsi-

bility in statutory interpretation is respectfor the enacted text and for the legislativepurpose that may explain a text that is un-clear. The expansively phrased provisions ofthe Constitution must be read in light of itsdivisions of power among the branches ofgovernment and the constituents of the fed-eral system.

Mr. President, in that statement andin terms far more eloquent that Icould muster, Judge Souter has aptlydescribed the approach to judgingthat I look for and highly approved inany nominee to serve on the Federalbench but particularly so for nomineesto the Supreme Court. On that basis, Ifeel confident that David H. Souter iseminently qualified and will be a veryable Associate Justice of the SupremeCourt. I hope he will be overwhelm-ingly confirmed.

The PRESIDING OFFICER. TheSenator from South Carolina is recog-nized.

Mr. THURMOND. Mr. President,since we are about to conclude thedebate on Justice Souter, I wish totake this opportunity to express mydeep appreciation to several membersof my staff who have done such a finejob preparing for the hearings, duringthe hearings, for floor considerationtoday. They are Terry Wooten, who ischief counsel and staff director on theJudiciary Committee; Melissa Riley,who does outstanding work in connec-tion with the judges on the committee;Duke Short, who is now my chief ofstaff but formerly was in charge ofnominations and continues to take agreat interest in this work; and Me-linda Koutsumpas, the minority chiefclerk whose efforts were very benefi-cial. I thank them for their good work.

I also commend several members ofSenator BIDEN'S staff who have beencooperative and helpful during thisprocess: Jeff Peck, Ron Klain, andDiana Huffman.

Senator BIDEN and I have a fine rela-tionship. Our staffs have a good rela-tionship, and it is very nice that wecan all work together.

I yield the floor.The PRESIDING OFFICER. Who

seeks recognition? The Senator fromDelaware is recognized.

Mr. BIDEN. I believe the Senatorfrom New Mexico has indicated thathe would like to speak to this nomina-tion.

The PRESIDING OFFICER. TheSenator from New Mexico is recog-nized.

Mr. BINGAMAN. Mr. President, Iwill vote for the nomination of JudgeDavid Souter for a position on the Su-preme Court. My vote is determinedby two considerations:

First of all, the information whichhas come out during the hearings onMr. Souter's nomination in my viewhas been favorable to him. Based onhis intellectual capacity, education,and his reputation for integrity, he

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26993seems eminently qualified to serve onthe Supreme Court.

Second, I firmly believe that theSenate's responsibility is to give itsconsent to a President's nomineeunless there is a basis in the record ofthe nominee that renders him unfitfor the position to which he is nomi-nated.

Many are apprehensive about JudgeSouter's views on the right to privacyand, more particularly, about his viewson the right of a woman to choose tohave an abortion. I share those con-cerns and I hope that he will have thewisdom to leave established law inplace on that extremely sensitiveissue.

I believe my duty under the circum-stances is to give him the opportunityto exercise his judgment. I ferventlyhope, as do many of my colleagues,that judgment proves to be good.

I thank the Chair. I yield the floor.Mr. BIDEN. Mr. President, there is

an additional colleague who wishes tospeak, and I am told that he is on hisway to the Chamber. I believe thatwill be the last person to speak untilwe have the closing statements by thedistinguished Senator from NewHampshire [Mr. RUDMAN] and the ma-jority leader.

So while we are waiting for the Sen-ator to arrive, I suggest the absence ofa quorum.

Mr. THURMOND. Mr. President, ifthe distinguished Senator will with-hold, I would like to take this opportu-nity to commend Senator RUDMAN forbeing so active in behalf of JusticeSouter. I do not think I have knownany Senator in my 36 years here whohas taken more interest in a nomina-tion than has Senator RUDMAN. Theyhave been friends for many years.They know each other well. His opin-ion, I am sure, has had a great influ-ence on many other Senators.

I just want to pay him that tributeand tell him he has done a fine job inconnection with this nomination.

Mr. LEAHY addressed the Chair.The PRESIDING OFFICER. The

Senator from Vermont is recognized.Mr. LEAHY. Thank you, Mr. Presi-

dent. I will not be long, because Iknow that my colleagues wish to geton with this matter.

Mr. President, as I said earlier in theSenate Judiciary Committee, I willconsent to the nomination of DavidSouter to be the next Justice of theUnited States Supreme Court. In de-bating this nomination and JudgeSouter's qualifications, the U.S.Senate carries out one of its most pro-found responsibilities.

The President "shall nominate, andby and with the Advice and Consent ofthe Senate, shall appoint * * * Judgesof the Supreme Court."

