Justice Ruth Bader Ginsburg Confirmation Hearing Transcript 1993

Part 1

Joe Biden: (00:06)
Order, please,

Joe Biden: (00:13)
Judge Ginsburg, welcome.

Ruth Bader Ginsburg: (00:17)
Thank you.

Joe Biden: (00:18)
Believe me, you are welcome here this morning. As I said to you a few moments ago, riding down on the train this morning, I have my usual stack of newspapers. I will not name them all for fear of getting in trouble, but one that I had beyond the Wilmington News Journal, which is the most important paper in America, was the New York Times. And I looked at page one, there was no comment about this hearing. I looked at page two and there was no comment. Page three. I literally thought I picked up yesterday’s edition. Then as they say, my heart sang, when I realized it was page eight or 10 or 12, which was the most wonderful thing that has happened to me since I’ve been chairman of this committee. That a major hearing warranted eighth or ninth or 10th page, because thus far it has generated so little controversy. So you are welcome.

Joe Biden: (01:20)
But the real purpose of today’s hearing is to welcome back Arlen Specter. Arlen, welcome. It’s so good to have you back. It really is. I’m one of the few people that can understand why he’s wearing that hat. When I had a similar operation, Senator, former President Reagan wrote me a letter saying, “Dear Joe,” and he had had the operation, he had had on his skull somewhat earlier. He said, “Dear Joe, welcome to the cracked head club.” Well, welcome Arlen. I hope you were well, welcome back.

Arlen Specter: (02:01)
[crosstalk 00:02:01] appreciate that Mr. Chairman. I thought being a Senator, I’d been a member of that club for some time.

Joe Biden: (02:09)
You have been a member of a different… I won’t characterize what the club was. welcome back.

Arlen Specter: (02:13)
Thank you very much. Thank you.

Joe Biden: (02:15)
On a more serious note, today, the Senate judiciary committee welcomed Judge Ruth Bader Ginsburg, the president’s nominee to be associate justice of the United States Supreme Court. This is a very familiar setting for us. Since I became chairman of this committee seven years ago, we have now convened hearings on six nominees for the United States Supreme Court.

Joe Biden: (02:40)
The Constitution states clearly that the president quote, “Shall nominate by and with the advice and consent of the Senate shall appoint judges to the Supreme Court.” Clearly the appointment of a Supreme Court justice is not a presidential prerogative. The Senate is an equal partner in the process and has significant obligations attendant 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 justice signals the renewal of a national debate over the meaning of our Constitution. A debate, I might add, that has been going on for over 200 years without end. And it will go on for another 200 years, I suspect. How will the broad principles embodied in the Constitution, phrases like due process, equal protection, rights retained by the people, how will these and other ennobling phrases in the Constitution be applied to the realities of everyday life? That is the issue which we’ve been debating and will continue to debate.

Joe Biden: (03:54)
Profound questions with practical implications have and will continue to confront us. As the judge only knows too well, questions such as does the religious freedom mean that Jewish American soldiers cannot wear a yarmulke while on duty, despite army prohibition, which obviously they can now with certainty. Does liberty mean that each of us can decide without the government deciding for us who we shall marry, whether we shall marry, where we will live or whether to have children or choose not to have children? Does the right to own property means that the government may not without compensation prohibit a property owner from polluting a stream that flows through his or her land? These and hundreds of other thorny issues have no easy answers. There are not even any right answers in the usual sense of that word, but there are valid and varied constitutional approaches to answering them, applied over the last 200 years by justices on the court.

Joe Biden: (04:59)
The constitutional answer to such questions flow from the interpretive method judges apply to cases that come before them. Over more than two centuries in which our constitutional democracy has endured, our understanding of individual freedom has expanded. This trend is not new. The expansion of notions of liberty and equality began with the birth of this republic. Our understanding of the Constitution has not been static, rather it has flowed consistently in the direction of broadening the freedom that Americans have as individuals. The document has remained as it’s writers intended in my view, a flexible and dynamic instrument. Throughout our history, each evolutionary change, though, has brought controversy. Each expansion of individual liberty has ignited resistance from those who prefer the status quo, but in every instance, moving ahead on liberty has proved to be the right thing to do.

Joe Biden: (06:02)
Removing the barriers of race to full equality generated enough conflict in the 19th century to fuel a bitter and bloody civil war, and resistance has been carried on into our own time. But today it is generally acknowledged even where it was once most resisted that reducing the barriers of race has strengthened American society. The granting of more, and equal rights under the Constitution to women, a change that owes much to the lawyer who is our nominee today has been similarly controversial. But today with that process not yet complete, most Americans agree that it has been a change for the better in the life of this society. The Voting Rights Act, which has extended the practical right to vote to millions of formerly disenfranchised Americans was and remains a source of controversy even on the Supreme Court itself. But today there are hundreds of minority women and men holding public office were formerly there were few, even in areas where majority voters dominate the rolls, the entire process bringing us closer to the constitutional goal of representative government.

Joe Biden: (07:19)
The controversies that flows inevitably from change has found its way into these hearings in the past, into the confirmation process in the past decade and a half. But it does not alter in any sense what we plan on doing here today. Our task today as an all Supreme Court confirmation hearings, is to consider the character and qualities and the judicial philosophy of Ruth Bader Ginsburg. Judge Ginsburg came before the committee with her place already secured in history. In the 1970s, Judge, you argued a series of landmark cases that changed the way our laws could distinguish legally between women and men, and you significantly narrowed the circumstances under which they could, better for all Americans. You’ve already helped to change the meaning of equality in our nation.

Joe Biden: (08:12)
Now, as you face a new opportunity to help shape the future of America, we welcome you and we invite you, and I personally invite you, Judge, to share with us and the American people, your vision of the shape of the future of America. I yield now to my colleague, Senator Hatch, the ranking member, who I would also like to publicly thank for expediting this process. As all my colleagues know, if any of the members in this committee concluded and particularly the ranking member concluded that it was not appropriate to move as rapidly as we have under the Senate rules, that could easily be done. It could be slowed. The Senator has been totally and completely cooperative from the outset. He’s been a man of his word in suggesting that he would move where there was no controversy from his perspective, he would move judiciously, warning me that there may be future occasions when he might not be ready to be so cooperative. But I thank him for his cooperation, and I appreciate it very much.

Orrin Hatch: (09:12)
Well, thank you, Senator Biden for your kind words and welcome, Judge Ginsburg, to the committee. We’re very happy and pleased to have you here and to finally have these proceedings start. I want to personally pay tribute to my colleague, Senator Specter. We’re happy to have him back and happy to have him in such good health and good condition. So I do think he could have gotten a little better Pennsylvania hat than that one, myself. I wish you’d fold the brim a little bit, Arlen, at least curve the brim, Arlen.

Well, I want to congratulate you, Judge Ginsburg, for this wonderful opportunity to be Associate Justice of the Supreme Court. You’ve had a distinguished career in the law. You’ve been a law professor and pioneering advocate for equal rights for women. For over 13 years, you’ve served as a thoughtful member of the Court of Appeals for the District of Columbia Circuit. You have been nominated to replace a really fine member of the court, a distinguished public servant and patriot, Justice Byron White, a person I’ve had a personal, a strong friendship and relationship with, who I think is a great justice, and I pay him tribute and wish him well as he enters into a well-deserved retirement.

Judge Ginsburg’s ability, character, intellect, and temperament to serve on the Supreme Court or not in my mind in question, I don’t have any doubts at all about that. I’ve been favorably impressed with judge Ginsburg for some time. The Supreme Court justice, in my view, however, must meet an additional qualification. He or she must understand the role of the judiciary, including the Supreme Court in our system of government. Under our system, a Supreme Court justice should interpret the law and not legislate his or her own policy preferences from the bench. The role of the judicial branch is to enforce the provisions of the Constitution and the laws we enact in Congress as their meaning was originally intended by the framers. Any other philosophy of judging requires unelected federal judges to impose their own personal views on the American people in the guise of construing the Constitution and federal statutes. There is no way around this conclusion. Such an approach is judicial activism, plain and simple, and it is wrong. Whether it comes from the political left or whether it comes from the political right.

Let there be no mistake, the Constitution in its original meaning can be readily applied to changing circumstances. That telephones did not exist in 1791, for example, does not mean that the fourth Amendment’s ban on unreasonable searches isn’t inapplicable to a person’s use of the telephone. But while circumstances may change, the meaning, the principle of the text, which applies to those new circumstances does not change. Reasonable jurists can sometimes disagree over what a particular constitutional or statutory provision was intended to mean, and over how meaning is properly applied to a given set of facts. But if the judicial branch is not governed by a jurisprudence of original meaning, the judiciary, usurps the role the Constitution reserves to the people through their elected representatives. When judges depart from those principles of construction, they elevate themselves not only over the executive and legislative branches, but over the Constitution itself, and of course over the American people.

These judicial activists, whether of the left or right undemocratically exercise the power of governance that the constitution commits to the people and their elected representatives, and these judicial activists are limited as Alexander Hamilton shrewdly recognized over 200 years ago, only by their own will, which is no limit at all. As a consequence of judicial activism we witnessed in an earlier era, the invalidation of state social welfare legislation, such as wage and hour laws, since the advent of the Warren court, judicial activism has resulted in the elevation of the rights of criminals and criminal suspects and the concomitant strengthening of the criminal forces against the police forces of our country in the eyes of many, including myself. The twisting of the constitutional and statutory guarantees of equal protection of the law, such that reverse discrimination often results. Prayer being chased out of the schools and the courts creating out of thin air a constitutional right to abortion on demand ,to just cite a few instances, and a few examples. One of the objectives of the judicial activists for the future is the elimination of the death penalty.

The Constitution, as it has been amended through the years and its original meaning, is our proper guide on all of these issues. It places primary responsibility in the people to govern themselves. It provides means of amendment for the agency of the people and their elected representatives, not by a majority of the Supreme Court. And that is why appointing and confirming judges and Supreme Court justices who won’t let their own personal policy preferences sway their judgment is so important. A president is entitled to some deference in a selection of a Supreme Court justice. President Clinton and I are unlikely to agree on the person who ought to be nominated, but so long as the nominee is experienced in the law, intelligent, of good character and temperament and gives clear and convincing evidence of understanding the proper role of the judiciary and our system of government, I can support that nomination and that nominee.

Moreover, I do not expect to agree with any nominee, especially one chosen by a president of the other party on every issue before the judicial branch. The key question is whether the nominee can put aside his or her own policy preferences and interpret the Constitution and the laws in a neutral fashion. Finally, I would point out that I disagree very much with some of Judge Ginsburg’s academic writings and some views she held prior to ascending to the bench in 1980. I believe that Judge Ginsburg’s judicial opinions, however, indicate her understanding that her policy views and earlier role as advocate are distinct from her role as a judge, and I will explore that distinction in these hearings.

It is my hope that Judge Ginsburg will satisfy this committee that she shares the judicial philosophy of applying the original meaning of our Constitution and laws and the cases which come before her on the Supreme Court if she is confirmed. Now, Mr. Chairman, I want to say that I am pleased with this nomination. I am looking forward to these hearings, they are important. This was one of the great constitutional exercises, and I think every Senator here will be asking some very interesting questions. But can I ask for a few minutes more minutes just as a personal privilege?

Joe Biden: (15:25)
Yes.

I want to thank the chairman and I appreciate the indulgence of my colleagues and the nominee. I believe my colleagues will agree with me. The two members of this committee deserve special recognition for their service on this committee and in the Senate. The distinguished Senator from Massachusetts, Senator Kennedy, has been a member of the judiciary committee since February 13, 1963. 30 years, five months, and one week of service. This service included two years as chairman. I did not mean to age the Senator from Massachusetts, but his service on the committee began so long ago, I had to ask the Senate historical office to look it up. Fortunately, they did not have to go back as far as the Jurassic period, although he does tend to dwell in that period from time to time. 19 Supreme Court nominations have occurred during this time. Of course, we all know that Senator Kennedy has continued a long and distinguished family tradition of public service. Many Americans have gotten involved in public service as a result of the example of the Kennedy family.

But I might add for other history buffs that Senator William E. Borah of Idaho during his 31 years on this committee from 1909 to 1940, witnessed 22 Supreme Court nominations, a record which Senator Kennedy is now approaching. The Senator from Massachusetts, however, is a mere youngster. Next to our distinguished colleague, the senior Senator from South Carolina Strom Thurmond, chairman of this committee for six years. I was interested to learn from the Senate historical office that Senator Thurman’s service on the committee began after that of Senator Kennedy on January 16th, 1967. Thus, Senator Thurman has not sat on the committee for as many Supreme Court nominations as Senator Kennedy. He missed the Abe Fortas nomination in committee in 1965. Although, as we all know, he was on the committee for Justice Fortas’s unsuccessful nomination to be chief justice.

But Senator Thurman has been a member of the Senate longer than any other current member. He has witnessed 25 nominations as a Senator beginning with President Eisenhower’s nomination of John M. Harlan in January of 1955. No other current member of the Senate has been here for as many Supreme Court nominations. Through nine presidents, all but one of whom, Jimmy Carter, sent nominees to the Senate, and as Supreme Court nominees and Supreme Court justices have come and gone, senator Thurman has been at his post. Amazingly, I discovered that Senator Thurman does not hold the Senate record. Not yet, anyway, Senator Carl Hayden of Arizona during his 42 years of Senate service witnessed 28 Supreme Court nominations. Does anyone doubt that that record one day will fall to South Carolina? Earlier this year, I observed that my friend from South Carolina as a senior Senator, a tenacious advocate for the people of his state, the best interest of our country and the principles he believes in.

Now let me mention something more. Senator Thurman has served as an inspiration to generations of young people, not just South Carolinians, not just southerners, but young people all over the nation. These Americans have been spurred to participate in the political life of their communities, their states, and their countries by the example of Senator Thurman’s devotion to limited government, free enterprise, a strong national defense, and his deep selfless love of country. Some of those years inspired sit behind me. Others he has inspired, like myself, sit on this committee as his colleague, a privilege for which I am very grateful. I thought both of our colleagues deserved some small recognition for their service. And I want to thank Richard A. Baker, the Senate’s historian and Joanne McCormick Quatannens of his office for their timely help in compiling the details of the service of our two colleagues. I want to thank my colleagues for this courtesy, so I could make these remarks and pay tribute to these two colleagues here today. Thank you, Mr. Chairman.

Joe Biden: (19:09)
I want to thank you, Senator. You’ve just solved the mystery for me. I wondered why Senator Thurman spent so much time on the floor talking about Abe Fortas. Now I know. He wasn’t on the committee. Didn’t have a chance to speak in the committee. Now we’re going to go slightly out of order here, and the distinguished chairman of the finance committee has the unenviable job of being the chair of a conference committee that’s just putting together the national budget in the reconciliation, and he is to convene that conference at 11, and his distinguished colleague, Senator D’Amato, and our distinguished colleague representing. I’m going to figure out the New York connection here in a moment, is also here. So we’re going to go with the three introducers now, and then returned to Senators Kennedy and Thurman and work our way through the committee. So Senator Moynihan, welcome. It’s a pleasure to have you here. The floor is yours.

Patrick Moynihan: (20:10)
Thank you, Mr. Chairman, Senator Hatch, Senator Specter. I’m privileged to introduce and to recommend without reservation Judge Ruth Bader Ginsburg, who is specially qualified to be the 107th Justice of the Supreme Court of the United States. Judge Ginsburg is perhaps best known as the lawyer and litigator who raised the issue of equal rights for women to the level of constitutional principle. She has also distinguished herself in a wide range of legal studies, and for the last 13 years, has been one of our nation’s most respected jurists on the United States Court of Appeals for the District of Columbia Circuit.

I must tell you that Senator D’Amato and I, I will take special pride in her nomination. She was born and raised in Brooklyn, and the day after her nomination, the front page of the New York Daily News exclaimed, “A judge grows in Brooklyn.” She attended Cornell, where she elected to Phi Beta Kappa, later Columbia law school, where she was tied for the top of her class. Indeed, she actually attended two law schools, beginning at Harvard and finishing at Columbia so that she could be with her husband, Martin, who had returned from Cambridge to begin the practice of law in New York. Never before Ruth Bader Ginsburg had anyone been a member of both the Harvard and Columbia Law Reviews.

With such a record, you would think it not surprising that she should be recommended to serve as a law clerk to Supreme Court Justice Felix Frankfurter, neither is it surprising that at that time, a time she has changed, Justice Frankfurter thought it would be inappropriate to have a woman clerk. As she clerked for Judge Edmund Palmieri, and then entered the Columbia Law School project on international procedures. She taught at Rutgers law school, then Columbia, becoming one of the first tenured women professors in the country, and then became the moving force behind the women’s rights project of the American Civil Liberties Union, the prime architect of the fight to invalidate discriminatory laws against individuals on the basis of gender. Her imprint can be found on virtually every gender case which reached the Supreme Court in the 1970s. She herself argued six cases before the court and won five of them.

The specifics are well known to members of this honorable committee and will no doubt be discussed in detail, but I would call attention simply to remarks that Erwin N. Griswold, the former solicitor general of the United States and Dean of the Harvard Law School at the time judge Ginsberg was there. He spoke at a special session of the Supreme Court commemorating the 50th anniversary of the opening of their, their new building as it was. Dean Griswold spoke of the work of attorneys who had appeared before the court on behalf of special interest groups, as he termed it. He said this: “I think, for example, of the work done in the early days of the NAACP, which was represented here by one of the country’s great lawyers, Charles Hamilton Houston. Work which was carried on later with great ability by Thurgood Marshall. And I may mention the work done by lawyers representing groups interested in the rights of women, of whom ruth Bader Ginsburg was an outstanding example.”

It is in that context, Mr. Chairman, that the American Bar Association has given her its highest rating. She has my most sincere, proud recommendation to this committee. Thank you, sir.

Joe Biden: (24:44)
Thank you very much, Mr. Chairman. Senator D’Amato.

Alfonse D’Amato: (24:48)
Chairman, in the interest of time. Let me second the magnificent introduction that the distinguished senior Senator, my colleague Senator Moynihan has made on behalf of judge Ginsburg. Let me say that I take very special pride in the fact that the judge grew and flourished in Brooklyn, my hometown. Let me also add to this committee that there’s no doubt that she has distinguished herself as teacher, lawyer, judge, and parent with her magnificent and wonderful family that is here today and her grandchildren. While we may not agree with all of the learned judge’s decisions, no one can question her honesty, her integrity, her commitment to the process of law, and I command her for your approval and ask that there be an extension for my remarks to be included as written and submitted in their entirety.

Joe Biden: (25:47)
Without objection, I thank you very much, Senator. Now we’ll hear from representative hell Eleanor Holmes Norton. We welcome you to the other body and thank you for coming over.

Eleanor Holmes Norton: (25:58)
Thank you Mr. Chairman. Mr. Chairman, it is my great pleasure to introduce and recommend Judge Ruth Bader Ginsburg to you. Now a resident of my district here in Washington, DC, Judge Ginsburg was born in Brooklyn. Brooklyn natives, of course, have often spread to far corners like the overseas Chinese, sharing the riches of that borough with places like Washington, which thrive on such exports. Judge Ginsburg’s service on our US Court of Appeals has been unusually distinguished, a virtually foregone conclusion for any who knew her before her appointment in 1980. I have known Ruth Ginsburg for two decades. As a law professor, civil rights and civil liberties lawyer, she was the chief navigator in the journey that took women are after more than a 100 years into the safe harbor of the United States constitution. When Ruth Ginsburg founded the ACLU women’s rights project, today’s axiom that the 14th amendment applies to women was not axiomatic at all.

As one of Judge Ginsburg’s former students has said, “People forget how things were.” Judge Ginsburg has spent her life making things how they ought to be. Using her gift in mind, honed by indefatigably hard work, she has used the law always carefully, always defensively for all of those left at the margins for want of a lawyer or a judge with the brilliance and commitment to pull them mainstream.

