With Judge Bryson apparently taking senior status next week, I thought it might be of interest to take a look back at his confirmation hearing before the Senate Judiciary Committee in 1994:
We will now turn to the introduction of William C. Bryson, of Be-
Senator Sarbanes, if you would come forward.
STATEMENT OF HON. PAUL S. SARBANES, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Sarbanes. Senator DeConcini and Senator Simon, I am
very pleased to be here this afternoon to introduce William C.
Bryson, a distinguished resident of Maryland who has been nomi-
nated by the President to serve as a U.S. circuit judge for the Fed-
eral Circuit. Bill is sitting right here behind me.
I must say he brings an extraordinary record before this commit-
tee, a graduate of Harvard College, magna cum laude, in 1969, and
from the University of Texas Law School in 1973, where he was
editor-in-chief of the Texas Law Review.
After he graduated from the University of Texas Law School, he
clerked first for Judge Henry Friendly, one of our Nation’s most
distinguished jurists, in the second circuit, and then was law clerk
for Justice Thurgood Marshall on the Supreme Court.
Bill Bryson then went into practice here in Washington for 3
years where he did civil and criminal litigation, mainly Federal, at
the trial and appellate levels. Since 1978 — in other words, for the
last 15, 16 years — he has been in the Department of Justice in in-
creasingly more senior and responsible positions.
He started as assistant to the Solicitor General. He then became
chief of the Appellate Section in the Criminal Division. He then
was Special Counsel to the Organized Crime and Racketeering Sec-
tion of the Criminal Division; that was from 1982 to 1986.
From 1986 to the present, he has been in the Solicitor General’s
office. He was a Deputy Solicitor General, one of four deputies to
the Solicitor General responsible for supervising and briefing and
the argument of cases before the Supreme Court. He twice has
been the Acting Solicitor General. In between the resignation of
one Solicitor General and the appointment of another, he served as
the Acting Solicitor General. Until just a few weeks ago, he was
Acting Associate Attorney General following the resignation of
So he has, in effect, given a career of dedicated public service in
the Justice Department, and he has been recognized at every step
along the way and I just want to mention two or three of these rec-
In 1984, the Federal Bar Association gave him the Tom C. Clark
Award. It is awarded annually to a Federal agency lawyer for out-
standing service as a government lawyer. In 1985, he received the
Department of Justice Exceptional Service Award, the highest
award in the Department of Justice. It is given annually to the
Justice Department attorney who has rendered the most excep-
tional service. In 1990, he was the first recipient of the Beatrice
Rosenberg Award, which is awarded annually by the District of Co-
lumbia bar for outstanding service as a government attorney.
He has had an extraordinary record. It is one of very distin-
guished public service. I think this appointment is very well mer-
ited. He will be an outstanding member of the Federal circuit, and
I commend him to the committee most strongly and urge your fa-
vorable recommendation. I look forward to his early confirmation
by the Senate.
Senator DeConcini. Thank you, Senator Sarbanes. We appre-
ciate your taking the time to introduce Mr. Bryson and your strong,
We are pleased to have Representative Morella here on behalf of
the nominee as well.
STATEMENT OF HON. CONSTANCE A. MORELLA, A REPRE-
SENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND
Representative Morella. Thank you. It is nice to be here with
Senator Sarbanes. Mr. Chairman, it is great to be here with this
distinguished committee. I am very honored to introduce to the
committee this afternoon my constituent, William Curtis Bryson,
who has been nominated to serve as a circuit judge on the U.S.
Court of Appeals for the Federal circuit.
It is always a great pleasure to introduce a constituent to this
committee who has been nominated, but this is a particular honor
because this gentleman is just so highly, highly qualified. A review
of Mr. Bry son’s impeccable academic credentials and his profes-
sional record indicates that he has more than just the intellectual
acumen required of a judge. He also has the experience, the tem-
perament, the commitment, and the integrity to make him an out-
standing judge. He will be a bright star in the judicial galaxy.
