Tell me, why did you file information with regard to gender in employment, and not with regard to race? I found that somewhat puzzling. You submitted the information to EEOC with regard to gender, but not with regard to race, and the 14th amendment clearly is about race and about gender-in terms of that-why did you file that?

Judge SOUTER. As you indicate, I think the 14th amendment is about both.

Senator KENNEDY. Right.

Judge SOUTER. I think, in fact, the answer to that is one which, with respect, I would almost have to direct to my client. If you were to ask me cold whether the State was filing gender information at that time, I could not have told you.

Senator KENNEDY. Let me go to a second area of civil rights, and this is with regard to the literacy tests. You are familiar that in 1965 the Congress took action to abolish literacy tests in the limited number of States that were included in the 1965 act, and then in the 1970 act we abolished literacy tests generally across the country?

Judge SOUTER. I think they were suspended, were they not, for 5 years by the 1970 amendments?

Senator KENNEDY. Exactly. The State of New Hampshire vigorously defended the State law, arguing that Congress did not have, again, the constitutional authority to ban literacy tests. Your name appears on the brief. Do you remember whether you drafted it or not?

Judge SOUTER. I was assistant attorney general at that time, and my recollection is that I filed a posttrial memorandum with the U.S. district court after that case was argued. I remember I was the assistant attorney general assigned to argue

Senator KENNEDY. Well, your name is on the brief, the third one down.

Judge SOUTER. Pardon me?

Senator KENNEDY. Your name is on the brief.

Judge SOUTER. I was not trying to get you to read the names off, Senator.

Senator KENNEDY. We have got two of them.

Now, when this was brought up in the district court, the position was rejected 3 to 0, and then when it was brought up eventually in the Supreme Court, the position was rejected 9 to 0. Again, the question I think is how you view the Congress' power to try and provide remedies against discrimination against minorities and

women.

Very little was given me when I heard you talk about the questions of limited power. You talk about the overlap of power that exists and the power of preemption by the National Government. You say that the National Government will prevail when there is conflict, and speak of the movement toward greater power to the National Government, primarily political and fiscal in recent times, but I not mention what has been the most, I consider the most ason in the past several years, and that is to try rights and liberties to minorities. This is somemake a judgment on.

an

Another part of that brief that concerned me that I want you to speak to, is in the brief you said that if people who could not read were permitted to cast ballots, it would dilute the votes of literate citizens. You went on to say:

To this harm, must be added the impossibility of providing any means whereby illiterate voters could intelligently vote upon the constitutional proposals which are presented on the ballot in narrative form. The result of allowing illiterates to make a choice in such matters is tantamount to authorizing them to vote at random, utterly without comprehension.

Yet, in a letter to the President on the issue, when Congress was considering the Voting Rights Act of 1970, Father Hesburgh, who was Chairman of the Civil Rights Commission, said this:

The lives and fortunes of illiterates are no less affected by the actions of local, State and Federal governments than those of their more fortunate brethren. Today, with television so widely available, it is possible for one with little formal education to be well-informed, an intelligent member of the electorate.

What troubles me is that you said that the Congress did not have the power to collect data on race discrimination. Now, you say that Congress does not have the power to ban literacy tests for voting. Congress is attempting to deal with the profound historical, national problem that this country has ached at over its history and continues to do so today.

Yet, we have seen these fundamental areas-you seem to interpret the powers of Congress so narrowly that we cannot achieve our purpose-even fundamental areas such as race discrimination and the right to vote.

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Judge SOUTER. Well, with respect, Senator, let me address a couple of points that you raise. Maybe the best place to start is with the fundamental one. That is about me today, as opposed to me as an advocate in a voting rights case 20 years ago.

I hope one thing will be clear and this is maybe the time to make it clear, and that is that with respect to the societal problems of the United States today there is none which, in my judgment, is more tragic or more demanding of the efforts of every American in the Congress and out of the Congress than the removal of societal discrimination in matters of race and in the matters of invidious discrimination which we are unfortunately too familiar with.

That, I hope, when these hearings are over, will be taken as a given with respect to my set of values.

The second thing that I think must be said, with respect to that case of 20 years ago, is that I was not giving an interpretation 20 years ago. I was acting as an advocate, as a lawyer, in asserting a position on behalf of a client. Maybe it is unnecessary to add, but I know that you recognize that the identity of the Governor has nothing to do with the responsibility of the attorney general to bring a case.

This voting rights case, by the way, did not arise during the administration of the Governor that you have just been referring to. It arose during the Peterson administration which preceded his. The issue that was presented to the State was, in one respect, similar to one we have already discussed.

New Hampshire had a literacy test. The literacy test had never been used or, indeed, ever have been claimed to have been used for any discriminatory purposes whatsoever. There is some question as

to what its practical effect was in those days. But it had never been used for discrimination.

There was one thing that we did know very clearly about the law in those days, and that was that the use of a literacy test for a nondiscriminatory purpose was constitutional under the 14th amendment. That had been litigated.

So that New Hampshire's practice was, in fact, a wholly constitutional practice. The issue which the Governor requested the attorney general to raise was: Is it within the power of Congress, under section 5, to suspend a literacy test in a State in which there is absolutely no history or evidence of any sort, at any time, of its discriminatory use, in such a way as to be unconstitutional under the 14th amendment?

That issue was not ultimately decided until about 4 or 5 months after our case began. That issue was decided in Oregon v. Mitchell, and as you indicated a moment ago, the Court under varying rationales-some under 14th and some under 15th amendment analyses-decided that it was, in fact, within the power of the Congress to deal with literacy and the discrimination frequently associated with it, as a national problem, and to suspend the test without regard to any particular history of discrimination in the States.

