Judge SOUTER. Yes.

Senator HATCH. You have heard cases involving almost every aspect of human endeavor.

Judge SOUTER. Anything that can come before a trial court of general jurisdiction.

Senator HATCH. Yes, and you have heard them in a more refined sense with arguments on both sides in the appellate courts that you have been on.

Judge SOUTER. Yes, I have.

Senator HATCH. All right. Well, having had that experience and now sitting on an intermediate Federal court, the highest court under the Supreme Court of the United States, could you describe for the committee the process by which you have reached your decisions in cases as they come before you? It is a generalized question, but I would like you to give us the benefit of how you go through deciding these cases.

Judge SOUTER. Well, do you want me to refer to the trial court experience as well as appellate court?

Senator HATCH. No, just the appellate experience I think would be fine at this point, since it is closely parallel to the Supreme Court experience I hope you will have.

Judge SOUTER. Well, the process is one which helps to discipline the mind as we go through it. I will leave aside the question of determining whether there should be discretionary review in a given case and start with the point at which the case is docketed before the court.

In the normal course, sometime in the month before the case is going to be argued, we get a set of briefs. My practice would be usually in the week or the weekend before the argument to read those briefs through, to make notes on the covers of the briefs of questions that I want to ask. And also, as a matter of curiosity, to try to settle a lawyer's argument, I engaged in a practice for the last couple of years of trying to get some sense in a way that I could measure of the effect of the oral argument on me, which would come after the briefs had been read.

What I would do after I had read the briefs and noted the questions that I knew that I wanted to ask counsel, I would make a notation on my docket list, which I kept in my own file, of what I thought was the strongest position at the time, a kind of first, even prestraw-poll indication of where I thought I might come out on the case.

Following the oral argument in the case, I would then compare my determination after oral argument with that first indication that I had put on the docket list. One of the things that I wish I had done before I came down here and I didn't think to do was to try to go down to my chambers and pull out my old docket lists and tabulate those points at which I had had some change of decision from the preliminary to the postargument decision. But I did change my mind in enough cases so that I remember there are enough little x's in the margin to indicate that the second look after argument suggested something that the first look before argument had not, to indicate to me that oral argument was a matter of substantial importance to me in deciding cases.

I would then, following that oral argument, of course, go through a preliminary discussion of the case and a preliminary vote with the other justices. We would decide how the case probably would come out, and the case in the New Hampshire Supreme Court would be assigned randomly. And if I got the case, I would then start working on the opinion.

The way I happen to work on opinions was to ask a law clerk whom I would assign to that particular case to draft an opinion which followed a rough outline that I would give the clerk of the points that I wanted to cover and the basic reasoning that I wanted to go through. What I wanted the clerk to do was not to write me an opinion which I was necessarily going to use-because, in fact, on the New Hampshire Supreme Court I never did use a clerk's draft ultimately. What I wanted the clerk to do was, in effect, to make the run-through, help me with the research, reduce down the amount of reading that I personally had to do of the most important authorities, and to give a further preliminary look at whether there was some flaw in our reasoning that I was not catching or that the other judges in the majority with me were not catching. After I would get the clerk's draft back-we may or may not have argued about it in the meantime. But after the clerk's draft came back, I would then work my way through the briefs again. I would read the portions of the record sent up to us that were germane to the decision. I would then go through my own research process of rereading cases, even though I might think I was familiar with them, that the parties had relied on.

At that point, I would make a final assessment myself as to whether there was any reason to change my view from what it had been when the court voted. If there was, I would either go back to the court or I would draft an opinion indicating the change and circulate that and explain why I was doing it. If there was no change, I would then write my own opinion. I would revise it an unfortunate number of times. And then I would let the clerk have a go at it again, and the clerk would try to tear it to pieces. Usually, another clerk would review it then, and ultimately it would circulate to the rest of the court, at which point I might or might not be in trouble. But that was at least the process that I went through up to there.

Senator HATCH. Well, that is good. I have other questions I would like to ask. I have about 10 minutes left, but I think I will just reserve that time and we will move on from here. But thank you, Judge. It has been great to be able to ask a few of these questions. Judge SOUTER. Thank you, Senator.

