Transcripts For CSPAN3 Former Senator Joe Biden Supreme Court Nominees 20220803

Rights of individuals in a changing world which is bound bound impact upon those individual sense of who they are and what they can do. Will these nobeline human rights and Human Dignity, which is the legacy of the past two centuries continue to mark the journey of our people. And so judge as you well know. This is no ordinary nomination. Not merely because you were there and i must say to you that. It must be somewhat daunting as is experienced as you are . Sit there and with an array of people here about to question you its not an easy position to be in a confident. Im not being solicit this you will handle it. Well, but nonetheless theres not an easy position. But this nomination is more with all due respect judge and i assure you agree then about you. In the passing on this nomination of the Supreme Court we must also pass judgment on the weather or not. Your particular philosophy is an appropriate one at this time in our history. And that was senator joe biden in september of 1987. He was addressing Supreme Court nominee robert bork about the importance of any appointment to the nations highest court. Now President Biden will send his own nominee to the senate for confirmation. Hes nominated judge Catanji Brown Jackson of the us court of appeals for the district of columbia circuit. President biden was senator biden for 36 years including eight is chair of the Senate Judiciary committee. Senator biden questioned a parade of Supreme Court nominees including retiring Justice Stephen breyer Ruth Bader Ginsburg Clarence Thomas, john roberts, samuel alito antonin, scalia and robert bork in his questioning of the nominees senator biden returned again and again to two ideas one the rights of the individual versus that of the majority and two his insistence that nominees should be candid about their judicial views. Well to better understand what mr. Biden would look for in a nominee here on American History tv. Were going to look back over the years at a series of his statements and exchanges during confirmation hearings first. Were going to look at the nomination hearing from july 1994 for then judge. Stephen breyer. His january 27th resignation opened up a seat on the court after 28 years of service. The topics that senator biden brought up to the nominee included the role of government regulation in Environmental Health and Safety Policies and the law as a reflection of societys values. This is from july 1994. But judge, let me begin by saying in recent years. We have seen new challenges to the efforts of government at all levels. To adopt regulations that government believes are designed to protect the environment and promote a public goal. These challenges have taken the form of asking the court to change how it is interpreted the takings clause of the fifth amendment. Less than three weeks ago the Supreme Court of the United States does decided a case called dolan versus Tigard Tigard is it pronounced tiger . Is that the correct massages ticket or tiger dolan versus tigard . I believe it is where using the takings clause the court rejected a local town measure intended to reduce flooding and Traffic Congestion caused by a Businesses Development along river. This decision follows a decided two years earlier lucas versus South Carolina Coastal Council and in these two cases, the court adopted a new standard for reviewing the takings clause. Judge my question. My first question is before the dolan and lucas cases. How did the Supreme Court review claims that are regulation designed and stated to be designed to safeguard Public Welfare . Was the taking of a property thereby requiring the government to pay the landowner for the socalled taking what what was the law as you understood it understand it prior to dolan and lucas. Which standard before use karen i think usually when i go back to basics what i often try to do is. I try to keep in mind some kind of basic two or three basic points in different areas, which are sometimes helpful. And the basic point or the basic case or the basic idea i have in my mind in this area. As i go back to a case Justice Holmes decided. Its actually a very interesting case. A person known to coal mine and the government said heres what you ought to do. Leave some columns of cove in that mind. Because if you dont leave big thick columns of coal. The whole ceiling will collapse and there are cities that are built on top of that coal mine and theyre all going to fall down. And therefore we will have a regulation which tells you big thick cold columns, but the owner said i agree with you. I dont want anything to happen to anyone on the surface. But really you dont have i have columns that are that thick. You dont have to have that many. And what youve done is taken my coal. So the case presented the issue. Of when . Is it a reasonable regulation . For after all, its a good purpose to stop the cities from calling into the mine. I mean, thats a wonderful purpose. When does a reasonable regulation . Become a taking of property for which you must pay compensation what ive attempted to establish thus far is where this balance yes goes is of phenomenal consequence to the nation not where youre gonna take it. It is of a multitrillion dollar consequence to the nation to overstate it. Absolutely if for example we adopted the view proposed by some very articulate brilliant legal scholars, which says that you really have to apply a tort standard and determining whether or not at taking is in fact the curd what we would find is if tomorrow we pass the law here and said by the way, no more cfcs can be admitted in the atmosphere and we had every company that now manufactures cfcs come to us and say, you know, know, thats a great idea. But because you cant prove if we manufactured cfcs and they deplete the ozone layer. You cant prove that lloyd cutler got cancer or joe biden got cancer because of that a common law toward standard to exaggerate it. Because you cant prove that well stop but you got to pay us to stop like the coal miner. That is a multibillion dollar decision for the taxpayers right now. Its not in question until dolan. It was not in question. No one assumed that if we said no more cfcs that we would have to go out and pay every company in america to stop manufacturing cfcs. The taxpayers the press the public senators including me until recently. Do not fully appreciate the phenomenal economic consequence of taking a reading of the takings clause to its logical conclusion as espoused by dolan and shifting the burden of proof. Can you articulate or think of any principal standard . To stop the movement announced in dolan or lucas. Where how does that stop . How does this shifting of the burden . Not automatically take you into the area that i worry most about which is the one ive just articulated. Is there a principled way in which to say . Okay shifting the burden and requiring this relationship annunciated indolent does not automatically lead you. To the concern ive stated in a case. Ive just made up. I think the the principle concern as i listened to mr. Chairman. Is the justice homes concern as i listen to you what youre saying is think back to those columns in the coal mine backward. Are you really serious that it should impose that the law should prevent people in a practical way. Through their government requiring columns that protect coal miners and youre saying of course not and as i hear that i think youre saying a law or an interpretation of the constitution that would seriously impede. The cold columns that protect the miners and protect the cities that would be going too far. And i agree with you. That is what Justice Holmes would have had in mind. And thats why i think what the court is trying to work out. Is in my own mind, i cant read other peoples minds but its whats called a practical accommodation. Course, there is a compensation clause in the constitution. Of course property is given some protection at the same time one must not go too far. And what too far means is imposing significant practical obstacles. It sounds too many shift here. Maybe to another area. Maybe we go back to this another way. Were talking you you and i are talking now about the constitution the fifth amendment. Another way to affect the basic rights of individuals who do not have economic power. Is the way in which . The court interprets statutes past by the legislature and signed by the president. And it is my view. Ill say up front that whether courts grudgingly interpret the wishes of electric representatives or in a generous way interpret them obviously has significant impact. One of the things thats arisen in the last 10 years particularly the last two years. Is this notion that . And mentioned by my distinguished colleague who is a by the way a fine lawyer and competent to sit on the bench himself. Is his point made that when the cost of government actions outweigh the benefits economically . And i said, im Opening Statement. We often consciously. Make those decisions to reflect public values. Societal norms we say we know this cost a lot of money to do this. But were not going to put a value on human life. Were not going to put a dollar value on on a particularly strongly felt societal value. Now several years ago the Environmental Protection agency decided to phase out the use of asbestos. Because it posed many health risks including the risk of cancer. A federal Appeals Court reversed the epas ban on asbestos in a case you discussed in your most recent book. The court decided that the statute under which the epa acted. Could not possibly have been intended to allow epas asbestos band because the band caused so much money. For every human life it might say now my question judge is is it reasonable for a judge to infer . What congress intended by looking at how much it cost to implement what congress intended . You cant answer the question. Never. It would depend very much on what you had in mind in the statute. I wrote about that case in my book. Yes already two opposite things about it. Absolutely opposite. The first thing i wrote about it is i thought what was in the mind of the court . And i thought what was in the mind of the court . Is they found an example where they thought that epa . Was imposing a ban that cost about a quarter of a billion dollars. And it would save hardly anybody. But it would save somebody yes, there were it was a bit. It was a very it was like the number of people they used its kind of absurd example about number of people die of toothpicks or eating toothpicks or Something Like that, but thats the first way i used it in the book. Was to show that there are some epa regulations. Which indeed seem to be very expensive ways of going about saving lives. The second way is the opposite way. I use that case in the book. Because that case also provided an example of what youre suggesting. That it isnt a very good idea. For courts to get involved in making that decision thats more a decision for congress to make. And what i said when i discussed the case with the second time. Is look how the judges even if they have an example of what they think is absolutely wrong. They have to do. They have to say that there is a rule of law that prevents that. And the rule of law that they enunciated in that case. Was a rule of law that said agencies have to look at all the alternatives or many of them before they do anything. But if you take that rule of law seriously how can agencies have the time . To do all that kind of thing as a friend of mine home says bingo, right . And that exchange you just saw was from 1994. Then nominee steven briars confirmation hearings in the