But that case had not been decided at the time that ours was brought. Therefore, the attorney general at the time was in the position, No. 1, of being requested by the Governor to defend a constitutional action under existing State law. I think that was within the appropriate role of an advocate, and it did not represent a personal opinion, either by the attorney general or anyone else involved in the litigation about the ultimate scope of Congress' power under section 5.

Senator KENNEDY. Well, Judge, I must say that you keep coming back to the role of the Governor's lawyer. It is very clear to me that the oath of office that you take, as attorney general in the statute requires, and a part of your responsibility as attorney general is, your responsibility to the public trust and to the people. Judge SOUTER. That is correct.

Senator KENNEDY. So now we know where you are today. I think the question is, where were you then?

Judge SOUTER. Well, Senator, I think you have answered that question. Where we were then, where the attorney general was and where I was as an assistant attorney_general in that case was in defending a State practice which the Supreme Court of the United States had ruled to be constitutional under the 14th amendment.

I think that cannot be reasonably regarded as a derogation of the duty of the State to its people. It may have turned out to be a legal position which the Supreme Court of the United States ultimately rejected, but I think it is a defensible one.

Senator KENNEDY. Well, you can see what the impact would have been if they had not rejected it, because then we would have had 50 different types of solutions which the Federal Government would have been attempting to deal with in a problem of major national concern.

Let me go to the issue of the equal protection clause of the 14th amendment. The Supreme Court struck down virtually all laws that discriminate on the basis of race. On the other hand, they

used a weak standard, on other classifications, and upheld many laws under the rational justification test.

Obviously they have drawn a distinction between trucks and automobiles and different laws for businesses of different sizes. Before the 1970's, the Supreme Court applied the weakest test to cases involving claims of sex discrimination. The Court accepted any rational basis for laws that discriminated against women. Under this approach women were routinely excluded from many occupations, including being lawyers, and many areas even serving as jurors.

Beginning in the 1970's, the Court began to apply a higher standard of review to laws that discriminated against women. But evidently you did not agree with that standard. In 1978, you urged the Court to reexamine and perhaps eliminate the new standard.

The issue here does not turn on the facts of the case. It involved the New Hampshire statutory rape law, and a man convicted under the statute claimed the law was unconstitutional because it did not apply to women, too. The Supreme Court refused to hear the New Hampshire case, but a few years later the Court, in another case, made clear that under even the higher standard of review, statutory rape laws were valid, even though they do not apply to women.

What I find very disturbing is that in your brief you urged the Supreme Court to eliminate the higher standard of review. It seems to me that if you are genuinely concerned about the rights of women the obvious argument to make is that even under a higher standard review the statutory rape laws are valid. But you did not take that course. You suggested the Court should go back to the old law, which had permitted sex discrimination to flourish. In your brief, you call on the higher standard as amoebic, and you said it was in the "Twilight Zone" which are generally considered to be, I think, disparaging, perhaps even derogatory, ways of referring to a constitutional requirement that made an enormous difference in any discrimination against women in our society.

So do you think the Court should go back to uphold statutes that discriminate by sex if there is any plausible reason for the distinction?

Judge SOUTER. No. That is not my position. My position which was described in that, which was raised as an advocate in that brief, went to a problem which is a problem that is still with us. It is a problem which anyone who is concerned about sex discrimination and the appropriate standard of review, I think has got to face.

What we are dealing with when we are asking what is the appropriate standard of review in an equal protection case is what kind of pragmatic approach should we adopt in order to find whether there is or is not a defensible classification?

As you have pointed out, we have come up with, or the courts have come up with basically three tiers of review, so that the courts do not have to reinvent the wheel in every case.

Economic matters get the lowest scrutiny, and racial matters get the highest. The difficulty which has bedeviled the middle scrutiny test, under which classifications of sex and illegitimacy have been examined, is the looseness of the test.

The rational basis test is fairly easy to understand. The strict scrutiny test is fairly easy to understand but the middle scrutiny test requires the court to determine whether there is a substantial relationship to an important governmental objective in deciding whether or not a discrimination, a classification on the basis of sex is appropriate.

What is unfortunate about that standard of review is that it leaves an enormous amount of leeway to the discretion of the court that is doing the reviewing. The history of the middle-tier test illustrates this because we know there are examples, both State and Federal, in which the middle-tier test, in fact, has been treated as nothing more than the first-tier rational basis test-the lowest basis for scrutiny.

I think the question that has got to be faced is whether there can be devised a middle-tier test providing a higher level of scrutiny for these classifications on the basis of sex and illegitimacy that does not suffer from the capacity of a court, as a practical matter, to read it back down to the lowest level of scrutiny, if it is inclined to do so.

The trouble with the middle-tier test is that it is not a good, sound protection. It is too loose.

Senator KENNEDY. I-excuse me.

Judge SOUTER. No, I was just going to add, that has nothing to do with the question of whether sex discrimination should receive heightened scrutiny. I think that is to compare sex discriminations with common economic determinations seems to me totally inappropriate.

The question is, what is a workable and dependable middle-tier standard for scrutiny.

Senator KENNEDY. In your brief, you talk about even eliminating that test.

Judge SOUTER. Well, I also talked about making the test more clear and eliminating this kind of protean quantity to it.

Senator KENNEDY. And we will include the brief in the record. Judge SOUTER. Surely.

[The brief of Judge Souter follows:]