As a lawyer, she was an activist intellectual who brought grace to both roles. As a judge, Ruth Ginsburg has not only resolved hard cases, she has contributed to legal theory and made collegiality among judges and its effect on the law, a new and fascinating subject of scrutiny. Those who have expected great things of Ruth Ginsburg have always gotten what they bargained for. Count on Justice Ginsburg to keep that unbroken record. Thank you, Mr. Chairman.

Joe Biden: (28:14)
Thank you very, very much. I know all of you have other duties, and we appreciate your being here. Thank you for your input. Pat, I’m delighted that you had the opportunity to introduce a woman who saves my daughter Ashley from having to be the second woman nominee to the Supreme Court. Thank you. Now, we’ll return to semi regular order, which is Senator Kennedy would go next, but our distinguished colleague and ranking member of the armed service committee has to attend a hearing at 11, and Senator Kennedy has graciously suggested that he go next.

Speaker 1: (28:58)
Thank you Mr. Chairman, which thanks Senator Kennedy for letting me do at this time.

Strom Thurmond: (29:02)
… wish to thank Senator Kennedy for letting me go at this time. I want to express my appreciation to Senator Hatch for his kind words. He is a great Senator and a great man, and I appreciate what you had to say. We all welcome Senator Specter back, a great Senator and a true patriot of this country. So glad to see you in good health now.

Now, Mr. Chairman, today the Senate begins consideration of the nomination of Judge Ruth Bader Ginsburg to be an Associate Justice of the U.S. Supreme Court. If confirmed, Judge Ginsburg will be the 107th person to serve as a Justice, continuing the long tradition of distinguished juris, which began with Justice John Rutledge of South Carolina, who was appointed on September 26, 1789. Although, I was not privileged to be in the Senate at that time, lest anyone have doubts.

Judge Ginsburg’s nomination will be the 25th Supreme Court nomination I have reviewed during my nearly 39 years in the Senate. Since its first session in the Royal Exchange Building in New York City in 1790, the Supreme Court has been an indispensable part of our Government, securing individual rights and interpreting the laws of this Nation.

Occasionally, however, the Federal Courts have gone beyond their constitutional mandate and used their judicial authority to legislate from the bench. I believe that the Hamiltonian vision of the judiciary is a correct one: Judgment, not will, is to be exercised by the judicial branch.

Mr. Chairman, we have a very serious responsibility here. Article II of the Constitution confers upon the Senate the duty of giving advice and consent to the President’s appointment of Supreme Court Justices.

The detailed review of judicial nominations has been assigned by the Senate to the Judiciary Committee. To a great extent, our colleagues who are not on this committee depend upon our work to make their own decisions on a nominee’s qualifications to sit on the most important and prestigious court in America.

These hearings also give the public an opportunity to see the process at work. Justices occupy a position of immense power and are tenured for life. Furthermore, Justices and other Federal judges are not accountable to the public through the ballot box.

It is, therefore, imperative that the Senate exercise its role in the confirmation process with great care, ensuring that the nominee possesses the necessary qualifications to fill this immensely important role.

Over the years, I have determined the special qualifications I believe an individual must possess to serve on the Supreme Court, and they are as follows: First, unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair.

Second, courage. A nominee must possess the courage to decide tough cases according to the law and the Constitution.

Third, compassion. While a nominee must be firm in his or her decisions, they should show mercy when appropriate.

Fourth, professional competence. The nominee must have the ability to master the complexity of the law.

Fifth, proper judicial temperament. The nominee must have the self-discipline to base decisions on logic, not emotion, and to have respect for lawyers, litigants, and court personnel.

Sixth, an understanding of the majesty of our system of government. The nominee must understand that only Congress makes the laws, that the Constitution is changed only by amendment, and that all powers not specifically delegated to the Federal Government are reserved to the States.

These are the essential qualities which determine the fitness of an individual to serve on the Court, and it appears to me that Judge Ginsburg possesses them. She has had a distinguished scholastic and legal career and established a reputation as a person who thinks twice before acting, an especially valuable quality in a judge.

After 13 years on the D.C. Circuit Court, Judge Ginsburg has written hundreds of opinions, authored numerous articles, and delivered many speeches. I am not in agreement with her on every issue. However, I respect her intelligence and ability, and I look forward to discussing her approach to constitutional issues and reviewing her development on the D.C. Circuit Court.

Mr. Chairman, as we begin this hearing, I am reminded of the thoughts conveyed by President Washington to Chief Justice John Jay and the Associate Justices during the first term of the Supreme Court. His comments on the judicial branch remain as insightful and compelling today as when they were first delivered.

He stated, and I quote, “I have always been persuaded that the stability and success of the National Government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws.

“In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations, but as perfect as possible in its formation.”

Mr. Chairman, I believe this hearing is a continuation of ongoing efforts to create a judiciary which is as perfect as possible. As we pursue this worthy goal, it is incumbent upon the Senate to closely review Judge Ginsburg’s qualifications to serve on the highest court in the land.

Judge Ginsburg, we welcome you here today and look forward to your testimony. Thank you, Mr. Chairman

Mr. Chairman: (34:39)
Thank you very much, Senator. Senator Kennedy.

Senator Kennedy: (34:41)
Thank you very much, Mr. Chairman. I want to extend my appreciation for the kind words of my good friend from Utah, and it’s a pleasure to serve on this committee with Tyrannosaurus Hatch.

I join in congratulating Judge Ginsburg on her nomination, and in welcoming her before this committee. Nominations to the Supreme Court are among the most important decisions that any President makes, and the confirmation process is one of Congress’ most important responsibilities.

The Supreme Court is the guardian of our most basic constitutional rights and liberties. The Justices of the Supreme Court have the last word on the meaning of the Constitution, and they are called upon to decide many of the most important and difficult questions of our time:

May a State consider the race of its citizens in drawing legislative districts? May a State impose a greater punishment for a crime because the criminal is motivated by racial or religious bigotry? What is the proper boundary between church and state when government furnishes aid to students in religious schools?

These are just a few of the questions that the Justices of the Supreme Court decided in the past term. The rules announced by the Court in its decisions affect the daily lives of all Americans.

Senators must satisfy themselves that a Supreme Court nominee has the outstanding ability, unquestionable character, and fair and balanced temperament to decide the important and difficult cases that comes before the Court.

And, no less important, Senators must determine whether a nominee to the Supreme Court possesses a deep understanding and commitment to the fundamental values of liberty, fairness, and equality enshrined in the Constitution.

Our constitutional freedoms are the historic legacy of every American. The Members of the Senate have an obligation to ensure that those freedoms are entrusted to women and men on the Supreme Court who will preserve their meaning for future generations.

Based on her pathbreaking work as a law professor and a legal advocate for the rights of women, and based on her distinguished career as a Federal appeals court judge, it appears that Judge Ginsburg easily meets these high standards.

Her creative strategies to win legal recognition of the right of women to equal protection of the laws have earned her the admiration and respect of every American committed to ending discrimination in our Nation.

Her impressive and scholarly work on the Federal Appeals Court here in Washington has earned her a reputation as one of the very best judges in the United States today.

The members of this committee, nonetheless, have a constitutional responsibility to carefully examine Judge Ginsburg’s opinions and articles and to ask her about her legal philosophy and approach to the Constitution, to assure ourselves that she deserves the high honor of joining the Nation’s highest court.

I commend President Clinton for this excellent nomination, and I look forward to Judge Ginsburg’s testimony.

Because we went out of order at the outset, the next speaker will be Senator Metzenbaum.

Senator Metzenbaum: (38:09)
Thank you, Mr. Chairman. Judge Ginsburg, congratulations on your nomination and welcome to these hearings.

It’s been a long time since a Democratic President has made a Supreme Court nomination. Justice White’s resignation means that all of the remaining Justices were nominated by Republican Presidents. This day is welcome, for many reasons.

For 12 years, Supreme Court nominees have been sent to this committee in the hope of promoting a political and social agenda directly from the planks of the Republican Party platform.

A core element of that agenda was the reversal of Supreme Court decisions in the areas of abortion, civil rights, individual liberties, and the first amendment. Unfortunately, their efforts have met with considerable success.

As a result, the Supreme Court today is plagued by a vision of the Constitution which is cramped and narrow. The current Court lacks either the will or the commitment to make the promises and principles of our Constitution a reality for all Americans.

This Nation faces difficult, and sometimes divisive, social problems. We need leadership that is inclusive and tolerant. And we need a Supreme Court that is a source of inspiration and moral leadership. Only then will individual liberty, equal justice, and fundamental fairness be a reality for everyday Americans, as we prepare to turn to the 21st century.

President Clinton took one large step in that direction by nominating Ruth Bader Ginsburg. No one can seriously claim that the President selected Judge Ginsburg to carry out a political agenda.

The President found in Judge Ginsburg the nominee he was searching for, a person of enormous talent and integrity, a generous character, and an unyielding fidelity to the Constitution and the rule of law in the service of society. Judge Ginsburg’s record as a litigator is the envy of lawyers throughout the country. She spent the bulk of her career as a lawyer working to secure equal rights for women. She succeeded, due to her comprehensive knowledge of the law and her keen understanding of what would persuade the male members of the Supreme Court.

She developed a brilliant litigation strategy, which included at times using men as plaintiffs in gender discrimination suits. This tactic helped the then all-male Supreme Court see that discrimination based on gender was incompatible with the great constitutional principle of equal protection under the law.

She showed courage and determination, when opportunities were closed to her due to discrimination against women. She didn’t just get angry and resentful. She fought to change the law for the benefit of all women and men.

With such an outstanding career as a lawyer, it is no surprise that President Carter selected her for the Federal Bench. Her tenure on the Circuit Court of Appeals for the District of Columbia has distinguished her as one of the country’s finest judges.

As President Clinton said in introducing her to the Nation, she is, “Progressive in outlook, wise in judgment, balanced and fair in her opinions.”

Judge Ginsburg’s record is exemplary, and I am frank to say that I expected nothing less in a nomination by President Clinton. But there is still more that I want to know.

As an advocate, Ruth Bader Ginsburg pushed the Court to landmark decisions on behalf of women’s rights. While she fought for women one case at a time, she had a goal, a vision of a Constitution that protected women against discrimination.

While a circuit court of appeals judge, her duty has been to faithfully apply the law as interpreted by the Supreme Court. But, if confirmed as the next Supreme Court Justice, she would have the opportunity to shape the law, rather than merely apply it.

I want to know whether Judge Ginsburg will embrace this opportunity to shape the law to make the enduring principles of our Constitution a reality for all Americans, no matter how rich or poor, no matter what race or religion, no matter how unpopular their cause might be.

As an appeals court judge, Judge Ginsburg is well known for her preference for measured or incremental movement in the law. She speaks of permitting constitutional doctrine, especially in controversial areas, to emerge from a dialog between the courts, other branches of government, and the people.

I am concerned she will always take a similar approach on the Supreme Court, and I will make it no secret that I hope she will not.

When Judge Ginsburg speaks of a dialog, she apparently envisions a concept of gradualism in applying the Constitution’s provisions. That causes me concern, because any delay in enunciating or protecting constitutional rights is justice denied.

There are times and there are issues when the Supreme Court must show leadership. History demonstrates that it is sometimes the Court, rather than Congress or the President, which must have the will and the vision to define the Constitution’s promises of liberty and justice, even when it is unpopular to do so.

I expect to inquire in this area, to know whether Judge Ginsburg will lead the Court at such times.

Judicial leadership in addressing the great social and political problems of our day can be controversial. Judge Ginsburg will probably hear much about judicial activism and judge-made laws from my colleagues during these hearings.

I suspect they will warn her against judicial activism, notwithstanding the considerable conservative judicial activism we have seen from the current Supreme Court.

But we must rise above this worn out debate to recognize that leadership in applying the cherished principles of our Constitution is not judicial activism. It is leadership we need from Judge Ginsburg on the Supreme Court. The role of the Supreme Court in preserving and promoting individual liberty, equal opportunity, and social justice must be restored.

Judge Ginsburg, your career as an advocate suggests that you have the intelligence, determination, and courage to begin the work that needs to be done. Your career as an appeals court judge suggests that you have the temperament and judicial skills to begin that restoration.

My only question for you during these hearings relates to how you will meet that challenge. Thank you, Mr. Chairman.

Thank you very much. Senator Simpson.

Senator Simpson: (44:30)
Mr. Chairman, in the past, following Howard has always gotten me pretty well primed up. But not this time, except for a few rambling remarks there about Republican Presidents and a Democratic President, too, he’s right on track.

I appreciate your leadership, Mr. Chairman. You’ve always been very fair and open, serious and practical with us. Welcome back to Arlen, a wonderful legislator and friend and a real contributor to this committee. Good morning, Judge Ginsburg.

In going through many of the things that you have written, I noted an article in the Illinois Law Review where you said, in carrying out its duty to consider the President’s nominees to the Supreme Court, we have a “Weighty responsibility to consider what will serve the national interest.”

We indeed do, and we will attempt to carry that out responsibly and with a serious intent of a knowledge of our responsibility by considering, among other things, your judicial philosophy, how you will think and reason, as you contemplate the pressing legal issues of the day, questions of the day, and we must do that without compromising your judicial independence. There are, of course, other important considerations and qualifications for a nominee to the Supreme Court. A nominee’s rectitude and deportment are critical considerations. We must be certain that the nominee has the education, the experience and the temperament to serve in the highest office in our profession.

I am certainly pleased to say here the record is remarkably clear. Indeed, in these areas you may well be overqualified. That’s a serious defect in this community. Think of the ones you know who are.

As one who loves Gilbert and Sullivan, you would compose your own lyrics to the tune of, “I’ve got a little list of society offenders who never would be missed,” and you remember the rest of that.

But the record here is not so obvious or apparent on your judicial philosophy. So, indeed, as Howard, as Senator Metzenbaum has said, what about judicial activism? That will be asked.

Some of your writings seem to imply that it’s justified at times, perhaps even forced upon the courts by congressional inaction. I have seen that problem. It is very real. No wonder courts enter the fray.

When considering constitutional issues, how persuasive do you find the intent of those who drafted the documents? You’ve said some things about that. Your colleagues-to-be have. What will you do when their intent is unclear or, even more appropriately, more unknowable?

In these hearings, we will try to learn what approach you might take in deciding the critical questions of our day, and yet only you will know the extent and substance of response to those questions. Historical perspective here being an example, the more questions, the less answers will get you home. So for me, your competence and temperament are beyond question and we look forward to learning more about your thinking and reasoning, as you would wish to share it in whatever depth, and we will know then whether this appointment will serve the national interest. A very broad and remarkable phrase, but I think, indeed, from what I know, that your appointment would indeed that interest.

I thank you very much, Mr. Chairman.

Thank you. I might note, it’s remarkable that 7 years ago the hearing we had here was somewhat more controversial, and I made a speech that mentioned the P word, philosophy, that we should examine the philosophy, and most editorial writers of the Nation said that was not appropriate. At least we’ve crossed that hurdle. No one ‘s arguing that any more.

Senator DeConcini.

Senator DeConcini: (48:51)
Thank you, Mr. Chairman. Let me join in the praise of you and the ranking member in conducting these hearings, and the members of this committee for proceeding. I think it’s very important that we process this nomination as soon as we can.

Judge Ginsburg, I join the accolades here in your nomination and those to President Clinton in sending your name here. Over the 12 years ago, I helped usher a good friend of mine through the same process which you are now experiencing. Her nomination was historic at that time. If confirmed, you will join my friend as the second woman ever to serve on the Court.

Like Justice O’Connor, despite your outstanding academic achievements, your ability to find employment after law school was deterred by your gender. You are an individual who has suffered firsthand the effects of discrimination. I think that is most fitting for people who are going to interpret the constitutional rights of individuals who come before them and will, like you, ultimately, I predict, serve on the Supreme Court.

You overcame this rude beginning and proceeded to embark upon a truly remarkable and accomplished professional career. You became a nationally respected law professor. And during that time and throughout the career, you have made a considerable contribution to the written legal commentary on this subject and others.

Before coming to the bench, you dedicated your efforts to the struggle for gender equality. In the 1970’s, you were instrumentally involved in the landmark case that ultimately persuaded the Supreme Court to establish a greater scrutiny to laws that classify on the basis of gender.

I thank you for that, Judge, for my two daughters, one a doctor and one a lawyer, who have witnessed job discrimination even today. But their opportunities were enhanced by the fact that you fought that battle early in life, and earlier than they when they came along.

For the last 13 years, you’ve served with distinction on what is considered the second highest court in the land. One comment that has been repeated often since the President announced your nomination is that you defy the label of liberal or conservative jurist.

Indeed, one news account noted that during your tenure, you had, “Often gone out of your way to mediate between the Court’s warring liberal and conservative factions.” Throughout your judicial career, you’ve shown great respect for the institutional integrity of the Court.

Over the last few weeks, I’ve had a chance to read many of your opinions. To me, they demonstrate deference to precedent and embody judicial restraint. I think that’s fundamental and so important. You have great understanding of the role of a middle-tier appellate court. And as you have written, “With that role, a judge must follow the guidance of the Supreme Court.”

However, Judge Ginsburg, as a Supreme Court Justice, you will not be constrained by a higher court’s interpretation. You will have free rein to interpret our Constitution. And as you have commented yourself, you will have the last judicial word on the constitutional questions of the day.

Our constitutional system endows tremendous responsibility and power to our Supreme Court Justices. Because of that power, I strongly believe that nominees to that Court should be prepared to tell the committee and the American people how they intend to approach the Constitution and the Bill of Rights.

A few years back, you wrote a law review article that discussed the Supreme Court’s confirmation process. You concluded by quoting a law professor who described the Senate’s role in the process as second, but not secondary.

The Senate’s constitutional obligation is to examine a nominee’s competence, integrity, experience, and, yes, his or her philosophy. For the Supreme Court is undeniably a policymaker. Our Framers drafted the Constitution in broadly worded principles that were intended to protect an evolving society. Constitutional interpretation requires an exercise of discretionary judgment. Thus, we must carefully choose the Constitution’s most important interpreters.

By no means are we here to secure assurance from you on certain cases. No one knows exactly how a case will come before you in the future. But how you approach a constitutional issue and what you consider in resolving that issue are all part of the judicial philosophy and part of the questioning that you will undertake in the next few days.

The process is not foolproof. In the past, we’ve had Supreme Court nominees come before this committee and tell us they had no agenda, and they did. We’ve had nominees come before this committee and tell us that they did not have a fully developed judicial philosophy, but they did. We’ve had nominees come before the committee and evoke an image of moderation, but they were not.

These past performances by nominees obviously concern this Senator. Because I believe that the hearings are an integral part of the confirmation process, honest answers matter greatly in this process to this Senator.

Quite frankly, I do not expect this to be a problem with you, Judge. I’m confident that at the conclusion of these hearings, the Senate and the American public will have a clear vision of your constitutional philosophy.

Again, my congratulations, Judge, and also to President Clinton for his outstanding nomination and taking the time and the process in which he went through in choosing you to be the next Supreme Court Justice. I look forward to learning more about your judicial philosophy and your thoughts regarding the Constitution in the next several days.

Thank you, Mr. Chairman.

Thank you, Senator. Senator ceding

Senator Grassley: (54:41)
Congratulations, Judge Ginsburg, and, of course, a warm welcome to your family. I am sure that they take great pride in this day, just as they have done for all of your accomplishments so far in your life, from scholar and law professor to advocate for gender equality, and now to be a distinguished Federal appellate judge, as you have for so many years.

Senator, before you go on, you mentioned the family. I would like to suggest, there are two young children, and this is a tremendously tedious process. I want them to know they are welcome, instead of having to go out there to use the facilities and the television or anything they want back here, you have free roam, the kids, literally.

So, you can go back there, and this is the one time to exact from your daddy a promise of ice cream or something for being good. This is the time to do it.

