has recently been challenged by a number of judges and individuals within the executive branch. Some have argued that because the statutory text alone, and not committee reports or floor remarks, have been voted on by the Congress, the text alone reflects the collective will of the legislature. It is further argued that the committee reports as well as other sources of legislative history are written by staff and sometimes lobbyists, and are rarely read or heard by a majority of the Members of Congress, and are therefore unreliable indicators of legislative intent. Because this approach to statutory interpretation counsels a heightened, if not an exclusive focus upon the legislative text, it is sometimes referred to as a "textualist" approach.

This is more than just an academic debate. It is probably safe to say that most of us in the Congress assume committee reports, colloquies on the floor and other sources of legislative history can explain and amplify statutory language in ways that are instructive to the courts. If that assumption is incorrect, that is to say if the courts will not or should not ordinarily look beyond the text of the statute in divining the meaning of legislative language, it may have a profound effect on the way Congress should be drafting legislation.

This morning, we will hear from a diverse array of witnesses whose collective backgrounds include experiences in all three branches of the Government as well as private practice and academia.

Before calling our first panel of distinguished witnesses, I would like to yield to my colleague, the gentleman from California. Mr. MOORHEAD. Thank you, Mr. Chairman.

I would like to join with you in welcoming our panel of distinguished witnesses this morning. When the chairman announced his intention to hold these hearings regarding statutory interpretation and the use of legislative history, I immediately thought of a recent legislative effort undertaken by this subcommittee to respond to a U.S. Supreme Court decision dealing with the issue of congressional intent.

Specifically, in 1985, the U.S. Supreme Court, in Atascadero State Hospital v. Scanlon held that Congress may abrogate the State's constitutionally secured immunity from suit only by making its intention unmistakably clear in the language of the statute. As a result of Atascadero, several U.S. district courts and U.S. courts of appeals held that State governments are immune from suit for money damages in copywrite infringement law suits.

This subcommittee favorably reported and the House-passed legislation clarifying in a manner consistent with Atascadero, Congress' original intent that States be subject to suits for money damages in copywrite infringement cases.

By the same token, we have begun hearings to see whether or not the patent law does not need to be clarified in a similar fashion. I think all of the Members who were directly involved with the aforementioned legislation are reminded of the need to be as clear and succinct as possible in drafting a statute.

At the same time, I think there are situations where we can provide specific guidance to the courts as to congressional intent by way of carefully constructed legislative history.

Sometimes, I think it would be helpful if more of the judges had had legislative experience because it is very difficult when you deal with 435 people in the House and 100 people in the Senate, to get a feeling of legislative intent unless you look to the reports and to the debates.

I know it's difficult for the some of the judges to do that. Some of the key decisions would be helped by looking to congressional intent more clearly. I know they have a tough job of doing that, but it's very difficult to get legislation passed by such a rather complicated system to be able to really get a feeling of what went on it may take more than reading the law itself.

So, I look forward to the suggestions of the witnesses this morning. Thank you very much, Mr. Chairman, for giving me some time.

Mr. KASTENMEIER. Our first panel this morning is comprised of three Federal court of appeals judges who are very well known to the subcommittee, as well as to the population at large.

Judge Patricia M. Wald is the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit. She was appointed to the court by President Carter in 1979. Prior to her appointment, she was Assistant Attorney General for Legislative Affairs, U.S. Department of Justice. Judge Wald has published several law review articles on the use of legislative history.

Joining Judge Wald on the panel is Judge James L. Buckley, a colleague of Judge Wald, on the U.S. Court of Appeals for the District of Columbia Circuit. Prior to his appointment to the bench by President Reagan in 1985, Judge Buckley was a member of the U.S. Senate from 1971-77. Judge Buckley is thus uniquely qualified to comment on the capabilities and limitations of the judiciary to interpret acts of the legislature.