Those 20 words are in article II ofthe Constitution, and they lay out theguidance for the President and the

Senate as we come together to selectmembers of the Judiciary. In confirm-ing judges, we should neither rubber-stamp the President's choice nor makethe process partisan.

I think the Judiciary Committee hasfulfilled its responsibility with careand deliberation. Chairman BIDEN de-serves a great deal of credit for this.Senator THURMOND, too, deservescredit. Others have done a tremendousjob as well. Senator RUDMAN went toevery one of his colleagues, both Dem-ocrat and Republican, who had anyquestion whatsoever about this nomi-nation. He very frankly and honestlyfilled us in.

Whenever the Senate completes itswork of advice and consent, I alwaysask myself whether we have servedthe Constitution and the Americanpeople in confirming or rejecting anominee. In this case, we probeddeeply into Judge Souter's profession-al and intellectual qualifications. Butwe always do.

I will put into the RECORD some ofmy findings of his qualifications.

I just want to take a moment to talkabout "Advice and Consent" becausesome people lose sight of exactly whatthat means. There was some grum-bling even in the Judiciary Committeethat the Senators asked too manyquestions. I thought the questionswere tough and probing, and fair andthorough, as they should be. Someused the time to talk about past con-firmations, but most Senators askedsignificant, difficult, probing, and ex-haustive questions.

Advice and consent in the Constitu-tion demand thorough questions. Itdoes not demand excuses for askingthem. We demean ourselves and wedemean the Constitution if any of usapologizes for asking thorough ques-tions.

The more answers we get, the morethe American people know about anindividual, especially an individualwho will make important decisionsabout our lives and our country; andthe better the Constitution is served.The Court and the Constitution werewell served by the Senate hearings onJudge Souter. This body, the U.S.Senate, was also well served and I be-lieve, through it, the American people.

We understand that the framers ofthe Constitution and the Bill ofRights did not entrust certain funda-mental liberties entirely to the goodintentions of the executive and legisla-tive branches. For that reason, wehave an independent judiciary. And weSenators are the ones who have tomake sure that we preserve that.

So let us never make excuses for up-holding the Constitution throughadvice and consent. After all, we takean oath of office to do just that. It isan obligation none of us should everforget. We want members of the Judi-ciary Committee to take that to heart

in probing the nominee's views on con-stitutional law. We asked whetherJudge Souter will respect the funda-mental rights and liberties that Ameri-cans have fought for two centuries topreserve.

Over the last 2 months since JusticeBrennan resigned, we have reviewedevery aspect of Judge Souter's judicialand legal career. We have questionedhim about his tenure in the AttorneyGeneral's office, his years in the NewHampshire State courts, and his cur-rent views on a wide range of legal andsocial issues. The committee conclud-ed, in a strong bipartisan vote reflect-ing the thoroughness and quality ofthe hearings, that Judge Soutershould be confirmed.

I will not go back through all of this.I will put that in the RECORD.

I have said before I do not believethat Judge Souter has answered allmy questions, to the extent that Iwish he had. But he has demonstrateda belief in the Constitution and a will-ingness to approach issues fairly. He isnot, in my mind, an ideologue.

If we offer our consent to PresidentBush's nominee, as I believe we will,he will be entrusted with the awesomeresponsibility that Justice Brennanfulfilled so well, so nobly, and so mag-nificently.

As the honorable man that I believehe is, Judge Souter is not going toforget the valuable lesson he learnedas a trial judge, that the decisions hewill make will have an impact for therest of the life on an individual andsometimes on many individuals.

So through us the American peopleexpress their faith in Judge Souter'sability to preserve the essence of theAmerican tradition. My vote todayrepresents my faith that he is a nomi-nee worthy of that trust.

The Senate must take great care inasking questions during confirmationhearings because the individual whoascends to the Supreme Court thisterm will help to mold the course ofAmerican jurisprudence well into thenext century. As we look ahead we willlose much of that little message on theAmerican penny—E Pluribus Unum,bringing from the many, one; bringingfrom diversity, a unity of purpose andspirit—if we do not preserve the qual-ity, dignity, and independence of theSupreme Court.