I apologize for the interruption, Senator. But I do, seriously, you are welcome to use this end, as well. Thank you. Sorry.

Also, they might help us by detracting us from time to time.

But today, after so many different distinguished careers you have, today’s the beginning of an even more notable achievement. If confirmed, you will become only the 107th person on the Supreme Court as a Justice. Indeed, you will join a very elite and a very important group, all charged with interpreting the Constitution.

You, Judge Ginsburg, seem to understand the place that the Supreme Court occupies within our democracy. Through many of your writings, I have detected traces of Alexander Hamilton. For example, you appreciate that the Framers gave the Court great authority to rule on the Constitution, but armed the Court with no swords to carry out its pronouncements.

Alexander Hamilton envisioned that it would be the accountable branch of government, the legislature, that would make the difficult choices within and for our society. In many of your opinions, you have expressly deferred to the will of Congress, as you apply law to the facts of a case.

This confirmation hearing gives us an opportunity to explore your approach to judging and to determine whether you will exercise self-restraint. That, after all, is the touchstone. A Justice must be willing to accept the Constitution as her rule of decision. And a Justice must be able to resist temptation to revise or amend the Constitution according to her definition of what is good public policy.

You and I will disagree on specific issues and will disagree on particular cases. I have no doubt about that. But the issue is not whether you and I can sign onto some political platform together. Justice need not be pro-one thing and anti-another thing. That’s why judges were given lifetime tenure, so that they would be insulated from the political pressures of the day. The-

From the political pressures of the day, the confirmation process need not be a campaign trail of promises by a nominee. These hearings are about judicial philosophy not about political results. Through much of the second half of this century, the Supreme Court had evolved into a political institution and away from being a legal institution. That trend has diminished somewhat in recent years with the nomination and the confirmation of individuals anchored in the constitution and individuals who have a deferential approach to the political accountable branches of government.

Some political activists including some of my distinguished colleagues on this committee are hoping your presence on the court will bring back an era of political judging. But that view shows a misunderstanding of the role of the Supreme Court. Your fidelity to the constitution, your appreciation of its framework of limited powers and your understanding of the role of Congress and the States in making law, these are the important qualities. In addition and no less important, a justice must possess an open mind or what justice Frankfurter called, “A capacity of disinterested judgment.” I look forward to exploring these ideas in greater detail with you during these hearings, and once again, I say congratulations to you and all your friends and your family.

Thank you very much, Senator. We have Senator Leahy.

Senator Patrick Leahy: (59:39)
Thank you. Mr. Chairman. And, Judge, I welcome you and your family. This has been I think an exciting trip for you and your family from the time in Vermont when you got the call from the White House to being here today.

I wondered how you were going to get Vermont into this.

Senator Patrick Leahy: (59:57)
You’re wondering is on your time, Mr. Chairman. But I’m glad to see you here because you’re going to go on a bench that guarantees the liberties all of us hold dearly, whether we’re Republicans or Democrats, liberal, conservative, it makes no difference. It’s the Supreme Court that gives us the guarantees of the constitution. I have been struck by the breadth and distinction of your record as I’ve read it that during the past few years, but I think the proudest achievements in many ways are the landmark Supreme Court cases you fought that literally changed the destiny of women in this country. Much has been said about those victories, a lot more is going to be said during these hearings.

Senator Patrick Leahy: (01:00:40)
Let me say something. I think I speak for most parents in my own State of Vermont when I thank you. I thank you personally for helping to contribute to a world where my daughter, Alicia, will have opportunities equal to those open to my sons, Kevin and Mark, and I owe you a deep, deep sense of gratitude for that. I think without your pioneering efforts there’s no guarantee the progress that has been made so far would have occurred and I applaud you for that. In fact, even without this nomination to the Supreme Court, you could have been satisfied in your place in history just because of what you’ve done in that one area.

But you come here with such great qualifications, the court of appeals, teaching Columbia and Rutgers, but also with having a reputation as a fair and thoughtful jurist, and I believe the ABA recommendation indicates that. But a brilliant legal mind and volumes of circuit opinions are far from being the only requirements that go into making a good Supreme Court Justice, you also possess life experience that is so very, very important.

Your mother like so many women of her generation, she certainly led a hard life. A motivated student, graduated from high school at the age of 15, but she went to work in New York’s garment district to put not herself, but her brother through college. You yourself, the first man or woman to be a member of both the Harvard and Columbia Law Reviews, graduating tied for first in Columbia Law School impeccable credentials, but didn’t find there wasn’t a law firm in New York that might offer you a job. It was prestigious judges and justices making no bones about the fact that they couldn’t have a woman as a law clerk.

Or when you worked at a social security office while your husband Martin, I’m glad to see here, was serving in the military, you had to take a lower paying job because after all you were pregnant. I mean, these are days that are not that far gone but let’s hope that they’re gone now forever. The kind of things you did to break in to what had been a closed world before, these are the things you can’t learn about in the book and you can’t read about and you can’t write about, you had to do it and you did.

And I was moved that day in the Rose Garden when I stood there with you and President Clinton, and you spoke about the experiences of your mother. These are not words that just come from a page, they come from the heart and they come from a lifetime of experience and I think they moved every single person, no matter what their political background in that gathering in the Rose Garden.

I think of cases like Reed, Frontier, Wiesenfeld, Goldfarb. These are legendary cases. There isn’t a law student that can go through without reading them, they came from your briefs. And judge, I said before the Senate’s duty to advise and consent is an extremely important charge. But in exercising this responsibility we have to consider a certain threshold qualities, judgment, temperament, experience, intellectual distinction, moral fiber. But we also go into the judicial philosophy and will have meaningful questions and I believe meaningful answers.

And we will ask you what you think what kind of a justice you want to be, but I think that you will also when you go on the court, as I know you will, that you remember what the court means to every day ordinary people like Sharon Frontiero, like Stephen Wiesenfeld, your former clients, but also to others like the Barbara Johns and the Clarence Earl Gideon who were there. Barbara Johns who attended classes in makeshift tar paper shacks in a segregated high school in Virginia. But her case was one of the five that we now know is Brown v. Board of Education.

Or Clarence Gideon who couldn’t afford a lawyer was convicted of breaking into pool hall, but he said, “I’m innocent.” And then the Supreme Court took up his hand-written petition scrawled on plain paper. And Gideon as we know from Gideon’s Trumpet, Gideon got a lawyer. He’s acquitted of the charges against him and changed the whole way our criminal justice system works. That’s what the Supreme Court stands for this country and that’s the court that we expect where people can go and say, “My rights are being trampled and you, you nine people are the only people that can stand and guarantee the constitution means what it says to us.” That’s the kind of Supreme Court justice we want, not a Republican, not a Democrat, not a liberal or not a conservative, but somebody who looks first and foremost at the rights of ordinary people. Thank you, Mr. Chairman.

Mr. Chairman: (01:05:29)
Thank you very much, Senator. Senator Specter.

Sen. Arlen Specter: (01:05:33)
Thank you very much, Mr. Chairman. Judge Ginsburg, I welcome you here with my colleagues and I compliment you on an outstanding academic professional and judicial record, some 322 opinions and still counting and 79 articles. Notwithstanding that outstanding record, I do express concern that some of my colleagues have expressed virtual approval of your nomination even before the hearings have begun and I believe that that raises some significant problems. I think that first there is a tendency to look at the hearings as proforma, or perhaps just going through the motions with confirmation of virtual assurance.

And second I’m concerned about the real risk of undermining public confidence that the Senate will vigorously discharge its constitutional duty of advice and consent on a nominee who will have such a profound effect on the daily lives of more than 250 million Americans with so many, five to four decisions on the crucial issues of the day. I have long expressed my own concern about judicial activism and the Supreme Court being a super legislature with the concern about undermining the vital constitutional principle of separation of powers.

At the outset let me say that as I read your writings I agree with much of what you say and that if you were a senator offering your ideas and legislation on the Senate floor, I would be inclined to go sponsor a good bit of what you articulate. But the difficulty with judicial activism as I see it is that it’s fine when we agree with your activism, but it’s very problemsome if the principle is established that judicial activism is appropriate.

One of my colleagues referred to the agenda of the nominees of two Republican administrations and made it plain that he doesn’t favor that kind of judicial activism. And I believe that as a matter of principle it’s vital to keep the activism out of the judicial line as much as is possible. I’ve been very much impressed with the breadth of your writings and the openness and the candid approach which you have taken when you talk about extension of benefits, where there’s an equal protection violation and the court then extends benefits to those not covered by legislation. You are candid in saying that you are legislating a bit and any legislation by the court is a matter of concern.

When you take up the equal protection issue and talk about a bold interpretation and talk about judges being uneasy and the gray zone between interpretation and alteration of the constitution, those raise concerns to me about where activism may lead. And again, I repeat, I admire the positions you have taken and what you have achieved as a litigant and what you have done as a jurist. And I also say that on the bench you have not carried forward the lines which you have written. But as one of my colleagues has noted that when you’re on the Supreme Court… How did my colleague put it? You’ll have a free hand in doing a great deal more.

So then I think these hearings are very important as we take a look at your record, as we take a look at what you have written and see how that may be applied. And as noted by a number of my colleagues, I think we are past the day where there’s an issue about the propriety of inquiring into judicial philosophy, although we do not want you to answer how you’re going to decide specific cases. And I’ve noted your writing that the second opinion by the Senate is a very important second opinion and your endorsement of the proposition that the senators should have equal attitude with the president in deciding which nominees are good for the country.

And beyond those theoretical issues there are many very important matters that are on the cutting edge of critical considerations for the American people and I look forward to these hearings and hope that we will be able to have an open exchange where we will have some real idea as to how you see your role as a Supreme Court Justice, contrasted with a court of appeals judge, where you will have a freer hand and where there will be the question as to how you will apply the ridings on legislation and expansive interpretation of constitutional rights. Thank you very much, Chair.

Thank you very much, Senator. Senator Heflin.

Sen. Howell Heflin: (01:11:03)
Judge Ginsburg, I welcome you and congratulate you on your selection as a nominee for the United States Supreme Court. Over the years I’ve had the opportunity to participate in the confirmation process of a number of nominees for our nation’s highest court. I have during past hearings seen the organized distortion of interest groups, heard the roar of extreme party loyalists, witnessed the divisiveness of politics. I have in a sense seen blood shed during the past confirmation hearings. This time I believe we will see a process remarkably free of acrimony and partisan bickering. Already there is a noticeable difference. What a change of the atmosphere from that of the recent past.

Congeniality prevails over confrontation. Backslapping has replaced backstabbing. Inquiry is the motivation rather than injury. While it remains to be seen whether this climate of goodwill will last, at least for now we are scaling the heights of bipartisan cooperation. Judge Ginsburg, you deserve much of the credit for this fresh new atmosphere, the excellence of your record has itself made your nomination a source of consensus.

Much of the credit must also go to my Republican colleagues for their approach to this process. Too often in the past both parties have suffered from the near-sightedness that sometimes comes from wearing the blinders of partisan allegiance. And finally, a large share of the credit must also go to the president for avoiding a selection based on litmus test or ideology. This respite of goodwill is a gift to all of us, indeed it is a rare opportunity for this committee and the public we represent to engage in an enlightened dialogue with, in my judgment, a future member of our highest court. Freed of the turmoil that has often marred the confirmation process, this committee and the full Senate will have an opportunity to more properly and objectively play the advisory role with which the constitution charges us.

In that spirit let me add that my own review of your record leaves me highly impressed. I find particularly encouraging your writings on the need for collegiality and consensus in deciding cases while adhering to principle. You have also said that a judge’s role is to see beyond the often misleading claims of ideological labels. You observed, for example, that that description like judicial activism can be a battle cry for both the right and the left, and that a phrase like original intent is a signpost along an unending and uncertain road.

I welcome this insightful candor on your part. It reveals a healthy disdain for ideological dogma and a fresh receptiveness to intellectual challenge. If these instincts are any guide your service on the Supreme Court would honor that institution and your nation. You have the potential to break free from the polarization of the left and the right, you offer the promise of a reflective non-ideological and fair jurisprudence, and I, for one know of no other value as more valuable to a sound judicial temperament. I’m optimistic that you’re brand of judicial decision making will set a standard, and I’m also hopeful that the spirit of goodwill that has graced this process so far will set a standard for appointments to come. I look forward to your testimonial and to a discussion of your vision, philosophy and values over the next few days. I welcome you today and wish you well.

Senator, I’ve never heard you so articulate or so rhetorically eloquent. Obviously major surgery does a lot to people up here. You’re looking good and we’ve been welcoming Senator Specter back, but you’ve gone through one heck of a summer and spring and it’s great to see you in such great health and making such fine statements.

Well, thank you, sir. I appreciate that.

Now, Senator Brown, who has not had any major surgery is next.

But we still welcome him back.

That’s right.

Sen. Hank Brown: (01:15:50)
Thank you, Mr. Chairman. Judge Ginsburg, let me add my welcome to you as well. It’s clear from looking at your record that your commitment to the law is a family affair. I note that your husband Martin is a distinguished professor at Georgetown University, and that your daughter is a tenured professor at Columbia Law School. They tell me that even your son who is currently on leave from law school is a law student at the University of Chicago. That kind of family commitment, I think, bodes well for the endeavor that’s ahead for you.

I also note a number of firsts in your background that I think any of us would take enormous pride from. You were number one in your class at Cornell, among the first nine women admitted to Harvard Law School, number one in your class at Columbia Law School, the second woman in history on the faculty of Rutgers Law Faculty and the first woman to ever serve on the faculty of Columbia Law School.

You’re also the first woman to make law review at two Ivy League schools, which has already been noted. And you’re among the first 20 law professors to teach at any American law school. Your record is extraordinary by any account and I think is one of the reasons that you have the kind of welcome this morning that you’ve enjoyed. This seat is as I know you know is a very special one for Colorado. It’s special because Byron White is so respected and so honored in the state. I think of Byron White’s contribution as more than simply being one of the finest athletes in the history of our country, which of course he has been, and perhaps more than even being one of the finest scholars to ever serve our country in the highest court or in other areas. He’s been both of those.

But I think perhaps what’s significant for our deliberations this morning is Byron White’s integrity that he’s brought to the process. And ultimately I think the concern of the committee is for integrity, perhaps more than any particular issue. I tend to think it affects all of the things that we will discuss, most particularly the philosophy you bring as a judge or a Justice on the Supreme Court.

Our Founding Fathers laid out a constitution that I don’t think any of them thought would remain unchanged forever. As a matter of fact, as you know the amending process started immediately with the first 10 amendments, and what we now call the Bill of Rights. That Bill of Rights was a process not only to bring equity but also to get the measure passed and approved as it went for ratification to the various States. But the constitution laid out a process for its change, our Founding Fathers never thought that that document would remain unchanged and specifically provided for how it could be changed and updated. And I note that Thomas Jefferson had suggested not only the need for change and adaptation but had even suggested perhaps a constitutional convention that might take place every 20 years. I, for one think that idea would be an excellent one.

But the question I think it raises is this, do we respect the amendment process and reserve changes in our constitution for that process, a process that involves levels of government closer to the people, elected representatives that can be eliminated from office if their constituents disagree, or do we believe the amendment process can take place by those who are appointed to the court? That strikes me not just as a matter of favoring a woman’s right to choose or opposing it, or favoring changes in the construction of the equal protection clause or favoring or posing changes in the interpretation of the Tenth Amendment, but one of integrity of the Constitution itself.

It seems to me it’s a question that rises beyond whether we liked the makeup of the Framers of the Constitution, but one of whether we will respect the integrity of the process they set in motion. And so at least for me I think the fundamental question that we’ll try and explore this week will be one of what kind of approach you will take in updating the constitution and amending it and what your thoughts and philosophies are in that respect. Once again, let me add a real sense of joy in the accomplishments you bring to this job. I think it’s clear that you have the intellectual capacity to be a very distinguished member of the United States Supreme Court. I look forward to a chance to explore with you the issues that I think you’ll be facing in those years.

Thank you very much, Senator. Now, Senator Simon.

Sen. Paul Simon: (01:20:46)
Thank you, Mr. Chairman. And as I listened to my colleagues, Judge Ginsburg, and I know of your interest in opera, it sounds not like the Triumphal March of Aida, but the triumphal March of Judge Ginsburg here, we welcome you. And particularly we welcome your son from Illinois, here. As I have read your opinions and some of your writings, as you probably never anticipated United States senators would read them. I have the impression of a solid scholar, but someone who is cautious. And my guess is that is the kind of Supreme Court nominee that you will be.

If I may comment, Mr. Chairman, just a moment, on the process itself, I think first, the president handled this properly in taking time and consulting with members of this committee, in consulting with legal scholars around the nation. It is very interesting as you look at the history of nominations when presidents have acted quickly with rare exceptions the nominee nominations have not been strong nominations. When presidents have taken their time, there generally has been a superior quality to the nomination. And I think President Clinton and Attorney General Reno, and his counsel, Bernie Nussbaum, are to be commended on the time that was taken. The second thing I want to commend you on Mr. Chairman, is having one portion of the hearing closed here, where any negative charges which may or may not have substance are held in that closed hearing and then if there is something substantial then the public can know about it. But if someone somewhere has a charge that a nominee embezzled $50,000 10 years ago, we don’t need that on national television immediately, that ought to be looked at in a private session. And then if there is substance we look at it openly.

Judge Ginsburg, I think you’re doing very well with this committee. In fact, maybe we ought to stop the hearings right here from your perspective. You face a much harsher judge, however, than this committee and that is the judgment of history. And on that judgment is likely to revolve around the question, did she restrict freedom or did she expand it? I’m optimistic that the judgment of history will be a favorable one for you. Thank you.

Thank you very much, Senator. Senator Cohen, a new member of the committee and a very welcome member of the committee. Although he’s had experience in the past in the other body on the Judiciary Committee. It’s nice to have you here, Senator, on this nomination.

Sen. William Cohen: (01:24:02)
Thank you very much, Mr. Chairman, and Judge Ginsburg, welcome to this hearing. Senator Brown suggested I might try to approach a discussion with you in a different manner pursued by all who have proceeded me and that is quite a challenge in itself. But I might tell you that in preparing for the hearing, I was rummaging through the writings of Ambrose Bierce, an American writer and journalist. And I would note parenthetically the author of the Devil’s Dictionary, a book that many people in this country may feel that we refer to in order to color and shade our words from time to time.

But Bierce related the story of an associate justice of the Supreme Court, who was sitting by the river when a traveler approached and said, “I’d like to cross, would it be lawful to use this boat?” “It will,” came the reply, “After all it’s my boat.” The traveler thanked him, jumped in the boat, pushed it into the water embarked and rode away. The boat sank and the man was drowned. ” Heartless man,” cried an indignant spectator. “Why didn’t you tell the man that the boat had a hole in it?” “The matter of the boat’s condition,” said the great jurist, “Was not brought before me.”

Now, during the next several days the committee hopes to bring before the American people the matter of your condition and that of your intelligence and competence and philosophy on the role and responsibility of the court in our lives. It’s interesting that out of all the institutions in our three branches of government the Supreme Court remains to most Americans, the least well known, the least understood, and perhaps not so paradoxically, the most revered. With a national press corps recording virtually every step or misstep that a president makes, the American people are fully aware that the nation’s chief executive is bound to be a colossus with imperfect feet. And it’s no state secret that the American people hold the legislative branch with what we can only charitably call, a minimum of high regard.

