where the President nominates, the Senate is called upon to confirm or not, and then a Justice takes the Court. When the Constitution was written, article I was meant for the Congress, article II for the executive branch, and article III for the Court. And I believe if the Constitution were to be rewritten today, article I would be for the Court. The Court has taken the dominant authority under our system in deciding the tough questions, questions of competing authority between the President and the Congress, questions that may involve the Persian Gulf, the big issues of the day. So that when we look forward for the next several decades, perhaps four decades, and we know that the future will hold many 5-to-4 decisions, and Justice Brennan's successor may pass the key votes on matters of overwhelming national and international importance, we are very concerned. And it is an important task we have. I think you come to this nomination with fine credentials, and part of the picture is filled out by your opinions. But there is a great deal more which we have to find out to make our determination as best we can whether you should be in the position to cast that critical vote for so many years on so many issues of tremendous importance. Thank you, Mr. Chairman. The CHAIRMAN. Thank you very much, Senator. The distinguished Senator from Alabama, Senator Heflin. OPENING STATEMENT OF SENATOR HOWELL HEFLIN Senator HEFLIN. Mr. Chairman, once again, our Nation stands at a crossroads, a constitutional crossroads, as the President nominates and the Senate, through its elected membership, must under our Constitution "advise and consent" on the nomination of Judge David Souter to the U.S. Supreme Court. Our task is important, for the future course of the constitutional jurisprudence of this Nation could rest upon the collective judgment of this Senate. In the Supreme Court term ending this year, 1990, 38 out of a total of 129 written opinions were decided by a 5-to-4 vote. It is my belief that the American public deserves a Justice who evidences a clear commitment to basic constitutional values. I ascribe wide latitude in our President's right to nominate who he chooses, especially with regard to a nominee's qualifications, integrity, and judicial temperament. These are all hallmarks of a good judge. I believe that all Presidents have endeavored to select nominees that meet these qualifications. I further believe that Presidents have the right to nominate individuals that belong to the President's political party and that possess his political and philosophical views, even if they differ from the views of most of a Senate controlled by another party. However, our Founding Fathers felt that such a Presidential right to appoint judges should not be unlimited, and provided a check and balance by requiring a role for an element in the legislative branch. That check and balance is the Senate confirmation process. Historically, the rejection of Presidential nominees has rarely been exercised. Usually, when it has been exercised, arguments for good cause have been made. Nevertheless, the confirmation process is a constitutional mandate, and for good reason. Federal judges, once confirmed, are not subordinate to the President nor the U.S. Congress. They are members of a coequal branch of our Federal Government and hold their jobs for life, not subject to the political processes as we in the executive and legislative branches are. Therefore, I also believe that the Senate, as an independent body, in exercising its constitutional mandate to advise and consent, must peel beneath the veneer of a nominee to try and better ascertain what role that person intends to play as an Associate Justice on the highest court in this great Nation. Judge Souter, this committee will do a lot of peeling beneath your veneer, for you are, indeed, a stealth nominee. It is thought by many that little is known about your reasoning process, thinking, and predictability of how you would decide certain issues that are expected to come before the U.S. Supreme Court. While you left a paper trail in the 219 opinions you wrote as a member of the New Hampshire Supreme Court, there are few blips on the radar screen on the major issues that will face the Supreme Court of the United States in the upcoming crossroad years. So peel we must. But we must do this in a fair and impartial manner, and certainly not cause you to prejudge an issue or a case without benefit of briefs, arguments, and research on the issue of the case in point. It is our constitutional role to probe, cautiously but firmly and fairly, any s nominee on his or her past actions as a public official; his or her general views on political, economic, or social issues facing our Nation; his or her views on how, as a judge, he or she might expect to approach the analysis of a case in general; and, finally, his or her judicial philosophy. To do less would be a dereliction of our responsibility to the American public and to the constitutional process by which the President is "advised." I believe the majority of the American public supports the concept of judicial