Time after time, throughout our his-tory, when other branches of Govern-ment were either unwilling or unableto protect fundamental rights, Ameri-cans have turned to the courts and, ul-timately, to the Supreme Court. Itwould be a foolish dereliction of ourduty to give any nominee this powerwithout understanding—as fully as wecan—where the nominee thinks theCourt should go. Our advice and con-sent structure epitomizes the framers'genius for the separation of powers,

26994 CONGRESSIONAL RECORD—SENATE October 2, 1990which guarantees the protection ofthe freedoms in our Constitution.

To maintain this historical role forthe Court, it is up to both the WhiteHouse and this body, walking separatebut parallel paths, to chart the futurecourse of judicial selection. Presidentsconsistently should pick nomineesfrom the very large list of able, experi-enced, tested, and well-known men andwomen whose lives make them naturalchoices as protectors and expositors ofthe Constitution. The ultimate criticsor our advice and consent task are theAmerican people, and their oversightis utterly impossible if this Senate per-forms nothing more than polite or per-functory review.

What are the factors the Senatemust consider during the advice andconsent process?

The threshold qualifications arecompetence, honesty, and integrity.Judge Souter's record, combined withhis performance in 2 Vz days of testimo-ny, convinces me that he is intelligent,learned, forthright, and honorable.But those attributes are no more thanprerequisites for the job, and markonly the beginning of our delibera-tions.

We must also ask whether JudgeSouter will respect the fundamentalrights and liberties that Americanshave fought for two centuries to pre-serve.

Does Judge Souter accept the firstamendment as protecting our right tospeak and worship as we believe, to ar-ticulate our grievances and expressthem to our Government, and to bene-fit from a free press?

Does Judge Souter respect the free-dom from government interference inour private lives that Americans havecome to expect and enjoy?

Does Judge Souter commit himselfto ensuring that the rights and oppor-tunities that uniquely characterize oursociety will be equally available to all,regardless of race or gender?

After listening to Judge Souter atthe confirmation hearings, examininghis writings and speaking privatelywith him twice, I decided to supporthis nomination.

Mr. President, that decision was adifficult one. Judge Souter did notgive the committee all of the an-swers—either in content or breadth—to which I believe the Senate is enti-tled.

I questioned Judge Souter extensive-ly about his views on the establish-ment clause of the first amendmentand remain troubled that he wouldnot commit himself to Jefferson's ideaof a "wall of separation" betweenchurch and state. I trust that if JudgeSouter is confirmed and called upon toconsider the establishment clause, hewill keep in mind our discussion of thepoignant experiences of his friendsWARREN RUDMAN and Tom Rath or thesimilar experience that my friend

from Vermont, Jerry Diamond, de-scribed in his appearance before thecommittee.

I trust Judge Souter will understandthat government has no businessflying flags at half-mast on GoodFriday, and will recognize that themoral and religious beliefs of Ameri-cans, even small minorities, must notbe disparaged by the state as "merewhimsy." The first amendment hasmade this Nation tolerant, united, andstrong. I do not believe that JudgeSouter will view this legacy lightly.

I remain troubled by Judge Souter'sreticence in answering questions onthe scope of fundamental privacyrights. In response to my questionabout whether Roe versus Wade is set-tled law, Judge Souter declined to re-spond, saying he drew "a fine line" atGriswold versus Connecticut.

That line was the wrong line. Al-though we do not expect a judicialnominee to comment on a specific casebefore the court, the public we repre-sent should know how the nominee re-gards fundamental rights.

While he refused to comment onRoe versus Wade, Judge Souter as-sured us that he would not approachchallenges to this important case withany agenda or preconceived ideasabout the results. The majority ofAmericans expect that David Souterwill share their view that decisionsabout reproduction are best left to theindividual. This is one realm of lifewhere the State has little interest orright to interfere.

Judge Souter spoke movingly aboutan incident in which he counseled ayoung woman who was contemplatinga self-induced abortion. I hope JudgeSouter learned that day that whileabortion decisions are traumatic underany circumstances, abortions in thepre-Roe era were dangerous, beyondthe means of most women, and oftenlife-threatening. American womencannot be plunged into the dark agesever again.

I wish there would never be the needfor another abortion, but that is a de-cision for a woman, not for a legisla-ture or a court. During the hearing, Ireminded Judge Souter of my own ex-perience with illegal, pre-Roe abortion.As a prosecutor in Vermont, I receiveda call from the police. It was 3 o'clockin the morning and a woman in theemergency room of the local hospitalhad nearly died from a botched abor-tion.

I prosecuted the man who arrangedfor this and other women to travelfrom Burlington, VT to Montreal forabortions performed by a nurse wholearned her trade from the SS atAuschwitz. This nurse nearly killed ayoung woman, who ended up sterile.And this woman was not the onlyvictim. Several other women, afterhaving abortions performed illegally,were blackmailed for money or sex by

the man who arranged the dangerousprocedure. Quite a racket.