Mr. Chairman and members of the committee, I know that you
all know Mr. Bryson from his current position as the Deputy Solici-
tor General, having been Acting Solicitor General, and as the Act-
ing Associate Attorney General with the U.S. Department of Jus-
tice — such prestigious, responsible positions.
Prior to his arrival at the Department of Justice in 1978, Mr.
Bryson was in private practice here in Washington and has served
as a law clerk for both former Supreme Court Justice Thurgood
Marshall and former Judge Henry Friendly of the Second Circuit
Court of Appeals.
When at the Department of Justice, and while receiving his edu-
cation at both Harvard College and the University of Texas School
of Law, where, incidentally, he was editor-in-chief of the law re-
view, and, at Harvard, magna cum laude, Mr. Bryson has been the
recipient of many awards and honors.
As a lawyer at the Department of Justice, he has very effectively
represented the government, has argued before the Supreme Court
on 31 occasions, and has second-chaired arguments on more than
100 occasions. In addition, Mr. Bryson has an active record in pro
bono work. Even with the Department of Justice, he has attempted
to serve the interests of the disadvantaged in a number of ways,
especially relating to employment discrimination.
So, Mr. Chairman and members of this distinguished committee,
I am very pleased to present to you a very highly qualified can-
didate for the Federal Circuit Court of Appeals. I certainly respect-
fully urge this committee to give its support to Mr. Bryson’s nomi-
I am pleased to present to you William Curtis Bryson, and I
would like to end with a quote that I think aptly describes him
from Shakespeare: a man of sovereign parts, he is esteemed, well-
fitted in arms, glorious in arts. Nothing becomes him ill that he
would well. I believe he will serve us and the administration of jus-
tice very well.
TESTIMONY OF WBLLIAM C. BRYSON, BETHESDA, MD, TO BE A
U.S. CIRCUIT JUDGE FOR THE FEDERAL CmCUIT
Mr. Bryson. Thank you, Senator. I would join the other nomi-
nees in thanking the committee for giving us and me the privilege
of being here today. I would like to introduce my parents, who are
here, Mr. and Mrs. Addison Darden; my wife, Penny Clark; and my
children, Alice and Ellen, were not able to make it today, but they
tell me from their place on vacation that they are with me in spirit.
Senator DeConcini. I think they are very wise people, consider-
ing the circumstances. [Laughter.]
QUESTIONING BY SENATOR DECONCINI
Senator DeConcini. Thank you very much, and welcome to ev-
eryone who is here today.
Let me pose some questions to all of the nominees. If you are
confirmed as an appellate judge or a district judge, at some time
you will be asked to rule on various cases that have been decided
by the court of appeals, in the case of the district judge, and the
Supreme Court, in the case of the appellate judge, with which you
may personally have some disagreement.
How do you approach this, starting with you, Mr. Bryson? Would
you consider yourself bound by such precedent?
Mr. Bryson. Yes, Senator, I would. I am trained as a common
law lawyer and believe very much in the rule of law, and the rule
of law in the common law system being the rule of precedent. So
Senator DeConcini. Ms. Vance.
Ms. Vance. Yes, sir, I would view myself as bound by the prece-
dents of my circuit and of the U.S. Supreme Court.
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. Yes, sir. Not only under Federal law, but also
under common law of Puerto Rico, we are bound by the precedent
of” stare decisis.
Mr. Casellas. Most definitely, Senator, in my case, also, affirma-
Senator DeConcini. One of the issues that I have always been
deeply interested in is the Judicial Tenure Act and the discipline
of the judiciary. Do you have any feelings on whether or not there
ought to be a greater structure within the Federal judiciary for
complaints against judges or disciplinary action to be taken against
Mr. Bryson. Yes, Senator. I think that there should be room for
legitimate complaints to be brought against judges. I think there
are instances in which, just in my own experiences, judges who are
not answerable for conduct that really goes well beyond the limits
even of a generous construction of judicial discretion should not be
allowed to go unchecked.
