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S. HRG. 99-1064 NOMINATION OF JUDGE ANTONIN SCALIA HEARINGS BEFORE THE COMMITTEE ON THE JUDICIAKY UNITED STATES SENATE NINETY-NINTH CONGRESS SECOND SESSION ON THE NOMINATION OF JUDGE ANTONIN SCALIA, TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AUGUST 5 AND 6, 1986 Serial No. J-99-119 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 66-852 O WASHINGTON : 1987 For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402 COMMITTEE ON THE JUDICIARY STROM THURMOND, South Carolina, Chairman CHARLES McC. MATHIAS, JR., Maryland JOSEPH R. BIDEN, JR., Delaware PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia ALAN K. SIMPSON, Wyoming HOWARD M. METZENBAUM, Ohio CHARLES E. GRASSLEY, Iowa DENNIS DECONCINI, Arizona JEREMIAH DENTON, Alabama PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania HOWELL HEFLIN, Alabama MITCH McCONNELL, Kentucky PAUL SIMON, Illinois JAMES T. BROYHILL, North Carolina DENNIS W. SHEDD, Chief Counsel and Staff Director DIANA L. WATERMAN, General Counsel MELINDA KOUTSOUMPAS, Chief Clerk MARK H. GITENSTEIN, Minority Chief Counsel (ID CONTENTS STATEMENTS OF SENATORS Page Thurmond, Chairman Strom 1 Warner, Hon. John 2 Trible, Hon. Paul 3 D'Amato, Hon. Alfonse 3 Biden, Hon. Joseph R., Jr 5 Mathias, Hon. Charles McC., Jr 8 Domenici, Hon. Pete V 10 Moynihan, Hon. Daniel Patrick 11 Laxalt, Hon. Paul 12 Metzenbaum, Hon. Howard M 13 Hatch, Hon. Orrin G 14 DeConcini, Hon. Dennis 16 Simpson, Hon. Alan K 17 Leahy, Hon. Patrick J 19 Denton, Hon. Jeremiah 21 Heflin, Hon. Howell T 23 Grassley, Hon. Charles E 25 Simon, Hon. Paul 25 Specter, Hon. Arlen 26 McConnell, Hon. Mitch 27 Broyhill, Hon. James T 29 CHRONOLOGICAL LIST OF WITNESSES TUESDAY, AUGUST 5, 1986 Scalia, Hon. Antonin, Judge, U.S. Court of Appeals for the District of Colum- bia Circuit; to be U.S. Supreme Court Associate Justice 31 WEDNESDAY, AUGUST 6, 1986 Fiske, Robert B., Jr., chairman, Standing Committee on the Federal Judici- ary, American Bar Association, accompanied by John D. Lane, Wash., DC, and Gene W. Lafitte, New Orleans, LA Ill Panel consisting of: Carla Hills, of Latham, Watkins & Hills, Wash., DC; Gerhard Casper, dean, School of Law, University of Chicago, Chicago, IL; Paul Verkuil, president and professor of law, College of William and Mary, Williamsburg, VA; Lloyd Cutler, of Wilmer, Cutler & Pickering, Wash., DC; and Erwin Griswold, Wash., DC 140 Panel consisting of: Eleanor Cutri Smeal, president, National Organization for Women; Lawrence Gold, general counsel, American Federation of Labor and Congress of Industrial Organizations; and Joseph L. Rauh, Jr., on behalf of Americans for Democratic Action and Leadership Conference on Civil Rights 168 Panel consisting of: Beverly LaHaye, president, Concerned Women for Amer- ica, Wash., DC; Bruce Fein, United Families Foundation, Wash., DC; Sally Katzen, of Wilmer, Cutler & Pickering, Wash., DC; Jack Fuller, editorial editor, Chicago Tribune, Chicago, IL 223 Feinberg, Audrey, The Nation Institute, New York, NY 248 Maddox, Robert L., executive director, Americans United for the Separation of Church and State, and Peter Weiss, vice president, Center for Constitu- tional Rights 294 (in) IV Page Carpenter, James, Lima, OH 310 Collier, Kenneth F., Washington, DC 340 ALPHABETICAL LISTING AND MATERIALS SUBMITTED Carpenter, James: Testimony 310 Prepared statement 312 Casper, Gerhard: Testimony 141 Collier, Kenneth F.: Testimony 340 Prepared statement 342 Cutler, Lloyd N.: Testimony 149 Prepared statement 151 D'Amato, Hon. Alfonse: Prepared statement 4 Resume of Antonin Scalia 4 Fiske, Robert B., Jr.: Testimony Ill Letter from the A.B.A., re investigation of nominee 113 Prepared statement 138 Gold, Lawrence: Testimony 185 Prepared statement 186 Griswold, Erwin: Testimony 148 Fein, Bruce: Testimony 227 Prepared statement 229 Letter giving information on the formation of United Families of Amer- ica 242 Feinberg, Audrey: Testimony 248 Prepared statement 250 Prepared statement of Kate Michelman, National Abortion Rights Action League 276 Fuller, Jack: Testimony 237 Katzen, Sally: Testimony 236 Lafitte, Gene W.: Testimony 119 LaHaye, Beverly: Testimony 223 Prepared statement 225 Lane, John D.: Testimony 121 Levin, Hon. Carl: Judge Scalia's responses to written questions 344 Maddox, Robert L.: Testimony 294 Prepared statement 296 Prepared statement of Frank Brown, professor, DePaul University, for the National Association for Personal Rights in Education 299 Rauh, Joseph L.: Testimony 203 Prepared statement of Thomas M. Kerr 204 Smeal, Eleanor Cutri: Testimony 168 Prepared statement 170 Verkuil, Paul: Testimony 142 Prepared statement 145 Weiss, Peter: Testimony 301 Prepared statement 303 APPENDIX Statements of: Gerald L. Sbarboro, judge, Circuit Court of Cook County 348 Citizens for Educational Freedom 349 National Law Enforcement Council 351 J.H. McQuiston, McQuiston Associates 354 