It’s only the judicial branch, and in particular the Supreme Court, that has significantly grown in stature since its creation some 200 years ago. And for the vast majority of people, the Justices, their deliberations, their decision making processes, they all remain shrouded in secrecy. And there is almost an ecclesiastical aura and mystery that surrounds that temple where final and unreviewable power is exercised. Prof. Laurence Tribe, who is no stranger to this committee has described the profound nature of the Court’s influence on our lives. He’s written that a president resigns, a gargantuan corporation disintegrates, a frightened but hopeful child marches to school with her military escort past a hostile crowd, all because nine black-robed figures in Washington have gleaned new wisdom from an old and hallowed document. The sweep of the Supreme Court’s influence is so vast that it cannot be grasped by the eye. Well, the Washington Post has published a-

[inaudible 01:27:00] by the eye. Well, the Washington Post has published a thorough three part series on your life and career, and there were many things that caught my eye in those articles. But one involved your comment in which you expressed some concerns about the Kahn case. According to the article, you wrote a letter back in 1975 to one of your former law school students expressing some apprehension that justice William O. Douglas, whose widowed mother had had had a very rough time financially, might not like a case challenging widow’s benefits. Now, most people cling to the illusion that Supreme Court justices are simply blacked robe oracles, who peer through lenses that are unclouded by the personal experiences and biases that afflict ordinary mortals. But I think you in writing that letter understood what justice Cardozo revealed some years before. He said, “We may try to see things as objectively as we please, nonetheless, we can never see them with any eyes except our own.” To that test, they’re all brought in the form of pleading or an act of parliament, the wrongs of poppers, the rights of princes, a village ordinance or a nation’s charter.”

What I hope in the next several days is that we can get a better sense of the experiential and intellectual forces within you that will provide some indication of the direction that you’re likely to pursue in the days in which you are going to remain beyond the reach of public opinion, and beyond that of congressional recall. Now, one of my colleagues earlier indicated how he has expressed opposition to nominees who were advocates as private citizens and whom he feared would remain so while on the court. Today he offered, I think, some mild disappointment or expressions of mild disappointment that once you were an advocate and his fear is that you have become a jurist while serving as a judge and might continue to do so.

Let me express my hope that you will maintain a juris approach to the law, rather than that of an advocate. Justice Cardozo, I think in his most concise and penetrating comment reminded us that in the final analysis, there’s no guarantee of justice except the personality of the judge. I am hopeful that at the conclusion of these proceedings, the American people will be satisfied as we will, that we will have a guarantee of justice and that justice will be done. Thank you, Mr. Chairman.

Thank you very much, Senator. Judge, this is a historic occasion, but it’s particularly historic that I believe that your next person to make a statement will be the first woman ever to preside over a judiciary committee proceeding for the court. It’s appropriate that the first person over whom she presides is likewise a woman. Oh, I beg your pardon. With that, I’ll introduce Senator Cole, from Wisconsin, who I assure you is not a woman and has done this before and done it well, and is the most distinguished member of this committee. Senator Cole. I apologize.

Herbert Kohl: (01:30:15)
All right. Thank you, Mr. Chairman. Judge Ginsburg, as we all know, last month, President Clinton announced that he would nominate you to serve on the Supreme Court. At that Rose Garden ceremony. You told the president that you look forward to stimulating weeks this summer. I assume that you were referring to this confirmation process, and I hope very much that we don’t disappoint you. Although the Constitution is silent on what standard to apply in evaluating a nominee, you have provided some useful guidance. You have noted that in an appointment to the Supreme Court, the Senate comes second, but is not secondary. I agree. As a member of this committee, I have developed my own criteria for judgment.

First, I look for a nominee of exceptional character, competence, and integrity. That you clearly have as an honored student and effective advocate, and also as a very distinguished appellate judge. But I am struck by more than your professional honors. I am impressed by your dedication to principles that you have not only talked about, but lived. For example, you didn’t just resign from discriminatory clubs, you refused to join them in the first place. You didn’t just talk about gender equality, you fought for it, and we all admire that.

Second, I seek a justice who understands and accepts both the basic principles of the Constitution and its core values implanted in our society. We do not elect justices. They are given lifetime tenure precisely because we want to insulate the court from the pull and the tug of partisan politics. That installation makes it critical that we be certain that a nominee will protect the civil rights and the liberties of all Americans.

Third, I wanted justice with a sense of compassion. Behind every abstract legal principle there are real people with real problems. It is the court that must be their sanctuary and their shelter. Justice Black put it best. when he said, “Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.” In other words, judge Ginsburg, the courts are places for doing justice and not just giving logic to the law. Judge, you are not a stealth nominee. Your record is clear, and there is little opposition to your confirmation. In fact, conventional wisdom has you all but confirmed. But even so the Senate should not act as a rubber stamp. The president is asking us to entrust you with an immense amount of power. Before we decide to give it to, we need to know what is in your heart and what is in your mind. We don’t have a right to know in advance how you will rule on cases which will come before you, but we do need, and we deserve to know what you think about the fundamental issues that surround these cases.

So today we begin a public discussion, which is the only opportunity we will have on behalf of the American people to engage you in a conversation about the core concepts of our society. I hope judge that you will discuss these matters with us more in terms of principles and precedents, and more in terms of desires and doctrine. The American people care about these concepts. They are not just debated in law journals. For example, as television brings violence into our homes, we agonize over the impact it has on our children, the damage it does to their values and to their view of reality and wonder how we can reduce it without threatening the constitutional promises of free speech. As gangs roam our streets and create fear in our communities, we debate balancing the rights of individuals with the responsibility of the police to protect civil order.

As new civil and voting rights laws are proposed, we struggle to correct discrimination of the past without creating a newly disenfranchised class. These and other issues invite all Americans to struggle with the dilemmas of democracy. If we can discuss these issues today with candor, then I believe we will have a conversation the American people will profit from, and perhaps Judge Ginsburg, the type of stimulating conversation that you spoke of in the Rose Garden. So we welcome you before this committee and we look forward to our discussion with you.

Thank you very much, Senator. Now I’d like to recognize the distinguished Senator from California, Senator Feinstein.

Diane Feinstein: (01:34:45)
Thank you very much, Mr. Chairman and good morning, Judge Ginsburg. For me, this is a very special opportunity because while several of my colleagues spoke of the fact that they have been present during many of these hearings, for myself and Senator Moseley Braun, this is our first, and it is no coincidence that as our first, it is someone such as yourself. We are contemporaries, Judge, and many women of our generation struggled against significant odds to educate themselves and to balance career and family. To be honest though, until I began to prepare for these hearings, I really didn’t realize the depth and the extent to which you have played a very critical role in breaking down the barriers that have barred women from public and private sectors for centuries. So now I know just how really fitting and proper and how significant this vote is going to be for me, and I want to thank President Clinton for nominating you.

I noted for that as one of only nine women in a class of 400 at Harvard, you were asked by the Dean to justify taking a place in the class that otherwise would have gone to a man. That despite graduating at the top of your law school class, only two law firms in the entire city of New York offered you second interviews and neither offered you a job. And that even after you became a litigator, you were given sex discrimination cases to handle because they were viewed at the time as women’s work. You met each of these challenges and indignities and no doubt, many more, Judge Ginsburg, with intellect, with determination and grace. And not only did you justify your admission to law school, but you blazed a trail that thousands of women have followed. Decades later asked to identify the most significant jurists of his time, the same dean who had begrudged your matriculation at Harvard named you and the great Thurgood Marshall. The rest of your story is quite literally history. The history of modern gender discrimination law. As the founder and director of the ACLU women’s rights project, you brought virtually every major sex discrimination case before the Supreme Court in the 1970s. From the very first case that you argued and won, as was spoken by a Senator Leahy, Frontiero versus Richardson, your work has changed the constitutional rules of the road forever. In Frontiero, the court struck down as inherently suspect a law based on gender, and for the first time in history established a new and tough test to which all future gender-based statutes would be subjected.

As I know from my colleague, Senator Moseley Braun, and I know she will appreciate it, Frontiero fittingly was decided precisely 100 years after the Supreme Court upheld in Bradwell versus Illinois, that state’s refusal to admit a woman to the practice of the law. In Bradwell, the Supreme Court wrote, and I quote, “Man is or should be woman’s protector and defender. The natural and proper timidity and delicacy, which belongs to the female sex evidently unfits it for many of the occupations of civil life.” End quote. Accordingly, the court concluded and I quote, “The harmony of interests and views which belong or should belong to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.” What a long way we have come in this nation. It a century though, to extract from the court in Frontiero a new test of constitutionality for statutes based on gender. And it took an extraordinary woman to do it.

Incredibly, you prevailed, as has been said in five of the six cases that you personally argued before the court, winning in the process, equal treatment under the law for both women and men in the administration of estates, receipt of social security benefits, availability of tax exemptions, and jury service. In the process, you improved the lives of virtually millions of Americans. In conclusion for the intellect and dedication to thrive in hostile academic environments, laying the groundwork for thousands of women, including your daughter and mine, who is today a lawyer, to follow, for the courage to persevere with your husband’s active participation in pursuit of a life in the law, and perhaps most of all for the fruits of that life as a litigator and a jurist, I want to thank you, Judge Ginsburg, both for all that you have done and for as a member of the United States Supreme Court for all that you have yet to do. Thank you, Mr. Chairman.

Thank you. Senator Another distinguished new member of the committee, Senator Moseley Braun.

Carol Moseley-Braun: (01:40:19)
Thank you very much, Mr. Chairman. [inaudible 01:40:24].

Thank you.

And to your family, welcome. Mr. Chairman, I am truly honored to have the opportunity to participate in these hearings. One of a senator’s most solemn responsibilities is the duty to offer advice and consent in the nomination of a justice to the United States Supreme Court. One of the most precious privileges an American citizen can have is to play a role in that process. Indira Gandhi once said that if you study history, you will find that where women have risen, that country obtained a high position, and whenever they remain dormant, that country slipped back. Regrettably history teaches us that many obstacles have been placed in the way of progress for women in this country. Judge Ginsburg own personal history, including being rejected for employment by leading law firms and by the very court to which she is nominated today, demonstrated vividly the nature of gender discrimination in this country’s very recent past.

Now in 1993, thanks in no small part to Judge Ginsburg’s efforts as an advocate for women, many, but not all, of the formal legal obstacles to the advancement of women have been eliminated by legislative action and by judicial decisions. As it’s been pointed out before, today marks only the second time in our nation’s history that a woman has appeared before the Senate judiciary committee as a nominee to the Supreme Court. It is also the first time that any woman, let alone two, have sat as members of this all in part important body. A year ago, I watched Senate confirmation hearings on the television from back home in Illinois, with a sense of helplessness and exclusion. Our democracy, once again responded and the people of Illinois and of California, I might add, have given us the unique privilege of participating here today. This is the greatest country in the world, and I believe the United States Constitution to be the finest exposition of democratic principles ever written.

I make these statements, Mr. Chairman, fully aware of the fact that in its original form, the Constitution included neither this Senator as an American of African descent, nor our distinguished nominee as a woman in its vision of a democratic society. But the greatness of the constitution lies in the fact that it is a living document, or as Dr. Martin Luther King, Jr. once said, “A declaration of intent regarding America’s unlimited potential.” A document that through an awful, painful process of amendment and interpretation has broadened its reach to extend to the previously excluded its promise of equality and justice for all.

Over the years, the Supreme Court played a glorious role in that process. It was the justices of our Supreme Court in their bold, independent and faithful interpretations of our living Constitution, who outlawed racial segregation in our schools, guaranteed indigent criminal defendants the right to counsel, brought wiretapping within the restrictions of the Fourth Amendment, demanded freedom of speech, and recognized a woman’s fundamental right to control her reproductive destiny. In some of the most difficult eras of our history, the Supreme Court has shown the courage to give life to the promise of the Constitution.

It seems to me that a central issue of our time is whether that courage has been lost to timidity and partisan politics. It is troubling to me, Mr. Chairman, that the court’s general approach to constitutional-

That has curtailed rather than expanded individual rights and has left those who are not rich or powerful or privileged with fewer and fewer rights and less and less liberty. Regular working men and women, ordinary people, can no longer be sure that the Supreme Court will be their champion of last resort. All the conversations that we’ve heard today about judicial philosophy boil down to this: can the people be secure that this nominee will be a champion of their liberties, a jurist committed to the rule of law in the service of society? Someone willing to see our living constitution as a declaration of intent. Over the next few days, this committee will have the opportunity to explore with some of the most complicated doctrines of constitutional law with this nominee, a brilliant jurist and legal scholar. These discussions are designed to illuminate Judge Ginsburg’s judicial philosophy, and temperament.

But even as we engage in what may sometimes become a highly technical dialogue, Mr. Chairman, let us never forget that the Supreme Court does not belong to the Senate judiciary committee, nor to this country’s 800,000 lawyers, nor even to the nine distinguished justices themselves. Mr. Chairman, the court belongs to the American people and the court belongs to the American people for one very simple, yet profound reason: because the Constitution belongs to the American people.

Justice Ginsburg, in your very eloquent remarks and accepting the president’s nomination, you said that you hope to work, and I quote, “To the best of my ability for the advancement of law in the service of society.” I salute your aspirations, but I also hope that you will bring more than just your ability, and it’s prodigious based on all of your work and writing so far, but bring more than just your ability to the high court.

I hope that you will also bring your heart, your history, and your humanity. Because on this historic occasion, I cannot help but recall the words of one distinguished American jurist, who I believe was personally known to you, who said, and I quote, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women when it dies there no constitution, no law, and no court can say that.” You know that was Judge Learned Hand who said that.

This great nation is about to entrust its constitution, its laws and its highest court to you, Judge Ginsburg, and I say that without prejudging, the outcome of this nomination, kind of. So I hope that liberty and equality and opportunity lie within your heart because the hopes of millions of Americans depend on it. If liberty and equality and a love of the law live in your heart, then the President and this committee and the American people will have made the right choice.

It is my hope, Judge Ginsburg, that you will pick up the mantle of Justices Brennan and Marshall, and that you will once again give voice within the court to the aspirations and hopes of the forgotten members of our society. As a member of the Supreme Court, you will have an historic chance to nurture our living Constitution, and I use that word deliberately. In so doing, you will serve the people of this great nation. Your rise to this position will therefore be our country’s game, and we will all be the better for it. I again would like to extend my congratulations to you. I look forward to the substantive part of the hearings, and very much welcome you and your family to this hearing today.

Well stated, Senator, I thank you very much. Let me take one brief moment to how Senator Hatch and I have concluded we will pursue the schedule for the remainder of the day. Very briefly. I will ask Judge Ginsburg to rise and be sworn and introduce her family to us, and then invite her to make an opening statement. At the conclusion of that statement, we will adjourn, we’ll recess, I should say, for lunch. There have been five votes ordered to be voted in succession beginning at 2:15 this afternoon. So we will not reconvene the hearings until 3:15. At 3:15, when we reconvene, I have a very brief statement, less than a couple minutes on process, how the remainder of the hearing will be conducted from a procedural standpoint. And I will begin the first round of questions.

Each Senator will be given an opportunity to have an exchange with the witness and the nominee up to 30 minutes, at which time we will conclude the questioning of that Senator. We will not have an opportunity to have every Senator ask their first round of questioning today. It is my intention to have the hearings recess approximately at 6:30, and we will reconvene then 10 o’clock on Wednesday morning, picking up with whomever was the next questioner in line. So that’s how we will proceed from a schedule standpoint. Now, Judge, I ask you to stand with me and be sworn. Judge, do you swear the testimony you’re about to give will be the whole truth and nothing but the truth, so help you God?

Ruth Bader Ginsburg : (01:49:49)
I do, Mr. Chairman.

Thank you. And if you would, Judge, now after hearing the click of all those cameras, why I’m so popular with the camera persons here, because after lunch they will be banished from the well. I love them all, but so that when you are giving your testimony, actually after you introduce your family, we’re going to take a moment to vanish them from the well so that when you make your statement, you are unencumbered by their smiling faces and the click of the camera. So would you be kind enough though, Judge, to introduce your family to us?

Thank you, Mr. Chairman. I have such a large family with me today, such an extended family.

Take all the time you want.

Not just the immediate people behind me, who I will introduce, but my friends, my law clerks, my secretaries. My heart is overflowing for those are the people who have made it possible for me to be here today. But let me start with my nephew, Peter Stiepleman.

Stand up Peter, so we can all see you.

My brother-in-law Ed Stiepleman.

Welcome.

My wonderful sister-in-law Claire Stiepleman. One of my wonderful law clerks who’s representing all the rest, Al Cacozza.

Used to work for me.

My life’s partner for 39 years, Martin Ginsburg.

Welcome, welcome.

And my son from the great state of Chicago, James Ginsburg.

That’s what most Chicagoans think, that it is a state.

His very special friend, Lisa Brauston.

Lisa.

And my incredible daughter, Jane Ginsberg, and Clara.

Well, Clara, you deserve an award so far the day.

She sure does, and people think I’m very serious. Sober as a judge. So when I had all your people taking photographs of me and the White House, people were trying to get me to smile. They said, think of Clara, as you can see.

Look at Clara smiling.

Then my grandson, Paul Spera. I must tell you that in preparation for these hearings, I have read briefing books, opinion books, law reviews, but there is no book in the world that means as much to me as this one. This is Paul’s book. It says, “My grandma is very, very special,” by Paul Spera. I thank you, Paul, for this wonderful book.

Oh, isn’t that cute?

Well, I tell you Paul. Paul, the handwriting is good. The pictures are beautiful, and you don’t need a publisher.

It ends with a map of the USA.

As Senator Kennedy just said, he hopes your teacher is listening to this.

And my son-in-law, George T. Spera, Jr.

George.

And Christine.

Hello, Christine.

Who’s been taking such wonderful care of the children. Then on behalf of my cousins, who I reckon by the dozen, Stephen Hess.

Stephen, welcome. You have quite a family, and we welcome you all here today. It’s obviously a very proud moment for you, and it’s a proud moment for the photographers because they get to stand and be seen on television as they walk out of the well. Thank you all. While they’re moving, I want those listening to understand, I have not banished them from the hearing. They will recede into the various places for which this room was designed to be able to take their photographs. So they will continue to be able to do their job.

Speaker 2: (01:53:57)
Hey, Terry. I’ll take him from up here now.

Now, one of our colleagues who’s just arrive has a statement. I’ll ask him whether or not he would prefer to deliver it before or after the nominee makes her statement.

Larry Pressler: (01:54:23)
I apologize. I was in the commerce committee. We had an air safety hearing with the new, and I’m ranking member on that, and I went through a long morning. I’ll summarize it greatly. But what do you prefer?

That’s fine, Senator. You go right ahead, and then we’ll go to your statement.

Welcome Judge Ginsburg. You and I share something in common. This is our first US Supreme Court confirmation hearing. I am very much impressed with your legal background. You are a pioneer in the field of gender discrimination, and your long line of legal victories has secured fundamental rights for both women and men.

As stated in my conversation with you in my office several weeks ago, I am very interested in how you would approach cases of particular interest to those of us living in the West. In my part of the country, many legal controversies arise over how the law of the land is applied to the use of the land. Environmental law, water law, hunting and fishing rights, mineral rights, access to public lands, private property rights and cases and controversies arising in Indian country. These are everyday issues that affect everyday people living in the West. The court’s treatment of these issues dramatically affect the way of life of the people of the West, including my home state of South Dakota.

I certainly am not looking for your position on these issues. After all, you’re not campaigning for an elected office, nor are you a political appointee. You’ve been nominated to be a justice on the highest court in the land. We in this committee and our colleagues in the Senate are charged with the responsibility to confirm-

We on this committee and our colleagues in the Senate are charged with the responsibility to confirm or not confirm you for this high office. Some writers have commented that the Senate is the last opportunity for the people to have a voice in determining who shall sit on the nation’s highest Court. Supreme Court Justices are appointed for life. Once you are seated on the Court, the American people will have to coexist with Justice Ginsburg for as long as you choose to stay, or God chooses to keep you there

Before I cast my vote on your confirmation, I would like to know how familiar you are with the issues I referenced, your inclination to learn more about them, and how you intend to go about deciding cases involving these issues. Indeed, on Indian country issues, I note in the papers that even the State of Connecticut has a dispute over Indian lands and Indian jurisdiction. Both Indians and whites on or near reservations are eager to resolve some of these issues, and many of them go to the Supreme Court. Through these specific issues, I hope to learn more about your general approach to the basic principles of judging, principles such as fairness and objectivity. There also are many issues that go to the Supreme Court regarding hunting and fishing rights, such as on the Missouri River. There are cases that go to the Supreme Court about the tribal courts, which are different from the US federal district courts, which have original jurisdiction on the reservations. There are issues involving the overload of federal judges who deal on Indian reservations with misdemeanors and so forth because the US district courts are the court of original jurisdiction there.