senate. Well, youre watching American History tv, and were revisiting exchanges between then senator joe biden who served for years on the Senate Judiciary committee and various Supreme Court nominees. Up next from 1991 judge Clarence Thomass nomination hearings it was in the fall of 1991 that Sexual Harassment allegation surfaced against him. Thats what dominated the headlines and the hearings but prior to that senator biden had asked judge thomas about his judicial philosophy. Heres some of their exchange. The hearing will come to order. Good morning. Judge. Welcome. Welcome to the blinding lights. Its a pleasure to to have you here. And led me begin also by. By indicating that the morning is going to be painless judge. Or maybe the most painful part of the whole process. Because youre going to hear from all. Of the committee. We have an Opening Statement. And then a half a dozen the senators who are going to introduce you. And so youll hear from about 20 senators before you get to speak. It could be the most painful part of the process. But let me begin today. Johnna slightly more serious note this committee begins its sixth set. Of a Supreme Court confirmation hearings held in the last five years. A rate of change that is unequaled and in recent times. If youre confirmed judge thomas. You will come to the Supreme Court in the midst of this vast change. In four years justices powell brennan and marshall will have been replaced by justices kennedy suitor and thomas. Because of these changes many of the most basic principles of constitutional interpretation of the meaning that the Supreme Court applies to the words of the constitution. Are being debated in this country in a way they havent for a long time. In a manner unlike anything seen since the since the new deal. In this time of change fundamental Constitutional Rights which have been protected by the Supreme Court for decades are being called into question. In this time of change the Supreme Courts selfrestraint from interference and fundamental social decisions about the regulation of health care the environment the economy are also being called into question. Judge thomas you come before this committee. In this time of change with the philosophy different from that which we have seen in any Supreme Court nominee in the 19 years since i have been in the senate. For as has been widely discussed and debated in the press. You are an adherent to the view that natural law philosophy should inform the constitution. Finding out what you mean when you say that you would apply the natural law philosophy to the constitution is in my view the single most important task of this committee and in my view your most significant obligation to this committee. This is particularly true because of the period of vast change in which your nomination comes before us. Judge to explain why this is such an important question at least to me. We need only look at the three types of natural law thinking which have in fact been adopted by the Supreme Court of the United States in the past. And which are being discussed and debate it by constitutional scholars today. The first of these views sees natural law as a moral code. A set of rules saying what is right and what is wrong . A set of rules and a moral code which the Supreme Court should impose upon the country. In this view personal freedom to make moral choices about how we live our own lives. Should be replaced by a morality imposed on the conduct of our private and family lives by the court. The Supreme Court, as you know, judge actually took such an approach in the past. Holding in 1873 for example that women could not become lawyers. Because it was not in the courts phrase in their nature. Now no one wants to go back to 17 or 1873. No one wants to go back that far today. But there are natural law advocates. Who extol the 20th century version of this philosophy . For they believe that its the job of the courts to judge the morality of all our activities. Whether they occur. Pain wherever they recur occur pay no respect to the privacy of our homes and our bedrooms. They believe the court should forbid any activity contrary to their view view of morality and their view of natural law. Those who subscribe to this moral code view of natural law. Call into question a wide range of personal and family rights. From reproductive freedom to each individuals choice over procreation to the very private decision. We now make about what is and what is not a family. They want to see the government make these choices for us by applying the quote one report their values and norms. Or if the legislature doesnt do it by judges applying their values in norms. Needless to say judge thomas this sort of natural law philosophy is one which i believe this nation cannot accept. But its not the only radical natural law philosophy that is being debated as we sit here today is being debated in the law schools and among the philosophers of this country. For there is another group that wants to reinvigorate another period of the Supreme Courts past. When the court used natural law to strike down a whole series of government actions aimed at making the nation a better place for americans to live. Those natural law rulings struck down such laws as the child labor laws minimum wage laws and laws that required safe working conditions. They held that the natural law of freedom of contract and the natural law right to private to property. Created rights for businesses incorporations that rose above the efforts of government to to prevent the ills they created. They put these socalled economic rights into a zone of protection so high that even reasonable laws aimed at curbing corporate excesses were struck down. Now again known as proposing to take us all the way back to this so called lochner era. But there are those who wish to employ the same reasoning that was used in that era. Todays natural law proponents of what they term new economic rights and new Property Rights have called into question many of the most important laws enacted in this century. Laws protecting the environment our water in our air laws regulating child care and Senior Citizens facility facilities. And even called in the question the constitutionality of the Social Security system. Now judge thomas, youve made it abundantly clear that you do not subscribe to the most extreme of these views. But you have said that you find some of these views to quote you attractive. And that you support the idea quote of an activist Supreme Court that would strike down laws regulating economic rights and of quote. And again this is a version of natural law a vision of natural law. That we have moved far beyond and that most americans have no desire to return to and theres a third type of natural law judge. Its the one that mirrors how the Supreme Court is understood our constitution for the bulk of this century. And its the one that i believe most americans subscribe to it is this view of natural law. That i believe i personally to be upfront about it think is appropriate. In in this view of natural law the constitution should protect personal rights falling within the zone of privacy speech and religion the most zealously those rights that fall within that zone should be most zealously protect. These personal freedoms should not be restricted by a moral code imposed on us by the Supreme Court or by unjust laws passed in legislative bodies. Indeed the Supreme Court has protected these freedoms by striking down laws. That would prohibit married couples from using contraception. Deny the right of people to marry whomever they wish. Or laws that tell parents that they could not teach their children a second language. Or could not send them to a private school. They struck down those legislative initiatives in the past. But while recognizing that natural law and our constitution protect these rights. The same court has also recognized that government must act to protect us from many of the dangers of modern life. That government should stop polluters from polluting. Stop businesses from creating unsafe working conditions and so on. Yes, these government actions do limit freedom. They do limit freedom. They limit the freedom to contract. They limit the freedom to use ones property exactly as they would wish they limit the freedom to pollute. They limit freedom. Or as we saw on the North Carolina recently, they limit the freedom of a factory worker to lock his employees into a building where 25 of them perished in a fire. But this limitation on property recognized as constitutional by the court. Is a balanced liberty that weve come to expect our government to provide. This is the balance in my view that the framers of our constitution enshrined in that great document. They want it to use their words and energetic government. But they also wanted a government to protect fundamental personal freedoms. And today weve achieved that balance by having a Supreme Court extend great protection. To personal freedoms while declining to block laws that reasonably regulate our economy our society our property. Now adopting a natural law or philosophy that upsets that balance. Either by lessening the protection given those rights falling within the zone of personal and family privacy and speech and religion. Or adopting a natural law philosophy that lessens the power of government to protect the environment. Lessons the power of government to regulate corporate excesses or lessens the power of government to create institutions like Social Security. Would in my view be a serious mistake and a sharp departure from where we have been for the last 40 years. Judge thomas there are signs in your writing and speeches that you accept the present balance. But theyre also signs that you would apply natural law to affect changes in the the balance. Ive just referred to changes to replace our freedom to make personal and family choices without government imposing their moral code. And to thrust the court into economic and regulatory disputes that it now stays out of judge of this committee is to endorse your confirmation to the senate. We must know in my view. We must know with certainty. That neither of these radical constitutional departures is what you have in mind when you talk about natural law. So judge over the course of these hearings. Ill be asking you about how your natural law philosophy applies to each of these areas. Both to the areas of personal freedom and to the areas of Economic Issues it will take some time to cover it judge and some of it as you know, as well as well or better than i as someone esoteric. But cover it we will. And well cover carefully. In closing judge thomas iron to return to where i started. The importance of your nomination some people say that the Supreme Court has already conservative. And they ask what difference it makes to have an additional conservative on the bench . Well, i think thats the wrong question. I reject that argument. First of all i do not deny the president the right to appoint a conservative matter of fact, i would be dumbfounded if he didnt. And so i fully expect the Supreme Court to me more conservative body. After Justice Marshalls successor is confirmed then before Justice Marshall retired. But such an additional move to the right, which i expect. Pales in comparison to the radical change in direction some are urging on the court under the banner of natural law. Pales in comparison to some of the changes that some of the people who are your strongest supporters have been urging. On the philosophic thought and the notion of constitutional interpretation for the past decade. Thus were not seeking here to learn at least im not seeking here to learn whether or not youre a conservative. I expect no less and i believe you when you say you are. Instead what we must find out is what sort of natural law philosophy you would employ as a justice of the Supreme Court. For that courtesan transition and if youre confirmed you will play a large role in determining what direction it will take in the future. Judge because of your youth and god bless you for it. I never thought id be sitting here talking about the youth of a nominee to the Supreme Court. But i am heck you are six seven years younger than im 48. How old are you judge . 