Transcripts For CSPAN3 Former Senator Joe Biden Supreme Cou

Because the moment in history which it comes. Lets make no mistake about it. The unique moment of this i believe that a greater question transcends the issue of this nomination. That question is, will we were tree from our traditional progress or will we move forward continuing to expand and envelop the rights of individuals in a changing world which is bound impact upon those individual sense of who they are and what they can do . Will these noble human rights and Human Dignity, which is a legacy of the past two centuries, continue to mark the journey of our people . Judge, as you well know, this is no ordinary nomination not merely because you are there. I must say to you, it is somewhat daunting for as experienced as you are, to sit there with an array of people about to question you. It is not an easy position to be in. I am confident that you will handle it well. Nonetheless, it is an easy position. This nomination is with all due respect judge, has been about you. The passing on of this Supreme Court nomination we must also pass judgment on whether or not your philosophy is an appropriate one at this time in our history. That was senator joe biden in september of 1987. He was addressing Supreme Court nominee robert bore about the importance of any form into the nations court. President biden will send his own nominee to the senate for confirmation. He is nominated Ketanji Brown jackson to the court of appeals from the district of columbia circuit. Senator you senator biden for 36 years, including eight as chair of the seven Judiciary Committee. He questioned a parade of Supreme Court nominees including retiring Justice Stephen breyer, with peter ginsburg, clarence chomps and, samuel alito, antonin scalia, robert bork. In his questioning of the nominees, he returned again and again to two ideas. One, the rights of the individual versus that of the majority. To, his insistence that nominees should be candid about their judicial views. To better understand what mr. Biden would look for any nominee, here on American History tv, we are going to look back over the years at a series of his statements and exchanges during confirmation hearings. First we are going to look at the confirmation 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 topic that senator biden brought up to the nominee including the rule of Environmental Health and environment Safety Policies and a lot of reflection of societys values. This is from july 1994. Judge, let me begin by saying that 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 oh. These challenges have taken the form of asking the court to change how it is interpreted this clause of the fifth amendment. Less than three weeks ago, the Supreme Court of the United States decided a case called dole and versus tiger. Is this the product pronounce the asian . Aber leave it is versus tiger. Using the taken clause, they rejected a local town measure intended to reduce of flooding and Traffic Congestion caused by Businesses Development along the river. This decision follows a case decided two years earlier, lucas versus South Carolina coastal council. In these two cases, the court adopted a new standard for reviewing the taken cause. Judge, my question, my first question, before the dole and lucas cases, how did the Supreme Court review claims that a regulation, designed and stated to be designed to safeguard Public Welfare was the taking of a property, thereby requiring the property to be paid to the land order for these socalled taking . What was the law, as you understand it, prior to dole and and lucas . Whats standard that the court views . I, think usually, when i go back to basics, is i often tried to keep in mind what some kind of a basic points in different areas which are sometimes helpful. The basic point, basic case, a basic idea i have in my mind in this area is that i go back to the case that Justice Holmes decided. It is a very interesting case. A a person owned a coal mine. The government said, this is what you ought to do. Leave some columns of coal in this mine because if you do not leave thick columns of coal, the whole ceiling will collapse and there are cities that are built on top of this coal mine. They are all going to fall down. Therefore, we are going to have a regulation that tells you big thick coal called. The owner said that i agree with you and i do not want anything to happen with anyone on the surface. Really, you do not have columns that are that thick. You do not to have that many. What you have done is taken my coal. The case presented the issue of when is it a reasonable regulation for after all, it is a good purpose to stop the cities from going into the mine. That is a wonderful purpose. When does a reasonable regulation become a taking of property for which you must pay compensation. When i attempted to establish thus far is where this balance is of phenomenal consequence to the nation. Not where you will take it. It is of a multi trillion consequence to the nation to overstate it. If for example we adopted the view proposed by some very brilliant legal scholars, that says that you have to apply a standard as to whether taking is occurred, when we would find is if we apply us applied a lot tomorrow we would have no more cfcs that could be admitted to the atmosphere. We have every company that now manufactures ccs. That would be a great idea. Because you cannot prove if they factor in ccs. You cannot prove that joe biden got cancer because of that. This is a common law to exaggerated. Because you cannot prove that, you will have to stop and you have to pay us to stop. That is like the cool line. That is a multi billion dollar decision for taxpayers. Right now it is not in question. Until dole it was not in question. No one assume that if we said no more cfo sees that we would have to go out and pay every company in america to stop manufacturing cfcs. The taxpayers, the public, the senators, me until recently, do not fully appreciate the phenomenal economic consequence of taking a reading of the takens claws to the logical conclusion as espoused by dolan and shifting the burden of proof. Can you articulate or think of any principle standard to stop the movement announced in dolan and lucas. How does that stop . How does the shifting of the burden not automatically take you into the area that we usually worry about. Is there a principle way in which to say shifting the burden and requiring this relationship enunciated in dolan does not automatically lead you into the concern that i have stated in the case that just made up . I think the principal concern, as i listen to you mister chairman, is the justice homes concern as i listen to you, you are saying to think to the column and the coal mine. Are you really serious that it should impose that the law should prevent people, and a practical way, to their government requiring columns that protect coal miners . You are saying, of course not. As i hear that, i think that you are saying, a law or an interpretation of the constitution that would seriously impede the coal columns that protect the minors and protect the cities, that would be going too far. I agree with you. It is would just as holmes would have had in mind. That is why i think that the court is trying to work out in my own mind, because i cannot read other peoples mind, but it is called a practical combination. Of course, there is a competition clause in the constitution. Of course, property is given some protection. At the same time, one must not go too far. Were too far means is imposing significant obstacles. Let me shift here to another area. Maybe we can come back to this. Another way we are talking about the constitution. This is the fifth amendment. Another way to affected the basic rights of individuals who do not have economic power is the way in which the court interprets statutes, passed by the legislator and signed by the press. It is my view, i will say up front, that weather records grudgingly interpret wishes of the elected representatives, or a generous way interpret them, it obviously has significant impact. One of the things that has arisen in the last ten years, particularly the last two years, is the notion that mentioned by my distinguished colleague, who is a fine lawyer and a competent seat on the bench himself, is his point made that when the cost of government actions outweigh the benefits economically, and i said in my Opening Statement, we often consciously make those decisions to reflect public values, societal norms. We say that we know that this costs a lot of money to do this. We are not going to put a value on human life. We are not going to put 1 value on a strongly felt societal value. Several years ago, the Environmental Protection agency decided to phase out the use of asbestos because it posed many health risks, including the health risk of cancer. A federal Appeals Court reeve first the epa ban on asbestos in a case that you discussed in your most recent book. The court decided that the statue under which the epa acted was not possibly intended to allow epa asbestos ban, because the ban cost so much money for every human life it might save. My question, judge, 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. I wrote really to opposite things about it. Absolutely opposite. The first thing i wrote about it was, what was in the mind of the court. I thought what was in the mind of the court if they found an example they thought the epa was imposing and banned that cost about a quarter of a billion dollars. It would save hardly anybody. But it would save somebody. It yes, the number of people it was kind of an absurd example. Number of die of eating toothpicks or Something Like that. That is the first way that i used in the book. Something that shows there are epa regulations which indeed seemed 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 provides an example of what you are suggesting. That it isnt a very good idea for courts to get involved in making that decision. That is more indecision for congress to make. When i said when i discussed the case the second time is look how the judges, even if they have an example of what they think is absolutely wrong, but they have to do. They have to say that there is a rule of law that prevents that. The rule of law that they enunciated in the case was a rule of law that said agencies have to look at all of the alternatives, or many of them, before they do anything. If you take that rule of law seriously, how can agencies have the time to do all that kind of thing . A friend of mine says, bingo. That exchange you just saw was from 1994, then nominee Stephen Breyers confirmation hearing in the senate. You are watching American History tv. We are revisiting exchanges between then senator joe biden, who served four years on the Judiciary Committee and various Supreme Court nominees. Up next, 1991, judge clarence thompsons nomination hearing. It was in the fall of 1991 that sexual allegation hearings circulated against him. That is what dominated the headlines in the hearing. Prior to that, senator biden had judge judge thomas about his judicial philosophy. Here is part of that debate. The hearing will come to order good morning judge. Welcome, welcome to the blinding lights. It is a pleasure to have you here. Let me begin also by indicating that the morning is going to be painless, judge. Or maybe the most painful part of the whole process. You are going to hear from all of the committee, who have an Opening Statement. Then half a dozen senators are going to introduce you. Hell hear from about 20 senators before you get to speak. It could be the most painful part of the process. Let me begin today. Judge, on a slightly more serious no, this committee begins its sixth set of Supreme Court confirmation hearings held in the last five years. A rate of change that is unequaled in recent times. If you are 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, souter, and thomas. Because of these changes, many of the most basic principles of constitutional interpretation, the meaning that the Supreme Court applies to the warrant of the constitution, are being debated in this country in a way that hasnt happened in a long time. In a manner unlike anything seen since the new deal. In this time of change, fundamental Constitutional Rights which have been protected by the Supreme Court for decades of being called into question. In this time of change, the Supreme Courts self restrain, from interference and fundamental social decisions about the regulation of health care, the environment, and the economy