The CHAIRMAN. I think it may be appropriate now for us to take a short break. But before we do, let me ask my colleagues to think about it while we are on break. We have 21⁄2 hours' worth of questioning left. I indicated we would stop around 6 o'clock, which is my preference this evening. But I would like my colleagues to think about that, and we will come in in the morning, and those who haven't had their first round would start off when we started in the morning. But I would just like to ask my colleagues to think about that while we take a break.

We will have a recess until 4:30, at which time we still start promptly at 4:30.

[Recess.]

The CHAIRMAN. The hearing will come to order.

Judge, would you like a soda or some coffee or anything?

Judge SOUTER. No, I am fine. Thank you, sir. I was offered anything I needed out back.

The CHAIRMAN. We have done a little bit of a check here and I think this is consistent with my colleagues and the White House, I think we are all in agreement, which we usually always are. [Laughter.]

That is that this is how we will proceed. I checked with the ranking member, Senator Thurmond, because we do not do anything he does not agree to, and this is what we will do: We will go next to Senator Metzenbaum, then to Senator Simpson, and then to Senator DeConcini, and we will stop after Senator DeConcini, and by that time we will have a consensus.

Is there a preference when you wish to convene tomorrow morning, somewhere between 9 and 10? Before we close out, I will have that, because a lot of the press are asking. I do not—and we have discussed this-I do not intend to go late tomorrow afternoon. We will go into the middle of the afternoon, to the 5 o'clock area, but it will not be a late night tomorrow, and I expect, based on that, as we indicated before, have a reasonable prospect of finishing up early Monday and then begin with our witnesses, but we will see from there.

Again, I thank you. You obviously have one advantage that most witnesses do not have, Judge. You are accustomed to sitting for a long time, and you-

Judge SOUTER. That is the third lesson I learned as a judge. [Laughter.]

The CHAIRMAN. You do it with great aplomb, your physical constitution as well as your understanding of the Constitution are matched.

Judge SOUTER. Thank you, Mr. Chairman.

The CHAIRMAN. Now, let me turn to my colleague from Ohio Senator Metzenbaum, for his questioning.

Senator Metzenbaum.

Senator METZENBAUM. Thank you, Mr. Chairman.

Judge Souter, I want to focus on your view of really what is at stake in the abortion debate. Now, we write the laws in Congress, the Court interprets the laws, but we all must be aware that the laws affect the personal lives and the hopes and the dreams of the people who must live with the laws we make.

I want to start to talk with you on a personal level, not as a constitutional scholar nor as a lawyer. This year, I held hearings on legislation that would codify the principles of Roe v. Wade. I heard stories from two women who had had illegal abortions prior to 1973. They were women about your age. They told horrifying stories.

One woman was the victim of a brutal rape and she could not bear raising a child from that rape along side her own two children. Another woman, who was poor and alone, self-aborted. It is a horrible story, just a horrible story, with knitting needles and a bucket.

I heard from a man whose mother died from an illegal abortion when he was 2 years old, after doctors told her that she was not physically strong enough to survive the pregnancy.

I will tell you, Judge Souter, that the emotion that those people still feel, after more than 20 years, is very real, sufficiently strong to have conveyed it to those of us who heard their testimony. Each woman risked her life to do what she felt she had to do. One of those women paid the price.

My real question to you is not how you would rule on Roe v. Wade or any other particular case coming before the Court. But what does a woman face, when she has an unwanted pregnancy, a pregnancy that may be the result of rape or incest or failed contraceptives or ignorance of basic health information, and I would just like to get your own view and your own thoughts of that woman's position under those circumstances.

Judge SOUTER. Senator, your question comes as a surprise to me. I was not expecting that kind of question, and you have made me think of something that I have not thought of for 24 years.