42 through 5 aged over the last 10 weeks but 43 43 years old because of your youth judge. Youll be the first Supreme Court justice the senate will ever have confirmed if it does that will most likely. Right more of his opinions in the 21st century. Then he will write in the 20th century. To acknowledge that fact alone judge is the recognize the unique significance of your nomination and the care with which this kid the committee must look at. And youre watching American History tv. Were looking back at then senator bidens questioning of Supreme Court nominees. Mr. Biden served in the us senate for 36 years and for eight of those years. He was chairman of the Senate Judiciary committee often Ranking Member or a top democrat on the committee as well. So up next were going to look at his questioning and his exchanges with now chief Justice John Roberts. This is from 2005. In this senator biden repeatedly pressed judge roberts to state his views on issues. That might come before the court, especially the right to privacy. We begin with mr. Bidens Opening Statements from september of 2005. Thank you, mr. Chairman. Judge roberts. Welcome mrs. Roberts. Welcome to you. I might note that the outset. Ive never ive never heard of or seen a federal judge who was an independent. Its amazing what that life tenure does so, i dont think you have any worry judge about having to cash in your independence. Its never occurred in my memory or in my study and judge. I i want to point out to my friends that it is true judges didnt come before the committee in the past, but it used to be required in the past. You needed unanimous consent of the entire sent it to get before the senate. So, you know, theres some good things and some bad things that have changed. Judge, as you know, theres a genuine intellectual debate going on in our country today over whether the constitution is going to continue to expand the protections of the right to privacy continue to empower the federal government to protect the powerless, and its a big debate. All you got to do is turn it into website American Enterprise institute left right center. Its a gigantic debate hadnt occurred as you and i both know in my colleagues now in the last 70 years. It is not been this contentious not just the politics, but the debate the intellectual for 70 years. Theres been a consensus judge on our Supreme Court on these issues of privacy and protecting the powerless and this consensus has been fully fully embraced in my view by the American People, but there are those who strongly disagree with the consensus as is there right and they seek to unravel the consensus and judge you are in the unenviable position as we talked about in my office of being right in the middle of this fundamentally important debate. And quite frankly judge. We need to know on which side of that divide you stand. For whoever replaces Justice Rehnquist as well as Justice Oconnor will play a pivotal role in this debate and for tens of millions of the america of American People of the American People. This is no academic exercise for the position you will take in this debate will affect their lives in very real and personal ways for at least god willing the next three decades and there is nothing they can do about it after this moment. Judge, i believe in a constitution as our Supreme Courts first great. Chief has been mentioned here today. Justice marshall said in 1919 18 19 and i quote. A constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Thats the constitution i believe in thats the way and i think we should look at the constitution at its core the constitution and visions ever increasing protections for human liberty and dignity for all its citizens and a National Government empowered empowered to deal with these unanticipated crises. Judge here and lie here in lies in my view the crux of the intellectual debate. I referred to at the outset. Whether we will have an everincreasing protection for Human Dignity and human liberty or whether those protections will be diminished as suggested by many in their reading the constitution that says there are no unenumerated rights and every step weve had to struggle against those who saw the constitutions frozen in time judge, but time and again weve overcome in the constitution is remain relevant and dynamic. Thanks to the proper interpretation in my view of the nobling phrases purposely placed and what i refer to as our civic bible the constitution and once again when it should be even more obvious to all americans, we need increased protections for liberty as we look around the world and we see thousands of people persecuted because of their faith women to unable to show their faces in public children maimed and killed for no other reason they were born in the wrong tribe. And once again when it should be obvious we need a more energetic National Government to deal with the challenges of the new millennium terrorism the spread of weapons of mass destruction pandemic disease. Religious intolerance once again, our journey of progress is under attack and is coming from in my view the right shade. Judge. How are you . I thank you. You know continue your baseball analogy. Id much rather be pitching to. To arthur bran sitting behind you there on law and order than you. Its like pitching a ken griffey. I mean, you know, i a little concerned here that id like you to switch places with thompson. I know i know as much as he does. I dont know about you. Yeah. But judge look i want to cut trying to cut through some stuff here if i can i said yesterday this shouldnt be a game of gotcha, you know, we shouldnt be playing a game the folks have a right to know what you think youre there for life. They dont get to this is the democratic moment. They dont get a chance to say, you know, i wish id known that about that guy would have picked up the phone and call my senator and said vote. No our vote yes, whichever and so what id like to do is stick with your analogy a little bit because everybodys used at baseball you by the way to continue that that metaphor you hit a home run yesterday. I mean, you know everybody i got home and i got in the train and people saying, oh, he likes baseball, huh . And seriously the conductor is people on the train and and its and its an app metaphor because you know, he just called balls and strikes call them as you see him straight up, but but you well know. As we i like to explore that philosophy a little bit because you got asked that question by senator hatch about what is your philosophy and you and you and in the baseball metaphor is used again, as you know in major league baseball. They have a rule. Rule 2 defines the strike zone it basically says from the shoulders of the knees. And the only question about judges is do they have good eyesight or not. They dont get to change the strike zone. They dont get to say thats down around the ankles. You know, i think theres a strike they dont get to do that. But you are in a very different position as a Supreme Court justice as you pointed out some places the constitution defines the strike zone two thirds of the senators must vote. You must be an american citizen to the chagrin of Arnold Schwarzenegger to be president United States. So i mean naturally a born in america to be a president United States. Theyre all strike zone is set out. But as you pointed out in a question the senator hatch i think you said unreasonable search and seizure what constants unreasonable . So as much as i respect your metaphor, its not very apt because you get to determine the strike zone. Whats unreasonable . Your strike zone on reasonable or unreasonable may be very different than another judge view of what is reasonable or unreasonable search and seizure and the same thing prevails for a lot of other parts of the constitution the one that were all talking about and everybody here matter what we said from left right and center is concerned about the liberty clause of the 14th amendment. Doesnt define it. All the things we debate about here. And the Court Debates that deserved five to four decisions. Theyre almost all on issues that are in nobling phrase in the constitution. Founders never set a strike zone for you get to go back and decide. You get to go back and decide like in the michael h case do you look at a narrow or a broad right that has been respected . Thats a strike zone. So as Chris Matthews i said, lets play baseball here and i like a little dangerous to play baseball with you. Like i said, but but really and truly it seems to me we may maybe we can get it at this a different way. The the the explicit references in the constitution are you know, theres nothing anyone would expect you or any other judge would do anything about you. You wouldnt say, you know, thats a really bad treaty. Theyre voting on. So how to make it requires 75 votes in the center. You cant do that. But again, you know as Justice Marshall said and i quoted him yesterday. He said that the marshalls prescription that the constant they constitution endure through the ages. I might add without having to be amended over and over and over and over again. After the first ten amendments we havent done this very much in the last 230 years so many of the constitutions most important provisions are arent the precise rules that ive referenced earlier. And sometimes the principles everyone agrees on. Are part of the constitution are as the late chief. Justice. Your mentor said quote tacit postulates. He used that as you know in a case just before you got there nevada versus hall, but he used the phrase tacit postulates. He was he said that these tacit postulates are as much ingrained in the fabric of the document as its expressed provisions. And he went on to conclude that there was this case was about the case is not particularly relevant, but the point is i think the case was chief justice renkus made this vital point was about states rights and that and and language that didnt speak directly to them in the constitution and he said that he concluded the answer was a rule he was able to infer from the overall constitutional plan so judge, youre going to be an infer. Youre not gonna be be an umpire umpires. Dont infer. I dont get to infer every justice has to infer so i want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And i want to use the ginsburg rule. I notice ginsburg is quoted. Im quoting all the time about ginsburg judge. You dont answer that question. I might point out that Justice Ginberg and i submit this for the record commented specifically. On 27 cases 27 specific cases. I will just speak to a couple of them here without injection. It will be made of i thank you much now. You have already said to the chairman. That you agree that there is a right to privacy. And you said the Supreme Court found such a right in part in the 14th amendment . My question is do you agree that theres not not what said law is. What do you think . Do you agree that there is a right of privacy to be found in the liberty clause of the 14th amendment. I do senator. I think that the courts expressions and i think if my reading of the president is