In the course of the next few days, I hope we can have a dialogue on issues of concern to the people in the West, but not only in the West, but throughout the United States, because everyone is concerned about these issues. And the Supreme Court, it seems ends up deciding more of them than Congress, perhaps because Congress is unwilling. Maybe I should criticize our own institution. So I would ask unanimous consent to be able to submit the remainder of my statement in the interest of time, but I shall be asking many questions on Indian country jurisdiction.

Joe Biden: (01:57:57)
Without objection, it will be entered in the record. I thank you, Senator. And now judge, the floor is yours. And again, welcome.

Ruth Bader Ginsburg: (01:58:06)
Thank you, Mr. Chairman, Senator Hatch, and other members of the committee. May I say first how much I appreciate the time that committee members took to greet me in the weeks immediately following the President’s nomination. It was a particularly busy time for you, and I thank you all the more for your courtesy. To Senator Moynihan, who has been at my side every step of the way, a thousand thanks could not begin to convey my appreciation. Despite the heavy demands on his time, during trying days of budget reconciliation, he accompanied me on visits to Senate members, he gave over his own desk for my use, he buoyed up my spirits whenever a lift was needed. In all, he served as the kindest, wisest counselor a nominee could have. Senator D’Amato, from my great home State of New York, volunteered to join Senator Moynihan in introducing and sponsoring me, and I am so grateful to him.

I have had many enlightening conversations in Senate Chambers since June 14, but my visit with Senator D’Amato was sheer fun.

Joe Biden: (02:00:00)
It always is.

My children decided at an early age that mother’s sense of humor needed improvement. They tried to supply that improvement, and they kept a book to record their successes. The book was called: Mommy Laughed. My visit with Senator D’Amato would have supplied at least three entries for the Mommy Laughed book.

Representative Norton has been my professional colleague and friend since days when we were still young. As an advocate of human rights and fair chances for all people, Eleanor Holmes Norton has been as brave and as vigilant as she is brilliant. I am so pleased that she was among my introducers, and so proud to be one of Eleanor’s constituents.

Most of all, the president’s confidence in my capacity to serve as a Supreme Court Justice is responsible for the proceedings about to begin. There are no words to tell him what is in my heart. I can say simply this: If confirmed, I will try in every way to justify his faith in me.

I am, as you know from my responses to your questionnaire, a Brooklynite, born and bred, a first-generation American on my father’s side, barely second-generation on my mother’s. Neither of my parents had the means to attend college, but both taught me to love learning, to care about people, and to work hard for whatever I wanted or believed in. Their parents had the foresight to leave the old country, when Jewish ancestry and faith meant exposure to pogroms and denigration of one’s human worth. What has become of me could happen only in America. Like so many others, I owe so much to the entry this nation afforded to people yearning to breathe free.

I have had the great fortune to share life with a partner truly extraordinary for his generation, a man who believed at age 18, when we met, and who believes today, that a woman’s work, whether at home or on the job, is as important as a man’s. I became a lawyer in days when women were not wanted by most members of the legal profession. I became a lawyer because Marty and his parents supported that choice unreservedly.

I have been deeply moved by the outpouring of good wishes received in recent weeks from family, neighbors, camp mates, classmates, students at Rutgers and Columbia, law-teaching colleagues, lawyers with whom I have worked, judges across the country, and many women and men who do not know me. That huge spirit-lifting collection shows that for many of our people, an individual’s sex is no longer remarkable or even unusual with regard to his or her qualifications to serve on the Supreme Court.

Indeed, in my lifetime, I expect to see three, four, perhaps even more women on the High Court bench. Women not shaped from the same mold, but of different complexions. Yes, there are miles in front, but what a distance we have traveled from the day President Thomas Jefferson told his Secretary of State, “The appointment of women to public office is an innovation for which the public is not prepared.” “Nor,” Jefferson added, “am I.”

The increasingly full use of the talent of all of this nation’s people, holds large promise for the future, but we could not have come to this point, and I surely would not be in this room today without the determined efforts of men and women who kept dreams alive. Dreams of equal citizenship in the days when few would listen. People like Susan B. Anthony, Elizabeth Cady Stanton, and Harriet Tubman come to mind. I stand on the shoulders of those brave people.

Supreme Court Justices are guardians of the great charter that has served as our nation’s fundamental instrument of government for over 200 years. It is the oldest written constitution still in force in the world. But the Justices do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the president, the states, and the people. Constant realization of a more perfect union, the Constitution’s aspiration, requires the widest, broadest, deepest participation on matters of government and government policy.

One of the world’s greatest jurists, Judge Learned Hand, said, as Senator Moseley-Braun reminded us, that the spirit of liberty that imbues our Constitution must lie first and foremost, in the hearts of the men and women who compose this great nation. Judge Hand defined that spirit, in a way I fully embrace, as one which is not too sure that it is right, and so seeks to understand the minds of other men and women and to weigh the interests of others alongside its own without bias. The spirit Judge Learned Hand described strives for a community where the least shall be heard and considered side by side with the greatest. I will keep that wisdom in the front of my mind as long as I am capable of judicial service.

Some of you asked me during recent visits why I want to be on the Supreme Court. It is an opportunity beyond any other for one of my training to serve society. The controversies that come to the Supreme Court, as the last judicial resort, touch and concern the health and well-being of our nation and its people. They affect the preservation of liberty to ourselves and our posterity. Serving on this Court is the highest honor, the most awesome trust, that can be placed in a judge. It means working at my craft, working with and for the law, as a way to keep our society both ordered and free.

Let me try to state in a nutshell how I view the work of judging. My approach, I believe, is neither liberal nor conservative. Rather, it is rooted in the place of the judiciary, of judges, in our democratic society.

The Constitution’s preamble speaks first of we, the people, and then of their elected representatives. The judiciary is third in line and it is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law, and without fear about the animosity of any pressure group. In Alexander Hamilton’s words, “The mission of judges is to secure a steady, upright, and impartial administration of the laws.” I would add that the judge should carry out that function without fanfare, but with due care. She should decide the case before her without reaching out to cover cases not yet seen. She should be ever mindful as judge. And then Justice Benjamin Nathan Cardozo said, “Justice is not to be taken by storm. She is to be wooed by slow advances.”

We, this committee and I, are about to embark on many hours of conversation. You have arranged this hearing to aid you in the performance of a vital task, to prepare your Senate colleagues for consideration of my nomination. The record of the Constitutional Convention shows that the delegates had initially entrusted the power to appoint federal judges, most prominently Supreme Court Justices, not to the president, but to you and your colleagues, to the Senate acting alone. Only in the waning days of the convention did the framers settle on a nomination role for the president and an advice and consent role for the Senate.

The text of the Constitution, as finally formulated, makes no distinction between the appointment process for Supreme Court Justices and the process for other offices of the United States, for example, cabinet officers. But as history bears out, you and Senators past have sensibly considered appointments in relation to the appointee’s task. Federal judges may long outlast the president who appoints them. They may serve as long as they can do the job. As the Constitution says, they may remain in office during good behavior.

Supreme Court Justices, most notably, participate in shaping a lasting body of constitutional decisions. They continuously confront matters on which the framers left things unsaid, unsettled, or uncertain. For that reason, when the Senate considers a Supreme Court nomination, the Senators are properly concerned about the nominee’s capacity to serve the nation, not just for the here and now, but over the long term. You have been supplied, in the five weeks since the president announced my nomination, with hundreds of pages about me and thousands of pages I have penned my writings as a law teacher, mainly about procedure; 10 years of briefs filed when I was a courtroom advocate of the equal stature of men and women before the law; numerous speeches and articles on that same theme; 13 years of opinions, counting the unpublished together with the published opinions, well over 700 of them; all decisions I made as a member of the US Court of Appeals for the District of Columbia Circuit; several comments on the roles of judge and lawyers in our legal system.

That body of material, I know, has been examined by the committee with care. It is the most tangible, reliable indicator of my attitude, outlook, approach, and style. I hope you will judge my qualifications principally on that written record, a record spanning 34 years, and that you will find in that written record assurance that I am prepared to do the hard work and to exercise the informed, independent judgment that Supreme Court decision making entails.

I think of these proceedings much as I do of the division between the written record and briefs, on the one hand, and oral argument on the other hand, in appellate tribunals. The written record is by far the more important component in an appellate court’s decision making, but the oral argument often elicits helpful clarifications and concentrates the judges’ minds on the character of the decision they are called upon to make. There is, of course, this critical difference. You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and it’s decision to turn on those facts. And the governing law stated and explained in light of the particular arguments, the parties, or their representatives present a judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process. Similarly, because you are considering my capacity for independent judging, my personal views on how I would vote on a publicly debated issue were I in your shoes, were I a legislator, are not what you will be closely examining.

As Justice Oliver Wendell Holmes counseled, “One of the most sacred duties of a judge is not to read her convictions into the Constitution.” I have tried and I will continue to try to follow the model Justice Holmes set in holding that duty sacred.

I see this hearing, as I know you do, as a grand opportunity once again to reaffirm that civility, courtesy and mutual respect properly keynote our exchanges. Judges, I am mindful, owe the elected branches, the Congress and the president, respectful consideration of how court opinions affect their responsibilities. And I am heartened by legislative branch reciprocal sensitivity. As one of you said two months ago at a meeting of the Federal Judges Association, “We in Congress must be more thoughtful, more deliberate in order to enable judges to do their job more effectively.”

As for my own deportment or, in the Constitution’s words, good behavior, I prize advice received on this nomination from a dear friend, Frank Griffin, a recently retired Justice of the Supreme Court of Ireland. Justice Griffin wrote: “Courtesy to and consideration for one’s colleagues, the legal profession, and the public are among the greatest attributes a judge can have.”

It is fitting, as I conclude this opening statement, to express my deep respect for, and abiding appreciation to Justice Byron R. White for his 31 years and more of fine service on the Supreme Court. In acknowledging his colleagues’ good wishes on the occasion of his retirement, Justice White wrote that he expects to sit on US courts of appeals from time to time, and so to be a consumer of, instead of a participant in, Supreme Court opinions. He expressed a hope shared by all lower court judges. He hoped the Supreme Court’s mandates will be clear and crisp, leaving as little room as possible for disagreement about their meaning. If confirmed, I will take that counsel to heart and strive to write opinions that both get it right and keep it tight. Thank you for your patience.

Joe Biden: (02:22:01)
Thank you very much, Judge Ginsburg. Now what we will do as I’d previously announced, we will recess and reconvene at 3:15.

Part 2

Joe Biden: (00:16)
Let me begin now with the questioning, I’d like to begin by asking you about how you will go about interpreting our Constitution, Judge.

Joe Biden: (00:25)
Judges, as you know better than I do, approach this job in many different ways. And these different approaches often lead to very different results.

Joe Biden: (00:34)
You’ve made a great many statements about constitutional interpretation as a scholar, and awhile, as a judge, in lectures that you’ve delivered, most recently, in a talk you gave this year, which is referred to as the Madison Lecture.

Joe Biden: (00:49)
In that lecture, you said, and I’m quoting here, that, “Our fundamental instrument of government is an evolving document.” You also said you rejected the notion, “that the great clauses of the Constitution must be confined to the interpretation which the Framers would have placed on them.”

Joe Biden: (01:16)
I could not agree more. If the meaning of the Constitution did not evolve over time, we would not today have many of the individual rights all Americans now hold most dear, like the right to choose whomever you wish to marry. There’s nothing in the Constitution, as you know, that gives someone a constitutional right to marry whom they want, it’s not specifically enumerated. And were that not changed in Loving v. Virginia, there could still be laws in the book saying blacks can’t marry whites and whites can’t marry blacks.

Joe Biden: (01:45)
Or the right to get a job, whoever you are, whether you’re white or black, male or female, but still, there are hard questions about precisely how the Constitution evolves, about when the court should recognize a right not specifically mentioned in the Constitution, or specifically contemplated by the authors of that document at that moment, whether it’s an amendment, or the core of the Constitution.

Joe Biden: (02:14)
You spoke to these questions at some length in the Madison Lecture. You said that the history of the United States Constitution is in large part a story of, and I quote, “the extension of the constitutional rights and protections,” including to ” once excluded groups.”

Joe Biden: (02:33)
Judge, can you discuss with me, for a moment, what allows courts to recognize rights like the right to marry whomever you wish, like the right to be employed or not employed, based upon, without there being a distinction between males and females? Like the right that was mentioned here earlier by several of my colleagues in the opening statement, for women to be included in, I thought the phrase that Eleanor Holmes Norton used was, “within the embrace of the 14th Amendment,” or something to that effect, when, in fact, they were not contemplated to be part of that amendment when it was written. What is it that allows the court to recognize such rights that the drafters of the Constitution or specific amendments did not specifically mention or even contemplate at the time, the amendment, in the case of the 14th Amendment, or the Constitution and the Bill of Rights were drafted?

That’s a large question, Mr. Chairman, and I’ll do my best to respond. First, I think the credit goes to the Founders. When I visited Senator Thurmond, he was kind enough to give me a pocket Constitution.

Joe Biden: (03:48)
I think that was Sam Ervin’s. Did you give her Senator Ervin’s pocket Constitution?

But he gave me-

Senator Strom Thurmond: (03:54)
I gave her a [inaudible 00:03:55] Constitution. That’s the United States Constitution.

But this pocket Constitution contains another document, and it is our basic rights declaring document. It is the Declaration of Independence, the declaration that created the United States. I think the Framers are short changed if we view them as having a limited view of rights, because they wrote, Thomas Jefferson wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, Liberty, and the pursuit of happiness, and that government is formed to protect and secure those rights.”

Now, when the Constitution was written, as you know, there was much concern over a Bill of Rights. There were some who thought a Bill of Rights dangerous, because one couldn’t enumerate all the rights of the people. One couldn’t compose a complete catalog.

The thing to do was to limit the powers of government, and that would keep government from trampling on people’s rights. But there was a sufficient call for a Bill of Rights. And so, the Framers put down what was in the front of their minds, in the Bill of Rights.

If we look at the way they are stated in the Bill of Rights, in contrast to the Declaration of Independence, let’s take Liberty, as it appears in the Fifth Amendment, this statement in the Fifth Amendment, “nor shall any person be deprived of life, liberty, or property without due process of law.”

This is written as a restriction on the state. The right is already declared in the Declaration, it’s an unalienable right, and the government is warned to keep off, both in the structure of the Constitution, by limiting the powers of government and in the Bill of Rights.

And then, as you also know, Mr. Chairman, the Framers were fearful that this limited catalog might be understood, even though it’s written as a restriction on government, rather than a conferring of rights on people, that might be understood as skimpy, as not stating everything that is. And so, we do have the Ninth Amendment, stating that the Constitution shall not be construed to deny or disparage other rights retained by the people. So the Constitution is written, it might contrast it with it the great French Declaration of the Rights of Man, which does confer a right, the state confers a right to speak freely.

But in our Bill of Rights, it doesn’t say the state gives one a right to speak. It says, “Congress shall make no law prohibiting the free exercise of religion or abridging the freedom of speech.”

So that the whole thrust of it is people have rights, and government must be kept from trampling on them. And the rights are stated with great breadth in the Declaration of Independence.

Now it is true, and it’s a point I made in the Madison Lecture, that the immediate implementation in the days of the Founding Fathers, in many respects, was limited. We, the people was not then what it is today. The most eloquent speaker on that subject was Justice Thurgood Marshall.

When during the series of Bicentennials, when songs of praise to the Constitution were sung, he reminded us that the Constitution’s immediate implementation, even as text, had certain limitations, blind spots, blots on our record. But he said that the beauty of this Constitution is that, through a combination of interpretation, constitutional amendment, laws passed by Congress, we, the people has grown ever larger.

So now it includes people who were once held in bondage. It includes women, who were left out of the political community at the start. So I hope that begins to answer your question, that the view of the Framers, their large view, I think, was expensive. Their immediate view was tied to the circumstances in which they lived.

Joe Biden: (09:51)
Well, it does answer the question, and I’m delighted, to be very blunt about it, delighted with the answer. And as I’ve indicated to you, and I’ve said on numerous occasions, over my 20 years in the Senate, that I do not expect a nominee, nor demand of a nominee to agree with me on substantive issues.

Joe Biden: (10:11)
But it does make a difference to me, and give me at least me some insight into the view of the past history, and the future of this nation, that a nominee has the vision they have, if I know from which they think, the place from which they believe our rights are derived. And you have made a fundamental distinction from other nominees that have been before this committee in the past decade, one of which was, not all, but one in particular.

Joe Biden: (10:39)
And as you’re emphasizing, first of all, you acknowledged there is a Ninth Amendment. That is, you have no idea what a milestone that is in this committee, and I’m being a bit facetious, but we had one nominee who said the Ninth Amendment was “nothing but an ink blot on the Constitution.”

Joe Biden: (10:57)
But your emphasis, and that there, whereby we derive, the courts over the years have derived, they expanded a concept, which at the time it was written, did not embrace a specific circumstance. You’ve indicated, as I understand your answer, that you start off with the position, as I happen to share, that this is a limited government.

Joe Biden: (11:22)
We do not derive our rights as human beings from a piece of paper called the Constitution. The government derives its rights from we the people. We the people got together back a couple hundred years ago and said, “This is the deal we’re going to make among ourselves, and what power we’re going to allow government to have.”

Joe Biden: (11:42)
And I think the important word in the Ninth Amendment is, “deny or disparage others,” referring to rights retained by the people. And as you point out, the distinction between how the great French Declaration of Rights, or other great instruments, proclaiming human rights and dignity, I’ve always proclaimed them in terms of granting them to the people. In this case, the mirror, the way in which as you point out our Constitution is written. The First Amendment, that “Congress shall make no law,” very different perspective from which we in this country have started.

Joe Biden: (12:20)
And secondly, you’re referencing the 15th Amendment, the Declaration of Independence, and the Ninth Amendment, and I expect, possibly the 14th Amendment, as well, as a basis from which the courts have found over the last 200 years, and in particular, over the last 50 years, a intellectually consistent and rational basis for being consistent with the Constitution, but nonetheless, expanding individual rights in the sense that they recognize their existence in their guarantee of constitutional protection. Now, so it does answer the question for me.

Joe Biden: (12:53)
But I’d like to move from there, if I may now, having established that, that the Constitution has to be read by Justices in light of its broadest and most fundamental commitments, commitments to liberty, commitments to individual dignity, equality of opportunity. And in my view, the Framers were wise when they drafted the Constitution with such broad language.

Joe Biden: (13:20)
And I think, and there’s ample, I think, historical evidence to indicate that they understood that at the time, that they were going to be, that the document that they were drafting for this newborn nation was one that required concepts to be embodied more than specific guarantees, that could change with time. And I believe it was precisely, they did it in broad concepts, not specifics, precisely to avoid freezing the rights and protections that were afforded Americans.

Joe Biden: (13:52)
Now, their method permits the meaning of the document to progress as we progress. And as the world changes, and as we better understand the full scope of our nation’s principle and ideals, the Constitution interpretation has changed.

Joe Biden: (14:08)
Now, in the Madison Lecture, though, you also noted constraints on the ability of the courts to expand individual rights. You recognized that that what has been done, it’s constantly been an expansion, but that there was a, in a sense, a self-imposed restraint. And you wrote that, that movement in this direction of expansion by the courts should be measured, it was your quote, “measured and restrained.”