are also being called into question. Judge thomas, you come before this committee in this time of change with a philosophy differing from that which we have seen from any Supreme Court nominee in the 19 years i have been in the senate. As has been widely discussed and debated in the press, you are an and here into 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. In my view, your most significant obligation to this committee. It is particularly true because of the period of vast change where 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 off thinking which have in fact been adopted by the Supreme Court of the United States in the past. Which are being discussed and debated by constitutional scholars today. The first of these use sees natural law as a moral code. A set of rules saying what is right in what is wrong a set of rules and moral codes which disappearing course should impose upon the country. In this view personal freedom to make more choices about how we live our own lives should be replaced by morality imposed and the conduct of our private and family lived by the court the Supreme Court as you know judge actually took such a process in the patch. Holden in 1873 for example that woman could not become lawyers because it was not in the courts phrase, in their nature. No one wants to go back to 1873. No one wants to go back that far today. But there are natural Law Advocates who acts stole the 20th century version of this philosophy. They believe it is the job of the courts to judge the morality of all of our activities. Whether they occur wherever they occur paying no respect to the privacy of our homes and our bedrooms. They believe the court should for been any activity contrary to their view of morality, and their view of natural law. Those who subscribe to this moral code 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 on what is, and what is not a family. They want to make the government or, if the legislation does not do it, by judges applying their values and norms. Needless to say, judge thomas this sort of natural law philosophy is one i believe this nation cannot accept. It is not the only radical law philosophy that is being debated as we sit here today it is being debated in the law schools in among the philosophers of this country. There is another group that wants to reinvigorate another period of the Supreme Court passed. When the court use natural law to strike down a whole series of natural actions making those natural law ruling struck down such laws as the child labor laws minimum wage laws and laws that require safe working conditions they held the natural law freedom of contract, and the natural law right to property created rights for businesses and corporations that rose above the efforts of the government to prevent the ills that 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. Again known to propose going all the way back to this lochner area but there are those who wish to employ the same reasoning that was used in that era. Today natural law proponents, but they term new economic rights and new Property Rights have called into question many of the most important laws enacted during this century. Laws protecting the environment, our water and our air. Laws regulating childcare and Senior Citizen facilities. Even called into question the constitutionality of the Social Security system. George thomas, you have made it abundantly clear that you do not subscribe to the most extreme of these views. You have said that you find some of these views, to quote you, attractive. You support the idea, quote, of an activist Human Dignity<\/a>, which is a legacy of the past two centuries, continue to mark the journey of our people . Judge, as you well know, this is no ordinary nomination not merely because you are there. I must say to you, it is somewhat daunting for as experienced as you are, to sit there with an array of people about to question you. It is not an easy position to be in. I am confident that you will handle it well. Nonetheless, it is an easy position. This nomination is with all due respect judge, has been about you. The passing on of this Supreme Court<\/a> nomination we must also pass judgment on whether or not your philosophy is an appropriate one at this time in our history. That was senator joe biden in september of 1987. He was addressing Supreme Court<\/a> nominee robert bore about the importance of any form into the nations court. President biden will send his own nominee to the senate for confirmation. He is nominated Ketanji Brown<\/a> jackson to the court of appeals from the district of columbia circuit. Senator you senator biden for 36 years, including eight as chair of the seven Judiciary Committee<\/a>. He questioned a parade of Supreme Court<\/a> nominees including retiring Justice Stephen<\/a> breyer, with peter ginsburg, clarence chomps and, samuel alito, antonin scalia, robert bork. In his questioning of the nominees, he returned again and again to two ideas. One, the rights of the individual versus that of the majority. To, his insistence that nominees should be candid about their judicial views. To better understand what mr. Biden would look for any nominee, here on American History<\/a> tv, we are going to look back over the years at a series of his statements and exchanges during confirmation hearings. First we are going to look at the confirmation hearing from july 1994 for then judge Stephen Breyer<\/a>. His january 27th resignation opened up a seat on the court after 28 years of service. The topic that senator biden brought up to the nominee including the rule of Environmental Health<\/a> and environment Safety Policies<\/a> and a lot of reflection of societys values. This is from july 1994. Judge, let me begin by saying that 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 oh. These challenges have taken the form of asking the court to change how it is interpreted this clause of the fifth amendment. Less than three weeks ago, the Supreme Court<\/a> of the United States<\/a> decided a case called dole and versus tiger. Is this the product pronounce the asian . Aber leave it is versus tiger. Using the taken clause, they rejected a local town measure intended to reduce of flooding and Traffic Congestion<\/a> caused by Businesses Development<\/a> along the river. This decision follows a case decided two years earlier, lucas versus South Carolina<\/a> coastal council. In these two cases, the court adopted a new standard for reviewing the taken cause. Judge, my question, my first question, before the dole and lucas cases, how did the Supreme Court<\/a> review claims that a regulation, designed and stated to be designed to safeguard Public Welfare<\/a> was the taking of a property, thereby requiring the property to be paid to the land order for these socalled taking . What was the law, as you understand it, prior to dole and and lucas . Whats standard that the court views . I, think usually, when i go back to basics, is i often tried to keep in mind what some kind of a basic points in different areas which are sometimes helpful. The basic point, basic case, a basic idea i have in my mind in this area is that i go back to the case that Justice Holmes<\/a> decided. It is a very interesting case. A a person owned a coal mine. The government said, this is what you ought to do. Leave some columns of coal in this mine because if you do not leave thick columns of coal, the whole ceiling will collapse and there are cities that are built on top of this coal mine. They are all going to fall down. Therefore, we are going to have a regulation that tells you big thick coal called. The owner said that i agree with you and i do not want anything to happen with anyone on the surface. Really, you do not have columns that are that thick. You do not to have that many. What you have done is taken my coal. The case presented the issue of when is it a reasonable regulation for after all, it is a good purpose to stop the cities from going into the mine. That is a wonderful purpose. When does a reasonable regulation become a taking of property for which you must pay compensation. When i attempted to establish thus far is where this balance is of phenomenal consequence to the nation. Not where you will take it. It is of a multi trillion consequence to the nation to overstate it. If for example we adopted the view proposed by some very brilliant legal scholars, that says that you have to apply a standard as to whether taking is occurred, when we would find is if we apply us applied a lot tomorrow we would have no more cfcs that could be admitted to the atmosphere. We have every company that now manufactures ccs. That would be a great idea. Because you cannot prove if they factor in ccs. You cannot prove that joe biden got cancer because of that. This is a common law to exaggerated. Because you cannot prove that, you will have to stop and you have to pay us to stop. That is like the cool line. That is a multi billion dollar decision for taxpayers. Right now it is not in question. Until dole it was not in question. No one assume that if we said no more cfo sees that we would have to go out and pay every company in america to stop manufacturing cfcs. The taxpayers, the public, the senators, me until recently, do not fully appreciate the phenomenal economic consequence of taking a reading of the takens claws to the logical conclusion as espoused by dolan and shifting the burden of proof. Can you articulate or think of any principle standard to stop the movement announced in dolan and lucas. How does that stop . How does the shifting of the burden not automatically take you into the area that we usually worry about. Is there a principle way in which to say shifting the burden and requiring this relationship enunciated in dolan does not automatically lead you into the concern that i have stated in the case that just made up . I think the principal concern, as i listen to you mister chairman, is the justice homes concern as i listen to you, you are saying to think to the column and the coal mine. Are you really serious that it should impose that the law should prevent people, and a practical way, to their government requiring columns that protect coal miners . You are saying, of course not. As i hear that, i think that you are saying, a law or an interpretation of the constitution that would seriously impede the coal columns that protect the minors and protect the cities, that would be going too far. I agree with you. It is would just as holmes would have had in mind. That is why i think that the court is trying to work out in my own mind, because i cannot read other peoples mind, but it is called a practical combination. Of course, there is a competition clause in the constitution. Of course, property is given some protection. At the same time, one must not go too far. Were too far means is imposing significant obstacles. Let me shift here to another area. Maybe we can come back to this. Another way we are talking about the constitution. This is the fifth amendment. Another way to affected the basic rights of individuals who do not have economic power is the way in which the court interprets statutes, passed by the legislator and signed by the press. It is my view, i will say up front, that weather records grudgingly interpret wishes of the elected representatives, or a generous way interpret them, it obviously has significant impact. One of the things that has arisen in the last ten years, particularly the last two years, is the notion that mentioned by my distinguished colleague, who is a fine lawyer and a competent seat on the bench himself, is his point made that when the cost of government actions outweigh the benefits economically, and i said in my Opening Statement<\/a>, we often consciously make those decisions to reflect public values, societal norms. We say that we know that this costs a lot of money to do this. We are not going to put a value on human life. We are not going to put 1 value on a strongly felt societal value. Several years ago, the Environmental Protection<\/a> agency decided to phase out the use of asbestos because it posed many health risks, including the health risk of cancer. A federal Appeals Court<\/a> reeve first the epa ban on asbestos in a case that you discussed in your most recent book. The court decided that the statue under which the epa acted was not possibly intended to allow epa asbestos ban, because the ban cost so much money for every human life it might save. My question, judge, 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. I wrote really to opposite things about it. Absolutely opposite. The first thing i wrote