Abortion is not an easy question, butnone of us wants women to endurethis pain and exploitation again. Letus be realistic, if abortion is outlawedagain, women will retreat to backalleys and back rooms where they willbe vulnerable to the kind of piranha Iprosecuted in Vermont. Judge Souterand I discussed this incident duringthe hearing. I hope he will not losesight of its message.

I also believe that Judge Souter willnot approach constitutional questionsas a strict constructionist. JudgeSouter recognizes that the equal pro-tection clause was properly applied inthe landmark case of Brown versusBoard of Education, that the Constitu-tion protects unenumerated rights,and that changing social attitudes andtraditions must be considered in iden-tifying such rights.

Another area that disturbed me wasJudge Souter's role as New Hampshireattorney general when 1,414 protesterswere arrested at the site of the Sea-brook nuclear powerplant in 1977. Iquestioned Judge Souter about theState's establishment of a private fundto help finance its costs. I was alarmedthat the utility donated $74,000 to thefund, while the prosecutions werepending. This arrangement evokedimages of "rent-a-prosecutor."

Attorney General Souter—as thechief law enforcement officer incharge of the prosecutions—shouldhave prevented an interested partyfrom influence the judicial process. Iwelcomed Judge Souter's remarks thathe now understands he should haveopposed the fund.

Nonetheless, Mr. President, JudgeSouter demonstrates that he ap-proaches issues fairly and reveres theConstitution. Once confirmed, JudgeSouter will take the seat of JusticeWilliam Brennan. Justice Brennan is aremarkable jurist, who will long be re-membered for his fierce, unyieldingsupport of individual rights—even inthe face of popular prejudice andscorn.

At critical moments in history wehave depended on the SupremeCourt—and justices like William Bren-nan—to be our unifier, to being to-gether a divided society, to bridge deepgulfs in understanding, to help expli-cate complex problems thrust on us bymodern times. As Judge Souter ac-knowledged during his confirmationhearing, "Justice Brennan is going tobe remembered as one of the mostfearlessly principled guardians of theAmerican Constitution that it has everhad and will ever have."

As a Supreme Court Justice, DavidSouter will serve as the guardian ofthe liberty and cherished freedoms ofall Americans.

Mr. RUDMAN addressed the Chair.

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26995The PRESIDING OFFICER. The

Senator from New Hampshire.Mr. RUDMAN. I thank the Chair.Mr. President, first let me say in all

sincerity, that I have no words to ex-press my thanks to the chairman ofthe Judiciary Committee, SenatorBIDEN of Delaware, and the rankingmember, Senator THURMOND of SouthCarolina, for their unfailing courtesythrough a rather interesting, and Iwould say, difficult period for myfriend, David Hacket Souter.

The conduct of the hearings wasscrupulously fair and thorough. Ithink in many ways, they set a stand-ard on both sides of the dias, for whathearings should be.

I also want to pay a particular noteof thanks to two people who also wentthe extra mile to make it possible forDavid Souter to get to those hearings,feeling that all of the logistics of thedetails had been prepared. They areDiana Huffman of Senator BIDEN'sstaff, and Duke Short of SenatorTHURMOND'S staff. To all others, I givemy personal thanks.

To my colleagues, I would say it is aunique situation in which a nomineeto the U.S. Supreme Court happens tobe one of the dearest and closetfriends of a Member of the U.S.Senate. That is a unique situation. Toall of my colleagues who came to meto ask questions about the nominee, Itell you now as I told you then, I havetried to be frank and candid anddirect, as we expect of each other.

Mr. President, I can only think backto a day 20 years ago when I met ayoung man as an assistant in myoffice, when I became attorney gener-al of our State. I recognized how ex-traordinary he was soon after I methim. And the most extraordinarything for me standing here today isthat in 1973 I had a conversation withhim, which I remember very distinctly.After he had done an extraordinarypiece of work, I remember saying tohim, "I do not know what you yourfuture will be, I do not know whatpath you have charted for your life,but it seems to me that you ought tohave an interest in being on thebench. Hopefully the State bench andmaybe someday the Federal bench."

I remember saying very clearly:"And when you get there, as I expectyou will, I hope you will aspire to thehighest possible place that you canbe," never thinking, Mr. President,that I would be given the privilege bythe Republican leader, which I appre-ciate, of giving the closing remarks inbehalf of my very dear friend on thisvery special October day.