correct, i think every justice on the court believes that to some extent or another liberty is not limited to freedom from physical restraint. It does cover areas as you said such as privacy and its not protected only in procedural terms, but it is protected substantively as well again, i think every member of the court subscribes to that proposition if they agree with bowling against sharp as im sure all of them do they are subscribing to that proposition to some extent or another you think theres a liberty, right . Privacy that extends to women in the constitution certainly in the 14th amendment certainly now. I assumed youd answer that way. Let me let me suggest to you also that. I asked justice or i dont think i know sure whether i asked or one of our colleagues asked Justice Ginsburg the question of whether or not it would be a ball or a strike. If in fact a state. Passed the law the state a state passed a law prohibiting abortion. And she said thats a foul ball. Thats they cant do that. Let me quote her. She said in response to senator former, so i was going to say brownback senator brown when he was here when she was up of, colorado. She said quote abortion prohibition by state controls women and denies them full autonomy and full equality with men. It would be unconstitutional. Whats your view one senate according to ginsburg rule. Well, that is in an area where i think i should not respond because you to buy by the ginsburg rule. Judge, then judge ginsberg now Justice Ginsberg explained that she thought she was a greater liberty to discuss her writings. Shed written extensively on that area. And i think thats why she felt a greater liberty to talk about those cases in other areas where she had not written her response was that it was inappropriate to comment that i would suggest judge is a distinction without a difference in terms of litigants the way youve just explained it. Theres a litigate in fact said because the judge wrote about it and then spoke to it as a judge that somehow i am being im going to be put in a disadvantage before that judge in the court. Thats a stretch judge. Just talk to me as a father. Dont talk to me. Just tell me just philosophically. What do you think do you think that is that is not what the constitution says. What do you feel do you feel personally if youre willing to share with us that that the decision of whether or not to remove a feeding too after a Family Member is no longer capable of making the judgment. They are comatose to prolong that life should be one that that the legislators in dover delaware should make or my mother. Im not going to consider issues like that in the context as a father or a husband or anything else. We did i think so i think obviously uh putting aside any of those considerations. These issues are the most difficult we face as as people and they are profoundly affected by views of individuality and moral views and deeply personal views now, thats obviously true as a general matter, but at the same time the position of a judge is not to incorporate his or her personal views in deciding issues of this sort with all due respect. Youve not look this is its kind of interesting this kabuki dance. We have and these hearings here. As if the public doesnt have a right to know what you think about fundamental issues facing them. Theres no more possibility that any one of us here would be elected to the United States Senate Without expressing broadly and sometimes specifically to our public what it is. We believe the idea that the founders sat there and said, look, heres what were going to do. Were going to require the two elected branches to answer questions of the public with no presumption. They should have the job as senator president or congressman, but guess what . Were going to have a third co Vehicle Branch of government that gets to be there for life never ever ever again. To be able to be asked to question. They dont want to answer and you know what . He doesnt have to tell us anything. Its okay. As long as he is as you are a decent bright honorable, man. Thats all we need to know. And youre watching American History tv. Were looking back at then senator joe bidens exchanges with Supreme Court nominees over the years. Senator biden, sir for eight years as chair of the Senate Judiciary committee 36 years in the senate all together and several years as the top democrat on the committee. So far weve seen his exchanges with Stephen Breyer in 1994 Clarence Thomas in 1991. And now chief Justice John Roberts nomination hearing in 2005. Next up youre going to see the exchange between then senator biden and Ruth Bader Ginsburg who replaced retiring Justice Byron white. It was in july 1993 when president clintons nominee went to capitol hill and senator biden. Wanted to know how she would interpret the constitution. As a side note sitting behind senator biden youre going to see elena kagan. She worked for the Senate Judiciary committee during this nomination hearing and of course later join the court herself. Heres senator biden and Ruth Bader Ginsburg. Judge ginsburg. Welcome thank you, and believe me you are welcome here this morning. As i said to you. A few moments ago writing down the train this morning. I have my usual stack of newspapers. I will not name them all for fear of getting in trouble. But one that i had. Beyond the wilmington news journal, which is the most important paper in america. With the new york times, and i looked at page one. There was no comment about this hearing. Looked at page two. There was was no comment page three. And i literally thought i picked up yesterdays edition. And then as they say my heart sang when i realized it was page 8 or 10 or 12, which was the most wonderful thing that has happened to me. Since ive been chairman of this committee that a major hearing warranted eighth or ninth or 10th page because thus far had as generated so little controversy, so you are welcome. On a more serious note today the Senate Judiciary committee welcomed judge Ruth Bader Ginsburg. The president s nominated to be associate justice of the United States Supreme Court. This is a very familiar setting for us. Since i became chairman of this committee seven years ago we have now convened hearings on six nominees for the United States Supreme Court. The constitution states clearly that the president quote shall nominate by and with the advice and consent of the senate shall appoint. Judges to the Supreme Court clearly the appointment of a Supreme Court justice is not a president ial prerogative. The sen is an equal partner in the process and has significant obligations attendant to its responsibilities. And these confirmation hearings are a major part. Though not the only part of the process by which we attempt to fulfill our constitutional responsibility. The nomination of a Supreme Court justice signals the renewal of a National Debate over the meaning of our constitution a debate. I might add thats been going on for over 200 years without end. And it will go on for another 200 years i expect. How will the broad principles and bodied in the constitution . Phrases like due process equal protection rights retained by the people how will these and other a nobeline phrases in the constitution be applied to the realities of everyday life . That is the issue which weve been debating and will continue to be id like to begin by asking you. About how you will go about interpreting. Our constitution judge judges, as you know better than i do approach this job in many different ways and these different approaches often lead to very different results. Youve made a great many statements about constitutional interpretation as a scholar and while as a judge in lectures that youve delivered most recently in a talk you gave this year which is referred to as the madison lecture in that lecture you said and im quoting here that quote our fundamental instrument of government is an evolving document and of quote. You also say you rejected the notion quote. That the great clauses of the constitution must be confined to the interpretation which the framers. Would have placed on them. And of quote i could not agree more. If the meaning of the constitution did not evolve over time, we would not today have many of the individual rights all americans now hold most dear. Like the right to choose whomever we wish to marry. Theres nothing in the constitution as you know, that gives someone a constitutional right to marry whom they want its not specifically enumerated. And were that not changed in loving verses virginia there could still be laws in the book saying blacks cant marry whites and whites. Cant marry blacks. Or the right to get a job whoever you are. Whether youre white or black male or female. But still there are hard questions about precisely how the constitution evolves about when the court should recognize a right not specifically mentioned in the constitution or specifically contemplated. By the authors of that document at that moment whether its an amendment or the core of the constitution. You spoke of these questions at some length in the madison lecture. You said that the history of the United States constitution is in large part a story of an i quote the extension of the Constitutional Rights and protections and to quote including to quote once excluded groups end of quote. Judge can you discuss with me for a moment . What allows courts to recognize rights like the right to marry whomever you wish like the right to be employed or not employed based upon without there being a distinction between males and females like the right that was mentioned here earlier by several my colleagues in the Opening Statement for women to be included in i thought the phrase that Eleanor Holmes note norton used was within the embrace of the 14th amendment or something to that effect when in fact they were not contemplated to be part of that amendment when it was written. What is it that allows the court to recognize such rights that the drafters of the constitution or specific amendments did not specifically mention or even contemplate at the time the amendment in the case of the 14th amendment or the constitution and the bill of rights were drafted. Its a large question mr. Chairman and ill do my best to respond. First i think the credit goes. To the founders when i visited senator the thurman he was kind enough to give me a pocket constitution. I think that was sam urbans. Did you give her senator evans pocket country gave me you know, but this pocket constitution contains another document. And it is a basic rights declaring document. It is the declaration of independence. The declaration that created the United States i think the framers are shortchanged if we view them as having. A limited view of rights now as an Appellate Court judge, you are required to follow Supreme Court precedent. You are not able to go off on your own a subject. Im going to come back to in my second round with you is your view of starry decisis because we both know that in the court youre about to go to you are not bound by any previous Supreme Court ruling as a judge on the Circuit Court you are honor bound. To follow to the best of your ability what you believe to be the consistent. Ruling guy a ruling consistent with what the Supreme Court has ruled if its on all fours, or as close as you can approximate it. Now you are going from youve had three different roles advocate. Where you were educating and i i know you mean that literally and thats exactly what has to be done. Were believe it or not. Some of us in the legislature think we have to do it that way as well like the violence against womens legislation, which id like to talk to you about here as well