Sen. Simpson: Senator Leahy has touched upon something that I think we are all sensitive of, and I guess that’s the phrase "judicial activism." It concerns us and yet we realize in all reality there is a very important part of a judge’s role. You answered already a question in that area. The question is one I would have asked you, and your answer was certainly acceptable to me. I might just ask one other question, and necessarily hypothetical. I might say that I get to ask those now, and when I practiced law for 20 years I didn’t get to play that game as much.

If a decision in a particular case was required by case law or statute, as interpreted according to the intent that you would perceive as legislative intent, and yet that offended your own conscience, what might you do in that situation?

Mr. Pregerson: Well, of course it’s a hypothetical question and life does not present situations that are that clear cut, but I think all of us judges and lawyers would be very pleased if the congressional intent was clearly discernible. I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.

Simpson: I didn’t hear, sir.

Pregerson: I said, if I were faced with a situation like that, that ran against my conscience, disturbed my conscience, I would try to find a way to follow my conscience and do what I perceived to be right and just. Not that, I would hope not, it would mean I would act arbitrarily. I was born and raised on this country, and I am stepped on its traditions, it mores, its beliefs, and it philosophies; and if I felt strongly in a situation like that, I feel it would be the product of my very being and upbringing. I would follow my conscience.

Simpson: So that would be a tough one for you in that situation?

Pregerson: Yes, sir.

Simpson: Let’s say a decision in a particular case seemed to require, by case law or stature, and yet was inconsistent with what you believed might be the values of contemporary society; what might you do?

Pregerson: I would seek to distinguish that case.

Simpson: As I say, the issue that all of us on the Judiciary Committee in the selection process, where we have an opportunity to really change the complexion of the judiciary in America on the Federal level, we are coming down to, of course, your personal views on the limits of judicial discretion, as all of our nominees. I guess the problem for us is a continuing one: Should changes in the law ever be made by a judge who is not elected or responsible in that sense and cannot be removed without extreme difficulty. That was the bill we were grappling with yesterday, in some aspects.

We are placing you there for life and we have had success and failure in the past.

Do you believe changes in the law should be reserved to the legislature whose members can be altered by the voters if they don’t reflect the values of society?

Pregerson: Certainly the legislative branch lays down the broad, basic principles. In general, these are rule we are to follow, but those laws, of course, at times don’t cover or envision certain situations that may arise. It is the judge’s role, of course, to interpret the statute and, in many instances, bring life to it and, if need be, to implement it; but all within the framework of the laws that are passed by Congress.

Simpson: Thank you very much. I appreciate it. I have nothing further.

Sen. Leahy: Thank you. I have nothing further, Judge.

I can’t help but think, in your answer to Senator Simpson’s question, that I expect a great number of Federal judges feel as you do, but I suspect only a small percentage would be as candid as you were in your response. I appreciate the candor and directness of your answer.

Thank you very much.

Pregerson: Thank you.

If I may make one more brief statement, I do want to thank my best friend, Jim Corman, for coming down here with me today and for sharing this wonderful occasion.

Leahy: Thank you. We have a great deal of respect for Congressman Corman over here and we are delighted to see him here on any occasion, but especially this one.

Pregerson: Thank you very much.