Mr. President, David Souter is myfriend. I have trusted him, I have re-spected him, and I like him. He hasmade all of us, who know him, think,and to laugh, and to reflect. When Ibecame attorney general of NewHampshire, our office was small. He

helped me build it to one of the toplaw firms in the State. He succeededme and excelled what I did.

He did so by recruiting a staff of ex-traordinarily talented young men andwomen, some of them who the com-mittee heard from, who are hired onthe basis of talent, not politics or ide-ology. He had a staff that was theenvy of the law firms of the region.Those lawyers today are judges, publicservants, and partners in major lawfirms in New Hampshire and acrossthe country.

David Souter served with great dis-tinction as a judge. Everyone whopracticed before him lauded his fair-ness and his wisdom.

Moveover, I believe that his days asa judge on the trial court impressedupon him some very interesting les-sons. One of those, I think struck allmembers of the committee, when hesaid it. I will quote it from those hear-ings. He said:

When those days on the trial court wereover, there were two experiences that I tookaway with me and the lessons remain withme today. The first lesson, simple as it is, isthat whatever court we are in, whatever weare doing, whether we are on a trial court orin an appellate court, at the end of our tasksome human being is going to be affected.Some human life is going to be changed insome way by what we do.

The second lesson that I learned is that ifwe are going to be judges, whose rulings willaffect the life of other people, we had betteruse every power of our minds and our heartsand our beings to get those rulings right.

During the hearings, the Senatorfrom Wisconsin [Mr. KOHL] askedDavid Souter why he wanted to sit onthe Supreme Court. After noting withabsolute candor that he did not seekthe position, David Souter said:

I want to try the best I can to exercisethat responsibility to give the Constitutiona good life in the time that it's entrusted tome, to preserve that life and to preserve itfor the generations that will be sitting inthis room long after you and I are gone.

That struck me as one of the mosteloquent statements I have ever heardin my days of public service. His devo-tion to the Nation and its constitution-al principles were made clear when hesaid this, in answer to a question:

I would not be true to my own sense ofconstitutional principle if I did not say thatthe Senate ought to be looking for someonewho, in going through the very difficultprocess sometimes of seeking constitutionalmeaning, would seek for something outsidethat judge's personal views for thatmoment, who would seek to infuse into theConstitution a sense of enduring value, notof ephemeral value, and who would try torest the process on as objective an inquiryas can be possible for these massive andmagnificent generalities that are committedto us.

Mr. President, that is the kind of aJustice of the U.S. Supreme Courtthat this Nation sorely needs.

As those of us from New Hampshirehave known for many years, and mil-lions of Americans came to realize

when he testified before the JudiciaryCommittee, this is the kind of Su-preme Court Justice we will get inDavid Souter. His life has been rootedin our rocky soil and nurtured by alifelong commitment to public service.David Souter is a good person—onewho will bring honor to the SupremeCourt and to our constitutionalsystem.

So, Mr. President, it is with un-bounded enthusiasm and with convic-tion that I consider it a special privi-lege today to urge my colleagues tojoin me in voting for this magnificentman from New Hampshire.

I thank the Chair.Mr. BIDEN. Mr. President, while we

are waiting for the majority leader, letme just say that David Souter isindeed fortunate to have such afriend.

I suggest the absence of a quorum.The PRESIDING OFFICER (Mr.

LIEBERMAN). The clerk will call theroll.

The assistant legislative clerk pro-ceeded to call the roll.

Mr. MITCHELL. Mr. President, Iask unanimous consent that the orderfor the quorum call be rescinded.

The PRESIDING OFFICER. With-out objection, it is so ordered.

The majority leader is recognized.Mr. MITCHELL. Mr. President, I

begin by commending the distin-guished chairman of the JudiciaryCommittee, Senator BIDEN of Dela-ware, for the fair and thoroughmanner with which this nominationwas considered. And, also, the mem-bers of his staff, most especially RonKlain, who did an outstanding job inorganizing the hearings and organiz-ing the prompt action by the Senate.

I also commend my thanks to thedistinguished ranking member of theJudiciary Committee, Senator THUR-MOND, and of course to SenatorRUDMAN, whose support for, sponsor-ship of, and diligent effort on behalfof the nominee, has in my view been amajor factor in the reception receivedby the nominee in the Senate.

I will say in all candor that the factthat Judge Souter has a long historyof association with Senator RUDMANand is strongly endorsed by SenatorRUDMAN was an important factor inmy own consideration of this matter,and I know the same to be true of allof the Members of the Senate who sorespect our distinguished colleaguefrom New Hampshire.

