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 nation's 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 society's 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 so-called taking? what was the law, as you understand it, prior to dole and and lucas? >> what's 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 cfc's 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 cc's. 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 cfc's. the taxpayers, the public, the senators, me until recently, do not fully appreciate the phenomenal economic consequence of taking a reading of the taken's 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 people's 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. we're 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? in mind in the statute. you can't 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 isn't 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 breyer's 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 thompson's 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. he'll 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 hasn't 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 court'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 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 individual's choice over procreation to the very private decision we now make on what is and what is not a family they want to see the government make these choices for us by applying quote unquote their values in norms or if the legislature doesn't do it, have 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 that the natural law freedom of contract in 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 the so-called 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 supreme court 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 has understood our constitution for the bulk of the century. it is the one that i believe most americans subscribe to. it is this view of natural law that i believe i personally believe, if i'm 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 or by unjust laws passed in under legislative bodies. indeed, the supreme court has protected these freedoms by striking down laws that would prohibit married couples from using contraception deny the right of people to marry whomever they wish, or laws that tell parents 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 one's property exactly as they wish. they limit the freedom to pollute. they limit freedom. or, as we saw and north carolina 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 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 b