The third witness on the panel is Judge Stephen Breyer. Earlier this month, Judge Breyer became the Chief Judge of the U.S. Court of Appeals for the First Circuit. Judge Breyer, like Judge Buckley, is no stranger to the legislative process. Immediately prior to his appointment to the first circuit by President Carter in 1980, Judge Breyer served as chief counsel to the Senate Committee on the Judiciary. In addition, Judge Breyer has been on the faculty of the Harvard Law School since 1967.

Judges, if you would please come forward, we will start with Judge Wald, to be followed by Judge Buckley and then Judge Breyer. On behalf of the committee, let me express my appreciation to you. I thank you for taking time out of your busy schedules to be with us today.

Judge Wald.

STATEMENT OF PATRICIA M. WALD, CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Judge WALD. Thank you, Chairman Kastenmeier, Representative Moorhead.

The role of the courts in interpreting statutes, I think most judges would agree, is to ascertain and effectuate the intentions of Congress as they were expressed when it passed the legislation. But as the hearing today demonstrates, Federal judges increasingly

have divergent views on the method by which courts should fulfill our duty to effectuate the will of Congress.

Are Federal judges being misled by nefarious congressional staffers who cleverly and stealthily insert loaded material in legislative histories? Has judicial construction become, in Justice Kennedy's words, an exercise in "marring the plain face of legislative enactments?" What is the hue and cry all about, and are busy legislators like yourselves right to be concerned about it?

In my 5 minutes, I will try to summarize very briefly the opposing views on the use of legislative history and mention a few Supreme Court cases that illustrate how various members of that court use legislative history. Then I will tell you again briefly why I believe judges should look at legislative history in order to give full credit to the authority vested in Congress to make our laws in the first instance.

Now let me illustrate the current debate by an example from the Supreme Court's 1989 term. In a very well-known case called Patterson v. McLean Credit Union, a black woman sued her employer, alleging that the credit union had violated section 1981 of the Civil Rights Act, by among other things harassing her on the job because of her race.

To decide her claim, the Court was required to interpret the phrase, "All persons shall have the same right in every State to make and enforce contracts as is enjoyed by white citizens."

Now, the Court not only divided over the ultimate meaning of that phrase, but it also divided over the method by which the meaning of that phrase should be derived. The majority concluded that section 1981's, "Make and Enforce Contracts" clause was not intended to cover Ms. Patterson's racial harassment claim by examining the language and the structure of the statute alone.

The dissenting judges, in contrast, relied relatively heavily on legislative history to show that Congress indeed did intend the provision to cover post-contract conduct as well.

For at least a century American judges, as Chairman Kastenmeier reported, have made liberal use of extratextural materials to determine what a law means. Under the American approach, as distinguished from the British approach, the courts have looked first to the statutory text, but then resorted freely to legislative history, not only when they thought the text was ambiguous, but often to confirm the clear meaning of the text.

The Supreme Court itself said in 1940, in a case called United States v. American Trucking, that when aid to construction of the meaning of words as used in the statute is available, there certainly can be no rule of law which forbids its use however the clear the words may appear on superficial examination.

Now, to be sure, some American courts have not relied on legislative history when the statutory language is plain and admits of no more than one meaning. But until recently, such "clear meaning" cases have been relatively rare. And judges did look at legislative history in the majority of cases.

For instance, in a survey that I did in the 1981 and 1982 Supreme Court term, not once was the Court confident enough of the clarity of statutory language not to doublecheck its meaning in the

Thus, going back to Patterson, the dissenting Justices, Brennan, Marshall, and Blackmun, did find evidence in the legislative history that contradicted the so-called plain meaning of the text. At least in the employment context, they say, the 39th Congress' record indicated that it intended to go beyond protecting freedmen from refusals to contract for their labor and from discriminatory decisions on discharging them.

The congressional history, they said, showed that the Civil Rights Act was designed to protect these freedmen from the imposition of discriminatory working conditions that evidenced an intent on the part of the employer not to contract on equal terms in the first place.

In the Patterson majority opinion, in contrast, Justice Kennedy, joined by Chief Rehnquist and Justices White, O'Connor, and Scalia, held that 1981's phrase "make and enforce contracts" was not intended to cover a racial harassment claim. They came to the conclusion by examining the plain statutory language, Justice Kennedy explaining, "That the right to make contracts does not extend as a matter of either logic or semantics to conduct by the employer after the contract relationship has been established, including breach of the terms of the contract or imposition of discriminatory working conditions."