Mr. President, I will vote to confirmthe nomination of Judge David Souterto the Supreme Court of the UnitedStates.

I do so not because I feel confidentthat I can predict his future course onthe Court. Rather, because I believethat in outlining the broader frame-work within which he views constitu-tional protections and the responsibil-

26996 CONGRESSIONAL RECORD—SENATE October 2, 1990ity of the judiciary to adjudicate cases,Judge Souter reflected a reasoned ap-proach and a sound understanding ofthe Constitution.

In a discussion with the committeechairman about the development ofthe Bill of Rights, Judge Souter madethe following observation:

• * * the starting point for anyone whoreads the Constitution seriously is thatthere is a concept of limited governmentalpower which is not simply to be identifiedwith the enumeration of those specificrights or specifically defined rights thatwere later embodied in the bill [of Rights].

If there were any further evidence neededfor this, of course, we can start with theNinth Amendment. * * *

* • * it was • • * an acknowledgment thatthe enumeration [or rights in the Bill ofRights] was not intended to be in somesense exhaustive and in derogation of otherrights retained.

I agree with that statement and theapproach to the Constitution that itreflects. Our Constitution was notwritten to prescribe specific remediesfor particular problems. It was, rather,intended to prevent a concentration ofpower by any group or individual so asto preserve the liberties of the people.

In his testimony, Judge Souter ac-knowledged the responsibility of theCourt in fulfilling that purpose. Hesaid, "* * * courts must accept theirown responsibility for making a justsociety." Judge Souter repeatedly ac-knowledged that the rights of Ameri-cans are not exhausted by the specificrights listed in the text of the Bill ofRights, but that they also includerights implicit in the text of the Con-stitution.

He made it clear that what is implic-it in the text of the Constitution is notlimited to the particular factorspresent at the time of writing, but in-cludes broader principles.

His interpretation, as he put it, isnot that original intent is determina-tive, but original meaning.

He said, for example, "If you were toconfine the equal protection clauseonly to those subjects which its fram-ers and adopters intended it to applyto, it could not have been applied toschool desegregation," because thosewho wrote and adopted the 14thamendment lived at a time when seg-regated schools were the standard.

He went on to say, "What we arelooking for, when we look for originalmeaning, is the principle that was in-tended to be applied • * * ."

The distinction Judge Souter drewbetween original intent and originalmeaning is a useful distinction. It per-mits the underlying principles to beapplied to new needs without limitingthe broad rights of our people today tothe political or social circumstances ofthe 18th or 19th centuries.

Judge Souter's understanding, inparticular, of the significance andreach of the 14th amendment in theconstitutional system reflects an un-

derstanding of our Nation's historyand of the central role that the tragicfact of racial prejudice has played inour history.

Judge Souter said no social problemis "• * * more tragic or demanding ofthe efforts of every American in theCongress and out of the Congress thanthe removal of societal discriminationin matters of race * * *." He also said,in response to a question about judi-cial activism, "The obvious and signifi-cant fact of history * * * is the adop-tion of the 14th amendment."

As we all know, Judge Souter de-clined to address specifically the ques-tion of abortion and the Court's pastrulings on that matter. He acknowl-edged a core right of privacy butwould not be drawn into discussion ofhow broad or how enforceable againstgovernment such a right would be.

For that reason, those who are par-ticularly concerned that the SupremeCourt may in the near future dramati-cally tighten or even reverse the rightof a woman to choose to terminate apregnancy have suggested that JudgeSouter's nomination ought to be re-jected.

I respect the view that this factor isso central that no other factor shouldbe considered. But, on reflection, I donot share that view.

The hearings focused to a substan-tial degree on the subject of privacy.

That is understandable at a timewhen developments in medicine andtechnology are altering our ability tointervene medically to save and pro-long life and to intrude technological-ly into the most private recesses of in-dividual thought and behavior.

There is little doubt that futurecases before the Supreme Court willdevelop the legal boundaries of priva-cy, individual autonomy, conscience,and related concepts.

Advances in genetics have alreadyraised questions about the legal own-ership rights an individual may haveto his or her physical body. Advancesin voice transmission have raised ques-tions about the expectation of a priva-cy in conversations conducted over cer-tain telephone equipment. Medical ad-vances have raised the exceedingly dif-ficult issue of the State's relationshipto an individual's death from naturalcauses.

But while this new and expandingarea of law will continue to play a cen-tral role in the development of consti-tutional doctrine and the protection ofindividual rights, we must remind our-selves that the Supreme Court is notthe sole source of legal development inthe American system.