about it was, what was in the mind of the court. I thought what was in the mind of the court if they found an example they thought the epa was imposing and banned that cost about a quarter of a billion dollars. It would save hardly anybody. But it would save somebody. It yes, the number of people it was kind of an absurd example. Number of die of eating toothpicks or Something Like<\/a> that. That is the first way that i used in the book. Something that shows there are epa regulations which indeed seemed 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 provides an example of what you are suggesting. That it isnt a very good idea for courts to get involved in making that decision. That is more indecision for congress to make. When i said when i discussed the case the second time is look how the judges, even if they have an example of what they think is absolutely wrong, but they have to do. They have to say that there is a rule of law that prevents that. The rule of law that they enunciated in the case was a rule of law that said agencies have to look at all of the alternatives, or many of them, before they do anything. If you take that rule of law seriously, how can agencies have the time to do all that kind of thing . A friend of mine says, bingo. That exchange you just saw was from 1994, then nominee Stephen Breyers<\/a> confirmation hearing in the senate. You are watching American History<\/a> tv. We are revisiting exchanges between then senator joe biden, who served four years on the Judiciary Committee<\/a> and various Supreme Court<\/a> nominees. Up next, 1991, judge clarence thompsons nomination hearing. It was in the fall of 1991 that sexual allegation hearings circulated against him. That is what dominated the headlines in the hearing. Prior to that, senator biden had judge judge thomas about his judicial philosophy. Here is part of that debate. The hearing will come to order good morning judge. Welcome, welcome to the blinding lights. It is a pleasure to have you here. Let me begin also by indicating that the morning is going to be painless, judge. Or maybe the most painful part of the whole process. You are going to hear from all of the committee, who have an Opening Statement<\/a>. Then half a dozen senators are going to introduce you. Hell hear from about 20 senators before you get to speak. It could be the most painful part of the process. Let me begin today. Judge, on a slightly more serious no, this committee begins its sixth set of Supreme Court<\/a> confirmation hearings held in the last five years. A rate of change that is unequaled in recent times. If you are confirmed, judge thomas, you will come to the Supreme Court<\/a> in the midst of this vast change. In four years, justices powell, brennan, and marshall will have been replaced by justices kennedy, souter, and thomas. Because of these changes, many of the most basic principles of constitutional interpretation, the meaning that the Supreme Court<\/a> applies to the warrant of the constitution, are being debated in this country in a way that hasnt happened in a long time. In a manner unlike anything seen since the new deal. In this time of change, fundamental Constitutional Rights<\/a> which have been protected by the Supreme Court<\/a> for decades of being called into question. In this time of change, the Supreme Court<\/a>s self restrain, from interference and fundamental social decisions about the regulation of health care, the environment, and the economy are also being called into question. Judge thomas, you come before this committee in this time of change with a philosophy differing from that which we have seen from any Supreme Court<\/a> nominee in the 19 years i have been in the senate. As has been widely discussed and debated in the press, you are an and here into 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. In my view, your most significant obligation to this committee. It is particularly true because of the period of vast change where 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 off thinking which have in fact been adopted by the Supreme Court<\/a> of the United States<\/a> in the past. Which are being discussed and debated by constitutional scholars today. The first of these use sees natural law as a moral code. A set of rules saying what is right in what is wrong a set of rules and moral codes which disappearing course should impose upon the country. In this view personal freedom to make more choices about how we live our own lives should be replaced by morality imposed and the conduct of our private and family lived by the court the Supreme Court<\/a> as you know judge actually took such a process in the patch. Holden in 1873 for example that woman could not become lawyers because it was not in the courts phrase, in their nature. No one wants to go back to 1873. No one wants to go back that far today. But there are natural Law Advocates<\/a> who acts stole the 20th century version of this philosophy. They believe it is the job of the courts to judge the morality of all of our activities. Whether they occur wherever they occur paying no respect to the privacy of our homes and our bedrooms. They believe the court should for been any activity contrary to their view of morality, and their view of natural law. Those who subscribe to this moral code 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 on what is, and what is not a family. They want to make the government or, if the legislation does not do it, by judges applying their values and norms. Needless to say, judge thomas this sort of natural law philosophy is one i believe this nation cannot accept. It is not the only radical law philosophy that is being debated as we sit here today it is being debated in the law schools in among the philosophers of this country. There is another group that wants to reinvigorate another period of the Supreme Court<\/a> passed. When the court use natural law to strike down a whole series of natural actions making those natural law ruling struck down such laws as the child labor laws minimum wage laws and laws that require safe working conditions they held the natural law freedom of contract, and the natural law right to property created rights for businesses and corporations that rose above the efforts of the government to prevent the ills that 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. Again known to propose going all the way back to this lochner area but there are those who wish to employ the same reasoning that was used in that era. Today natural law proponents, but they term new economic rights and new Property Rights<\/a> have called into question many of the most important laws enacted during this century. Laws protecting the environment, our water and our air. Laws regulating childcare and Senior Citizen<\/a> facilities. Even called into question the constitutionality of the Social Security<\/a> system. George thomas, you have made it abundantly clear that you do not subscribe to the most extreme of these views. You have said that you find some of these views, to quote you, attractive. You support the idea, quote, of an activist Supreme Court<\/a> that would strike down laws regulating economic rights, and quote. Again, this is a version of natural law a vision of natural law that we have moved far beyond. Most americans have no desire to return to. There is a third type of natural law, judge, one that mirrors how the Supreme Court<\/a> has understood our constitution for the bulk of the century. It is the one i believe most americans subscribe to. It is this view of natural law that i believe i personally believe, if im upfront about it, that i think is appropriate. In this view of natural law, the constitution should protect personal rights falling within the zone of privacy, speech, and religion most zealously. Those rights that fall within the zone should be most endlessly protected these personal freedoms should not be restricted by moral code, imposed on us by the Supreme Court<\/a> or by unjust laws passed in under legislative bodies. Indeed, the Supreme Court<\/a> 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 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, while recognizing that natural law in our constitution protects these rights, the same court has also recognized that government must act to prevent from many of the dangers of modern life. The government should stop polluters from polluting, stop businesses from creating unsafe working conditions, and so on. Yes, these government actions to limit freedom. They do limit freedom. They limit the freedom to contract. They limit the freedom to use ones property exactly as they wish. They limit the freedom to pollute. They limit freedom. Or, as we saw and North Carolina<\/a> recently, they limit the freedom of a factory worker to lock its employees into the building, where 25 of them perished in a fire. This limitation on property, recognized as constitutional by the court. Is a balanced liberty that we have come to expect our government to provide. This is the balance in my view that the framers of our constitution enshrines in that great document. They wanted to use their words, an energetic government. They also wanted a government to protect the fundamental personal freedoms. Today, we are chief that builds by having the Supreme Court<\/a> extend a great protection to personal freedoms while declining to block the laws that reasonably regulate our economy, our society, our property. Adapting an actual of philosophy that upsets that balance, either by lessening the protection given those rights given the rights of family, personal, speech and religion. Or adopting natural of philosophy that lessens a power of government that lessens the power of government to regulate corporate accesses or lessons the power of government to create institutions like Social Security<\/a>. This, in my view, would be a serious mistake and a sharp departure from where we have been in the last 40 years. Judge thomas, there are signs in your writings and speeches that you accept the present balance. There are also signs that you would apply natural law to affected changes in the balance that 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 a regulatory disputes that it now stays out of. Judge, if this committee is to endorse your confirmation to the senate, we must know in our view and in certainly that none of these radical constitutional departures is what you have in mind when you talk about natural law. Judge, over the course of these hearings, i will 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 area of economic issues. It will take some time to cover this, judge, and some of it better than i, are esoteric. Cover it we will. We will cover it carefully. In closing, judge thomas. I want to return to where i started. This is the importance of your nomination. Some people say that the Supreme Court<\/a> is already conservative. They ask what difference it makes to have an additional conservative on the bench. I think this is the wrong question. I reject the argument. First of all, i do not deny the president the right to appoint a conservative. As a matter of fact, i would be dumbfounded if he did not. I fully expected the Supreme Court<\/a> to be more conservative of body after justice marshals successor is confirmed than before just as marshall can retires. Such an additional move to the right, which i expect, pales in comparison to the radical change in direction that some are urging on the court, under the banner of natural law. It pales in comparison to some of the changes that some of the people who are your strongest supporters have been urging on the philosophical thought and the notion of constitutional interpretation for the past decade. Thus, we are not seeking here to learn, at least i am not seeking to learn, whether you are a conservative. I expect no less. I believe you when you say that you are. Instead, what we must find out, whats sort of natural law of philosophy will you employ as a justice of the Supreme Court<\/a>, for that court is in transition. If you are 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, i never thought i would be sitting here talking about the use of a nominee to the Supreme Court<\/a>. I am. You are six or seven years younger than i. I am 48. How old are you judge . I have aged over the last ten weeks, but i am 43. 