restraint-that is, judges who will interpret the U.S. Constitution, respect prior decisions, and give presumptions to the validity of laws passed by the Congress and State legislatures, so long as they do not violate the U.S. Constitution. I believe the people of our Nation do not want to see a Justice appointed who will try to legislate from the bench. Nor does the public wish to see a judicial extremist of either the right or the left who would proceed to force his or her peculiar political ideology through opinions rendered by the highest court in the Nation. Extremism is a dangerous commodity, and we on this committee have a duty to the American people to guard against this in any such potential nominee. Given these facts and acknowledging the critical nature of the task before us, Judge Souter, I welcome your appearance before our committee today and look forward to your comments through a dialog with the members of this committee. Thank you. The CHAIRMAN. Thank you, Senator. We would ordinarily go to Senator Humphrey next, but he has indicated that he is going to waive his opening statement because he will be joining Judge Souter when we conclude our statements to introduce Judge Souter, along with his senior colleague, Senator Rudman. Now I yield to Senator Simon from Illinois. OPENING STATEMENT OF SENATOR PAUL SIMON Senator SIMON. The good news, Judge Souter, is we are getting near the end of this part of the process. As my colleagues would tell you, I do not ordinarily prepare a written statement. In fact, in 6 years on this committee, I don't believe I have ever done that. But last night, late last night, I sat down at my old manual typewriter and pounded out my reflections on where we are right now. No task is more awesome than the one we now confront-approving or disapproving a nominee for the U.S. Supreme Court. Seven months ago, I became a grandfather for the first time. Perhaps no vote I cast this term in the Senate will have a greater impact on my granddaughter's future, Judge Souter, than whether I decide for or against your nomination. After reading your opinions and various writings, even including your senior honors thesis, I come away with some uneasiness. Candidly, I am not sure how to vote. In your senior honors thesis, you wrote about a struggle in the philosophy of law, and I quote: "I cannot offer a solution to the controversy. I have tried, rather, to describe the alternatives which are open in settling what I believe to be the most important point at issue." In the only article you wrote over the next quarter century, you paid tribute to Justice Laurence Duncan in the New Hampshire Bar Journal for his sense of what is appropriate on the bench; for his keen sense of words; for his attention to the small things-but hardly a hint about any judicial philosophy that motivated him. And then at the end of the article, you say, and I quote: "He was my kind of judge. He was an intellectual hero of mine, and he always will be." But after reading your article, I have no idea what his philosophical moorings were, nor what yours are. Because David Souter may have such an influential voice in the destiny of this Nation, we must know a little better who the real David Souter is. I hope these hearings will assist in that, and I hope you will make every effort to help us. What am I looking for? The two essentials I mentioned to you in your visit to my office: I want a champion of basic civil liberties, because the Supreme Court must be the bastion of liberty; and I want someone who will champion the cause of the less fortunate, the role assigned to the Court in our system. I also want someone to whom every American can look and say, "There is a champion of my liberty." That should be true of men and women, for the able and the disabled, for people of every religion and color and national background and station in life. That is an extremely high standard, but it is an extremely high court to which you aspire. During these hearings I also want to get some sense of whether David Souter has an ability to grow. The great Justices were not suddenly great Justices, any more than great Senators are suddenly great Senators. Great Justices and great Senators emerge gradually. There are those who are concerned because you come from a small New Hampshire community of 2,000. Coming from an Illinois community of 402, that does not bother me. But if your intellectual and emotional horizons are bounded by that community that would bother me. Checking your background I talked to an African-American classmate of yours, now practicing law in this city. His comments about you were positive. He allayed some of my fears. But I also want to know if you empathize with a woman on the west side of Chicago who did not go to Harvard, who barely made it through the fourth grade. You will be her voice for justice. Is there some understanding of her plight? Will there be an attempt on your part to grow and understand our society with all its richness and diversity and with all its joy, often within sound of its cries of anguish and hopelessness? In a new book, Justice Richard