Joe Biden: (14:36)
You also wrote the courts generally should follow rather than lead changes taking place elsewhere in society. And you characterized the court, you, excuse me, you criticized the court, as I read the lecture, for too often, “stepping boldly in front of the political process.” I believe that was the quote.

Joe Biden: (14:59)
But Judge, in your work, as an advocate in the ’70s, you spoke with a different voice. In the ’70s, you pressed for immediate extension of the fullest constitutional protection for women under the 14th Amendment. And you said the court should grant such protection, notwithstanding what the rest of society, including the legislature, the legislative branch, thought about the matter.

Joe Biden: (15:28)
For example, in one brief, you wrote, “the quality of the court’s review is not determined by the presence or absence of stirrings, S-T-I-R-R-I-N-G-S, stirrings in the legislative branch.”

Joe Biden: (15:45)
Now, I believe that was in the Frontiero brief, I’m not certain of that, but I think that’s right. Now, how does that square with your statement in the Madison Lecture, that courts generally should follow rather than lead society, and that courts should move in measured motions and measured steps? Is my question clear?

Are you referring to the Frontiero brief?

Joe Biden: (16:17)
Where you said, if I’m not mistaken, “the quality of the court’s review is not determined by the presence or absence of stirrings,” and that in the Madison Lecture, you said that the court should be measured and restrained, follow rather than lead, changes taking place elsewhere in society. Can you square those for me, or point out their consistency to me?

Yes.

Joe Biden: (16:50)
A good answer. Now we’ll go on to the next question.

Yes.

Joe Biden: (16:52)
Right after.

The Frontiero brief, from which you read, was, in fact, the third in a set of briefs urging the Supreme Court to recognize the equal stature of men and women before the law. As an advocate in those cases, I gave the court initially two, and later three, choices for the rationale. One was that any classification based on gender should have the closest review.

Joe Biden: (17:42)
As would distinctions made on race?

Yes. And then, at the opposite pole, I said, “But these classifications that riddle our statute books couldn’t even pass the lowest level of review,” which is the rational basis test.

The first case in which those arguments presented were presented was a very simple one. It was the case of Sally Reed, whose young son died under tragic circumstances. He was a teenage boy. And she applied to be administrator of his estate. The boy’s father, parents were separated at that point, also applied to be administrator. The state of Idaho at that time had a rule for deciding such cases. And the rule was, as between persons equally entitled to administer a decedent’s estate, males must be preferred to females.

It’s maybe astonishing to some of the young people behind you, that laws like that were on the books, in the states of the United States in the early 1970s, but they were, and they were many like them. There had never been in the history of the United States any instance, in which any law, that differentiated on the basis of sex, had been declared unconstitutional up to Reed V Reed.

Joe Biden: (19:31)
Matter of fact, some had been challenged and declared to be constitutional.

A number of them, but without reciting that entire history, as an advocate, I presented to the court different ways that they could reach the decision in that case, which was as clear on its facts as any case could be. That was the position that I took as an advocate. My expectation, to be candid, was that I would repeat that kind of argument, maybe half a dozen times.

Joe Biden: (20:07)
Until they got it right?

Until the Court would look at one classification after the other and say, “Well, this is irrational.” Then they would come to the point where they would say, “None of these lines make any sense, so we might as well recognize that drawing lines on the basis of gender is, in almost all cases, impermissible, and the presumption will be against rather than for that constitutionality.”

But I saw my role in those days, as an advocate in part, and as a teacher in part, because one of the differences about gender discrimination and race discrimination, is that race discrimination was immediately perceived as evil, as odious, as wrong, as intolerable.

But the response that I was getting from the judges before whom I appeared, when I talked about, originally, sex-based discrimination, then I began to use the word “gender,” I’ll explain that perhaps later, but, “What are you talking about? Women are treated ever so much better than men.”

I was talking to an audience that thought immediately, that what I was saying was somehow critical about the way they treated their wives, the way they treated their daughters. Their notion was far from treating them in an odious, evil, discriminatory way, women were on a pedestal. Women were spared the messy, dirty real world, and they were kept in this clean, bright home.

And so, it was trying to educate the judges that there was something wrong with saying, “Sugar and spice and everything nice, and that’s what little girls are made of,” that that was limiting the opportunities, the aspirations of our daughters. So I expected that to be, one doesn’t learn that lesson in a day. I think generally, in our society, change is incremental, and real change, enduring change, happens one step at a time.

I think this litigation may be illustrative. Because in that second case that you mentioned, Frontiero, four justices came on board for the sex as a suspect classification. I was told that, by one of the lawyers, the ACLU Women’s Rights Project, I think it may even been the Executive Director, who came in and said, “You got four votes for sex as a suspect classification.” I said, “It’s too soon. We’re not going to get the fifth.” The education process hadn’t gone on long enough. So even though, as an advocate, I was advancing sex as a suspect classification, as the end point that I expected the court to reach after it dealt with a series of real life cases, cases like Sally Reed’s case, I didn’t expect it to happen in one fell swoop.

Joe Biden: (23:29)
Well, Judge, I don’t mean to cut you off, but this is an appropriate place to take the next step, then. I understand what your strategy was, and I understand now how you view and perceive permanent, important change to come about, how it does come about. And I think it’d be hard to argue from historical perspective that you’re wrong. And I don’t mean do that.

Joe Biden: (23:50)
I’m trying to square, though, I understand your position as an advocate. Then you became an appellate court judge, and you gave a lecture this year, called the Madison Lecture. Now, as an appellate court judge, you are required to follow Supreme Court precedent. You are not able to go off on your own.

Joe Biden: (24:06)
A subject I’m going to come back to in my second round with you is your view of stare decisis, because we both know that in the court you’re about to go to, you are not bound by any previous Supreme Court ruling. As a judge on the Circuit court, you are honor bound to follow, to the best of your ability, what you believe to be the consistent ruling, ruling consistent with what the Supreme Court has ruled, if it’s on all fours, or as close as you can approximate it.

Joe Biden: (24:38)
Now you are going from, you’ve had three different roles, advocate, where you were educating. And I know you mean that literally, and that’s exactly what has to be done, where, believe it or not, some of us in the legislature think we have to do it that way as well, like the Violence Against Women legislation, which I’d like to talk to you about here, as well, and from a constitutional perspective, where there are laws on the books now that are outrageous.

Joe Biden: (25:02)
They don’t relate directly to the equal protection considerations, but they start off with premises about women that are arcane and wrong. In my own state of Delaware, you cannot be, you can be convicted of first-degree rape if you rape a stranger. But if you rape someone with whom you’ve had an acquaintanceship, under the law, you cannot be convicted.

Joe Biden: (25:22)
It can be as brutal a rape, as terrible a rape, but it’s second-degree rape because you are a, what is it, a social-

Speaker 1: (25:27)
[inaudible 00:25:29].

Joe Biden: (25:28)
A social companion. Implicit in that is, if you’re a social companion, somehow the woman is partially responsible for this. So there are still these outrageous laws on the books in other areas.

Joe Biden: (25:39)
But the point is, you then moved into being an advocate, I mean, from advocate, to being a judge on the Circuit Court of Appeals, and as a judge, you indicated what I said, that the court should move in a measured, restrained way.

Joe Biden: (25:54)
You’ve also noted, though, that the court in Brown vs. The Board of Education was not timid. It was not fearful. It stepped out in front of society. And yet in another lecture, you said that Brown “ended race segregation in our society, perhaps a generation before state legislators in our Southern states would have budged on the issue.”

Joe Biden: (26:18)
Again, a seeming inconsistency. One, you say the court should basically wait and not step out too far ahead of society. And the other, you indicated that, in Brown, you acknowledged they did. They stepped out maybe an entire generation ahead of society, and they stopped an odious practice, in Brown versus the Board.

Joe Biden: (26:42)
And so, what I’d like to know is, as a Supreme Court Justice, what will guide you, if you, as you may, and I’m not asking you this, but you may conclude that strict scrutiny is the measure that should be applied under the equal protection clause of the 14th Amendment, relative to women, as it is with regard to race, if you as a Justice concluded that is the proper test to be applied?

Joe Biden: (27:13)
Notwithstanding the fact society may not have gotten that far, would it be appropriate? Not will you, but would it be appropriate for you as a Justice, to move ahead of society, like Brown did, the Justices in Brown did, and moved ahead of society.

Joe Biden: (27:32)
What did you mean in the Madison Lectures, that the court should not? Were you referring to the lower courts, the Supreme Court, all the courts?

Mr. Chairman, first may I say that the Court has never rejected the application of the suspect classification, doctrine to sex. Most recently, when it came up, the Court said, “We don’t have to reach that question”-

Joe Biden: (27:57)
Oh, I understand.

“It’s still open, because even if we hold to a somewhat less exacting test, a heightened standard, but somewhat less exacting, this classification has to fall.” On that particular case, it was keeping men out of a nursing school that the University of Mississippi maintained.

It was a lovely opinion by Justice O’Connor, that carries an insight that opening the doors of a nursery school, a nursing school, I would say the same thing for nursery school teaching, opening doors to men can only improve things for women. Because when a job remains a job that only women have, it tends to be paid lower. Men get into it, the job, the pay tends to go up.

But let me try to respond to your question about Brown, moving ahead of what society, and at what level. First, it has to be appreciated that Brown wasn’t born in a day, that Thurgood Marshall came to the courts, showing it wasn’t equal, in case after case, in four cases, at least, before he wanted to put that before the Court.

Sweatt v. Painter, McLaurin, Gaines, he set the building blocks, until it was obvious to everyone that separate couldn’t be equal. There was also something else that had happened, moving ahead of the people.

One of the influences on Brown, I think, was that we had just come through a war, where people were exterminated on the basis of what other people called their race. I don’t think that the notion of apartheid in the United States, that the Court was moving ahead of most of the people. There was resistance, of course. There was massive resistance.

But Brown itself, even Brown didn’t say, and racial segregation, which society has come to recognize, some parts was coming to recognize, is going to be ended root and branch by one decision. Brown was in 1954, and it wasn’t until Loving against Virginia, in 1967, that the job was over, even at the Supreme Court level, even at the declaration of law level. So …

Joe Biden: (31:04)
So what did you mean when you said, Judge, in the Madison Lecture, that it “ended race discrimination in our country, perhaps a generation before state legislators in our Southern states would have budged on the issue?” Are you saying that the nation itself may have been in sync with Brown, and the Court not that far ahead of the nation? And it was only that part of the country, or-

Well, the massive resistance was concentrated in some parts of the country. That there was discrimination throughout the country, I think, is undoubtedly the case.

But there was certainly a positive reaction in Congress, not immediately, but first, the voting rights legislation that started in the ’50s, and then the great civil rights legislation of 19 …

And then the great civil rights legislation of 1964, the country was moving together.

Joe Biden: (32:07)
Well it was decade later. My time’s up judge and you’ve been very instructive about how things have moved, but you still haven’t and I’ll come back to it, squared for me, the issue of whether or not the court can or should move ahead of society a decade, even admittedly, in the Brown case. It was at least a decade ahead of society.

Joe Biden: (32:38)
The Congress did not in fact react in any meaningful way until 10 years later. And so it moved ahead and one of the things have been raised, the only question that I’m aware of that has been raised, not about you personally, but about your judicial philosophy in the popular press and among those who follow this is how does this distinguished jurist distinguish between what she thinks the court is entitled to do under the constitution and what she thinks it’s wise for it to do?

Joe Biden: (33:14)
What is permitted is not always wise. And so I’m trying to get, and I will fish for it again when I come back. But I’m trying to get a clear distinction of whether or not you think, like in the case of Brown, where it clearly did step out ahead of where the nation, at least nation’s legislators were, whether that was appropriate. And if it was, what do you mean by it should not get too far out ahead of society when you talked about that in the Madison lectures?

Joe Biden: (33:49)
And, but I’ll give it another try. I think you could, you not only make a great justice, you are good enough to be confirmed to secretary of state because state department people never answer the questions fully directly either.

May, I leave you Mr. Chairman with this-

Joe Biden: (34:03)
I mean if you would like to answer more fully I might just-

Just two thoughts that you can think about in between now and our next round, but one of them was prompted by Senator Moseley Braun when she reminded us that the spirit of Liberty must lie in the hearts of the women and men of this country. It would be really easy wouldn’t it to appoint platonic guardians who would rule wisely for all of us, but then we wouldn’t have a democracy would we? We cherish living in a democracy. And we also know that this constitution did not create a tri-cameral system. Judges must be mindful of what their place is in this system. And must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as platonic guardians.

Joe Biden: (34:59)
Well, I would’ve been happier had the court in Dred. Scott decided to go ahead of society. I think America would have maybe had the same civil war, but would have moved ahead more rapidly. Clearly it would have been stepping out by a hundred years ahead of where the nation ultimately arrived. And the question… I’m not asking you to accept that. What I’m trying to get is there’s no doubt that a court’s opinion cannot be sustained without ultimately the support of the majority of the people.

Joe Biden: (35:35)
As someone said relative to the Pope during world war II, how many legions does it have? You all have no legions, ultimately your judgements as a Supreme court will depend upon the willingness of the American people to accept them as appropriate. I have no doubt about that. I understand that, but there does come a time in the course of human events when the court has in the past and I suspect may have to in the future be a generation ahead of where the nation is.

Joe Biden: (36:06)
And I’m wondering whether or not as a matter of judging, if you conclude it should arrive at a decision, but look behind you and determine that the folks ain’t with you, that that would restrain you from saying and annunciating what you believe the Constitution calls for in terms of annunciating a right or striking down a prohibition that the popular wisdom of the public is not prepared to strike down. That’s the essence of my question.

I think Mr. Chairman, I can assure you on one thing, I will never, as long as I’m able to sit on any court rule the way the home crowd wants, because I’m worried about how it will play in the press if I rule the other way.

Joe Biden: (36:51)
I wasn’t implying playing the press, I wasn’t saying… I know you’d never do that. That’s not even a question. My question is, again, and I will drop it now. My question is whether or not, if you determined that it is appropriate in 1948, you were on the court and you deemed separate, but equal was inappropriate or 1938, that it was not constitutionally permissible under the 14th amendment, whether or not withstanding the fact that you had reached that conclusion as a legal scholar and as a justice bound by no previous Supreme Court ruling that not withstanding the fact that in 1938 America said, had not gone to war, did not understand. Genocide, did not have a notion of the value and the role that blacks would play in that war. That you would’ve been willing to say, if you believe it at that moment, we should strike down the law that the vast majority of Americans thinks is appropriate.

I think I can give you a clear case. It was the great Justice Marshall when he ruled in a way that the state of Georgia found exceedingly incorrect. And I think the case was Wister against Georgia in 1832. He ruled the right way, even though he knew that the people of that state and the rulers of that state, the people in power in that state would be down on his head for that ruling, but it was the right ruling. And so he came out with it. I would also like to say that Dred Scott was the wrong decision for its time. There was no reason for it at the time it was rendered, that it should never have been decided the way it was. And it was incorrect then. And it was incorrect ever after. I don’t think that that was a decision that the court had to make at the time that it made it.

Joe Biden: (38:47)
I thank you very much, Judge. I’ve exceeded my time and I thank you for your cooperation. I yield to the Senator from Utah.

Well, judge, I thought your answers were pretty good. As a matter of fact, Dred Scott was the first illustration of substantive due process where the judges just decided they wanted it done this way. Justice, Tani thought he was really saving the country through doing that. So he did that, which really was not ahead of society. Society, at least in the North was ahead of him.

And in the case of Brown versus board of education, Mr. Justice Harlan in 1896 said that separate but equal was wrong. And so in all honesty, the court was not ahead of society. The society really was ready for that type of a decision. Now, there are many criticize Brown versus board of education for the rationale of the decision, but frankly, all Brown versus board of education did was what justice Harlan suggested, and that is treat equality as equality and under the 14th amendment.

So it isn’t a question of whether you’re ahead of society or not. It’s a question of whether you’re actually interpreting the laws in accordance with the original meaning, in which of course under the 14th amendment meant equal protection, equal rights, equality. But let me just move on to something else.

I would like to ask you, whether you agree with the following statements about the role of a judge, including the Supreme court justice. The first statement is this, “The judge’s authority derives entirely from the fact that he or she is applying the law and not his or her personal values.” Do you agree? Do you agree or disagree with that?

No judge is appointed to apply his or her personal values, but a judge will apply the values that come from the Constitution, its history, its structure, the history of our country, the traditions of our people.

I agree. Then you agree with that basic statement then, you shouldn’t be applying your own personal values.

I think I made a statement quoting Holmes to that effect.

You did.

In my opening remarks.

You did. What about this statement? The only legitimate way for a judge to go about finding the law is by attempting to discern what those who made the law intended.

I think all people couldn’t could agree with that, but as I tried to say, and in response to the chairman’s question, knowing what people… Trying to divine, what the framers long, dead intended, at least I have to look at that two ways. One is what they might’ve intended immediately for that day.

And one is their larger expectation that the Constitution was meant to govern, not for the passing hour, but for the expanding future. And I know no better illustration of that than to take the great man who wrote the Declaration of Independence, who also said, “For our state of pure democracy, they would still be excluded from our deliberations, women who prevent deprivation of morals and ambiguity of issues should not mix promiscuously in gatherings of men.” Now I do believe that Thomas Jefferson, were he alive today would say that women are equal citizens.

Or else he wouldn’t be president.

Joe Biden: (42:28)
I think he would too.

But what was his understanding of all men are created equal for his day and for his time, it was that the breasts of women were not made for political convulsing. So I see an immediate intent about how an ideal is going to be recognized at a given time and place, but a larger aspiration as society improves. I think the framers we’re intending to create a more perfect union that would become ever more perfect over time.

I think that’s a good way of putting it. I think reasonable jurists can disagree about what the original meaning of a provision is or how to apply it under certain circumstances. I don’t think there’s any question about that or has as to how to apply it to a given set of facts, but so long as the judges or justices starting point is the original meaning of the text. Then it seems to me that judge is seeking to fulfill his or her constitutional duty.

But let me ask you about this statement. If a judge abandons the intention of the lawmakers as his or her guide, there is no law available to the judge and the judge begins to legislate a social agenda for the American people that goes well beyond his or her legitimate power.

The judge has a law, whether it’s a statute that Congress passes or a highest law of the Constitution, to construe, to interpret and must try to be faithful to the provision, but it’s no secret that some of these provisions are not self-defining.

Right.

Some of the laws that you write are not self-defining, there’s nothing a judge would like better than to be able to look at a text and say, “This text is clear and certain, I do not have to go beyond it to comprehend its meaning.” But often that is not the case. And so a judge must do more than read the specific words. The judge will read on to see what else is in the law and read back to see what was there earlier. The judge will look at precedent, how are the words in this provision or in a similar provision construed? So the effort is always to relate to the intent of the law giver, the lawmaker, but sometimes that intent is obscure.

I like your statement that the judge has an obligation to be faithful to the provisions of the law. And you’ve explained that I think very well. Let me move to another subject that’s very important to my folks out in Utah. And that is the second amendment I would like to address the second amendment, the right to keep and bear arms. The right that many of us from Utah and across the country believe sometimes gets short shrift.

For instance for most of our country’s history of the Bill of Rights limited only the powers of the federal government, not the States, but through process of so called selective incorporation. The Supreme court in recent decades ruled that most of the provisions of the Bill of Rights apply via the 14th amendment against the States. Now one right, however, that has not yet been held to be protected from infringement by the States, of course, is the second amendment right of law abiding citizens to own firearms.

Now, do you believe that there’s a principle basis for applying almost all of the other provisions of the Bill of Rights against the States, but not the second amendment?

Second amendment shares with at least two other provisions of the Bill of Rights, that status that they are significant provisions, but they have been held to be incorporated and one is the grand jury presentment indictment provision.

In article five.