43 years old. Because of your youth, judge, you will be the first Supreme Court<\/a> 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 in the 20th century. To acknowledge that fact alone, judge, is to recognize the unique significance of your nomination and the care with which this committee must look at. You are watching American History<\/a> tv. We are looking back at then senator bidens questioning of Supreme Court<\/a> nominees. Mr. Biden served in the u. S. Senate for 36 years. For eight of those years, he was chairman of the senate Judiciary Committee<\/a>, often a Ranking Member<\/a> or a democrat on the committee as well. Up next, we are going to look at his questioning and his exchanges with now chief Justice John Roberts<\/a>. This is from 2005. In this, senator biden repeatedly presses judge roberts to state his issues on might come before the court especially in the right to privacy. We begin with mr. Bidens Opening Statements<\/a> of september 2005. Thank you, mister chairman. Welcome mr. And mrs. Robert. I must note that at the outset i have never heard of or seen a federal judge that was an independent. It is amazing with that tenure does. I dont think you have any worry about catching in your independence. It is never occurred in my memory or in my study. Judge, i want to point out to my friends that it is true, judges did not consent before the senate. There are some good things and bad things that have changed. As you know, there is a genuine intellectual debate going on in our country today about whether the constitution is going to continue to expand the protections to the right of privacy, continue to empower the federal government, to protect the powerless. It is a big debate. All you do is turn on a web state. It is a gigantic debate. It occurred, as you, i, i am my colleagues, dont have not occurred in the last 70 years. Its not just about politics, but the intellectual debate. For 70 years, there has been a consensus, a judge, on our Supreme Court<\/a>, on these issues of privacy and protecting the powerless. This consensus has been fully, fully embraced in my view by the American People<\/a>. There are those who strongly disagree with the consensus, as is their right. They seek to unravel the consensus. Judge, you are on the unenviable position, as we talked about in our office, about being right in the middle of this fundamentally deported a debate. Quite frankly, judge, we need to know on what side of the divide you stand, for whoever replaces Justice Oconnor<\/a>, will play a pivotal role in this debate. For tens of millions of American People<\/a>, this is no academic exercise. For the position you will take in this debate will affect their lives in really personal ways. God willing, for at least three decades. Theres nothing they can do about it after this moment. Judge, i believe in the constitution as our Supreme Court<\/a> first great chief who has been mentioned here today. This is as he said in 1819. I quote, a constitution intended to endure for ages to come and consequently to be adapted to the various crises of un affairs. That is the constitution i believe in. That is the way that i think we should look at the constitution. As part of the constitution and what it envisions, ever increasing protections of dignity for all of its citizens, and the National Government<\/a> empowered to deal with these unanticipated crises. Judge, here in lies in my view, the crux of the International Debate<\/a> on this onset. Whether we will have ever increasing protection for Human Dignity<\/a> and human to liberty or whether these protections will be diminished as suggested by many in their reading of the constitution that says, there are no unenumerated rights. And every step we had to struggle against those who said that the constitution was a frozen in time. Time and time time again we have made the constitution remain relevant and dynamic thanks to my interpretation of the noble phrases purposely placed in our civic a bible, the constitution. 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 unable to show their faces in public, children maimed and killed for no other reason than they were born into the wrong tribe. Once again, when it should be obvious that we need more energetic National Government<\/a> to deal with the challenges of the new millennium, terrorism, spread of weapons of mass destruction, pandemic disease, religious intolerance, once again, our journey of progress is under attack. It is coming from, the right. Judge, how are you . Fine, thank you. To continue or baseball analogy, i would rather be pitching to arthur brand sitting behind you in law and order then you. It is like pushing to ken griffey. I am a little concerned here that i would like you to switch places with thompson. I know he knows as much as you do, i dont know about you. Judge, look, i want to try to cut through some stuff here if i can. I said yesterday that this should not be a game, but got you. We should not be playing a game. Folks have a right to know where you think. You are there for life. They do not get to this is the democratic moment. They do not get a chance to say that i wish i had known that. I wouldve picked up my phone and voted no or vote yes. Whichever. But i would like to do is stick with your analogy a little bit. Everyone has used baseball. Who continue that metaphor, you hit a home run yesterday. I got in the train and people were saying, he likes baseball. Seriously. They can doctors, people on the train, and it is an apt metaphor. You call balls and strikes. You call them as you see. Them it is straightup. As you all know, i like to explore that philosophy a little bit. You get asked the question by senator hatch about what your philosophy is. And the baseball metaphor is used again. As you know, in major league baseball, they have a role. Rule two. It defines the strike zone. It basically says from the shoulders to the knees. The only question about judges is, do they have good eyesight or not . They do not get to change the strike zone. They say thats down around the ankle than that in might be a strike. They dont get to do that. You are in a different position, as a Supreme Court<\/a> justice. As you point out, some places of the constitution to find a strike zone. Two thirds of the senators must vote. You must be an american citizen to the chagrin of arnold schwarzenegger, to be the president of the United States<\/a>. A board in american to be in the United States<\/a>. The strike zone is set out. As you pointed out to a question of senator hatch, you said unreasonable search and seizure. What constitutes a reasonable . As much as i respect your metaphor, it is not very apt. You get to determine the strike zone. What is unreasonable . Your strike zone on reasonable and unreasonable might be very different than another judge and their view about what is reasonable or unreasonable search and seizure. The same thing prevails for a lot of other parts of the constitution. The one that we are all talking about and the one, no matter what we said from right left and centered, is concerned about the liberty clause of the 14th amendment. It does not define it. All of the things that we debate about here, and the court to pay its, that certifies decisions, they are almost all on issues that are noble phrases in the constitutions that the 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 brown right that has been respected. That is a strike zone. I said to chris matthews, lets play baseball. Its a little dangerous play baseball with you, like i said. Really in truly, it seems to me that maybe we can get at this in a different way the explicit reference in the constitution, nothing that he would be suspected of or any other judge, to be doing something about. To say that that is a really bad treaty were gonna make it require 75 votes. You cant do that. Again, as just as marshall said, i quoted him yesterday, he said that the marshall prescription that the constitution endured through the ages. I might add, without having to be amended, 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 the precise rules that i referenced earlier. Sometimes the principles that everyone agrees on our part of the constitution, where your late chief justice mentor called them, quote, postulates. He used the phrase tacit postulates. He said that these tacit postulates are in much ingrained in the fabric of the document as its express provisions. He went on to conclude that the case that chief justice made in this vital point was about states rights, and that language that didnt speak directly to them in the constitution. He said that, he concluded the answer was a rule he was able to infer from the overall constitutional plan. So judge, you are going to infer, you wont be an umpire. Umpires do not get you in for. Every justice has to infer. I want to try to figure out how you infer. I want to figure out how you go about this. Then you get right to it. I want to use the ginsburg rule. Hes quoted, im quoted all the time about ginsburg. Judge, you dont have to answer that question. Im oh point out, i will submit this for the record, he commented specifically on 27 cases. 27 specific cases, i want to speak to a few of them here. Without objection, so ordered. I thank you very much. You already said to the chairman that you agree that there is a right to privacy. You said that the Supreme Court<\/a> found such a right, in part, in the 14th amendment. My question is, do you agree . Not whats 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 the courts especially, and if my reading of the president s current, 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. It is not protected only in procedural terms, it is protected substantially as well. I think every member of the court subscribe to that proposition. If they agree with mowing against sharp, they are subscribing to that proposition to some extent or another. You think there is a liberty right to privacy that extends to women in the constitution . Certainly. In the 14th amendment . Certainly, i do. I was told you would answer that way. Let me suggest to you, also, i am not sure if i asked or one of our colleagues asked Justice Ginsburg<\/a> the question of whether or not it would be a ball or a strike if in fact a stay passed a law, a state passed a law prohibiting abortion. She said, its a foul ball. They cant do that. Let me quote her. She said, in response to former when she was here. When she was up from colorado. She said, quote, abortion prohibition by state controls women and denies them for autonomy and civil equality with men. It would be unconstitutional. What is your view, according to the ginsburg rule . That is an area where i think i should not respond. Why . He said he would abide by the ginsburg rule. Then judge kids berg explain that she thought she was at better liberty to discuss her writings. She had written extensively on that area. That is 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 a distinction without a difference in terms of litigants as you just explained it. Does a better get in fact say that because you joke wrote about it and spoke to it as a judge somehow i am going to be put at a disadvantage because of that judge in the court . Thats a stretch, judge. Just talk to me as a father. Just philosophically, what do you think . Do you think that not what the constitution says, what do you feel . Do you feel personally if you are willing to share that the decision of whether or not to remove a feeding tube after a Family Member<\/a> is no longer capable of making a judgment, they are comatose, to prolong that life should be one that the legislators in dover, delaware, should make. Im not gonna consider issues like that in the context very father or husband or anything like that. Well you did i think, obviously, putting aside any of those considerations, these issues are the most difficult we face. They are profoundly affected by views of individuality, moral views, they are deeply personal views. That is obviously true as a general matter, at the same time the position of a judge is not to incorporate his or her personal views of deciding issues in this sort. With all due respect, look, its kind of interesting. This kabuki dance we have in these hearings. As if the public doesnt have a right to know what you think about fundamental issues facing them . There is no more possibility that anyone of us here would be elected to the end state Senate Without<\/a> expressing, broadly, sometime specifically to our public what it is we believe. The idea that the founder sat there and said, now look here where were gonna do, we are going to require the two elected branches to answer questions to the public, but now presumption they should have the job of senator, president , or congressman. Guess what, we will have a third coequal branch of government, gets to be there for life, never to