The Congress and the executivebranch also have their responsibilitiesin meeting the new challenges thatface our society.

I said at the outset that I do nothave a feeling that I can predict howJudge Souter would vote on cases that

may come before him on the SupremeCourt.

I have, therefore, rested my decisionon his nomination on the approachthat he uses to determine the sourceof individual liberties, the breadthwith which he sees constitutionalguarantees, the emphasis he places onthe structure of the constitutionalsystem and its purpose, and the crite-ria he would use to determine if an in-dividual liberty is enforceable againstthe government.

These factors do not give me an in-fallible guide as to his future rulings.But they do not give such a guide toanyone else either.

Those who argue that Judge Soutershould be opposed because they arecertain they know how he will votehave no objective basis for that cer-tainty.

But there is one certainty overwhich there can be no dispute: Nomatter what the pressing controversyof the moment is, Judge Souter or anyother nominee will occupy a seat onthe Supreme Court for many yearsafter the hot controversies of todayare settled law.

I believe that if Judge Souter bringsto those future controversies thebreadth of experience, understanding,and the careful judgment which histestimony before the Judiciary Com-mittee reflected, then his decisions inthose cases will continue to reflect thefundamental American constitutionaltradition.

For those reasons, I shall vote toconfirm his nomination.

Mr. President, I ask for the yeas andnays on the nomination.

The PRESIDING OFFICER. Isthere a sufficient second?

There is a sufficient second.The yeas and nays were ordered.The PRESIDING OFFICER. The

question is, Will the Senate advise andconsent to the nomination of David H.Souter, of New Hampshire, to be anAssociate Justice of the SupremeCourt of the United States? On thisquestion the yeas and nays have beenordered, and the clerk will call theroll.

The assistant legislative clerk calledthe roll.

Mr. SIMPSON. I announce that theSenator from California [Mr. WILSON]is necessarily absent.

The PRESIDING OFFICER. Arethere any other Senators in the Cham-ber desiring to vote?

The result was announced—yeas 90,nays 9, as follows:

[Rollcall Vote No. 259 Ex.]

ArmstrongBaucusBentsenBidenBingamanBondBoren

YEAS—90BoschwitzBreauxBryanBumpersBurnsByrdChafee

CoatsCochranCohenConradD'AmatoDanforthDaschle

October 2, 1990 CONGRESSIONAL RECORD—SENATE 26997DeConciniDixonDoddDoleDomeniciDurenbergerExonFordFowlerGarnGlennGoreGortonGrahamGrammGrassleyHarkinHatchHatfieldHeflinHeinzHelmsHollings

AdamsAkakaBradley

HumphreyInouyeJeffordsJohnstonKassebaumKastenKerreyKohlLeahyLevinLiebermanLottLugarMackMcCainMcClureMcConnellMetzenbaumMitchellMoynihanMurkowskiNicklesNunn

NAYS—9BurdickCranstonKennedy

PackwoodPellPresslerPryorReidRiegleRobbRockefellerRothRudmanSanfordSarbanesSasserShelbySimonSimpsonSpecterStevensSymmsThurmondWallopWarnerWirth

KerryLautenbergMikulski

NOT VOTING—1Wilson

The PRESIDING OFFICER. Isthere objection? Without objection, itis so ordered.

So the nomination was confirmed.Mr. THURMOND. Mr. President, I

move to reconsider the vote.Mr. JOHNSTON. I move to lay that

motion on the table.The motion to lay on the table was

agreed to.(Disturbance in the Visitors' Galler-

ies.)Mr. BYRD. Mr. President, may we

have order in the Galleries?The PRESIDING OFFICER. The

Galleries will refrain from any noise.Order will be restored.

Mr. THURMOND. Mr. President, Isuggest the absence of a quorum.

The PRESIDING OFFICER. Theclerk will call the roll.

The assistant legislative clerk pro-ceeded to call the roll.

Mr. FORD. Mr. President, I askunanimous consent that the order forthe quorum call be rescinded.

The PRESIDING OFFICER. With-out objection, it is so ordered.

Mr. FORD. Mr. President, I askunanimous consent that the Presidentbe immediately notified that theSenate has confirmed the nominationof Judge David Souter.

The PRESIDING OFFICER. With-out objection, it is so ordered.

LEGISLATIVE SESSIONMr. FORD. Mr. President, I

unanimous consent that thereturn to legislative session.

The PRESIDING OFFICER. With-out objection, it is so ordered.

askSenate

MORNING BUSINESSMr. FORD. Mr. President, I ask

unanimous consent that there be aperiod for the transaction of morningbusiness with Senators permitted tospeak therein.