In article five. That Grand juries are not obligatory for the States and another, a right that many people think is very important. The seventh amendment. The right to a trial by jury in a civil case has not been held applicable to the States. So I know that the second amendment shares that it does certainly doesn’t stand alone. Grand juries and civil juries fall in that same category. You know Senator that there is much debate about what the second amendment means. I think the last time the Supreme court spoke to it was something like 1939 wasn’t it? In the Miller case? So I’m not prepared to expound on it beyond making the obvious point that it has been variously interpreted.

Well, I think what I’m saying is I would agree with justice Black, that if we’re going to have incorporation against the States of any portion of the Bill of Rights, all eight amendments conferring rights should apply. Because all eight of them do confer rights should apply against the States. I don’t think judges should be picking and choosing which rights they prefer.

Now, in the case, the two cases you’ve mentioned, the amendments still apply other than those of those features, but it’s just one I wanted to raise with you just for whatever purpose I could. Now, Judge Ginsburg, I’m concerned about a reverse discrimination case decided in the DC circuit that you sought to overturn. Now that’s the case of Hammond V Berry that was in 1987. There the court ruled the district of Columbia fire departments racial hiring quotas violated title seven in the equal protection clause. In that particular case, according to Judge Star’s opinion, there was no evidence of any actual intentional discrimination in hiring by the DC fire department since the 1950s. In other words, no evidence of discrimination or intentional discrimination. In fact, long before the quota hiring policy began, the majority of the new hires by the department had been black and judge Mikva’s opinion descending from the court’s denial of rehearing and bonk in the case. An opinion, which you joined.

Judge Mikva wrote, ” This case concerns one of the fundamental dilemmas our society faces. How to eliminate a ‘manifest imbalanced’ that reflected under representation of women and minorities in the workforce.” And because you joined in this opinion here, I take it that you agree with judge Mikva that a “manifest imbalance” in an employer’s workforce is sufficient justification under title seven for either voluntary or court ordered race and sex based quotas and preferences under title seven. Even if the imbalance is not traceable to any prior intentional discrimination. Would that be a fair statement?

Senator Hatch, the Hammond case is not in the front of my mind.

Okay.

I think as you pointed out was I don’t… I wasn’t even on the panel that made the decision in that case.

I won’t hold you to it because I don’t expect you to remember all these-

I think this is-

You’ve written some 700 opinions as I can recall. So I’m not going to hold you to that, but…

I think it important though, to understand the difference between being part of a three judge panel.

Sure.

Which I was not.

All right.

I was not one of the decision makers in the Hammond case. I was simply a member of the court and all of us voted whether to hear the case and bank, but I was not part of any decision in that case.

Okay. Well, the problem with permitting a “manifest imbalance.” That is a statistical disparity, not traceable to any intentional discrimination to justify quotas or other preferential euphemisms like numerical goals is that statistical disparities can and do often occur for many reasons other than discrimination. And it’s unfair to penalize innocent persons and deny them opportunities through quotas or other preferences, simply because an employer’s hiring statistics are not “balanced” according to some notion of statistical proportionality.

It’s an important issue. It’s probably one of the most important issues in the future for our country. And I don’t expect you to tell me how you would rule, but let me just pose a hypothetical situation to you. Suppose a small business in a major city that was majority black and never hired a black person, even though that business in over a decade had more than 50 people. Further suppose that a disappointed black job applicant filed a discrimination suit, but he or she was unable to provide any direct evidence of intentional discrimination by the employer.

Would such statistics standing alone, in your view, justify an inference of racial discrimination by the employer? And would that employer in your view to avoid an expensive and protracted lawsuits that could cost hundreds of thousands of dollars, they’re justified in using quotas or other forms of racial preferences to eliminate the “manifest balance” if that really is the law? And just one other question, would a federal court be justified in such a case ordering that employer to resort to quotas or other forms of racial preferences to eliminate or reduce the “manifest and imbalance.”

Senator Collin: (52:32)
Could you repeat the question again for me.

I think I have the gist of it. Senator Collin, Senator Hatch.

Yeah.

We have many employment discrimination cases in the court.

Right.

They come to us with a very large record of facts developed in the trial court and then they come also with lengthy briefs on both sides and I study those records intensely, read the arguments, have my law clerks do additional research, come on to the teeth to the oral arguments so I can ask the testing questions. So I’m always suspicious when I’m given a kind of one, two, three, and a hypothetical.

Sure.

I know that I’ve done it myself when I was a law teacher and sometimes my students would answer to that kind of question unprepared, but I can say this. I was thinking about a particular case. One that in fact went to the Supreme court, it was a Santa Clara highway department case.

I’m aware of it.

It involved one of these affirmative action programs.

That was the Johnson case.

Right. Paul Johnson was the plaintiff.

Right.

And he complained that Diane Joyce had gotten a job that he should’ve gotten. And it was a result of this affirmative action plan. And that was a case that was much discussed. I’ll just tell you a non-legal reaction that I had to it. This was a department that had 238 positions, not one before Diane Joyce was ever held by a woman. There was an initial screening and there were 12 people who qualified for the job that was further reduced till there were seven considered well-qualified for the job. And then the final selection was made. And on the point score, Paul Johnson came out slightly higher than Diane Joyce, but part of the composite score was based on a subjective test, an interview and they were scored on the basis of this interview.

And I had to think back to the days when I was in law school and I did fine on the pen and paper tests and had good grades. And then I had interviews and I didn’t score as high as the men on the interviews. I was screened out on the basis of the interviews. So I wonder whether the kind of program that was involved in that case wasn’t… Was no kind of preference at all by a safeguard, a check against unconscious bias, against the unconscious bias that I think may even been conscious way back in the fifties, but in a department that has 238 positions, none of them are women. Whether the slight plus, I mean, one must always recognize that there’s another interest at stake in this case, Paul Johnson, whether the employer wasn’t in fact, engaged unconsciously in denying full and equal opportunity to the women.

These are very difficult cases. And each one has to be studied in its own particular context. But in that case at least I related back to my own experience. And any time you’re involved with this subjective test, there is that concern that if you are a member of the group that has up until now been left out, is it that the person who is conducting the interview is finds you unfamiliar, slightly uncomfortable.

Sure.

Thinking about you being part of a workplace that up until then has been, say all white, or… I did want to make one comment if you will allow me, Senator Hatch.

Sure, that’s fine.

Because when you said that Brown was, that it wasn’t ahead of the people in at least one respect.

It was ahead of some of the people, there’s no question about that.

I have to think about my, one of my wonderful colleagues, Judge Skelly Wright, who was a brave judge in new Orleans and for 10 years tried to implement that decision.

Right.

And massive resistance was mounted against it, but he did what a good judge should do. He enforced the law.

Sure. The reason I brought up Dred Scott and that case is because there were segments, all segments of our society who were way behind, or way ahead. In the case of Dred Scott, almost all of the North was ahead. And many people in the South that refused to fight on the part of the South. In the case of Brown versus board of education, there were many in both areas that were way ahead and who expected and really demanded the decision that came.

Well, the reason I gave you the hypothetical example I did is because I have had a lot of experience with small business people who are suffering the stains of these employment discrimination cases. The average cost of defending those cases before our 1991 civil rights bill that we enacted here, which I voted for, the average cost of defendant defense alone, just paying their attorneys to defend them is $80,000.

That was before that statute. And I suspect that cost has gone up a little bit since then, but in the 13 years I gave you that example, I did, because I have great faith in you. I have known you since 1980 and I’ve watched what you’ve done. I’ve admired you. I have no doubt that you are a person of total equality and a person who deserves to be on the Supreme court, but in response to the judiciary committee questionnaire, in the 13 years since you went on the bench in 1980, you’ve not hired a single black law clerk to my knowledge, at least according to your secretary or intern out of 57 such employees that you have hired. Now I find no fault with that because I know that there was no desire to discriminate. Even though your court sits in the middle of a majority black city, Washington, DC.

Now some if they took the broad language of [inaudible 00:59:39] in that case might call that a “manifest imbalance.” Now I would not suggest for a moment that that “imbalance” resulted from any intentional discrimination on your part. The crucial point to keep in mind, however, is that when the concept of “discrimination” is divorced from intent, and we rely on statistics alone, a small businessman or a woman with your record of employing minorities might find himself or herself spending hundreds of thousands of dollars to fend off discrimination suits.

Orrin Hatch: (01:00:13)
And that in fact is what’s happening around this country right now. Such an employer might adopt quotas or other forms of preferences in order to avoid or avert such litigation under any number of civil or federal civil rights set laws. And I’m worried about it because it’s not fair to the employer, and it’s not fair to the person’s denied opportunities because of preferences.

So naturally I’m concerned about preferences and I know you are, and I know that you’re a very good person, but I just want to point that out because that happens every day, all over this country, where there is no evidence of intent. In fact, there was no evidence, no desire on the part of the employer to exclude anybody.

I appreciate that Senator Hatch, but I do want it to say that I have tried too.

Oh I know you have.

And I’m going to try harder. And if you confirm me for this job, my attractiveness to black candidates is going to improve.

Well, that’s wonderful. I like that. But let me just say, you can see my point. These things are tough cases. They’re difficult. There should be some evidence of intent. Now, in the case that you in Johnson vs city of Santa Clara, your point may very well may be well taken that the oral interview was if it had been explored in a little more depth, it may have shown some intention to exclude women.

And that was a tough case. There’s no about it, but I just bring that up for whatever it’s worth, because I would like the justices to think about the real world, real people out there who really aren’t intending to discriminate. And if you just use a statistical disparity to make final determinations, you can create an awful lot of bad law and an awful lot of expense to the small business community that may very well not be willing to discriminate.

Let me just ask you this. You agree I trust that the first amendment right of free speech, frankly, I don’t think I have enough time to go through this line of questions. So I think what I’ll do Mr. Chairman, and you’ll be real happy with, I’ll defer to the next round before I go into the next round of questions.

Edward Kennedy: (01:02:20)
I would like to adjust review if I might with you Judge Ginsburg, what I think has been an extraordinary period of Supreme court history, and that is the progress that has been made on the gender discrimination, in which your involvement, your position as an advocate, as an educator, as a spokesperson, I think has really been absolutely remarkable.

And I think probably for our colleagues, maybe they have a full understanding and awareness in this committee. Maybe they do it in the Senate, but certainly I think it’s something that the American people, it’s important for them to know. I think you made some reference to it in response to the earlier questions of by Chairman Biden, but virtually up til 1971, the courts have held every kind of gender discrimination. I was here in 1964 when we passed the title seven to try the civil rights act to try to move us towards eliminating the discrimination against on the basis of gender.

And still, we have found that up till 1971. And we’ll come back to that about every kind of gender discrimination from outright prohibitions on the entry of women into many professions to more subtle gender classifications that did just as much harm by perpetuating stereotypes about women and their role in society. 1873, the Supreme court held a state law prohibiting women from entering the legal profession. In 1948 the court upheld a state law, prohibiting a woman-

In 1948, the court upheld a state law prohibiting a woman from serving as a bartender, unless her husband or father owned the bar. 1961, the court unanimously held that it was not a violation of equal protection or due process to limit jury service by women to only those women who volunteered for jury duty, while substantially all men were required to serve. And even after the ’64 act, even more outrageous policies discriminating against women were in the private workplace. In the Phillips Morris versus a Martin Marietta, the company absolutely barred women with preschool age children from applying for work. Even a man with sole custody of and responsible for young children could apply, but the lower courts did not perceive this policy as discriminating against women. And the Supreme Court ultimately reversed the lower courts and I note that you have written that during the argument of the case before the Supreme Court, members of the high court made light of the notion that they, themselves might have to hire quote, “Lady lawyers as law clerks.”

I know that you encountered the same discrimination as a young, law school graduate. So you had the perpetuation of gender discrimination in the long line of Supreme Court decisions. We had some action by the Congress. You still had rampant agenda discrimination in the private sectors. And these kinds of barriers to equal opportunity only began to fall in the 1970s as a result of the litigation effort that you led. And your painstaking work led the Burger Court to take the strides forward, that would have been hard to imagine even a decade earlier. I was interested and you’ve referred to this in our conversations prior to the confirmation hearing during enormously wonderful visit that we had in our Senate offices, inquiring just about some of your own background, pick up on some of the themes that were, I found, so moving and your excellent statement in the rose garden about your mother and your own past. And I was just wondering what it was in your own experience that really led you to take this path, to devote so much of your career, to breaking down the legal barriers, the advancement of the women in our society.

It came on me incrementally, one might say. There were many indignities that one took as just part of the scenery, the way it was. For example, when I was at Harvard Law School and I was on the lower view and I was sent to check a periodical in Lamont Library in the old periodical room, and I got there, it was quite late at night, and I wanted to make sure I got home. My daughter, the professor, was then 14 months old. Oh, no. That was my first year, so she was about two years old. And I wanted to look up the citation and come back. There was a man at the door and he said, “You can’t come in.” “Oh, why can’t I?” “Because you’re a female.” “But the library at Harvard is open to women now. Widener is open to women. We keep this one room in Lamont, this is symbolically closed to women.”

It was nothing I could say. This was university employees that you can’t come into that room. The Harvard Law Review had a banquet and I was allowed to invite my spouse. And I was allowed to invite my father or father-in-law, but I wanted to invite my wonderful mother-in-law, who has been next to my husband, the biggest booster, supporter imaginable, but I couldn’t invite her because the Law Review dinner was just for… The couple of women who were on Law Review were allowed to come, but none of the wives of the men on the review and no mothers, only fathers. Experiences like that and the trouble I had getting a job when I was out of law school-

Maybe you’d mentioned the difference between, I guess, is a Cornell and Harvard, in terms of where your dormitory-

Oh, yeah. That was amusing. Cornell, the days I was there, had a four to one ratio. It had four men for every woman. And the reason that they gave for, in the arts college, having that quota, it was a quota system, was that the girls had to live on campus. The boys could live in town. They could find apartments and live in town, but the girls needed to be sheltered. We needed to have curfews. And there were only a certain number of dormitory spaces. Then I come to the Harvard Law School and there’s this wonderful complex of dormitories, except they’re only for men. No places in homes, but the girls had to find their places in town. So it was just the reverse. It just showed how irrational it all was.

You also, I guess, had an incident involving a eating room at the faculty club.

Oh yes. That was many years later. I came to Harvard Law School to teach a course in Women in the Law. It was the first such course they had. It was in the fall of 1971. And the faculty club, the Harvard faculty club, up until that fall 1971 term, had the dining room and the lady’s dining room. And if you were a lady, up until then, you didn’t have a choice. You went to the ladies dining room. I came in and the hostess said to me, “Well, now you’re allowed to dine in the dining room, but wouldn’t you really feel more comfortable in the ladies dining room?”

What did you say?

Well I could tell you, I had my meal in the dining room, but this world, the way it was, just a generation ago, is something that is, as I said before, it’s hard for young people to grasp. And one of my favorite stories, concern a case, a men’s rights case, and early title VII case called Diaz against Pan American Airlines. This was a man wanted to be a cabinet attendant and that particular airline hired only women. And you may remember the day of, “I’m Cheryl. Fly me.” Well, that was part of that era. And I was having lunch with some law school colleagues at the UN dining room, where we were talking about some commercial law treaty.

And the men were telling me, “I understand what you’re doing, Ruth, and it’s great. You’re all for equality and we are too, but some of this is getting beyond reason. You know about that case of a guy wants to be a stewardess. Isn’t that silly?” There was a waitress at our table and she said, “Pardon me, but I couldn’t help overhearing your conversation. I just came back to the United States on [inaudible 01:11:30]. And on that plane, there was the most adorable steward.” And the men looked at me and they said, “Ruth, do women look at men that way?” And I said, “You’re damn right, we do.”

Well…

Speaker 2: (01:11:58)
You asked for it, Senator.

[crosstalk 01:12:01]. As we were proceeding, I think, in our visit in the office, you also reviewed, and I think the record has brought out the experiences after graduation, the difficulties as one of the extraordinary academic records, both at Columbia and Harvard and getting an employment. And then your visit travels overseas and then back and eventually, on the Rutgers Law School faculty. And can you tell us just a little bit about you start working, as I understand it, with the ACLU on gender discrimination cases while you were teaching there in the late ’60s. What was the first case you took to the court and can you tell us a little bit about it?

The first series of cases that I had, but they were not big federal cases then. There were many States that had moved ahead of the Congress, the title VII legislation trailed a number of States that had state human rights laws that did include sex, along with race, national origin, and religion as prescribed basis for discrimination. How I got into the sex equality advocacy business was really two ways. One, my students who in the late ’60s, early ’70s were encouraging the faculty to have a course in this area. The other, were these complaints that began to trickle into the New Jersey affiliate of the ACLU. Complaints, this is a typical one. A school teacher becomes pregnant and she is told that she must leave work, sometimes three months, four months, when she began to show.

She was euphemistically put on what was called maternity leave, which meant no pay, no benefits, no health benefits. “We will call you back if we have a need for you.” That was about the size of it. Many of the women in that situation were school teachers, some were in other fields. That kind of complaint and others similar. I remember one from the Lipton Tea company. This was typical. A woman’s employer had a terrific health plan. Her husband’s employer didn’t have such a great health plan. So she wanted to sign up with her employer to get the more advantageous plan for herself, her spouse, and her children. And she is told, “Women can get health coverage under our plan, only for themselves. We have family coverage only for male workers.” That was another category of case.

So you had these, you had the Reed v. Reed in ’71, which is the case that was referred to earlier. The Idaho case that talked about the decedent’s estate, males must be preferred to females. That was the first occasion in which, as I understand, the court held a gender based classification inconsistent with the equal protections. Frontiero was just been referenced earlier. And in that case, as I understand it, the wives are presumed to be dependent on the husbands and that you had to make a show that the husband had to prove to be dependent on the wife. And therefore, as I understand it, this was where Justice Brennan’s opinion recognized this as an example of gender stereotyping. The law assumes that wives to be financially dependent on the spouses, but husbands would not. And he noted that traditionally, such discrimination was rationalized by an attitude of romantic paternalism, which in practical effect, put women not on a pedestal, but in a stage.

In a cage, excuse me. And this is, as was mentioned earlier in the Frontiero case, the Frontiero case had Justice Brennan’s opinion had, on the strict scrutiny test, which you mentioned earlier, the different tests, which are applied in terms of economic regulation, race, and gender discrimination, he supported apply to strict scrutiny test, which gathered four votes in favor of that point. But the court, it would still take additional cases before the Supreme court would raise, as I understand, the level of scrutiny. The Weinberger vs Weisenfeld, 1975 is a particular moving case. I know that you remember it well, and I know that you’ve maintained an interest in the individuals involved. And wonder if you’d just share that as with us briefly as part of the continuity of cases, involving gender discrimination.

Yes. I think you will hear from Stephen Weisenfeld later. I would like to go back, even before [inaudible 00:01:17:25], to make one point so that it can be understood, what the state of precedent was like, what led to Justice Brennan saying the pedestal has sometimes been a cage. It was a case called White against Florida from the liberal Warren Court. And you recited it correctly. The question was whether the women would be required to serve on juries or whether, as Florida had it, they could serve if they wanted to, they’d have to come into the clerk’s office and sign up, with the result that very few did. And this was the case. A woman, Gwendolyn Hoyt had a philandering husband who had humiliated her to the breaking point, regularly. We didn’t have names like battered women in those days, but she did not have a happy marriage. One day, in rage at the humiliation to which he was exposed, she turned to the corner of the room and spied her young son’s baseball bat. It was a broken baseball bat.

She took it and brought it down on the head of her husband, ending the fight, ending the husband, starting the prosecution for murder. She argued that women on the jury, or at least on the pool from which the jury would be picked, and proving the chances she would have women in that jury room, would better understand her state of mind, her utter frustration, and might convict her of something less than murder. The court in 1961 responded to that plea. She was convicted of murder by the all male jury. Responded to her plea that she was not given a jury pool drawn from a fair cross section of the country because women were left out. The court said, “This is pure favor to women. They have the best of both worlds. They can serve, if they want to. They have only to sign up in a clerk’s office. They don’t have to serve if they don’t want to. So what is the complaint about? They’re treated better.” And no one thought about Gwendolyn Hoyt and the murder charge that was affirmed in that case. Well, now we switch from 1961 to, I think the Weisenfeld case began in ’73.