and from a constitutional perspective where there are laws on the books now that are outrageous they dont relate directly the equal protection considerations, but they start off with premises about women that are arcane and wrong in my own state of delaware. You cannot be you can be convicted of first degree rape if you rape a stranger, but if you rape someone with whom youve had an acquaintanceship under the law you cannot be convicted can be as brutal or rape as terrible rape, but its Second Degree rape because you are what is it a social . A social companion implicit in that is if your social companion somehow the woman is partially responsible for this so there are still these outrageous laws on the books in other areas. But the point is you then moved into being an advocate. I mean from advocate to being a judge on the Circuit Court of appeals. And as a judge you indicated what i said that the court should move in a measured restrained way. You also noted though that the court in brown versus the board of education was not timid. It was not fearful. It stepped out in front of society and yet in another lecture, you said that brown quote ended race segregation in our society, perhaps a generation before state legislators in our Southern States would have budged on the issue again seeming inconsistency one you say the court should basically wait and not step out too far ahead of society. And the other you indicate it that in brown you acknowledge they did they stepped out maybe an entire generation ahead of society. And they stopped an odious. Practice in brown versus the board and so what id like to know is as a Supreme Court justice. What will guide you . One of the influences on brown, i think. Was that we had just come through a war . Where people were exterminated . On the basis of what other people call their race . And it was i dont think that the notion of apartheid in the United States that the court was moving ahead of most of the people. There were and there was resistance, of course. There was massive resistance. But brown itself brown even brown didnt say and racial segregation, which society has come to recognize. Some parts was coming to recognize. Is going to be ended root and branch. By one decision brown was in 1954. And it wasnt until loving against virginia in 1967 that the job was over. One of the things have been raised the only question that im aware of that has been raised not about you personally, but about your judicial philosophy in the popular press and among those who follow this. Is how does this distinguished jurist distinguish between what she thinks the court is entitled to do . Under the constitution and what she thinks its wise for it to do. What is permitted is not always wise. And so im trying to get and i will fish for it again when i come back. But im trying to get a clear distinction. Of whether or not you think like in the case of brown where it clearly did step out ahead of where the nation at least nations legislators were whether that was appropriate and if it was what do you mean by it . Should not get too far out ahead of society when you talked about that in the madison lectures. And but ill give it another try. I think you could you not only make a great justice you you are good enough to be confirmed a secretary of state because state Department People never answered the questions fully directly either. And youre watching American History tv where were looking back at senator joe bidens questioning of Supreme Court nominees. Up next samuel olito president George W Bush nominated him to replace sandra day oconnor. Thank you, mr. Chairman. Judge. Welcome mrs. Alito and your family welcome. Its an incredible honor to be nominated by president president of the United States to be a associate justice of Supreme Court and you to be congratulated . Judge, this may be one of the most significant or consequential nominations that the senate will vote on since ive been here in the last three decades. And i think history is delivered you. Fortunately, unfortunately to a moment where Supreme Court historians far into the future going to look back on this nomination. And make a judgment whether or not with your nomination and if you are confirmed whether the jurist prudence of the supreme began to change. From the consensus that exist at the last 70 years. Or whether it continued on the same path that has over the past six or seven decades and that moments right now. And lest we think is kind of like we all go through this process and i like the phrase minuet that the that the chairman used. We all act like theres not an elephant in the room. The truth of the matter is there has there is significant debate among judicial scholars today. As the weather or not weve gone off on the wrong path. With regard to Supreme Court decisions. There is a very significant dispute thats existed in five to four decisions over the past two decades in a court. Thats very closely divided on the critical central issues of the day. And so and so just to make it clear. Im puzzled by some of the things you said and im sure youre going to get a chance to tell me what you meant by some of the things you wrote and said, but when your job application you talked about being proud as you should be to be proud of your your subscription to and hearing to notions put forward to the National Review that youre a proud member of the Federalist Society the National Conservative Political Action committee. The American Spectator is something you look to etc. Theyre all these are very really very bright folks. They all have a very decided opinion. On the issues of the day very decided and those very organizations ive named think for example, we misread the fifth amendment and havent missed reading it for the past three decades those same groups argue that we have. In fact, there is no right of privacy in the constitution etc. So people arent making this up. This is not in a sense. Its not about you. This you find yourself in the middle of on most significant National Debates in modern constitutional history. And so because youve been nominated to replace a woman in addition, theres who has been to deciding vote on a significant number of these cases since 1995. There have been a hundred and ninety three five to four decisions and just so connor 77 of the time has been the deciding vote. And for 70 years, theres been a consensus among scholars in the American People on a reading to the constitution to protects the right of privacy of the autonomy of individuals while at the same time empowering the federal government to protect the less powerful only recently as a debate come that states rights are being trumped in a fundamental way reading of the tenth amendment 11th amendment. Thats a legitimate debate. Totally legitimate, but anybody who pretends that how you read the 10th and 11th amendment doesnt have a fundamental impact. On the things we care about is getting themselves. Theyre either uninformed. Or theyre kidding themselves. So judge. Theres a general genuine struggle going on. Well beyond you well beyond the congress in america about how to read the constitution. And its also important to note that youre slated to replace the first woman ever nominated to the Supreme Court we can pretend thats not the fact but it is and through no fault of your own. Were cutting the number of women in half on the court. And now as i said, thats thats not your fault, but i think it means that we have to take at least speaking for myself a closer. Look at your stands on issues that are important to women. And moreover Justice Oconnor brought critical qualities of the high court that not everybody thinks are qualities. I happen to think they are her pragmatism and her statecraft. Not that ive always agreed with what she said far from it, but Justice Oconnor has been properly lauded in my view as a judge who approached her duties with openmindedness and with a sensitivity to the effects. Decisions would have on every day ordinary people. I cannot imagine notwithstanding what many of my colleagues i have Great Respect for believe. I cant imagine the founders when they sat down and wrote the document and got to the appointments clause said, you know what . The American People are entitled to know before we make him president before we make her senator before we make him congressman what they believe in the major issues of the day. But judges Supreme Court nominees as long as theyre smart and honest and decent it really doesnt matter what they think we dont have to know. I cant fathom. Cant fathom that that was the intent of the founders. They intended the American People. To know what their nominees thought and i might add now end with this. We just had two Supreme Court justices before our caucus just as they were before. I think the Republican Caucus they ventured opinions and everything. On everything things are going to come before the court. It did not in any way jeopardize their Judicial Independence so judge. I really hope. That this doesnt turn out to be a minuet. I hope it turns out to be conversation. I believe we you and i in this committee owe it to the American People in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. Their entitled to know what you think and i remind my college many of which are on this committee. They sure wanted to know what Harriet Myers thought about everything. They sure want to know in great detail. Theyre about ready to administer blood test. The good news is no blood test here. The good news is no blood test just a conversation and i hope youll engage in it with us because i i am anxious to get a sense of how youre going to approach these big issues. I was in the conference room, and i heard the chairman say that which i agree he and ive talked about this nominees tend to answer as many questions. I think they have to in order to get confirmed and i would say that thats been the case with all nominees basically. And judge bork ii also add another i think true isnt its developed is they tend to answer controversial questions and direct proportion to how much they think the public is likely to agree with them and it all goes to kind of a Central Point here is what is the public entitled to know about what you think . Or what anyone thinks before they go in the court and i realize theres this dynamic tension between your independence as they nominee what youd be an independent justice and answering questions, but i havent said that let me go to an area that i hope youll engage me in and it goes to executive power. I have had the dubious distinction because of my role in the Judiciary Committee and the Foreign Relations committee and the last three or four times forces have been used by a president to be guy in charge of at least on my side of the aisle drafting or or negotiating the drafting of the authority to use force whether it was president clinton before that president bush in even before that the discussion back on lebanon with president reagan etc. So its something ive dealt with a lot doesnt mean im right about it, but i thought a lot about it and and now there is a school of thought thats emerging within the administration that is making not illegitimate and intellectually thought out claim that the power of the executive in times of war exceed that of what i would argue a majority of the constitutional scholarship has suggested and the fellow who was is a very bright guy who was is referred to as the attacked the president s memorandum on on the the ability to the president s to conduct military operations against terrorists and nations supporting them is a professor ho and i think im pronounced a you excuse me professor u and hes written a book