When I was in law school, I was on the board of freshmen advisers at Harvard College. I was a proctor in a dormitory at Harvard College. One afternoon, one of the freshmen who was assigned to me, I was his adviser, came to me and he was in pretty rough emotional shape and we shut the door and sat down, and he told me that his girlfriend was pregnant and he said she is about to try to have a self-abortion and she does not know how to do it. He said she is afraid to tell her parents what has happened and she is afraid to go to the health services, and he said will you talk to her, and I did.

I know you will respect the privacy of the people involved, and I will not try to say what I told her. But I spent 2 hours in a small dormitory bedroom that afternoon, in that room because that was the most private place we could get so that no one in the next suite of rooms could hear, listening to her and trying to counsel her to approach her problem in a way different from what she was doing, and your question has brought that back to me.

I think the only thing I can add to that is I know what you were trying to tell me, because I remember that afternoon.

Senator METZENBAUM. Well, I appreciate your response. I think it indicates that you have empathy for the problem. In your writings, as a matter of fact, you reveal real empathy for those who are morally opposed to abortion.

For instance, in 1986, as a State supreme court justice, you wrote a special concurrence in a wrongful birth case called Smith v. Coat, outlining, in your words, how a physician with conscientious scruples against abortion-this is a quote:

How a physician with conscientious scruples against abortion and the testing and counseling that may inform an abortion decision can discharge his professional obligation, without engaging in procedures that his religious or moral principles condemn.

As a matter of fact, that was sort of dictum. That was dictum in the case, it was not necessary.

As attorney general, you filed a brief in Coe v. Hooker, which emphasized that,

Thousands of New Hampshire citizens possess a very strongly held and deepseeded moral belief that abortion is the killing of unborn children.

That brief went on to conclude,

It is not accurate to say that the moral feelings of other individuals and groups, both public and private, may not constitutionally interfere with a woman's otherwise unrestricted right to decide to have an abortion.

I start off saying it is not accurate to say that. Now, you obviously indicated a concern for the doctor with conscientious scruples against abortion, you indicated your concern about feelings of individuals and groups, both public and privately. My concern is do you have the same degree of empathy for the woman who must make a difficult decision when faced with an unwanted pregnancy. That is really the thrust of my concern, and I think the thrust of the concern, frankly, Judge Souter, of millions of American women, not really wanting to know how you will vote on a particular case, but wanting to know whether you can empathize with their problem.

Judge SOUTER. If they were to ask me whether I could, I would ask them to imagine what it was like to be in that room that fall afternoon that I described to you. That is an experience which has not been on my mind, because it has not had to be, but I learned that afternoon what was at stake.

I hope I have learned since that afternoon what is at stake on both sides of this controversy. You mentioned my opinion in the Smith v. Cody case. I do not know whether that was dictum or not. I did not think it was at the time.

What I thought I was addressing at the time was as moral dilemma which had been created not unnecessarily, but which had necessarily been raised by the majority opinion of my court.

If I were to generalize from that concurrence in Smith v. Cody, it would be that I believe I, indeed, can empathize with the moral force of the people whom I addressed, and I can with equal empathy appreciate the moral force of people on the other side of that controversy.

Senator METZENBAUM. My staff just points out to me that each year almost 3.5 million women face that problem of an unwanted pregnancy, much like the woman that you mentioned.

Everybody talks about Roe v. Wade as a case. I do not think of it as a case. I think of it as those witnesses who came before my committee. I think of it as women generally. I think of it as my own daughters, who are married, and I can imagine a situation where they might need to have or want to have an abortion. Other women less fortunate than they would not be able to go to a different State, if there were no law.

I think about what would happen if there were no constitutional protection, and I ask you not how you vote on the case, but what are your thoughts as to what would happen to those women in this country who might be able to go, if they had the money, to State x, but not get an abortion, not be able to stay in State y, because that State prohibits abortions.

My concern is what does Judge Souter think about this moral, and it goes beyond being a moral question, it becomes a really heart-wrenching decision that actually goes beyond morality, it goes to the very heart of living, the kind of living that people experience.

Judge SOUTER. I think I have to go back to something that I said to all of the members of the committee when I was speaking at the very beginning, before my testimony this afternoon.