Now, the Patterson majority opinion reflects the so-called textualist's approach to statutory interpretation. As Justice Scalia has explained that approach, the words of a statute are not just the most authoritative, but the only definitive source of congressional intent.

This is so, at least in part, because the text of the statute is the only thing the legislators actually voted on. And in a case last term, Justice Scalia said, and I think this quote sums up the textualists' view quite well, "I am confident that only a small proportion of the Members of Congress read either one of the committee reports in question, even if, as it is not always the case, the reports happen to have been published before the vote."

As anyone familiar with modern-day drafting of congressional committee reports is well aware, the references in the legislative history were inserted, at best by a committee staff member on his or her own initiative, and at worst by a committee staff member at the suggestion of a lawyer-lobbyist; and the purpose of those references was not primarily to inform the Members of Congress what the bill meant, but rather to influence judicial construction."

Where the language itself is not sufficiently precise, the textualists suggest that judges resort to either the context or structure of the statute, the provisions of other statutes with which this one must be reconciled, or canons of statutory construction which are basically judge-made rules about what legislators must have meant. As long as the result is not "in a genuine sense absurd,” a determination of what the law means should be made on those bases alone.

Despite the textualist's views, the Supreme Court, and other courts, including our own, are still in large part relying on legislative history to find the congressional will, but I think not so much or so often as before. As set out in my testimony and in my article submitted for the record, several cases from the 1989 Supreme Court term do demonstrate the purposes that judges are still using

legislative history for, and they include confirming the meaning that the language appears to convey, giving meaning to language that is ambiguous, or occasionally calling into question language that appears to convey one meaning, but that meaning contradicts the apparent legislative spirit that inspired congressional action.

About one-half of the Court's 1989 cases, by my count, dealt with statutory construction, and out of that one-half or approximately 66 cases, 53 of them, or about three-fourths, involved use by the Court of legislative history to help discern congressional intent.

Most frequently, the Court found nothing in that legislative history to indicate that the intent ran contrary to the Court's plain meaning of the statute. But it also used legislative history to serve the important function of helping the courts to give meaning to langauge that was found to be left somewhat ambiguous by Congress.

In some cases, the Court didn't find specific answers in legislative history for the ambiguity, but it gleaned an important understanding of the fundamental purposes of the statute which then informed the Court's own interpretation.

Now, the textualists seem concerned that the Supreme Court is making rampant use of legislative history to come to its own conclusions, rather than implementing Congress' intent. Yet, I think it's interesting that in only five cases during the 1989 term did the Supreme Court use legislative materials to come to a result different from that derived from the arguably plain language of the statute.

The basis dispute, in my view, is over whether it is preferable for the courts to ignore the written record accompanying the passage of a given piece of legislation in favor of gleaning the intent from the words of the statute alone. And as Patterson, and many other cases that I cite in the article, demonstrate the answer to that question may dictate the results of statutory interpretation cases.

I think it is not an overstatement to say that the textualists' critique amounts to a full-scale attack on the use of legislative history under any circumstances, even where the statutory language admits of some ambiguity, with the possible exception of cases that would produce what the textualists would agree is an absurd result if the text is read literally.

While certainly not yet triumphant, the textualists are beginning to have a very definite impact on the manner in which the Supreme Court and lower courts decide cases. In at least 10 cases this past term, statutes were parsed without any recourse at all to legislative history. The text or structure of the act was used exclusively, often to the consternation of dissenting or concurring justices.

From my perspective, this trend has important implications for the balance of power in an ever ongoing tug-of-war among the three branches in our constitutional system. I personally resist the trend because in my view it needlessly disrupts that balance.

First, as judges, we are called upon to ascertain the meaning of increasingly complex and technical statutes. In so doing, we are almost inevitably drawn to the historical record of what the men and women who proposed and sponsored the legislation intended to