be able to asked a question they dont want to answer, in a way . He doesnt have to tell us anything. Its okay, as long as he had, as you are, a decent, bright, honorable man. Thats all we need to know. You are watching American History<\/a> tv. We are looking back at than senator joe bidens exchanges with Supreme Court<\/a> nominees over the years. Senator biden served for eight years as chair of the senate Judiciary Committee<\/a>, 30 years in the senate, altogether and several years at the top democrat on the committee. So far, we have seen his exchanges with Stephen Breyer<\/a> in 1994, Clarence Thomas<\/a> in 1991, and now chief Justice John Roberts<\/a> nomination hearing in 2005. Next up, he will see the exchange between then senator biden and ruth bader ginsburg, who replaced retiring Justice Byron<\/a> white. It was in july, 1993 when president clinton went to capitol hill. Senator biden wants to know how she would interpret the constitution. As a side note, sitting behind senator biden you will see elaine kagan, she worked with the senate Judiciary Committee<\/a> during this nomination hearing. Later of course joined the court herself. Here is 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, riding down the train this morning i have my usual stack of newspapers. I will not name them all for fear of getting in trouble. One that i had beyond the wilmington news journal, the most important paper in america, was the new york times. I looked at page one, there was no comment about this hearing. I look to page two, there was no comment page three, i literally thought i picked up yesterdays addition. And then as they say, my heart sank when i realized it was a page eight, ten, or 12. It was the most wonderful thing that has happened to me since i have been chairman of the committee. A major hearing warranted eighth, ninth, or tenth page. Thus far it has generated so little controversy. You are welcome. In a more serious note, today the u. S. Judiciary Committee Welcomes<\/a> judge ruth bader ginsburg. The president s nominee to be associate justice of the United States<\/a> Supreme Court<\/a>. 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<\/a> Supreme Court<\/a>. The constitution states clearly that the president , quote, shell nominee by and with the advice of the senate, who shall appoint, judges to the Supreme Court<\/a>. Clearly the appointment of the Supreme Court<\/a> justice is not a president ial prerogative. The senate is an equal partner in the process, and has significant obligation is intended to its responsibilities. 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<\/a> justice signals the renewal of a National Debate<\/a> over the meaning of our constitution. A debate i might add which have been going on for over 200 years, without and. It will go on for another 200 years, i suspect. How will the broad principles of the constitution phrases like due process, equal protection, rights retained by people, how will these and other oblique phrases in the constitution be applied to the realities of everyday life . That is the issue which we have been debating and will continue to debate. I would like to begin by asking you how you will go about interpreting our constitution, judge . Judges, as you know better than i do, approach this job in many different ways. These different approaches often lead to very different results. You have made a great many statements about constitutional interpretation as a scholar, and while as a judge, in lectures you dave. Most recently in a top, im lecture you gave earlier this year referred to as the madison lecture. And i am quoting, the fundamental instrument of government is an evolving document, and of quote. You also said he rejected the notion of, quote, the great clauses of the constitution must be confined to the interpretation that the framers would have placed on them. And of quote. I could not agree more. If the meaning of the constitution does not evolve over time, we would not today have many of the individual rights all americans hold most dear. Like the right to choose whomever we wish to marry. There is nothing in the constitution, as you know, give someone a constitutional right who they want to marry. It is not specifically enumerated. Were that not changed in loving versus virginia, there could still be laws on the books that blacks cant marry whites and whites cant marry blacks. Or the right to get a job, whoever you are. Whether you are white or black, male or female. But still, there are hard questions about precisely how the constitution evolves. When the court should recognize a right, not specifically mentioned in the constitution. Specifically contemplated by the authors of that document, at that moment, whether its an amendment or in 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<\/a> constitution is in large part a story of, and i quote, the extension of the Constitutional Rights<\/a> and protections, and of quote. Including to, quote, once excluded groups, and of quote. Judge, can you discuss with me for a moment what allows courts recognizing rights like the right to marry whoever you wish, like the right to be employed or not employed . Based upon without there being extinction between males and females . Like the right that was mentioned here earlier by several of my colleagues in the Opening Statements<\/a>, for women to be included, i forgot the phrase that Eleanor Holmes<\/a> norton used, within the embrace of the 14th amendment, something to that effect . When in fact they were not contemplated to be part of that amendment when it was written . Whats is it that allows the court to recognize such rights, that the drafters of the constitution of specific amendments did not specifically mention or even contemplate at the time that the amendment, in the case of the 14th amendment, or the constitution in the bill of rights were drafted . Its a lodged question. I will do my best to respond. First, i think the credit goes to the founders. When i visited senator thurman he was kind enough to give me a pocket constitution. I think that was sam ervin. Did you give senator ervins pocket constitution . I gave [inaudible] this pocket constitution contains another document. It is our basic rights declaring document. It is the declaration of independence. Do you declaration that created the United States<\/a>. I think that the frame is short changed if we view them as having a limited view of rights. As a judge, you are required to follow Supreme Court<\/a> precedent. You are not able to go off on your own. A subject that will come back to in my second round with you is your view of stare decisis. We both know that in the court youre about to go to, you are not bound by any previous Supreme Court<\/a> ruling. As a judge on the Circuit Court<\/a>, you are honor bound to follow, to the best of your ability, why do you believe to be the consistent ruling, a ruling consistent with what the Supreme Court<\/a> has rolled if it is on all fours or as close as you can approximate it. Now, youre going from you have had three different roles. Advocate, where you were educating, and i know you mean that literally. That is what has to be done. Believe it or not, some of us in the legislator think that we have to do it that way as well, like the violence against womens legislation which i would like to talk to you about from a constitutional perspective where there are laws on the books that are outrageous. They do not relate to equal protection considerations but they start off with promises about women who are keen and wrong. In my home state of delaware, you cannot you can be convicted of first degree rape if you rape a stranger. If you rape someone with whom youve had an acquaintanceship, under the law, you cannot be convicted it could bes first degree, brutal, terrible rape, but it is a seconddegree rape because you are a social companion. If you are a social companion, it is implicit that the womens partially responsible for this. There are still outrageous laws on the books in other areas. The point is, you then moved into being an advocate. From advocate, you moved to being a judge on the Circuit Court<\/a> of appeals. As a judge, you indicated what i said, that the court should move in a measured and restrained way. You also noted that the court in brown versus the board of education, was not timid. It was not fearful. It stepped out in front of society. In another lecture, you found that brown ended race segregation in our society. Perhaps a generation before state legislators in our Southern States<\/a> would have budged on the issue. Again, seeming inconsistency. On one hand, you say the court should wait and not step out too far ahead of society. In the other, you indicated that in brown you acknowledged that you did. You stepped out on an entire generation ahead of society. They stopped and odious practice in brown versus the board. Would i would like to know is, as a Supreme Court<\/a> justice, what will guide you . One of the influences on brown, i think, was that we had just come through a war. This is where people were exterminated on the bases of what other people called race. I do not think that the notion of apartheid in the United States<\/a>, that the court was moving ahead of most of the people. There was resistance, of course. There was massive resistance. Brown itself, even brown did not say, racial segregation, which society has come to recognize in some parts, was coming to recognize. It is going to be ended, root and branch, by one decision. Brown was in 1954. It was not until lobby against virginia in 1967 that the job was over. One of the things that have been raised, the only question that i am aware of that has been raised, not about you personally but about your digital philosophy and the popular press about those who follow, is how does this distinguished jurist distinguish between whats she thinks the court is entitled to do under the constitution and what it thinks it is wise to do what is permitted is not always wise. I will fish for it when i come back. I am trying to get a clear distinction of whether or not you think in the case of brown, where it clearly did step out ahead of, where the nation legislators were. Whether that was appropriate. If it was, what do you mean by it should not get too far ahead of society when you talk about that in the madison lectures . I will give it another try. I think that you not only make a great justice but you are good to be confirmed as a secretary of state. They never answered the questions directly either. You are watching American History<\/a> tv where we are looking back at senator joe bidens question of Supreme Court<\/a> nominees. Up next is samuel alito, president george w. Bush nominated him to replace sandra day oconnor. Welcome, mrs. Alito and family. It is incredible honor to be nominated and associate justice of the Supreme Court<\/a>. And you are to be congratulated. This may be one of the most significant or consequential nominations that the senate will vote on since i have been here in the last three decades. I think that history has delivered you, fortunately or unfortunately, to a moment where Supreme Court<\/a> historians far into the future will look back on this nomination and make a judgment whether, with your nomination and if you are confirmed, whether the prudence of the Supreme Court<\/a> began to change from the consensus that has existed in the last 70 years, or whether you continue on the same path of this next six or seven decades. There are moments right now. Lest we think that it is going through this process. I like the phrase, manu, it that the chairman used. We all act like there is not an elephant in the room. The truth of the matter is there has been significant debate among judicial scholars today, as to whether or not we have gone off on the wrong path with regard to Supreme Court<\/a> decisions. There is a very significant dispute that has existed in 5 to 4 decision that existed in the past decades in a court that is closely divided. This is on the critical central issues of the day. Just to make it clear, i am puzzled by some of the things you said. Im sure you are going to get a chance to tell me what you meant by some of the things you wrote and said. In your job application, you talked about being proud, as you should be, to be proud of your subscription to and a few returned options put forward the national review. You are a proud member of the federalist society, the National Political<\/a> society, and the spectator something as you look to. These are all bright folk. They all have a very decided opinion on the issues