called the powers of war and peace and he makes some claims that are are relatively new among the constitutional scholars in his book and he urges the urge when he was at the administration. The president had these authorities for example, he says that the framing generation well understood the declarations of war were obsolete because on to say given this context, its clear that congress is power to declare war does not constrain a president s independent and plenary right constance authority over the use works and he goes on and he argues as you well know this argument. I mean not from your court just as a informed intelligent man. Theres a great debate now of whether or not the administrations internal position is correct and that is the president has the authority to go to war absent congressional authorization and it was a claim made by bush one and then drop bush won argued that the only reason the declare war provision is in the constitution is to give the president of the authority to go to war if the president didnt want to that was the claim made similar claim made here. So i want to ask you a question. Do you think the president has the authority . To invade iran tomorrow without getting permission from the people from the United States congress absent him being able to show theres an immediate threat to our national security. Well, thats a question that i dont think is settled by. The whole issue of the extent of the president s authority to authorize the use of to to authorize the use of military force without congressional approval has been the subject of a lot of debate the constitution divides the powers relating to making war between the president and the congress and i think theres theres been general agreements and the price case is support the authority of the president to take military action on his own in the case of an emergency when there is not time for congress to to react to have to deciding question if the congress does not the time to act. Well, the price cases i think go our read to go as far as to say that in that limited circumstance the president can act without congressional approval the administration argues and who argues that quote. I do not think the president is constantly acquired to get legislative authorization for launching military hostilities. And thats a pretty central question. That means the president if that interpretation is taken the president could invade and maybe theres good reason to invade iraq. I mean, excuse me invade syria tomorrow or invade iran tomorrow without any consultation with the United States congress, and thats a pretty big deal up to now fisher and hankin and most of the scholarship here has said no no, the president s authority falls into the zone where he needs it for emergency purposes where he doesnt have time to consult with the congress, but you seem to be agreeing with the interpretation of the president for profess to you that says, you know, no the president has the authority if he thinks its necessary to move from a state of war our state of peace to state of war without any congressional authorization. I hope im not giving you that impression. Sorry because i require i didnt mean to i didnt mean to say that i have not read professor used book or anything that he or anyone else has written setting out the theory that youve described. Ive been trying to describe what i understand. The authorities to say in this area. Im asking you as a citizen whether you think that as the administration is arguing, for example, it argues that that the case is made that im quoting that the constitution permits the president to violate international when hes engaged in more. It just states it flatly. Thats what the memorandum of the of the Justice Department states flatly. The president has that soul authority. He argues the constantly congress would have that authority as well. Just violating International Law he goes on to argue as does the memorandum argue. This is the present this is this administrations position. So thats why its relevant. It says that the the the president may use his commander in chief and executive power to use military force to protect the nation subject only to the congressional appropriations. And that means that the only the argument the administration is making is the only authority the congress has to cut off funds. Lets say we didnt want the president to invade iran the administration argues we could pass the resolution saying that do not a vet. You have no authority to invade iran. And in the president could say im in the next day invade iran. Our only recourse would be to cut off appropriations. But as you know, theres no way to cut off specific appropriations. Youd have to cut off preparation for the entire military. Which means its a totally useless tool for the congress in todays world, you know to say all right. Now, how do you cant say well im going to cut off only the money for the oil that allows the steaming of the ships to get from the east coast to the Mediterranean Sea and or to the persian gulf. So its really kind of important whether or not you think the president does not need the authority of the United States congress to wage a war where theres not an imminent threat the United States. And thats my question. Well and senator if if im confirmed and if this comes before me art may, perhaps it could come be on the court of appeals. The first issue would be the political question doctrine that ive described. But if we were to get beyond that what i can tell you is that i dont have i have not studied these authorities and and it is not my practice to just express an opinion on a constitutional question including particularly one that is as momentous as this. And youre watching American History tv. Were looking back at exchanges between then senator biden and Supreme Court nominees. Well, it was in the summer of 1986 that senator joe biden sparred was Supreme Court nominee antonin scalia. Thank you. Mister chairman. I apologize judge. I im too winston was on the floor with introduction of another bill regarding to the drug problem, and im sorry not have heard your original statements. I want to pursue several areas. I will not be able to get them done in one round, but it wont be too many. Lets start if you will with i have read. All the speeches that i could find that youve written and i find a very a very interesting and i mean thats sincerely analysis of of the of the newfound newly annunciated doctrine of our original intent and i from your speech the speeches that ive i cant tell and im not being smart when i say this whether youre analysis of your view of original meaning was when you met or whether it was done with tongueincheek or because you start off the speech then which you enunciate your your doctrine is saying when i was in law teaching i was fond of doing what is called teaching against the class that is taking positions that the students are almost certain to disagree with in order to generate some discussion. If not provocative thought i have tended to take a similar contrary approach in public talks. It is neither any fun nor any use preaching to the choir then you go on and trying to fight against that here senator mike i fight against that inclination here. I well i i let yourself go because its boring so far. And it may be more interesting and we may get a chance to see who you are a little bit more. I im not suggesting that you are are attempting to hide. Find the argument that many use which is that may come become before the court. Therefore. I can never discuss it. Everything may come before the court. Theres nothing an American Public life that may not come before the Court Nothing therefore if you apply that across the board you wouldnt be able to speak anything, but lets speak to what your speech is not to your not to your cases. Im going to want to go to your cases and freedom of speech issue so next but lets lets start off with this if we could theres been a lot of debate recently involving several members of the court as well as attorney general meese about the so called original intent doctrine in fact in a recent speech the attorney generals conference on economic freedoms you offered some view on the subject and suggest the doctrine would be better understood as that of quote original meaning and of quote rather than original intent would you tell us what you mean by original meaning as a means by which a judge should interpret the constitution . Yes, ill be happy to and but you you want to begin by by noting that in that speech. I did not advocate the original intent i just said that it should be known as the original meaning doctrine. Well, im trying to figure out well, i like be happy to explain what the yeah. Well, let me back up. Why dont you tell us what how you view interpretation of the constitution. Is are you a viewed as a living constitution to use that quote term of art you use the view it as a having to look to the original meaning the original intent. What do you what who are you judge scalia . Thats a good question center. I i am i am embarrassed to say this. Im 50 years old grown up and everything. I cannot say that i have a fully framed omnibus view of the constitution now there are those who do who have written pieces on constitutional interpretation. And heres the matrix and heres how you do it. I think its fair to say that you you would not regard me as someone who would be likely to use the phrase living constitution. On the other hand. Im not sure you can say that he is. Pure and simply a an original meaning or ill be happy to explain the difference between original meaning and original and i know its not worth it. Its its not a big difference. What do you think . What i think is that that the constitution is obviously not meant to be evolvable so easily. That in effect a court of nine nine judges can can treat it as though its a bring along with me statute and fill it up with whatever content the current time seem to require to a large degree. It is intended to be an insulation against the current. Times against the passions of the moment that may cause individual liberties to be disregarded and it is served that function valuably very often. So i i would never use the word living living the phrase living constitution now there is within that phrase. However, the the notion that a certain amount of development of constitutional doctrine occurs, and i think there is room for that. I frankly the the strict original intentious i think. Would say that even the such a clause as the cruel and unusual punishment clause would have to mean precisely the same thing today that it meant in in 1789, so it would have to mean that yes, so that if lashing was was fine, then lashing would be fine now. Im not sure. I agree with that. Ive i think that there are some provisions of the constitution that that may have a certain amount of evolutionary content within them. Im i have never been. What should i say . As i said earlier . I have not developed a full. Constitutional matrix, i am more and youre youre right though in suspecting me of being more inclined to to the original meaning than i am too a phrase like constitution. What living constitution im not being smart when i say i i suspective anything. I mean truly i i as i read your speech you talked about quote these speech we have these speech for the record with what judgment was. He said he essentially has one speech a year that he gives when hes invited to the law schools and other places as a city and judge and and he does others but one and he refers to these speech and these speech had been on one relating to the value of congressional input beyond the face of the document that we