The problem, of course, is that there is a great potential for in-
timidation of judges by complaints coming from losing parties or
parties who simply have decided that the judge is against them be-
cause their cause is weak. As you know, there are so many of those
people that come before the courts that the potential for harass-
ment of judges would be great.
Nonetheless, I think, in the balance, that we need probably to be
willing to put up with somewhat more harassment in the interest
of having some avenue for correction of what now goes very often
as not corrected.
Senator DeConcini. Do you have any suggestions? Should the
circuit courts all be required to have a disciplinary process or a
Mr. Bryson. I think the circuit courts should have a complaint
process. I think that there are some courts in which some forms of
complaint process are in place now and I think that that should be
encouraged. I am not sure whether it should be done as a matter
of statute or as a matter of independent decision made by the cir-
cuit courts on the basis of their own perception of the degree of the
problem, but I think it would be a good idea.
Senator DeConcini. Ms. Vance.
Ms. Vance. Senator, I understand the concern for monitoring the
behavior of judges who have life tenure and who may not have the
bench and the members of the bar active in their supervision. How-
ever, there are Federal statutes that do permit the litigants and
frivate members of the public to file a complaint indicating that a
ederal judge has acted prejudicially to the administration of the
duties of his office, or that he is disqualified by reason of mental
infirmity or disability to sit. Those cases would be decided by the
head of the circuit bench for the district.
There are also a number of other Federal statutes that govern
the behavior of Federal judges and limit their practice of law, their
personal required disclosure of financial interests, so that I think
there are mechanisms already for disciplining Federal judges. The
question is whether or not they are utilized.
Senator DeConcini. You are in the third circuit?
Ms. Vance. No, sir. I am in the fifth circuit.
Senator DeConcini. The fifth circuit. I know in the ninth circuit
there certainly have been a few examples, and in, I think, the
eighth circuit there certainly were some examples where those
were not used, and maybe there are examples in every other circuit
My concern is, that it seems to me that those statutes are very
difficult to use and there ought to be more encouragement by the
circuit courts to use them. At least the ninth circuit has set up a
complaint process, and maybe other circuits have, too — maybe the
fifth circuit has — where you can file a complaint against a judge.
Even if it is a harassment complaint, you can file it as a citizen
and somebody is going to look into it and at least respond to it, but
it seems to me Federal judges are pretty immune from any type of
complaint, except possibly from the press. But they don’t have to
run for office, so maybe it doesn’t make much difference.
Ms. Vance. I think there is a procedure in the fifth circuit to file
a complaint. The problem is that practicing attorneys are some-
what reticent to file complaints against sitting judges.
Senator DeConcini. Exactly, so do you have any suggestions to
make it easier for people to be able to file complaints?
Ms. Vance. I think that if the public and the bar were somehow
assured that — there is no way you can file an anonymous com-
plaint; it wouldn’t be fair — but that the process would be fairly en-
forced and that the judge would never hold it against them, I think
there would be more complaints filed, but I don’t know how you
would go about assuring that, sir.
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. Your Honor, I agree with Ms. Vance. In Puerto
Rico, as a matter of fact, we did have a procedure that went
through in the early 1970’s. If something new is going to be done,
I would suggest that we would have to do a balancing act between
the independence of the judge versus the discipline of a judge, and
make sure that it is not a decisional matter, that it is not some-
thing created by a decision, that it is something created by conduct
not relating with, obviously, the decisional process.
Senator DeConcini. Good point.
Mr. Casellas. Senator, I would hope that, at least in my circuit,
the leadership of the other circuit that you mentioned, that we do
have some sort of procedure to file complaints. Now, the statutes
in place, like Ms. Vance said, might not be known. They might be
cumbersome. Maybe they should be streamlined within each cir-
cuit, and then let the bar know exactly what has to be done.
The awareness by the bar of the complaint procedure is very im-
portant. The books are full of statutes that are in disuse. The com-
plaint procedure should be adopted, in my opinion, by the circuit,
if not there now, but most importantly discussed and distributed in
information to the bar so that these complaints can be filed and
they don’t become academic.