Page Synopses of reported decisions of the District of Columbia Circuit in which Judge Antonin Gregory Scalia authored a signed opinion or other state- ment, by Paul L. Morgan, Congressional Research Service, the Library of Congress 356 NOMINATION OF JUDGE ANTONIN SCALIA TUESDAY, AUGUST 5, 1986 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 11:02 a.m., in room SD-106, Dirksen Senate Office Building, Hon. Strom Thurmond (chairman of the committee) presiding. Present: Senators Biden, Leahy, Laxalt, Specter, Heflin, McCon- nell, Metzenbaum, Kennedy, Hatch, Simon, DeConcini, Mathias, Grassley, Broyhill, Simpson, and Denton. Staff present: Duke Short, chief investigator; Dennis Shedd, chief counsel and staff director; Frank Klonoski, investigator; Jack Mitchell, investigator; Melinda Koutsoumpas, chief clerk; Mark Gi- tenstein, minority chief counsel; Cindy Lebow, minority staff direc- tor; Reginald Govan, minority investigator; and Christopher J. Dunn, minority counsel. STATEMENT OF CHAIRMAN STROM THURMOND The CHAIRMAN. The committee will come to order. This morning the committee begins its consideration of the nomi- nation of Antonin Scalia to be Associate Justice of the Supreme Court of the United States. If Judge Scalia is confirmed, he will become the 106th person appointed to the Court. Last week during the hearings on Chief Justice-Designate Rehn- quist, I again described the qualities I believe are necessary for a member of the Court: integrity, courage, knowledge of the law, compassion, judicial temperament, and an understanding of and appreciation for the majesty of our system of government. I believe Judge Scalia has these qualities. During his appearance before this committee 4 years ago, and during his tenure as a member of the U.S. Court of Appeals for the District of Columbia Circuit, Judge Scalia has always exhibited these qualities. Judge Scalia has an outstanding educational and legal back- ground. He was first in his class at Georgetown University and graduated magna cum laude from Harvard Law School, where he served as an editor of the Law Review. He has been involved in the private practice of law and has taught at the University of Virginia and University of Chicago Law Schools. Judge Scalia has also held important positions in Government. He has served as general coun- sel in the White House Office of Telecommunications Policy; as the assistant attorney general for the Office of Legal Counsel; and as chairman of the Administrative Conference. In August 1982, he (l) was appointed to the Court of Appeals for the District of Columbia Circuit, which many call the second highest court in this country. A review of Judge Scalia's actions and record in these endeavors indicates he does possess the qualities to be a great Supreme Court Justice. In addition, those who have been associated with Judge Scalia throughout his life—even if they might disagree with him philosophically—consistently describe him as: A person who is open-minded, a consensus builder, and an individual with a keen intellect and sense of humor. These are unquestionably qualities we desire in a person who is to be elevated to the highest court in the land. Finally, Judge Scalia is now cast in the role of a symbol. Certain- ly, he creates great pride by being the first Italian-American who will sit on the Court. However, he also serves as a symbol in an even larger context. Judge Scalia, a first-generation American and the son of an immigrant, has been chosen by the President to be a member of the Supreme Court. By dedication and hard work, Judge Scalia has reached the apex of his chosen profession and stands as proof of the vitality of the American dream. Judge Scalia, we again welcome you to the committee, along with your wife, Maureen, and your family. And I believe eight of your nine children are here, are they not? Judge SCALIA. Yes, Senator. I do not know what happened to the ninth. He is supposed to be here, too. He is here. They are all here, Senator. I have a full house. I was worried about that. The CHAIRMAN. We have several Senators here to introduce you too, and we will hear from them and then excuse them. The senior Senator from Virginia, Senator Warner, in which State you reside. STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator WARNER. Thank you, Mr. Chairman and members of the committee. It is indeed a privilege to appear before this committee to represent and introduce this distinguished American who we are privileged to have as a resident of Virginia, together with his family. I would like to emphasize that Judge Scalia has long been a dis- tinguished citizen of the Commonwealth of Virginia. Indeed, his first teaching position was at my university, the University of Vir- ginia Law School. In 1982, President Reagan named Judge Scalia to the U.S. Cir- cuit Court of Appeals for the District of Columbia.
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