pass and also this notion of original meaning original intent and and i could read this both ways. I mean i can read your speeches as saying youre being the devils advocate and being a provocateur on the one hand another at i just hope you dont mean it. I guess thats what im serious when i say that for example if you mean if you subscribe to the view. That you articulate as what original meaning. Means then i have real problem. Voting for a judge who would have that view but the way youve just explained it. It seems though. Youre not totally wetted to that view that you lean that way but for example cruel and unusual. I assume you would argue the 14th amendment you you assume youd say you could have gotten from plusey to to brown. I hope ive always had trouble with lashing. Uh senator. Ive always always had trouble thinking that thats constitutional and if i have trouble with that now youre being seriously serious. No, i mean serious. No, its want to make sure yeah, i i i have trouble with a number of other interpretations, for example, if i accept theres been much written lately on original intent, which is not what youve been saying. No, i have real trouble with that notion that doctrine and but let me skip well, ill talk him back that a little bit because my time is running out. I want to speak to another section you talk about. Where i think you do where you have written and you have quote judged as been the issue relating to independent regulatory agencies. And again, i want to make sure i understand the parameters. Of your interpretation of the role if any of independent regulatory agencies, so lets not talk about it because not be case specific. Lets be philosophical for a moment as i read your writings and your and your cases you basically say the following. That the Founding Fathers came up with three coequal branches of the government. That somewhere in the late 1800s along came the congress and set up an independent Regulatory Agency. That that independent Regulatory Agency gave to the head of that Agency Executive powers. And the congress has repeated that and subsequent years from 1890 through to today and if in fact the head of an independent Regulatory Agency. Is not serving at the pleasure of the president. That is able to be fired by the president relieved without cause by the president then what the congress has attempted to do is unconstitutional ie. They have essentially established a quasi. Executive branch of the government which is a Fourth Branch of government sitting out here and as i read your writings you say that is unconstitutional is that an accurate reading of your position relating to independent agent senator . Yeah, i think you are out of the room when i was asked about independent agency before i would love to talk about independent agencies. Its been an area of writing and interest of mine and my writings will have to speak for themselves, but i have a real special problem with regard to discussing this topic, which is not not just that the case will come before the Supreme Court if im confirmed but that i have a case before my present court mounting precisely the constitutional challenge you have just described it is currently before the court on which i said and i really think i should not be discussing the chairman rules. I will not follow up even though its driving would be wrong. I will not follow up on it. I will not rule and if youre not gonna say could i say this those senator which speaks not to the constitutionality of it at all, but to the fact that it may be there may be less to it than meets the eye because found that there there is not much difference if indeed there is any difference in modern times between the independent agencies in the proper sense and other executive agencies indeed many many people dont know which is which the food and drug administration. For example, im not sure there are many people that most people think its an independent agency. It is not an independent agency. Its an executive branch agency. It seems to be as independent of president ial improper influence as as one of the one of the independents. Well, thats maybe we can talk about it that way if you take a look at the fed seems to me that. The rationale for the fed being independent agency is equally as strong today as it was and was said in place. I cannot imagine the chaos. That would be called. An International Monetary markets if tomorrow the president of the United States had the power to relieve at will you need to have respond to this but relieve it will. The head of the fed because Everybody Knows that every president. Democrat and republican in times of economic difficulty tries very hard to speed up the money supply about eight months before an election. That is i mean that is a fact of political life where i president perish the thought i might even think of that myself where senator hatch president. Im sure he might think of that Everybody Knows that Everybody Knows thats precisely what president s of attempted to do and would do if in fact the chairman of the board the Federal Reserve system where to operate at the will of the executive i truly believe we would have economic chaos worldwide not nationwide because the fact of the matter, is that the Hoover Commission noted in 1949 that this was all a means of insulating regulation from partisan influence and favoritism. And there is great concern about that, but i will try another attack. I have to think of an imaginative way to get you to talk about this critical issue without being overruled by the chairman. So let me go move to another subject. Freedom of speech something near and dear to the chairmans heart. I am only kid mr. Chairman mile family unit. Thats right smile. Let me ask you. Is the First Amendment of the constitution States Congress shall make no laws of bridging the freedom of speech. How do you define speech judge . Oh, i i define speech as as any communicative activity. Can it be nonverbal . Yes. Can it be . Can it be nonverbal and also not written . Yes. So freedom of speech can encompass. A physical action. Yes, sir. Good, thats a relief. Theyre not being smart because as i read your case, youre what i viewed as your descent in the what case i wondered whether or not he the yes. Well, lets you want to talk. I like it amplify talk about what what was was a case in which what was at issue was sleeping . Yes as communicative activity. Yes. I did not say in in the separate opinion that i wrote in that case and and that opinion was a dissent. Friend the decision of our of our court that descent. Was vindicated by the Supreme Court as far as the outcome was concerned different right now. Not not the rationale. Uh, what said was that. For purposes of the heightened protections that are recorded. Sleeping could not be speech that is to say. I didnt say that one could prohibit sleeping merely for the purpose. Of eliminating the communicate communicative aspect of sleeping if there is any it was alleged there was in this case because people wanted to sleep in in the National Park across from the white house in order to demonstrate that there were homeless and it was alleged that the sleeping was a communicative activity. I did not say that that the government could seek to prohibit that communication. Without running a foul of the heightened standards of the First Amendment if they passed a law that allows all other sleeping, but only prohibits sleeping where it is intended to communicate. Then it would be invalidated but what i did say was where you have a general law. That just applies to an activity which in itself is normally not communicative communicative such as sleeping spitting whatever you like. A clenching your fist for example, such a law. Would not be subject to the heightened standards of the First Amendment. That is to say if there is ordinary justification for it, its fine. It doesnt have to meet behind need but no other available alternative requirements of the First Amendment. Whereas when youre dealing with communicative activity naturally communicative activity writing speech and so forth any law, even if its general. Across the board has to meet those higher standards, but if you walk in and and you sit down in a place that you are not to protest an action thats being taken in that place. Is that required the heightened . Justification or does that fall cant can that fall within the the same category as the spoken word. Oh, i i would i would think that that law. No, i i cannot imagine that youre entitled to that that would allow you to disobey any law that that does not have a very serious governmental purpose just for the purpose of showing your contempt for that law. For example, the best way to communicate your attempt for your content for law against spinning. In the street is to spit in the street. How better to show you your content for that law except by disobeying it. Let me be more specific. Lets say you take a physical action sitting down to protest a law that is nothing to do with preventing people from sitting. It has to do with whether or not black folk can be served in the restaurant and they say no you cant so you sit out there in front of the on the sidewalk. Now clearly the physical action being taken is not being taken to demonstrate that the law against sitting down. Thats right is in fact wrong it is being taken to demonstrate another law unrelated to the physical action. Is incorrect does that situation require a heightened standard . I think not center. In fact, it seems to me it happens all the time when people protest in front of some embassies those laws are not subjected to heightened scrutiny. I dont believe theyre just laws that you cant you cant be at a you know at a certain a certain location now if you want to protest and and as a means of civil ob disobedience take the penalty, thats fine. But if the law is not itself directed against demonstrations or against communication, i dont think its the kind of a law that that in and of itself requires the heightened scrutiny. That was the only point i was making inside very i mean, thats very helpful to me. Im not being smart when i say that that puts my mind at ease of god and i listen i may be talked out of that. Im just explaining you what i was saying in cca. Im not saying. Oh, yeah. Well now that President Biden has nominated his own Supreme Court justice here on American History tv. Were looking back and looking at how senator biden questions Supreme Court nominees throughout the years. Well one nominee that he did question and did not make it onto the Court Robert Bork the senate rejected mr. Bourke 58 to 42 now. His hearing was in september of 1987 up next on American History tv. Were going to show you senator bidens Opening Statement in that hearing and a little bit of his questioning of judge pork. Judge, Welcome Back Committee will come to order judge. I think quite frankly. It might accommodate our brother and between us here if if we went slightly out of order here, and im going to ask you to be sworn in now before i give my statement, but after im sworn and ill give this after your sworn. Ill give the statement judge. Swear give at this hearing in response to the question the truth the whole truth and nothing but the truth to help you guys i do mr. Chairman julie sport. Etc its just to show you right hand working. Judge pork i like to make a an Opening Statement if i may and id like to in addition to staff to settle down behind me here. Id like to welcome you back this afternoon, and personally welcome you to the Senate Judiciary committee. Youve heard much today, and weve all heard a great deal today about the bicentennial of our constitution. But as you and i both know