Senator DeConcini. All of you have practiced law in one form or
another, and I suspect, as does any practicing lawyer, you have had
an occasion where you thought — maybe you haven’t, but I certainly
had in my former practice occasions where I thought the judge was
discourteous and lacked some judicial temperament.
I would like to ask each of you, how do you intend to discipline
yourself and maintain a judicial temperament throughout your life-
Mr. Bryson. Senator, I think that is a concern that every judge
has to think about as the judge goes on to the bench and continues
on the bench. There is, as you say, a great temptation to simply
conclude that because people defer to you that you are therefore in-
capable of error and deserve at least as much deference, if not
more, than you get.
I think it is just a question of awareness. I think that, as a
judge — and I have seen many judges, as I am sure you have, who
do this very well — as a judge, you have to remind yourself that the
fact that you have been selected for this position doesn’t mean that
you are somehow superior to the people that appear before you or
the parties that have their cases in your hands. It doesn’t mean
that you are entitled to treat them discourteously. It doesn’t mean
that you somehow have some god-given right to decree what their
fates shall be.
Your authority over them is a product entirely of the legal sys-
tem. You are a cog in the legal system, and I think it is something
that you have to remind yourself of over and over again. It is the
only cure for the disease.
Senator DeConcini. Ms. Vance.
Ms. Vance. I agree that you have to remind yourself that you are
a public servant and that you are there to serve the justice system.
It would seem to me that if you reminded yourself of the enormous
responsibility you have to make decisions that affect the lives and
the fortunes and the liberty of other people that that would be a
humbling experience and it wouldn’t make you arrogant.
I think that if you remind yourself that life tenure is designed
to give you the independence to do your job and it was not designed
to set you above the people you were there to serve that you could
keep everything in perspective and remain courteous and even-
handed with the people who appear before you.
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. Your Honor, I have a friend, a judge friend, that
once said that judges should always remember that they are ap-
pointed and not anointed, and I think that what you have men-
tioned is precisely an indispensable characteristic of a judge, espe-
cially those, obviously, that are appointed for a lifetime. It is some-
thing simply that you have to have the discipline to follow it
through throughout all your career.
Senator DeConcini. Mr. Casellas.
Mr. Casellas. Mr. Chairman, I think really that in my case the
most important thing is to be humble. I think humility is the basic
principle to carry out any professional career. I would start with
being humble. I would start modestly, frankly, by examination of
conscience every night, which I do anyhow, for other reasons.
Then I would work at the judicial temperament in the sense of
we always have to be fair to both sides. We have to make certain
that both sides get a fair shake; be fair to both sides, work on that
continually, not let one side take advantage of the other, work on
that continually. That, I think, is judicial temperament. Be hum-
ble, don’t be arrogant, and work at it.
From the point of view of the persons that you are dealing with,
I think we have to be respectful, I think we have to be courteous,
and we have to listen to what the other attorney and other parties
say. I would say these three things, for me, working at it, would
be judicial temperament put into practice.
Senator DeConcini. Senator Specter.
OPENING STATEMENT OF SENATOR SPECTER
Senator Specter. Thank you, Mr. Chairman.
I believe that Senator DeConcini has touched on a really critical
aspect, and that is courtesy. Senator Thurmond made the comment
many years ago that very much impressed me which I repeat when
he is not present, and that was that the more power a person has,
the more courteous he or she should be, and trial judges are at the
top of that list.
I think it is good just to spend a few moments on the subject,
as Senator DeConcini has, because you are all young men and
women and you are going to be on the bench a long time and you
may tend to forget it. Some have said that Federal judges ought
to run every 6 years and Senators ought to have lifetime tenure.
But as the years pass, it is easy to forget it, and there is a qual-
ity of the black robe and the permanence in the life tenure which
you just have to focus on again and again and again. When you be-
come impatient, and there is a temptation to do so, or lose your
cool, just think about the day that Senator DeConcini and Senator
Thurmond and I made a comment or two about it.