of the day. It is very to side. Those organizations i name think that we misread the fifth amendment and have been misreading it for the past three decades. Those same groups argue that there is no right to privacy in the constitution, et cetera. People are not making it up. In a sense, it is not about you. You find yourself in the middle of a most significant National Debate<\/a> in modern constitutional history. Because you have been nominated to replace a woman, in addition, who has been the deciding vote on a significant number of these cases since 1995. There has been 100 and 3 45 decisions. Justice oconnor, 77 of the time, has been the deciding vote. For 70 years there has been a contest among scholars and the American People<\/a> on the reading of the constitution that protects the rights of privacy the, autonomy of individuals, while impairing empowering the less powerful, only recently did it become that state rights are being trumped in a fundamental way. This is reading the tenth and 11th amendment. It is a legitimate debate. Anyone who pretends that how you read the tenth and 11th amendment does not have a fundamental impact on the things we care about is kidding themselves. They are either on informed, or they are kidding themselves. Judge, there is a genuine struggle going on beyond you. It is well beyond congress and america about how to read the constitution. It is also important to note that you are slated to replace the first ever woman nominated to the Supreme Court<\/a>. We can pretend this is not fact, but it is, through no fault on your own we are cutting the women in half on court. This is not your fault. I think it means that we have to take, speaking for myself, a closer look on stances on issues that regarding women. Moreover, Justice Oconnor<\/a> brought critical qualities to the high court that not everyone thinks they are qualities. I think they are. Her pragmatism and her state craft. Not that i have always agreed with what she has said, far from it, but Justice Oconnor<\/a> has been a judge who approached her duties with open minus and with the sensitivity that affects decisions that will be on every day ordinary people. I cannot imagine, notwithstanding many of my colleagues that i have great respect, for belief. I cannot imagine that the founders, when they sat down and brought the document, and got to this point in the closet and said, the American People<\/a> are entitled to know before we make them president , before we make her senator, before we make him congressman, what they believe and the major issues of the day. But judges, Supreme Court<\/a> nominees, as long as they are smart, honest, decent, it really does not matter what they think. We do not have to know. I cannot fathom that that was the intent of the founders. They intended the American People<\/a> to know what their nominees thought. I might add and and with this, we just had to Supreme Court<\/a> justices before caucus. This was just as they were before republican caucus. They ventured opinions and everything. These are things that are going to come before the court. It did not in any way jeopardize their judicial independence. Judge, i really hope that this does not turn out to be a mini wet. I hope it turns out to be conversation. I believe that we, you and i and this committee, owe it to the American People<\/a> in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They are entitled to know what you think. I remind my colleagues, many which are on this committee, they sure wanted to know what harry admires thought about everything. They want to know in greek detail. They were about ready to administer blood tests. No blood test here. No blood test, just a conversation. I hope you will engage in it with us. I am anxious to get a sense of how you are going to approach these big issues. I was in the Conference Room<\/a> when i heard the chairman say, he and i have agreed, nominees tend to answer as many questions as they think they have to in order to get confirmed. I would say that this has been the case with all nominees since judge bork. Theres another truism that has developed. They tend to answer contravention questions and direct to how much they think the public is likely to agree with them. It all goes to a Central Point<\/a> about what is the public entitled to know about what you think, or would anyone thinks, before they go into court. I realize that there is a dynamic tension between your independence as a nominee, would you would be an independent justice in answering questions, and having said, that when we go to an area that i hope you will engage beaten. It goes to executive power. I have had the dubious distinction because of my role on the Judiciary Committee<\/a> and the Foreign Relations<\/a> committee in the last three or four times where forces have been used by a president to be the guy in charge of, at least in my side of the aisle, drafting or negotiating the drafting of the authority use of force, whether it was president clinton. Before that it was president bush. Before that the discussion was back in lebanon with president reagan and so on. It is something ive dealt with a lot. It does not mean that i am right about it but i have thought a lot about it. Now, there is a school of thought that is emerging within the administration that is making, not illegitimate, but a thought our 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. The fellow who is a very bright guy, who is referred to as the architect of the president memorandum on the ability of the president s to conduct military operations against terrorist and the nation supporting them is professor. Sorry, professor you. He has written a book called the powers of war and peace. They make claims that are relatively new. And these are new among the constitutional scholars. This is in his book and he urges the editor, who was at the administration, the president who had the authorities exempt. He says that the framing understood the declarations of war and were obsolete. Given this context, it is clear that it is in congresss power to condemn war. It is not their Constitutional Authority<\/a> over the use of force. He goes on to argue, as you well know this argument, it is not from argument but it is from intelligible man. There is a great debate now. There is internal position of all of this. That is that the president has the authority to go to war, absent. There was a claim made by bush one. Bush one argued that only reason to declare war provision was in the constitution. This was to give the President Authority<\/a> to go to work if they do not want to. That was a claim made. That is a claim made here. 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<\/a> congress. This is absent of him being able to show that there is an immediate threat to the national security. That is a question that i do not think is settled by. The whole issue of the extent of the president s authority 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. I think that there has been a general agreement and cases to uphold the military action in the case of an emergency when there is not time for congress to react. Is that the deciding question . If congress does not have the time to act . The prize cases are red to go as far as to say that in the circumstance, the president can act without congressional approval. The administration argues, and hugh argues, i do not think that the president is required to get legislative authorization for launching military all austerity is. This is a central question. This means that if this interpretation is taken, the president can evade, maybe there is good reason to, to invade syria tomorrow. Or you could invade iran tomorrow without any cost citation with the u. S. Congress. Thats a big deal. Up to now, most of the scholarship here has said no, the president s authority falls in the zone where he needs it for emergency purposes, where he does not have time to consult with congress. You seem to be agreeing with the interpretation of the president , was professor you, that says we have the authority to move from a state of peace to a state of war without any congressional authorization. I hope i do not give you that impression, senator. Maybe you can clarify. I did not mean to say that. I did not read the professors book or anything that here anyone else has written setting up the theory you described. Ive been trying to describe what i understand the authorities to say in this area. I am asking you as a citizen, whether you think as the administration is arguing, for example, it argues that the cases made and i am quoting, the constitution permits the president to violate International Law<\/a> when he is engaged in war. It stated flatly. That is what the memorandum of the Justice Department<\/a> states flatly. The president has the sole authority. He argues that congressman has the authority as well. You can violate International Law<\/a>. He goes on to argue as well as the memorandum argued, this administrations position, which is relevant, says that the president may use the executive chief to use in any power, subject only to the congressional appropriations. That means that the argument that the administration is making is that the only authority that congress has is to cut off funds. Lets say that we do not want the president to invade iran. The administration argues that we could pass a resolution saying, do not invade iran. You have no authority to invade your iran. The president could say, and the next day invade iran. The only recourse would be to cut off appropriations. As you know, there is no way to cut off specific appropriations. If the cut of appropriations to the whole military. It is a totally useless tool for congress in todays world to say that i am 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 the persian gulf. It is important whether or not you think the president does not need the authority of the United States<\/a> congress to wage a war where there is not an eminent threat against the United States<\/a>. That is my question. Senator, if i am confirmed and this comes before me, perhaps a good come on the court of appeals. The first issue would be the political question doctrine that i have described. If we were to get beyond that, what i can tell you is that i have not studied these authorities. It is not my practice to just express my opinion on constitutional question, including, particularly, one that is as momentous as this. You are watching American History<\/a> tv. We are looking back at exchanges between then senator biden and Supreme Court<\/a> nominees. It was in the summer of 1986 that senator joe bidens sparred with Supreme Court<\/a> nominee antonin scalia. Thank you mister chairman. I apologize judge. I was on the floor with a bill regarding a drug problem. Im sorry to not have heard your original statements. I would like to pursue similarities. It will not be done on one ground. Lets start if you will with i have read all the speeches that i can find that you have written. I find a very interesting, and i mean that sincerely, analysis of the newfound, newly enunciated, doctrine of original intent. From your speeches that i have written, i cannot tell, im not being smart when i say this, i cannot tell whether your analysis of your original view on meaning is meant or whether it was done with tongue and cheek. You start off the speech in which you enunciate your doctrine as saying, when i was in law teaching, i was fond of doing what i thought was teaching against the class. Taking positions that students would be able to disagree with to generate discussion if not to provoke a thought. I intend to take a similar lee khan attracted approach. It is no fun to preach to the choir. I beg your pardon . Im trying to fight against that inclination here. Let yourself go. It is pretty boring so far. It may be more interesting. We could get a chance to see who you are a little bit more. I am not suggesting that you are attempting to hide behind the argument that many use, that it may come before the court and i could not discuss it. Everything could come before the court. Theres nothing in American Public<\/a> life that could not come for the public court. If you speak if you place across the board, you cannot speak about anything. We are going to speak to something that is not related to your cases. We are going to look at freedom of speech next. Lets start up with this, if we could. There has been a lot of debate involving several members of the court, as well as attorney general mason, about the socalled original intent doctrine. In a recent speech, the Economic