A. Posner of the Seventh Circuit Court of Appeals has written, "Our legal certitudes are pragmatically rather than analytically grounded." He was speaking of Brown v. Board of Education when he wrote that. From case to case his statement may not be applicable, but in the broad sweep of history it is. When the Supreme Court has lacked vision or compassion or practicality or passion for liberty, as in the Dred Scott case, the Nation has paid a terrible price for the Court's shortcomings. Above the entrance to the Supreme Court, just a few steps from where we meet today, are the words etched in stone "Equal Justice Under Law." I want those words to live. And I want a Supreme Court Justice who will make them live. Thank you, Mr. Chairman. The CHAIRMAN. Thank you, very much, Senator. Senator Humphrey did wish to make a brief statement? Welcome, Judge Souter. Are you having fun, yet? I hope so. You might as well enjoy it. Mr. Chairman, I have the honor and privilege of formally introducing the nominee to the committee in just a few moments, so I will, for my part, at this juncture pass on an opening statement. The CHAIRMAN. Thank you, Senator. I misspoke. I made Senator Rudman the senior Senator and he is not. He is the junior Senator. Senator Humphrey is the senior Senator. Senator HUMPHREY. He is senior in age. The CHAIRMAN. As Senator Baker used to say, I do not have any dog in that fight. I understand. So, Senator Kohl, from Wisconsin. OPENING STATEMENT OF SENATOR HERBERT KOHL Senator KOHL. Thank you, Mr. Chairman. I am a person who has not sat through any Supreme Court nominations before and I think Judge Souter, you would agree with me that these opening statements-although we are probably all happy they are coming to a conclusion-have been most outstanding and say something unusual about our American system and the way in which we go about selecting Supreme Court Justices. Judge Souter, the President of the United States has asked you to serve on the Supreme Court. And if confirmed, you will be making decisions which will shape the fabric of American society for the rest of your life. You will be interpreting the Constitution in which, we as the people, place our faith and on which our freedoms as a nation rest. During your tenure on the Court you will be free of all political constraints, unaccountable to the people, and unrecallable by the Congress-absent some severe dereliction of duty. Before we place that power in your hands, we need to know what is in your heart and in your mind. While the issues the Court must address are well known, your views are not. Indeed, some cynics have even suggested that you were nominated precisely because you have not spoken to those issues in any detail. They even implied the President believed that a nominee would be more easily confirmed if his views were largely unknown. Those cynics do not understand, as I am sure the President does understand, the role of the Senate in this process. The Constitution requires us to give our advice and consent to this nomination. The oath of office we took obligates us to examine your fitness to serve on the Supreme Court. We must conclude that the quality of your thinking deserves our respect, that you will relate the law to the basic values we have embraced as a nation, and that you are interested in doing justice as well as giving logic to the law. In this process, a number of groups have told us to use this hearing to determine your views on one single issue or another, and they have told us that our decision to confirm you ought to depend on whether you pass their litmus test. Well, let me add my own personal single-issue litmus test to the mix; and that is judicial excellence. Judicial excellence, it seems to me, involves at least four elements. First, a nominee must possess the competence, character, and temperament to serve on the bench. He or she must have a keen understanding of the law, and the ability to explain it in ways that the American people will understand. Based on the record developed thus far, Judge Souter, certainly you appear to have those qualifications. Second, judicial excellence means that a Supreme Court Justice must have a sense of the values which form the core of our political and economic system. No one, including the President, has the right to require ideological purity from a member of the Supreme Court. But we do have a right to require the nominee to understand and respect our constitutional values. We do not elect Justices. They do not have the representational role that Members of Congress have. The Framers of the Constitution gave the Supreme Court Justices lifetime tenure for a reason-they wanted the Court to be insulated from the momentary pull and tug of our daily politics. We do not want Justices who will change their legal opinions as the tide of public opinion turns. Indeed, we charge the Court with the task of defending the rights established in the Constitution even if those rights are, for the moment, reviled. In my opinion, that means that a Supreme Court Justice must, at a minimum, be: Dedicated to equality for all Americans, deter |