We do not customarily go very deeply into judicial philosophy in
these sessions. We like to have the hearings here, the format. I
know you will be mindful that you are judges interpreting the law,
not making the law, looking for the congressional intent, and fol-
lowing the strictures of the law and precedent, as opposed to sub-
stituting your own personal views of what the law should be.
There are a lot of questions which could be asked about that, but
I don’t think we will advance the ball very much by extended dis-
cussion on that subject, but it is something that you always ought
to keep in mind.
I would like to put into the record, Mr. Chairman, a letter which
I received from a distinguished attorney, Michael M. Baylson, in
Philadelphia, recommending judge-to-be Sarah S. Vance based on
his knowledge of her work.
[Mr. Baylson's letter appears on p. 212.]
Senator Specter. You all appear to have good credentials, and
if the practice of the committee holds true, you will soon be con-
firmed. We wish you the very best on your new assignments. It is
a tough job. We expect you to work hard and we expect you to do
justice under the law.
Thank you, Mr. Chairman.
Senator DeConcini. Senator Grassley.
QUESTIONING BY SENATOR GRASSLEY
Senator Grassley. I compliment each of you on your appoint-
ment. I have some questions of Mr. Bryson. That doesn’t mean that
you other nominees are not just as important, but I am not pre-
pared to ask you questions, and I would like to ask Mr. Bryson
more to have a discussion with you than a lot of questions. There
is some participation I would like you to have.
I have heard excellent reports about your abilities as a lawyer
and how you will perform as a judge. I have heard particularly that
you are impartial and independent. I would like to address with
you how that impartiality and independence was displayed in your
current position as Deputy Solicitor General. I want to refer to the
Knox case that you know so much about and you know that I have
been involved with.
When it originally came before the Supreme Court, the Solicitor
General’s office filed a brief in opposition to the petition for certio-
rari. It is my understanding that that brief was filed under your
signature. What arguments were contained in that brief supporting
Knox’ conviction, and why did you feel that you wanted to sign
Mr. Bryson. Well, Senator, thank you. The case as it came to the
Supreme Court the first time from the third circuit was one that
came up on writ of certiorari. Of course, our office, the Solicitor
General’s office, traditionally opposes certiorari in the vast bulk of
cases coming from the courts of appeals.
We looked very carefully at that case because that case obviously
was a case of some sensitivity and some difficulty, but we con-
cluded that the third circuit’s judgment should be defended and
that the Supreme Court did not need to grant certiorari in that
As I recall, the opposition that we filed to certiorari— this was,
I think, filed in March 1993, if I am not mistaken. The arguments
we made were basically these: first, that the term “exhibition,”
which was the key term in the statute that was at issue in that
case, a question of whether there was a lascivious exhibition of the
pertinent body parts even though those body parts were covered in
the films that were involved— we argued, as the third circuit had
held, that the term “exhibition” did not necessarily require an un-
covered revelation of the body parts. In other words, you could
have, at least under some circumstances, an exhibition even though
the body parts were covered. We, in other words, were defending
the third circuit’s position.
We also argued that there was some indication in the legislative
history that there was no flat requirement of nudity in order to
qualify as an exhibition under the statute. We further argued in
urging the Supreme Court not to grant certiorari in the case that
this was a case of first impression. There was no conflict among the
circuits, and that, of course, is a very common ground for arguing,
as we often do, that certiorari should not be granted in a particular
I did sign that brief— you are correct — as Acting Solicitor Gen-
Senator Grassley. Unfortunately, the Supreme Court did grant
the petition, and by the time the government’s brief on the merits
was due the administration had changed. What arguments did the
government make in that brief regarding whether the statute re-
quired the child to be essentially nude and act lasciviously herself?
Also, in conjunction with that, reports indicate that you did not
sign the brief and that it was filed by political appointees. Is that
Mr. BRYSON. Taking the last half of the question first, Senator,
it is true that I did not sign the second brief. That was the brief
on the merits after the Solicitor General had been appointed and
confirmed. That brief took the opposition position, in effect, from
the brief that had been filed in opposition to the certiorari petition
6 months earlier which I had signed.
