The more things change...I was reading over
the transcript of Anton
Scalia's Senate Judiciary Committee confirmation hearing that took place on August 5-6, 1986 and the exchange between Edward Kennedy and
Scalia struck me as...very timely.
Here's some excepts from
this .pdf file:
The CHAIRMAN. The distinguished Senator from Massachusetts.
Senator KENNEDY. Thank you, Mr. Chairman.
Our ranking Member, Senator
Biden, is currently on the floor with the introduction of legislation dealing with drug regulation, and he will be over here very shortly.
But I will proceed, if I might. Judge
Scalia, if you were confirmed, do you expect to overrule the
Roe v. Wade?
Judge
SCALIA. Excuse me?
Senator KENNEDY. DO you expect to overrule the
Roe v. Wade Supreme Court decision if you are confirmed?
Judge
SCALIA. Senator, I do not think it would be proper for me to answer that question.
The CHAIRMAN. I agree with you. I do not think it is proper to ask any question that he has to act on or may have to act on.
Judge
SCALIA. I mean, if I can say why. Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.
Senator KENNEDY. There have been at least some reports that that was one of the considerations in your nomination. There are a lot of other, clearly, strengths which you bring to your own
qualifications. But I am interested in what precedence you put on that decision being on the
lawbooks. I am interested in your own con
cept in
stare decisis. Do you believe in it? What is it going to take to overrule an existing Supreme Court decision?
-----
Senator KENNEDY. YOU had in an area that this committee is interested in, and that is the question of executive privilege, being able to obtain certain documents.
I noticed in your exchange with Senator Muskie you were talking about this time they were talking about the Nixon case. And Senator Muskie concluded in his question, then, in your judgment, the right of the Congress to military and diplomatic secrets stand at a lower level than the right of the President to withhold those secrets, as a question And you said "No, sir." And then you continued along, "I don't mean to denigrate the congressional' I will include it all in the record, Mr. Chairman, if I may, that statement.
[Not available at press time.]
Senator KENNEDY [reading]:
I don't mean to denigrate the congressional power. They both, the Congress and the Executive have the right to assert their prerogatives. When it comes to an impasse, the Congress has means at its disposal to have its will prevail. The means are indicated in my testimony. The most effective is the withholding of funds from the Executive. The refusal to confirm Presidential nominees was also used several times under President Nixon, if I recall, to elicit information which had been previously denied. The Senate simply would not confirm nominees until the information was turned over. I wonder if you still affirm that wonderful judicious statement and comment that is based upon all the excellent reviews that have been given to you? I imagine you still want to hold to that?
Judge
SCALIA. It is true, Senator. How can I withdraw from it?
Senator KENNEDY. I do not know whether I should ask you whether you want to expand on that or not, whether I--
Judge
SCALIA. It is one of the means that the Congress has at its disposal.
-----
Senator KENNEDY. In another area, Judge
Scalia, this is on the questions of the national security and individual rights. We have gone through a rather important period in past history, in the early seventies, where we were trying to balance national security interests against the first amendment, and we have seen— recent history has taught us to scrutinize the claims of the executive branch in the possibility of inhibiting free speech and association of press and right of dissent under the names of national security.
And I just was interested in hearing your own attitude how you as an individual viewed their role, whether you view the role as an umpire in our federal system with a competing first amendment— between the first amendment and national security claims, or are you going to give the complete basic and overwhelming presumption to those who make the claim, or are you going to examine in some detail the background for such a claim, or how you will approach the issue generally?
Judge
SCALIA. Well, I will certainly approach it with an awareness of the importance of both of the elements that are in contention there, of the first amendment as of normal importance in the
ability of the people to speak, to learn and, on the other hand, the national security interest is often of great importance.
That is the worst problem about being a judge. It is never something on one side. I mean you can be criticized for coming out against the first amendment, and one never hears what is on the other side of that case. There is always some important interest on the other side or it would not be a case.
I cannot be any more specific in response to your question except to say that I am seriously interested in both of the principles, both of the concerns that arise in those cases. I am aware of the importance of the first amendment, and will give it the full weight that the Constitution accords it.
Senator KENNEDY. The reason I bring that up is because when it was alleged in charge for national security reasons, we found the gross abuse of all these individual rights and
preassembly during another period, the early period of the 1970's where we had extensive unauthorized unconstitutional wiretapping, of mass surveillance, questions of first amendment rights.
I hear my time is up. I thank you.
Thank you, Mr. Chairman.