Freedom<\/a> speech, he offered a view on the subject and said that the doctrine will be better understood as that of 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 a constitution. I would be happy to. You want to begin by noting that in that speech i did not advocate the original intent doctrine. I just said that it should be known as the original meaning a doctrine. That is for us to figure out. Let me back up, why dont you tell us how you view interpretation of the constitution. What is it . Do you view it as a living constitution . Do you use it as a term of art . Do you have to look to the original meaning, the original intent . Who are you judge scalia . That is a good question. Im embarrassed to say this. Im 50 years old, a grown of, and i cannot say that i have a fully framed omnibus view of the constitution. There are those who do. They have written pieces on constitutional interpretation. Here is the matrix. Here is how you do it. I think it is fair to say that you would not regard me as someone who would be likely to use their phrase living constitution. On the other hand, im not sure that you could say that he is pure and simply an original meaning. I would be happy to explain the difference between the two. It is not a big difference. It is not worth it. What do you think . I think, the constitution is obviously not meant to be evolveable so easily, so that in a court of nine judges can treat it as though it is. A bring along with me statue. Bring about without her 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. It has served that function value lovely, very often. I would never use the word living, or the phrase, living constitution. There is within that phrase, however, the notion that a certain amount of development of constitutional doctrine has occurred. I think there is room for that. I frankly, the strict original intent is that i think. Even such a clause as cruel unusual punishment clause would have to mean the same thing today as it meant in 1789. It would have to mean the same thing. If lashing was fined then lashing out to be fine. Now im not sure i agree with that. I think that there are some provisions of the constitution that may have a certain amount of evolutionary content within them. I have never been, what should i say, i have not developed a full constitution matrix. You are right in suspecting me of being more inclined to the original meaning than i am to a phrase like, the living constitution. I am not being smart when i say this. I do not suspect you anything, truly. No, i did not mean that. When i read your speech i talked about both the speeches. For the record, with the judge math he essentially has one speech a year that he gives when he is invited to the law schools, other places, as a sitting judge. He does others. He referred to the speech, the speech had been on one relating to the value of congressional input beyond the face of the documents that we passed. Also, this notion of original meaning and original intent. I can read this both ways. I can read your speech in saying you are being the devils advocate, being a provocateur on the one hand, on the other i just hope you dont mean. Im serious by saying that. For example, if you mean, you subscribe to the view that you articulate as original meaning means then i have a real problem voting for a judge he would have that view. But the way you just explain the, it seems as though you are not totally wedded to that view. You lean that way, but i assume crew an unusual you would argue, i assume with the 14th amendment you couldve gotten from plus e to brown, i hope i have always had trouble with lashings, senator. Ive always had trouble thinking that that is constitutional. Now, are you being serious or are you being a wiseguy . Im being serious, no, im being serious okay, i just want to make sure. I have trouble with a number of other interpretations. For example, if i accept there has been much written lately on original intent. Its not where you have been saying, i acknowledge that. I have real trouble with that notion, that doctrine. Let me skip that, i will come back to that a little bit. My time is running out. I want to speak on another section, you talk about, where i think you do have written you have, quote, judged, an issue relating to independent regulatory agencies. Again, i want to make sure i understand the parameters of your interpretation of the role, if any, a regulatory agencies. Lets not be k specific, lets be philosophical for a moment. As i read your writings and your cases, you basically say the following, that the Founding Fathers<\/a> came up with three coequal branches of government. Somewhere in the late 1800s along came congress and came up an independent Regulatory Agency<\/a>. That independent Regulatory Agency<\/a> gave to the head of that Agency Executive<\/a> powers. The congress has repeated that and subsequent years from 1890 through two today. If in fact the head of an independent Regulatory Agency<\/a> it is not serving at the pleasure of the president , that is able to be fired by the president , relieved that caused by the president , then what the congress has attempted to do is unconstitutional. I. E. , they have essentially established a quasiexecutive branch of the government which is a Fourth Branch<\/a> of government out here. As i read your writings you say that is unconstitutional. Is that an accurate reading of your position relating to independent agencies . Senator, i think you were out of the room when i was asked about and an agency before. I would love to talk about independent agencies. It has been an area writing an interest of mine. My writings will have to speak for themselves. I do have a real special problem with regarding this topic. It is not just that the case will come before the Supreme Court<\/a>, if i am confirmed, but it i have a case before my present court mounting precisely the constitutional challenge that you have just described. Currently before the court from which i sit. I really think i should not be discussing the chairman rules, i will not follow up. I i will not rule if you are not going to ask him. Could i say this the, senator, which speaks not to the constitutionality of it all but the fact that it there may be less to it than meets the eye. I have found that there is not much difference, if indeed there is any difference, in modern times, between the independent agencies in the proper science and other executive agencies. Indeed, many people do not know which is which. The food and drug administration, for example, i do not know that there are many people most people think it is and independent agency. It is not independent. It is in an executive agency. It is less influential than one of the independent agencies. Lets talk about it that way. If you take a look at the fed, it seems to me that the rationale for the fed being an independent agency is equally as strong today as it was when it was set in place. I cannot imagine the chaos that would be caused in the International Monetary<\/a> market if tomorrow the president of the United States<\/a> had the power to relieve at will, you may not respond to this but relieve at will of the head of the fed. Everybody knows that every president , democrat or republican, in times of economic difficulty tries very hard to speed up the money supply, about eight months before an election. I mean, that is a fact a political life. Were i president , perish the thought, i might even think that myself. Were senator hatch president he might think of the, Everybody Knows<\/a> that Everybody Knows<\/a> that is precisely where president s have attempted to do it would do. If in fact the chairman of the board, of the Federal Reserve<\/a> system were to operate at the will of the executive i truly believe we would have economic chaos worldwide. Not just nationwide. The fact of the matter is, the Hoover Commission<\/a> noted in 1949 that all means of insulating regulation from partisan influence and favoritism. There is great concern about that. I will try another tactic. I have to think of an imaginative way to get you to talk about this critical issue, without being overruled by the chairman. Let me move on over to another subject. Freedom of speech, something near and dear to the chairman tar. Im only kidding mister chairman. Later that big smile. Let me ask you, is the First Amendment<\/a> of the constitution states, congress will make no laws bridging the freedom of speech. How do you define speech, judge . I define speech as any communicative activity. Cannot be nonverbal . Yes. Can be nonverbal and also non written . Yes. So freedom of speech can encompass physical action . Yes, sir. Good. That is a relief. Im not being smart, i read your case, but i viewed as youre dissent in the what case, i wondered whether or not. Yes, you want to talk. I would like you to amplify it, if you would. What was a case in which what was at issue as sleeping as a communicative activity. I did not say in the separate opinion that i wrote on that case, that opinion was a descent from the decision of our court. That dissent was vindicated by the Supreme Court<\/a> as far as the outcome was concerned. Not the rationale, what i said was that for purposes of the heightened protection that are accorded sleeping could not be speech. That is to say, i didnt say that one could prohibit sleeping merely for the purpose of eliminating a communicative aspect of sleeping, if there is any. It was alleged that it was in this case. People wanted to sleep in the National Park<\/a> across in the white house in order to demonstrate that they were homeless. It was alleged that the sleeping with a communicative activity. I did not say that the government could seek to prohibit that communication. Without running afoul of the heightened standards of the First Amendment<\/a>. If they passed a law that allowed all other sleeping but only prohibits sleeping where it is intended to be communicative. But i intended to say was, if you have a general law that just applies to an activity which in excel fat is not normally communicative, sleeping, spitting, whatever you like. Clenching your fist for example. Such a law would not be subject to the heightened standards of the First Amendment<\/a>. That is to say, if there is ordinary justification for its fine. It doesnt have to meet the high need, no other available alternative requirements of the First Amendment<\/a>. Whereas, when you are dealing with communicative activity, naturally communicative activity. Writing, speech, so force, any law even if it is general, across the board, it have to meet those higher standards. But if you walk in and sit down in a place where you are not, to protest an action that is being taken in that place, does that require the heightened justification . Can that fall within the same category as the spoken word . I would think that the law, no, i cannot imagine you are entitled to it would allow you to disobey any law that does not have the very serious governmental purpose, just for the purpose of showing your contempt for that law. For example, the best way to communicate your contempt for law against spitting industry is to spit in the street. How better to show your can temper that law, except by disobeying it . When we be more specific. Take a physical action like sitting down to protest a law that has nothing to do with preventing people from sitting . And have to do with, whether or not black folks can be served in a restaurant . They say, no you cant. He set out there on the sidewalk. Clearly, the physical action being taken is not being taken to demonstrate that the law against sitting down is in fact wrong. It is being taken to demonstrate another law, unrelated to the physical action is incorrect, does that situation require heightened standard . I think not, senator, it seems to me it happens all the time. People protest in front of some embassies, those laws are not subjected to heightened scrutiny. I dont believe, a or just laws that say you cannot be at a certain location. If you want to protest, as a means of civil disobedience, take the penalty that is fine. If the law is not itself directed against demonstrations or communication, i dont think it is the kind of law that in and out itself requires the heightened scrutiny. That was the only point out that is very helpful to me. Im not being smart when i say that. That puts my mind at ease. Listen, i may be talked out of that. Im just explaining to you what i was saying. No, known dont let them talk you out of. It now that President Biden<\/a> has nominated his own Supreme Court<\/a> justice, here on American