There is a custom in our office that we, as lawyers, do not typi-
cally contradict ourselves by switching positions in a brief. So, since
that was a switch in positions, I did not sign the second brief.
In that brief— this is the brief on the merits that was filed, I
think, in September or October 1993 — the office took the position,
contrary to what the third circuit had held, that, in fact, some form
of visibility was required of the pertinent body parts in order for
there to be an exhibition.
This was a construction of this term “exhibition” which was not
defined in the statute, but the argument was that you couldn’t
have an exhibition if you couldn’t see the item, the object, the body
part, that was purportedly being exhibited. The argument was that
therefore, since the third circuit had relied on the view that all that
was required was that there be a focus on the area rather than an
actual display of the body parts uncovered and nude, therefore the
third circuit’s legal basis for its ruling upholding the conviction was
flawed and the case had to go back to the third circuit.
Now, there was a second aspect that you mentioned, a second
legal ingredient in the statute which was discussed briefly in that
brief. It wasn’t really at issue in the case because it hadn’t been
raised by the defendant, but it was the question of what the child
has to do in order for the depiction of the child engaged in sexually
implicit conduct to violate the statute.
Now, as you know, the statute has two separate elements. One
is a depiction, and two is that the child has to be involved in sexu-
ally explicit conduct. The approach that was taken in that brief and
in subsequent filings, in which our position has been clarified, I
think, is to say it is not necessary for the child actually to be in-
tending to act lasciviously, but only that the child be acting in a
way that some viewer would regard as lascivious.
I think perhaps because the initial brief was somewhat less clear
than it should have been on this point, I think there has been some
confusion on that. But I think we have cleared it up and that the
position that was taken on remand in the third circuit made, I
think, quite clear that it was not necessary for the child to be
shown to have intended to act lasciviously.
Senator Grassley. Do you have an opinion as to why the Solici-
tor General changed the Department’s position?
Mr. Bryson. Yes, Senator. I think that this was a case of the So-
licitor General, whose responsibility it is to present to the Supreme
Court his best conclusion as to what the law requires in light of
his responsibilities to represent the United States — in good faith
and after close study, the Solicitor General concluded that the stat-
ute simply wouldn’t bear the construction that the third circuit had
put on it.
Our office does, on occasion, not terribly often, but on occasion,
confess error or disagree with particular legal conclusions reached
by courts of appeals when cases come before the Supreme Court.
This was one of those instances, and I have to say that although,
of course, I had taken the contrary position 6 months earlier, I feel
very comfortable that the Solicitor General exercised his authority
in this case in good faith and solely on the basis of his reading of
Senator Grassley. Well, as you know, that case was remanded
back to the third circuit. In the process of the Supreme Court act-
ing and before it was heard by the third circuit again, all 100 mem-
bers of the Senate had voted to state a disagreement with the Jus-
tice Department’s changed position, specifically that it was con-
trary to congressional intent. The House later passed a similar
measure nearly unanimously, and then 230 Members of Congress
filed an amicus brief in the third circuit against the government’s
In the final analysis, as you probably know, the third circuit
agreed with us and not with the Department. I assume you are fa-
miliar with that case. Do you think that the third circuit’s opinion
can be read to have supported the Justice Department’s changed
arguments, as some in the Department are claiming now?
Mr. Bryson. Senator, I think it is clear that the third circuit said
two things. First, the third circuit did reject the government’s anal-
ysis of the exhibition requirement. In that regard, the third circuit
disagreed with the position that the government had argued on re-
mand. So it is not correct to say that the third circuit embraced or
agreed with the Department’s view in that regard.
There was a second aspect of what the third circuit did that was
consistent with the government’s position, and it was this. The
Court said even on the government’s theory, which was a more re-
strictive construction of the term “exhibition,” we agree with the
government that the evidence in this case was sufficient to support
a conviction. The Court therefore, in that regard, agreed with the
government in its principal submission that at least if you view the
term “exhibition” more narrowly than the third circuit, in fact,
viewed it — nonetheless, if you view it in that narrow fashion pre-
sented by the Department, the evidence is still sufficient to support
the conviction and the conviction should therefore stand on either
Senator Grassley. I thank you for discussing this with me and
for other people to hear, as well. I think your discussion is good.