the convention in philadelphia was only one very important chapter in the history of our people. And in the evolution of our unique form of government. From that day in philadelphia to this hour the heart of the controversy over the constitution has been over the basic question that is certain to animate the debate that may commence in this committee. And that is the debate between the tensions between the rights of an individual. And the will of the majority as James Madison the father of the constitution said and vote the great object of the constitution is to secure the public good and private right against the danger of the majority faction and at the same time to preserve the spirit and the form of popular government end of quote. Judge, the seasons have turned to centuries. And the document we now celebrate. The worlds longest and oldest living constitution for over the past 200 years. Is something that will formally celebrate tomorrow . And for 200 years each generation of americans has been called to nurture. Defendant define it and apply. Senator sam irvin our lake colleague from North Carolina was fond of reminding all of us and quoting an eloquent educator about the ties between the magna carta the english petition of rights. The declaration of independence in the United States constitution and the quote he used to always use was this. These are great documents of history. Cut them and they will bleed bleed with the blood of those who fashioned them and those who nurtured them through the succeeding generations. Judge each generation in some sense has had as much to do to author our constitution as the 39 men who have fixed their signatures to it 200 years ago. Indeed two years after its signing following a bitter National Debate over ratification. At the insistence of the people the constitution was profoundly a nobled by the addition of what have come to be known as the bill of rights. But before a hundred years with transpire. The civil war erupted over the meaning of that constitution and that socalled rights a civil war which would answer lincolns question . Whether quote any nation so conceived and so dedicated can long endure. And from that civil war would emerge the socalled civil war amendments . Which would settle forever the truth . That all men are created equal. It gave definition through those civil war amendments to what many thought. Were meant in the first instance. But before another hundred years would pass. Our own century would be distinguished by hotly contested struggles to assimilate into the very fabric of the constitution equal protection for blacks. Minorities and women and is surely as those who waged the civil war . Those who waged the struggle for civil rights infuse the constitution with their own vision. Story of these struggles at its hard in my view is the story of what makes america and people the envy of the world. And each of these struggles which ive made reference to each of these struggles and each of these times when the individual faced a recalcitrant government the individual one his or her rights always expanding. His or her rights always expanded. America is the promised land. Because each generation bequeath to their children a promise. A promise that they might not come to enjoy but which they fully expect that their offspring to fulfill. So the words all men created equal. Took a life of their own. Ultimately destined to end slavery and enfranchised women. And the words equal protection and due process inevitably lend led to the end of the words separate but equal. Ensuring that the walls of segregation would crumble. Whether at the lunch counter or in the voting booth and so faithful to that tradition. In the ebbing summer of our bicentennial the constitution must become more than an object of celebration. Is to become once again the center of a critical National Debate over what it is. What it must become . And how will we applied in a world that neither of you nor i can envision at this moment a world of biotechnical engineering a world of burgeoning changes in science. A world where once again the rights of individuals and the right of the government to impact upon them. Will he put in a different context and in conflict . Let me begin. I want to begin to try to understand better and and lay out your record in this round of question that i have. I want to talk a little bit about what you said. What your you believe about the role the courts and what that role is in society and as you said youre just a philosophy. Judge work. Im sure you know the one question to be raised in these hearings is whether or not youre going to vote to overturn. Supreme court decisions, which is obviously your right as a Supreme Court justice if you are confirmed. In 1981 and testimony before the congress you said quote there are dozens of cases end of quote for the Supreme Court made a wrong decision and this january and remarks that the Federalist Society. You implied that you would have no problem and overruling decisions based on a philosophy or a rationale that you reject. And an interview with the district lawyer magazine in 1985. You were asked if you could identify cases that you think should be reconsidered. You said and i again quote . Yes, i can but i wont. Would you be willing for this committee to identify . The dozens of cases that you think should be reconsidered i think maybe it would be easier. I have criticized some let me say this. I am a judge and i am acutely aware that my authority unlike yours. Arises only if i can explain why what i am doing is rooted in the constitution or in a statute. The cases i criticized. And ive criticized a lot in my time. But then law isnt intellectual enterprise. And it grows from argument back and forth and criticism strong not criticizing your right to criticize. I criticize these cases on the basis of the reasoning or lack of reasoning that the courts offered. Well, lets talk about another case now. Lets talk about griswold case now. While you were living in connecticut that state had a law. That made i know you know this but for the record that a crime that it made a crime for anyone even a married couple to use Birth Control. And you have indicated that you thought that law was nutty to use your words and i quite agree. Nevertheless connecticut under that nutty law prosecuted and convicted a doctor and the case finally reached the Supreme Court. The court said that the law of violated a married couples constitutional right to privacy. And you criticized this opinion in numerous articles and speeches beginning in 1971 and as recently as july 26th of this year in your 1971 article neutral principles and some First Amendment problems. You said that the right of married couples to have sexual relations without fear of unwanted children is no more worthy of constitutional protection by the courts than the right of Public Utilities to be free of pollution control laws. You argued that the Utility Companies right or gratification. I think you refer to it. To make money in the married couples right or gratification to have sexual relations without fear of unwanted children. Were quote identic cases the cases are identical. Now im trying to understand this. It appears to me that youre saying that the government. Has as much right to control a married couples decision about choosing to have a child or not as government has a right to control the Public Utilities, right . To pollute the air am i misstating your rationale with due respect mr. Chairman . I think you are i was making the point. That where the constitution does not speak. Theres no provision in the constitution. That applies to the case. Then a judge may not say i place a higher value upon a marvel relationship then do upon anomic freedom right only if the constitution gives him some reasoning and i said a judge if once the judge begins to say economic rights are more important than marital rights or vice versa and theres nothing in the cost if there is nothing in the constitution, the judge is enforcing his own moral values, which have objected to judge, my times about up but i with regard to the griswold case youre quoted in 1985 as a judge not on the court, but speaking when you were as a judge not as a judge, but in 1985 while youre on the court, you said i dont think is a supportable method of constitutional reasoning underlying the griswold decision. So obviously a thought about it youve at least at that point concluded you didnt you couldnt find one. It seems to me judge that and might as i said, i want many more cases. Id like to talk to you about and i appreciate you engage in this dialogue that when you say that a state can. Impact upon Marital Relations and can impact upon certain other relations. Seems to me that there are certain basic rights that they cant touch and what you seem to be saying to me. Is that a state legislature can . Theoretically at least pass a law sterilizing and well see what the court says. Its not a base not an automatic. Its not basic. They cant right now if any state legislature in the country. Asked council for the legislature. Could we pass a law sterilizing . I suspect the Immediate Response from council would be no you. And do that not only politically but constitutionally if any state legislative bodies said can we can we decide on whether or not someone can or cannot use contraceptives . Not any reasonable basis . I imagine all council would say no flatly cant even get into that area. And it seems to me youre not saying that youre saying it theres possible that can happen and in griswold, youre saying that theres no principle upon which they could reach the result. Not the rationale you say you say the result. Well, i think i was talking about the principal underlying that one but i should say well, let me stop you there judge because i want to make sure you understand the principle underlying that one is the basic right to privacy right and from that flows all these other cases all the way down to friends, which you spoke to all the way down to roby way. They all are premised upon. That basic principle that you cant find im not saying youre wrong. I just want to make sure understand what you dont think all those cases necessarily follow. They used the right of privacy in some of those cases and wasnt clear why it was a right of privacy. I should say. That i think not only justices black and stewart couldnt find it. And Gerald Gunther was a professor at stanford and authority in these matters as criticized the case and professor Philip Kurland as referred to griswold against connecticut as a blatant user patient, but most did find it the majority did find it didnt they . Yep, but im just telling you senator that a lot of people have thought the reasoning of that case was just not reasoning. My time is up judge. I want to make it clear. Im not suggesting. Theres anything extreme about your reasoning. Im not suggesting. Its conservative or liberal. Im just want to make sure i understand it and as i understand what you said in the last 30 minutes. That date legislative body a government can if its so chose pass a law saying married couples cannot use Birth Control devices. Senator mr. Chairman, i have not said that i do not want to say that what i am to you is. That if that law is to be struck down it will have to be done under better constitutional argumentation. Then was present in griswold the griswold opinion and youve been watching American History tv and our look back at then senator bidens questioning of Supreme Court nominees. President biden of course has nominated his own Supreme Court justice and the nomination hearings that will be in the senate will all of course be live on all cspan p