Court<\/a> tv we are looking back and looking at how senator biden questioned Supreme Court<\/a> nominees throughout the years. Well, one nominee that he did question who did not make it on to the court, robert bork. The senate rejected mr. Bork 58 to 32. His hearing was in september of 1987. Up next on American History<\/a> tv we are going to show you senator bidens Opening Statement<\/a> in that hearing, and a little bit of his questioning of judge bork. Judge, welcome back. The committee will come to order. Judge, i think quite frankly it might accommodate our brethren between us here if we went slightly out of order here. I will ask you to be sworn in now before i get my statement. After your sworn in, i will give the statement. Judge, do you swear to give, at this hearing, response to questions with the truth, the whole truth, and nothing but the truth, so help you god . I do mister chairman. Duly sworn in. Now with just to show you right hand worked. Judge bork, i would like to make an Opening Statement<\/a>, if i may. I would like to ask permission to ask the staff to settle down behind me here. I would like to welcome you back this afternoon, personally welcome you to the senate Judiciary Committee<\/a> you heard much today, and we all heard the a great deal about the bicentennial constitution. All we all know that the convention in philadelphia was only one very important chapter in history of our people in our unique form of government. Until this hour. The heart of the controversy over the constitution has been a piece of question that has been certain to animate the debate that may commence in this committee. That is a debate between the tensions between the rights of individual, and the will of the majority. As james madison, the father of the constitution said, and i quote, the great object of the constitution is to secure the public good and private right against the danger of the majority factor. At the same time, to preserve the spirit in the form of popular government, and of quote. Judge, the seasons have turned two centuries. The document we now celebrate, the worlds longest and oldest living constitution for the past 200 years, its something that will formally be celebrated tomorrow. For 200 years, each generation of americans has been called to nurture, defend it, define it, and apply it. Our late colleague from North Carolina<\/a> was fond of reminding all of us and quoting an eloquent educator about the ties between the magna cartel, the english petition of rights, the declaration of independence, and the United States<\/a> constitution. The cold he used to always use was this, these are great documents of history. Cut them, and they will bleed. They will bleed with the blood of those who fashion them and those who nurtured them through this succeeding generations. Each generation in some sense has had as much to do to alter our constitution as the 39 men who fixed their such literatures to it years ago. Two years after its signing, following a bitter National Debate<\/a> over stratification, at the insistence of the people, the constitution was pro founded and no bold by the addition of what would be known as the bill of rights. Before 100 years would transpire, a civil war erupted over the meeting of that constitution and the socalled bill of rights. A civil war, which would answer lincolns question, whether any nation so conceded and so could ever endure. With this civil war, it would emerge the civil war amendments which would settle forever these truth that all men are created equal. It gave definition to those civil war amendments to what many thought were meant in the first instance. But for another hundred years would pass, our own century would be distinguished by hotly contested struggles, to assimilate into the fabric of the constitution equal protection for blacks, minorities, and women. As surely as those waging the civil war, those who waged to struggle for civil rights. It infuse the constitution with their own vision. The story of these struggles at its heart in my view, is a story of what makes america and her people the envy of the world. In each of these troubles which i made reference to, each of these struggles, each of these times, when the individual faced a government, the individual one. This was his or her rights. They are always expanding his or her rights. We are always expanding. America is the promised land. Each generation gives to their children a promise, a promise that they might not come to enjoy but which they fully expect their offspring to fulfill. To the words that all men are created equal, it took a life of their own. They are all destined to end slavery and franchise women. In the words equal protection and due process, they inevitably and to the words separate but equal. Ensuring that the walls of segregation would crumble, whether at the lunch counter or in the voting booth. So fateful to that tradition, in the summer of our bicentennial, the constitution must become more than an object the celebration. It is to become once again the center of a critical National Debate<\/a> over what it is, what it must become, and how it will be applied in a world that neither of you, nor, i can envision at this moment. A world of Bio Technical<\/a> 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 be put in a different context and in conflict. Let me begin. I want to begin to try to understand better and lay out your record in this round of question that i have. I want to talk about what you have said, well you believe about the role of the courts and what the role is in society. As you said, what is your philosophy. Judge bork im sure that one question to be raised in these hearings is to whether or not you will vote to overturn Supreme Court<\/a> decisions, which is obviously your right as a Supreme Court<\/a> justice if you are confirmed. In 1981, in testimony before the congress, you said, quote, there are dozens of cases, and quote, for the Supreme Court<\/a> made a wrong decision. This january, there are remarks at the federal society. You implied that you would have no problem to overrule decisions based on a philosophy or a rationale that she rejected. In 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 quote, yes i can, but i wont. Would you be willing to this committee to identify the dozens of cases that you think should be reconsidered . I think it would be easier. I have criticize some. Let me say this, i am a judge and i am acutely aware that minus already, unlike yours, arises only if i can explain why would i am doing is rooted in the constitution or in a statue. The cases i criticize, and i have criticized a lot of my time, but the then law is an intellectual enterprise. It grows from argument back and forth and criticism. Im not criticizing your right to criticize. I criticize these cases on the based of reasoning, or the lack of reasoning that the courts offered. Lets take another case. Lets take the griswold case. , while you are living in connecticut, that state had a law that made and we know this but for the record, it made it a crime for anyone, even a married couple, to use Birth Control<\/a>. You indicated that you thought this law was not easy. This is to use your words. Nevertheless, connecticut, under this not a law, prosecutor and convicted a doctor. The case finally reached the Supreme Court<\/a>. The court said that the law violated a married couples constitutional right to privacy. You criticize this opinion in numerous articles and speeches beginning in 1971 and as recently as july 26th of this year. In your 1971 article, newton principles and First Amendment<\/a> problems, you said that the right of married couples to have sexual relations without fear of unwanted children, is no more worthy of constitution to protection of the courts then the right of a Public Utilities<\/a> to be free of pollution control laws. You argued that the Utility Companies<\/a> right or gratification, as you referred to it, to make money and the married couples right to make gratification of sexual relations with that unwanted children, were quote, cases that are identical. It appears to me that you are saying that the government has as much right to control a married couples decision about choosing to have a child or not, as the government has the right to control the Public Utilities<\/a> right to pollute the air. Am i misstating irrational . With all due respect, i think you are. I was making the point that where the constitution does not speak, there is no provision in the constitution that applies to the case. Then a judge may not, say i place a higher value over and marriage relationship over a economic one. Only if the constitution gives reasoning. I said it that once the judge begins to say that economic rights are more important bars will write and vice versa, if theres nothing in the constitution, then the judge is enforcing his own moral values. I have a chapter to this. Judge, my time is about up. With regard to the griswold case, you are quoted in 1985 as a judge, not on the court, but speaking as while you are on the court, you said there is not a supported method underlying the graceful decision. Obviously, you thought about it. At that point, you concluded that you could now find one. It seems to me, judge, and i have many more cases that i would like to talk to you about and i appreciate you engaging in this dialogue, that when you say that a state can impact upon Marital Relations<\/a> and cant impact upon other relations, it seems to me that there are basic rights that they cannot touch. When you seem to be saying to me is that a state legislature can theoretically pass a law sterilizing. It is not an automatic. It is not basic. If any state legislature in the country asked council for the legislator to pass a law sterilizing, i expect the immediate look reaction would be no you cannot do that politically or constitutionally. If any legislative body said, can we decide on whether or not someone can or cannot use contraceptives, not on a reasonable basis, i imagine that all counselors would say no flatly. You cannot get into that area. It seems that you are not saying that. You are saying that it is possible looking. Happen in griswold, you are saying that there is no principle upon which they can reach the result, not the rational, but the result. I was thinking about the principle underlying now one. Let me stop you there, judge. I want to understand. The principal underlying that one is the basic right to privacy, right . From that flows all of these other cases all the way down to friends, which you spoke to. It goes all the way to roe v. Wade. They all are premised upon that basic principle that you cannot find. Im not saying you are wrong. I want to make sure that you i understand what you are saying. All these cases dont follow. They use the right to privacy in some cases. We are not clear why it is a right to privacy. I should not say that i think not only do justice is black and store not find it, but there was other authorities that were criticizing the case. Professor philippe has also referred to griswold against connecticut as a blatant user patient. The majority did find, did not . Yes, but im telling you senator, a lot of people have thought that the reasoning of that case was just not reasoning. My time is up, judge. I want to make it clear. Im not suggesting that there is anything extreme about your reasoning. Im not suggesting that is conservative or liberal. I just want to make sure that i understand it. As i understand what you said in the last 30 minutes, that a state legislative body, a government, can if its so chose to pass a law saying that married couples cannot use a Birth Control<\/a> devices. Mister chairman, i have not said that. I do not want to say. That what im saying to you is, if that law is to be struck down, it will have to be done under better constitutional argumentation than it was present in griswold and that opinion. Youve been watching American History<\/a> tv and our look back at then senator bidens question of Supreme Court<\/a> nominees. President biden, of course, has nominated his own Supreme Court<\/a> justice and the nomination hearings will be in the senate of all live on cspan platforms","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia801504.us.archive.org\/9\/items\/CSPAN3_20220802_220200_Former_Senator_Joe_Biden__Supreme_Court_Nominees\/CSPAN3_20220802_220200_Former_Senator_Joe_Biden__Supreme_Court_Nominees.thumbs\/CSPAN3_20220802_220200_Former_Senator_Joe_Biden__Supreme_Court_Nominees_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240619T12:35:10+00:00"}