I think you have shown competence and independence, and I will
be glad to support you to your appointed position.
Mr. Bryson. Thank you.
QUESTIONING BY SENATOR DECONCINI
Senator DeConcini. Senator Grassley, thank you.
Along that line, let me ask each of the nominees a question re-
garding legislative history and congressional intent. You certainly
have expressed some concern already, Mr. Bryson, but what are
each of your views on the role of legislative history when a court
is faced with ambiguous language? Specifically, which factors
should a court rely on in a case of statutory construction beyond
the statutory language itself?
Mr. Bryson. Well, Senator, as your question suggests, the first
principle of statutory construction absolutely must be to go to the
language of the statute. There is a quip that occasionally, I think,
Judge Scalia will be heard to repeat, which is that some judges
seem to approach statutory construction by saying that if the legis-
lative history is unclear, perhaps we should resort to looking at the
That is not the approach that the current Supreme Court takes.
It is not the approach that I think ought to be taken. The first
thing to do is to go to the language of the statute. The language
of statutes is not always clear. It isn’t always entirely clear how
the language applies in a particular case. There, I think you have
to resort — and I do not take the view that legislative history is ir-
relevant — I think you have to resort to whatever help you can get
from legislative history, context, the background against which a
statute was enacted, the purposes that the statute was intended to
serve, the evils that the statute was intended to address.
Those are the kinds of evidence that you can bring to bear in try-
ing to get the entire picture of what a statute is intended to mean,
starting with the language of the statute and using those other de-
vices as well.
Senator DeConcini. Thank you, Mr. Bryson.
Ms. Vance. I think that I would agree with Mr. Bryson that in
construing with a statute that you begin with looking at the lan-
guage of the statute to ascertain congressional intent, and the first
rule of approach is the rule of plain meaning where you construe
the words of the statute in their ordinary, plain meaning.
If the plain meaning is not clear from the statute and the word-
ing is ambiguous, I do think that it is appropriate to consider legis-
lative history. I understand that there is a debate as to the reliabil-
ity of legislative history as an indication of congressional intent.
However, I do think that there are certain types of legislative his-
tory, such as committee reports, that should be authoritative on
legislative intent, and that you could be safe in relying on as an
indication of congressional intent, whereas there may be things
that are put in the record, so to speak, that may not be necessarily
a part of the real debate on the statute.
Senator DeConcini. What about statements of Members of Con-
gress that are put in the record, who were involved in the actual
drafting and passing of the legislation?
Ms. Vance. I definitely think that you should read them and con-
Senator DeConcini. They are relevant, in your opinion?
Ms. Vance. They are relevant in the context of the debate and
what the issues were at the time and the Senator’s role in that.
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. I would concur with what my two colleagues
have said. The only red light would be we must be extremely cau-
tious with ex parte, self-serving statements that may be placed in
the history of a law. You would have to look more at the live debate
rather than something or some comment that gets put into the
record when nobody is there, when there is no real debate. You
have to look with caution there.
Senator DeConcini. Mr. Casellas.
Mr. Casellas. Sir, I have little to add. I concur with my col-
leagues. When there is plain meaning, there should be plain mean-
ing, and I think that use of legislative history is useful sometimes.
Senator DeConcini. Thank you very much. I have no further
questions. I don’t believe Senator Specter does. We thank you for
your attention and your responsiveness today. The committee will
certainly consider your testimony and the comments of those who
have spoken on your behalf.
Thank you very much.
Ms. Vance. Thank you.
Mr. Casellas. Thank you.
Mr. Dominguez. Thank you.
Mr. BRYSON. Thank you, Senator.
Senator DeConcini. The committee will stand in recess, subject
to the call of the chair.
[Whereupon, at 3:17 p.m., the committee was adjourned.]