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The CHAIRMAN. Let us move now to Judge Hall. Welcome, it is kind of you to come.

STATEMENT OF JUDGE SOPHIA H. HALL

Judge HALL. I am delighted to be here.

My name is Sophia H. Hall, and I am a judge of the Circuit Court of Cook County, IL, and I have an idea of how you might be feeling after this long trial today.

The CHAIRMAN. I bet you know better than any of us right now. Judge HALL. I am the president of the National Association of Women Judges. We are a group of almost 1,000 men and women and we are judges of the State courts as well as the Federal courts. One of our projects is the promotion of gender fairness in the administration of the courts, and one of the programs we have is the National Judicial Education Program to promote equality for men and women in the courts. These programs enable judges to understand how stereotypes and biases about the role of women and men affect factfinding, decisionmaking, as well as courtroom interaction.

The educational programs are necessary, because socially ingrained norms, like women should be at home with the children while the men go to war, may prevent judges from giving credence to contrary evidence in particular cases. The need for these programs has been researched by over 30 State-sponsored gender bias task forces around the country. Over 10 of those task forces have reported so far, and they have reported that gender bias does exist in our court systems.

We believe that this committee needs to know whether Judge David Souter is pledged to basic concepts of fairness, and we have two reasons for this concern. One is his expressed original intent philosophy, which was indicated in a dissent to one of the interpretations of the New Hampshire constitution, and the other is the comments of a close friend of his, Dr. Melvin Levin, another Rhodes Scholar, who stated that he believed that Judge Souter is in the 18th century mold.

These indicators raise concerns, because learned people know that when the U.S. Constitution was written in the 1780's, their original intent apparently was to provide constitutional protections for white males only; women and blacks were under the law, separate and unequal, and that separate and unequal status has continued under Supreme Court case law until the 1970's, when Reed v. Reed was decided. In that case, the Supreme Court utilized the 14th amendment, adopted more than 100 years earlier, to strike down an Idaho law. The Idaho law gave an automatic preference to men in appointments as administrators of estates.

The Reed case was a tremendous breakthrough for guaranteeing the rights of women under the U.S. Constitution, and that Court's decision was consistent with the changed role of women in today's society.

I think you have asked questions already about what Judge Souter thinks of the reasoning in the Reed case and whether or not he thinks that this is an original intent case. I think you probably have asked questions about what Judge Souter thinks of the rea

soning in subsequent cases which expanded the rights of women under the U.S. Constitution.

You need to examine Judge Souter's testimony and his record to determine whether he harbors 18th century biases as to the proper role for men and women in present day society. We firmly believe this is a crucial area for you to explore.

In addition, this committee must determine Judge Souter's judicial philosophy; how does he reconcile his concepts of stare decisis with his original intent thesis; as a conservative, what does he think of the judicial activism of today's Supreme Court.

You must determine from his testimony and his record whether Judge Souter is an 18th century judge or, on the contrary, is a qualified candidate to resolve the 20th century problems facing the Supreme Court.

The National Association of Women Judges appreciates this opportunity to speak to you. We come here neither to speak for Judge Souter nor against him. We, however, urge a searching inquiry into his testimony and his record, so you all can know Judge Souter's views of basic concepts of fairness and, thus, make a reasoned decision on whether he should be confirmed as an Associate Justice of the Supreme Court of the United States.

Thank you.

[Judge Hall submitted the following memo for the record:]

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At your request, I have reviewed the excerpts of Judge Souter's testimony which you have provided. I do not find a significant difference between his original meaning doctrine and the usual original intent process of analysis. Accordingly, I find no reason to change the NAWJ's statement of concern.

In In Re Estate of Dionne, Judge Souter's dissent demonstrates his view that you determine the framers! understanding of constitutional language by looking at the evidence of the thinking at the time the language was adopted. Judge Souter's statement that the decision in Brown v. Board of Education is consistent with his doctrine of original meaning, as exemplified in Dionne, is not supported by his testimony because in discussing Brown he does not use the same process of analysis he used in Dionne. He uses a different analysis which I call the doctrine of "previously ignored evidence."

Judge Souter attempts to distance himself from conventional views of the original intent doctrine by narrowly defining the doctrine.

"I do not believe that the appropriate criterion
of constitutional meaning is this sense of

Secretariat - National Center for State Courts 300 Newport Avenue Williamsburg, Virginia 23187-8798 (804) 253-2000

original intent, that you may never apply a
provision to any subject except the subject
specifically intended by the people who adopted
it. I suppose the most spectacular example of the
significance of this is the case of Brown v. Board
of Education." 9/13 p. 214

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"... when I speak of original intent
talking particularly about that view that the
meaning of the provision or the application of the
provision should somehow be confined to those
specific instances or problems which were in the
minds of those who adopted or ratified the
provision, ...." 9/17 p. 195

He contrasts his doctrine of original meaning by saying that it is not confined to determining instances or problems in the minds of the framers.

"What we are looking for then, when we look for
its original meaning is the principle that was
intended to be applied, and if that principle is
broad enough to apply to school desegregation, as
it clearly was, then that was an appropriate
application for it and Brown was undoubtedly
correctly decided." 9/13 p. 216

"We have been placed upon courts to impose the
will that lies behind the meaning of those who
framed and by their adoption intended to impose
the law and the constitutional law of this country
upon us all." 9/14 p. 7

Judge Souter explained his doctrine of original meaning by referring to his analysis in his dissent in Dionne. In that case, the New Hampshire Supreme Court was applying a phrase in its constitution which provided that "[e]very subject of this state is entitled... to obtain right and justice freely without being obligated to purchase it...." In his dissent Judge Souter stated his original meaning doctrine in somewhat different terms than he uses now. "The court's interpretive task is therefore to determine the meaning of the article 14 language as it was

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