THE INTERNATIONAL FUND FORIRELAND

Mr. KENNEDY. Mr. President, theInternational Fund for Ireland hasnow been in operation for 4 years. Inthat time, it has grown from a hopefulidea in the Anglo-Irish Agreement onNorthern Ireland in 1985, through atroubled initial phase, to what it hasbecome today, a worthwhile partici-pant in the search for a peaceful set-tlement of the violence and divisionsthat have plagued the people ofNorthern Ireland for over 20 years.

The United States has a substantialinterest in promoting this search forpeace. After a difficult start, the Fundhas turned out to be an effectivemeans for us to help achieve the goalthat all of us share for the future ofNorthern Ireland. Annual appropria-tions from the United States haveplayed a major role in the Fund's suc-cess. An appropriation of $20 millionfor fiscal year 1991 has strong supportin Congress, and I hope that it will beenacted.

From the beginning, the mandate ofthe Fund was clear—to encourage eco-nomic development in the areas mostaffected by the violence in NorthernIreland. In article 10 of the Anglo-Irish Agreement, the Governments ofIreland and Great Britain pledged to

Cooperate to promote the economic andsocial development of those areas of bothparts of Ireland which have suffered mostseverely from the consequence of the insta-bility of recent years, and shall consider thepossibility of securing international supportfor this work.

The International Fund for Irelandwas subsequently created to carry outthis purpose. In the initial phase of itsoperations, the Fund established sevenkey programs:

First, two investment companies op-erating according to strict commercialcriteria;

Second, a business enterprise pro-gram to stimulate job creation;

Third, an urban development pro-gram to revitalize town centers, includ-ing 24 towns in Northern Ireland, and12 in the South;

Fourth, a tourism program to devel-op one of the region's principal indus-tries;

Fifth, an agriculture and fisheriesprogram to stimulate new enterprises;

Sixth, a science and technology pro-gram to emphasize practical researchlikely to lead to early economic bene-fits;

Seventh, a wider horizons programto encourage new skills through prac-tical work experience, training, andeducation overseas.

At the outset, however, the Fundhad difficulty in developing and imple-

menting its mission. Projects werefunded that were difficult to justify onthe basis of the priority intended to begiven to areas most affected by the vi-olence. These areas include over athird of the population of NorthernIreland, and are concentrated in Westand North Belfast, Derry, and alongthe border with Ireland. As a result ofits missteps, the Fund was legitimatelyand increasingly criticized, and therewere growing doubts in Congressabout the desirability of U.S. support.

To its credit, the Fund responded tothese concerns. A new series of initia-tives was developed with special em-phasis on disadvantaged areas, and theFund has received high marks in thepast year for its work in implementingthese initiatives.

At a meeting of the Anglo-IrishIntergovernmental Conference on Sep-tember 14, the conferees noted withparticular satisfaction the growing evi-dence of the Fund's success in promot-ing economic regeneration to thedirect benefit of the entire communi-ty, particularly in the most disadvan-taged areas.

There is tangible evidence of thissuccess. In all, 1,300 projects havebeen supported by the Fund; 8,000jobs have been created; and substan-tial assistance has been made availableto disadvantaged areas, with specialemphasis on economic developmentprojects in North Belfast, West Bel-fast, and Derry.

For the vast majority of the peopleon both sides of the conflict in North-ern Ireland, the Fund has become asymbol of hope for a better future. Itis helping to reduce the violence, mis-trust, and discrimination that haveplagued Northern Ireland for too long.In my view, the Fund deserves creditfor resolving its early difficulties. It iscoming into its own today, and it de-serves continued support from theUnited States.

Mr. President, a four-part series ofarticles by Niall Kiely in the IrishTimes last August provides an excel-lent analysis of the Fund. I believethat the articles will be of interest toall of us in Congress, and I ask unani-mous consent that they may be print-ed in the RECORD, along with a subse-quent editorial in the Irish Times.

There being no objection, the arti-cles were ordered to be printed in theRECORD, as follows:

[From the Irish Times, Aug. 20, 1990]FUND'S U.S. BACKERS DISAPPOINTED BY

DUBLIN

(By Niall Kiely)Beset by radical critics drawn from the

ranks of Sinn Fein supporters in the UnitedStates, the International Fund for Irelandcould have done without this year's unpubli-cised differences between the Irish Govern-ment and its most important supporters, theFriends of Ireland (Fol) group in the Ameri-can Congress and Senate.