the Supreme Court had held to be "inapposite" in Katzenbach, 384 U.S. at 649 and he incorrectly argued in the face of - Katzenbach that "authority is wanting for the proposition that a blanket suspension of all literacy tests may be compelled by Congressional legislation, absent the showing of correlation between areas in which suspension is effected and areas in which the tests have been used for ultimately unconstitutional purposes." Memorandum at 4-6. Ignoring the constitutional dimensions of every adult citizen's right to vote, Assistant Attorney General Souter actually asserted that the "individuals [denied the right to vote] can claim, therefore, no more than that they are the fortuitous and incidental beneficiaries of a legal, rather than a constitutional, right to vote"; that their right to vote is "of a merely legal nature"; and that the right is "of a wholly incidental legal nature." Memorandum at 8-9 (brackets added). He also asserted, even more shockingly, that "allowing illiterates (persons not literate in reading and writing English] to make a choice in such matters is tantamount to authorizing them to vote at random, utterly without comprehension," and that "detriment to the state and its citizens will occur in watering the value of every literate citizen's vote." Memorandum at 7-8 (brackets added). Assistant Attorney General Souter's narrow view of congressional power was unanimously rejected by the three-judge federal court. United States v. New Hampshire, No. 3191 (D.N.H. Oct. 27, 1970). Less than two months later, in an originaljurisdiction action, the Supreme Court unanimously rejected better formulated arguments and upheld Congress' ban on English literacy tests under either or both of Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. Oregon v. Michell, 400 U.S. 112 (1970). Following his 1976 argument to the United States Court of Appeals for the First Circuit that Title VII's recordkeeping requirements would lead to the unconstitutional imposition of quotas, Attorney General Souter gave a commencement speech on May 30, 1976. Under a banner headline stating "Souter Raps Ethnic Preferment" in the Manchester Union Leader the following day, Attorney General Souter was quoted as characterizing affirmative action as "affirmative discrimination," and stating that government "should not be involved in this." "There are some things government cannot do," he was reported to have said, "and our whole Constitutional history is a history of restraining power." the In the years subsequent to his delivery of this speech, Supreme Court upheld as constitutional or otherwise as lawful race-conscious affirmative action admissions to obtain diversity in higher education, University of California v. Bakke, 438 U.S. 265 (1978); voluntarily adopted affirmative action goals and timetables in employment to overcome minority underrepresentation, United Steelworkers of America v. Weber, 443 U.S. 193 (1979); see also Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987); strict goals and timetables ordered by courts to remedy past discrimination, United States v. Paradise, 480 U.S. 149 (1987); and minority set-aside programs authorized by Congress to alleviate underrepresentation, Fullilove v. Klutznick, 448 U.S. 448 (1980). III. Judge Souter, in His Testimony Before This Committee, Because of the fact that the first two of the three foregoing incidents antagonistic to civil rights occurred when Judge Souter was acting in his official capacity as lawyeradvocate in the New Hampshire Office of Attorney General even aside from his oath of office and the excessive manner in which he excessively pursued his positions hostile to civil rights - and MALDEF withheld final judgment pending his testimony before this Senate Committee on the Judiciary. Our hope was that maybe, just maybe, his personal positions had been different from and more compassionate than the hostile positions he had advanced in his official capacity on behalf of the State of New Hampshire; and that he had been misquoted by the media in his sound-bite characterization of affirmative action as "affirmative discrimination." Our hope, however, was quickly dashed by Judge Souter's own testimony in his first two days - he before this Committee. In summary, he repeatedly declined to offer any personal views at the time contrary to the hostile positions to civil rights in general, and to Congress' power under Section 5 of the Fourteenth Amendment in particular had aggressively pursed on behalf of the State of New Hampshire. And, maybe even worse, Judge Souter failed to demonstrate any capacity for fairness to, much less compassion for, the individuals who would be forever affected by his rulings and votes as an Associate Justice of the Supreme Court. This is not to deny and certainly not to degrade the testimony he gave finally recognizing that still today there is an enormous need to remedy the wrongs done by our nation and within our nation through a history of invidious discrimination. For example, under questioning by Senator Ted Kennedy, Judge Souter to his credit testified: 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 given with respect to my set of values. Hearing Transcript at 150 (Sept. 13, 1990). And, during his testimony the following day in response to questioning by Senator Paul Simon about Attorney General Souter's reported characterization of affirmative action as "affirmative discrimination," Judge Souter testified that he hoped he hadn't been quoted exactly: I think that - I hope that was not the remedial purpose but simply for the sake of reflecting a racial distribution. Hearing Transcript at 111 (Sept. 14, 1990). Judge Souter continued: That is to be contrasted in two absolutely essential respects, from on the one hand affirmative action and on the other hand the kind of distributive remedy which it |