Ended in ’75, is the citation I have.

A young man had a tragic experience. His wife died in childbirth. She had had an entirely healthy pregnancy and he was told that he had a healthy baby boy, but his wife had died. And he determined that he was going to be a caregiving parent to that child. He went to the local social security office and asked about the benefits that he thought a sole surviving parent could get. And he was told, “Well, that benefit is called a mother’s benefit,” and he didn’t qualify. So as I recall, he wrote a letter to the editor of his local newspaper, and he said, “I’ve heard a lot about women’s lib, let me tell you my story.” And he explained about his wife having been a wage earner, having paid the same social security tax that a man would pay, about her death and how he didn’t qualify as a caregiving parent because he was a male. And he ended up the letter with the line, “Tell that to Gloria Steinem.” He was tired of about women’s lib. His case was the perfect example of how gender based discrimination hurts everyone.

Starting with his wife who worked as a man did, who paid social security tax as any wage earner does, but whose government said, “We don’t protect your family the way we would protect the family of a male wage earner.” And then there was Steven Weisenfeld who wanted to care for his child, but was told there were no benefits for you to do that because you are a father, not a mother. And then there was Jason, who would not have the opportunity to have the care of his sole surviving parent, if that law had not been changed, for the sole reason that it was his mother, rather than his father who died. That case resulted in a unanimous judgment in Steven Weisenfeld’s favor. Every justice voted to strike down that gender-based classification. Some, the majority said, because it discriminated against the woman as wage earner. Others said it discriminated against the man as parent. And one said it discriminated against the baby. But that case more than any other, I believe, shows the irrationality of gender based classification.

Sen. Strom Thurmond: (01:23:53)
Court associate justice. This portion focuses on the judges views about the death penalty. It’s about an hour 20 minutes.

Speaker 3: (01:24:02)
Yeah, Ginsburg. There are hundreds upon hundreds of inmates currently under death sentences across the country. Here in the Congress, I have been advocating Habeus Corpus reform to bring about finality of judgment in capital cases. Please tell this committee your views on the validity of placing some reasonable limitations on post-trial appeal to allow inmates on a death sentences, to avoid execution for years after commission of their crimes. Some of these cases, I might say, in one in my state, it went for 10, 11 years. One I believe in the state of Utah, [inaudible 00:20:40], went for 16 years and the man hadn’t gone to the chair yet.

I know, Senator Thurman, that there is this area, a great tension between two important principles. And the one you’ve been talking about is finality. All things must come to an end and that’s important in the law. Controversies must be decided and people must go on about their business. So finality is important, but fairness is also important. And unfortunately, we don’t live in an ideal world where people get the best representation the first time they come to court.

Suppose they do have good representation.

Yeah. Well, these concerns, finality and fairness are intention, and they must be balanced in a particular case. I have to say that, unlike federal judges in many other places, judges in the DC circuit do not have experience with the kind of habeas petitions you’re talking about because Congress, when it created the District of Columbia courts, set them up as courts with judges appointed by the president, gave them a very fine post-conviction remedy that’s identical to 2255 of title 28, the federal post-conviction remedy, and then said, “You go from the DC courts to the Supreme court, if the Supreme court will take your case. And there is no habeas review when you get through with the DC courts to go into the federal court.” So we don’t get the kind of habeas corpus business that fourth circuit gets, that the other regional circuits get. So I appreciate the tension between finality and fairness. I have not had the experience that some of my colleagues on the federal bench have had with the habeas jurisdiction.

I might just say that, if public loses respect for the courts when the case is tried, in the sentences given and it’s 10 years later or 15 years later, before the sentence takes effect, we’ve got to do something to bring finality to these matters. If you remember Justice Rehnquist, upon a commission with Justice Powell, and that’s a very good provision or something similar. And I would like for you just to think of it.

Yes, I understand that Congress has and will continue to give consideration to the Powell Court.

I welcome your statement and your committee questionnaire responses. Judges must avoid capitulating to result or in criticism. I especially welcome your approving reference to professor Gerald Gunther’s discussion of Chief Justice Marshall’s 1832 opinion and Worcester versus Georgia. As professor Gunther explains, when John Marshall and his fellow justice voted in that case, they genuinely believe that the decision might well mean the end of affective code authority, but they also thought that it was legal to write. And on [inaudible 00:01:28:14], they did their duty. They decided the case on marriage, even though their immediate prospects were anxiety producing, even though the survival of the code was to the state. If a decision is right on the marriage, it should be handed down, despite fears about consequences.

This approach, what you [inaudible 01:28:35] taken by five justices of the Supreme Court last year in the [inaudible 00:01:28:47]. In the past, Chief Justice Marshall did what he believed was right, regardless of the possible effect on the coast of public standing. In case and by contrast, five justices relied on concerns over the coast perceived legitimacy in the public’s eyes in deciding not to overrule the constitutional era made in Roe versus Wade. As Justice [inaudible 00:25:08], instead of engaging in the hopeless task of predicting public perception, a job not for lawyers, but for political campaign managers, the justice should do what is legal or right. I am pleased to see that you are with Chief Justice Marshall and Justice Scalia on this principle. Would you care to make any further comment?

I think that every justice of the Supreme Court and every federal judge would subscribe to the principle that a judge must do what he or she determines to be legally right.

You’re good, judge. You’re real good.

Judge Ginsburg, in 1975 at a meeting of ACLU Board of Directors that you attended, you’ve all adopted a powerful statement that declared the ACLU opposed limitations on the custody and visitation rights of parents where such limitations are based solely on the parents’ sexual preference. However, that statement did not claim that said limitaions are unconstitutional. My question for you is this, putting aside your views on the wisdom of [inaudible 01:30:32] limitations, do you have in a doubt that a state is free, if it wishes under the constitution to take into account a parents’ sexual preference and awarding custody and visitation rights, and to limit those rights solely because of that preference? [inaudible 01:30:47] could have stayed in your view, if it so desired limit adoption rights to heterosexuals. How you feel that might come from the Supreme Court?

I think from the announcements that we’ve seen in the paper today, yes, that certainly could come… The questions that you’ve outlined-

I won’t ask you to answer to anything if you feel it’s inappropriate.

Thank you.

Judge Ginsburg, one very important area of the law is a question of whether courts exceed their authority by creating rights of action for private litigants on the federal statutes where Congress did not express it provides such rights of action. In justice power, put it this way, on article three, Congress alone has responsibility for determining the jurisdiction of the lower federal courts. As the legislative branch, Congress should also determine when private parties are to be given causes of action on the last station that adopts, as countless statutes demonstrate including titles of the civil rights act of 1964. Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal court should not assume the legislative role or creating such a remedy, and thereby in laws at jurisdiction, as a general matter of what you think of Justice Powell’s argument.

I think that Congress should express itself plainly on the question of private rights of action. I think that judges would welcome that with great enthusiasm. Judges do not lightly imply private rights of actions, in some areas of the law, securities law, for example, where private rights of action have been understood by the courts to be the legislature’s intent and that’s always what the court is trying to divine. And it appears that the legislature has been content with those implications. It’s left them alone now for, in some cases, even decades. But I think the judges have said often enough in opinions, we’re going to try to find out and to try to determine as best we can, whether Congress intended there to be a private right of action. We wish that Congress would speak clearly to this question, because as you said, Senator, the existence of a private right of action or not, is for Congress to say.

Judge, my time is up. And Thank you for your [inaudible 01:33:28].

Speaker 2: (01:33:27)
Thank you, senator.

Sen. Howard Metzenbaum: (01:33:30)
Thank you very much, Mr. Chairman. Happy to see you here, Judge Ginsburg. Before I begin my questions, I thought that it might be appropriate to make a brief response to the Senator Thurman’s remarks about the need for finality in death penalty cases. This committee held a hearing on the death penalty with two witnesses who were sentenced to death, but later freed because they were innocent. Totally innocent. They were close to losing their lives. One was an Alabama black man who had been in the penitentiary for six years and the other was a Texas white man, who was in the penitentiary for ten years. Just this month, a Maryland man was released after nine years in the penitentiary. I understand Senator Thurman’s point of view, but frankly we have to be careful because if finality of judgments and death sentences can mean death for innocent persons, that really does not relate specifically, Judge Ginsburg, but I did not want to leave the record open with the implication that everybody who has been found guilty and hasn’t finished their rights of appeal, should have been executed.

Judge Ginsburg I’ve always believed it’s important that the men and women who serve on the court have a good sense of the reality that litigants face and the practical implications of their decisions. I expect that your broad range of professional and personal experiences would give you an understanding of the world faced by the individuals who are before the court. Having said that, I’m Frank to say that I’m puzzled by your often repeated criticisms of the decision in Roe V. Wade, that the court went too far and too fast. You stated the decision need only have invalidated the Texas abortion law in question. You’ve also stated that [inaudible 01:35:27] a trend towards liberalization of state abortion statutes. I’m frank to say that some, including the Senator, would question whether women really were making real progress towards obtaining reproductive freedom, when Roe was decided in 1973. Would you be willing to explain your basis for making those statements about Roe and the state of abortion law, at the time of the Roe decision?

Yes, Senator Metzenbaum, I will try. The statement that you made about the law moving in a reform direction is taken…

… the law, moving in a reform direction is taken directly from Justice Blackmun’s decision in Roe itself, where he said, “But until recently, the law had been almost solidly like the Texas law, but that there had been a trend in the direction of reform to the extent that some one third of the states, in a span of a very few years, had reformed their abortion laws from the point where only the life of the woman was protected, to a few years later, some years later, one third of the state’s moving from that position to a variety of positions, most of them following something on the order of the American Law Institute model, which was grounds rape, incest, and some other grounds, four states having by then moved to permit abortion on the woman’s request as advised by her doctor. So I took that statement, not from any source other than the very opinion, which I am hardly criticizing for making that point. I accepted justice that was made in Roe v. Wade.

Would you not have had some concern or do you not have some concern that had the gradualism been new reality, that many more women would have been denied an abortion or would have been forced into an illegal abortion, and possibly an unsafe abortion?

Senator, we can’t see what the past might have been like. I wrote an article that was engaging in, what if? I expressed the view that if the court had simply done what courts usually do, stuck to the very case before it, gone no further, then there might have been a change, gradual changes. We’ve seen it happen in this country so many times that we saw it with the law of marriage and divorce going in a span of some dozen years from adultery, was this all around for divorce, to no fault divorce in every state in the union. Once the states begin to change, then… It takes a while, but eventually most of them move in the direction of change.

The one thing that one can say for sure, there was a massive attack on Roe v. Wade, it was a single target to hit that. I think two things happened. One is that a movement that had been very big risk became relaxed, slightly relaxed. Didn’t Tylee go home? But it wasn’t as vigorous as it had been, or that it might have been, were it not that the court seemed to have taken care of the problem. So one thing is, one side seemed to relax its energy while the other side had a single target around which to rally. But that’s my, what if? And I could be wrong about that. My view was that the people would have accepted, would have expressed themselves in an enduring way on this question. And as I said, this is a matter of speculation, this is my view of, what if? Other people can have a different view.

In Roe case, the Supreme Court held that a woman’s right to terminate a pregnancy was protected by the constitution. Court said that constitutional right was fundamental and deserve the highest standard of protection of government laws and regulations that interfere with the exercise of the right. States had to have a compelling state interest to regulate the right to choose. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the court did not overrule Roe v. Wade. However, the court in Casey lowered the standard for protecting a woman’s right to choose. Court held that states may regulate the right to choose as long as they do not create an undue burden on women. After the Casey decision, some have questioned whether the right to choose is still a fundamental constitutional right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right?

The Court itself has said, after Casey, and I don’t want to misrepresent the Supreme Court, so I’ll just read. It’s on Word. This is a majority of the Supreme Court, including the dissenters in Casey, ” The right to abortion is one element of a more general right of privacy,” citing Roe v. Wade, “or of Fourteenth Amendment liberty.” That’s the court’s most recent statement, that abortion is part of the concept of privacy or liberty under the Fourteenth Amendment.

Now, what regulations will be permitted is certainly a question that is going to be before this court. And that depends in part, Senator, on the kind of record that’s presented to the court. And I don’t feel that it would be appropriate for me to go beyond the point of repeating what the court has said. Majority of the court has said that this is a right of a woman guaranteeing by the Fourteenth Amendment, part of the liberty guaranteed by the Fourteenth Amendment.

Well, perhaps I can say one thing more. There is an adjustment that we have seen since Roe to Casey. The Roe decision is a highly medically oriented decision, not just in the three trimester division, but if you read that opinion, you will see that it is almost as much about the right of the doctor to freely exercise his profession. The woman appears together with her consulting physician, and that pairing comes up two, three times in the opinion, the woman, as together with her consulting physician. Casey decision, at least the decision of three of the justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It’s not her right in combination with her consulting decision, but the centrality of this decision, the case poses the question, who decides, is it the state or the individual? And in Roe, that answer comes out the individual in consultation with her physician, there is a somewhat of a big brother figure next to the woman. I think that the most recent decision, whatever else might be said about it, says the woman decides.

I won’t go further into the Roe-

Joe Biden: (01:45:23)
Over the last few days, judge, you have many times, at least from my perspective, appeared to be reticent to answer some of our questions, even more so than recent nominees. And this, as I indicated, concerns me and I believe the forum offered by these hearings, I think is very important. And once confirmed as a justice, you generally will not appear before the public to answer questions or to discuss your judicial philosophy. And this hearing provides the only opportunity for a public forum to hear the individuals who make our critical constitutional decisions.

Joe Biden: (01:46:01)
So last night, I went back and with my staff reviewed the transcripts of recent hearings. And I found, quite frankly, to be honest with you, that you’ve provided no less expansive answers than others who have come before the committee, and also no more than others who’ve come before the committee of your views on the law and your views on judging. You do have a style that is precise and on occasion, seems less expansive when you answer a question, but you have given us some significant substance on issues of privacy and equal protection, freedom of speech and constitutional methodology.

Joe Biden: (01:46:42)
Still, I have to say, like other recent nominees, you have given us less than I would like. I doubt that any nominee would ever satisfy me in terms of being as expansive about their views as I would like. But on that score, I want to emphasize that you have, as I’ve gone back and looked at the record, giving us some genuine insight and expansive answers on some of the critical issues, maintaining your distinction between what you think is appropriate and inappropriate for a prospective justice to comment on.

Joe Biden: (01:47:14)
But still, I will tell you on my round the questionings I’ll return to. Several subjects, which I just mentioned, equal protection, freedom of speech, and constitutional methodology to see if we can engage just a little bit more. I thank you for what you’ve done so far, but hope maybe we can pursue them a little more without violating your understandable and self-imposed limitation about getting involved in matters that may come before the court and in any way compromise you.

Well, thank you Mr. Chairman. Judge, just a real quick response, if you can. Are you for or against TV coverage off the court? I have a number of in the media who asked me to ask that question and I don’t want to spend a lot of time on it. And if you don’t have an opinion, I’d be happy to hear that as well.

Senator Hatch had a question like that. And I spoke about the C-SPAN interview with me, and I thought how unfortunate it was that they couldn’t have, because we didn’t allow it at the time, television of the proceeding itself. My view on that is I don’t see any problem with having proceedings televised. I think it would be good for the public.

I do too.

We have open hearings. The concern, as I think I may have mentioned, is that if it’s gavel to gavel, I don’t see any problem at all in an appellate court. I know that concern has been expressed at the trial level, but we’ve come a long way from the days of the Sheppard case when the camera was very intrusive and there were all kinds of equipment that could be distracting. The concern is about distortion because of the editing, if the editing is not controlled.

I understand. That’s good enough for me. I would be concerned about the editing that goes on too. You’re saying gavel to gavel, you’re for.

Yes, yes.

Okay.

But I would be very respectful of the views of my colleagues.

Sure. No, no. I understand that. In 1975, while you were at the ACLU, that organization adopted a policy statement favoring homosexual rights. According to what has been represented to me as minutes of a meeting on this matter, the following is noted, “In the second paragraph of the policy statement dealing with relations between adults and minors, Ruth Bader Ginsburg made a motion to eliminate the sentence reading, “The state has a legitimate interest in controlling sexual behavior between adults and minors by criminal sanctions.” She argued that this implied approval of statutory rape statutes, which are of questionable constitutionality.” Now I realize that these events took place over 18 years ago. So let me just ask you, do you have any doubt that the states have the constitutional authority to enact statutory rape laws to impose criminal sanctions on sexual contact, or contact between an adult and a minor, even where the minor allegedly consents?

None at all, Senator Hatch. What I did have a strong objection to was the sex classification. I think child abuse is a deplorable thing, whether it’s the same sex, opposite sex, male, female, and the state has to draw lines based on age. What I do object to was the vision of the world that supposes that a woman is always the victim. So my only objecting to that policy was the sex specificity.

So as long as they treat males and females equally, that’s your concern.

Yes. And I think that as much as we would not like these things to go on, children are abused and it is among the most deplorable things. And it doesn’t-

And the state has power to correct it.

… Yes. And has power to draw lines on the basis of age that are inevitably going to be arbitrary at the edge.

Well, I’m relieved to hear that that was the basis for your objection. It was a shock to me to learn that the constitution… Some people argue that the constitution denies the state the right or the ability to protect young people and teenagers by forbidding sexual contact between them and an adult, even where the sexual contact is supposedly voluntary, and I’m concerned about that.

Let me just move on to the death penalty. Now I have a question. One of the problems I had yesterday, you were very specific in talking about abortion and equal rights and a number of other issues, but you were not very specific on the death penalty. Now, there are people on this committee who are for and against the death penalty, as are people throughout the Congress. And my question is about the constitutionality of the death penalty. I’m not going to ask your opinion about any specific statute or set of facts to which the death penalty might apply. Also, I recognize that your personal views regarding the morality or utility of capital punishment are not relevant, unless your personal views are so strong that you cannot be impartial or objective. Then that would be a relevant a question and a relevant matter for us here today.

Rather, I would just like to ask you the following specific question, do you believe, as Justices Brennan and Marshall did, that the death penalty, under all circumstances, even for whatever you would consider or many would consider to be the most heinous of crimes, but in this case, what you would consider to be the most heinous of crimes, is incompatible with the Eighth Amendment prohibition against cruel and unusual punishment?

Senator Hatch, let me say first, I really appreciate your sensitivity to my position and the line that I’ve tried to draw. Let me try to answer your question this way. At least since 1976, and possibly if you dated from Firman and earlier, the Supreme Court, by large majorities, has rejected the position that the death penalty under any and all circumstances is unconstitutional. I recognize that there is no judge on the court that takes the position that the death penalty is unconstitutional under any and all circumstances. All of the justices on the court have rejected that view. There are many questions left unresolved. They are coming constantly before that court. I think at least two before the court next year. I can tell you that I do not have a closed mind on this subject. I don’t think it would be consistent with the line I’ve tried to hold to tell you that I will definitely accept or definitely reject any position. I can tell you that I am well aware of the precedent, and I have already expressed my views on the value of precedent-

But do you agree with all the current sitting members that it is constitutional, it is within the constitution?

… I can tell you that I agree that that is the precedent. It has been clearly the precedent since 1976. I feel that I must draw the line at that point and hope that you will respect what I’ve tried to tell you that I am very aware of the precedent, I am very aware of the principle of stare decisis-

But see, my question goes a little bit farther than that. I take it that you’re not prepared to endorse the Brennan and Marshall approach that it’s cruel and unusual punishment under the Eighth Amendment. But in response to my previous question, you stated that statutory rape laws are constitutional, yet you’re unwilling to really answer the question or comment on the constitution. Now, I’m not asking you to interpret the statute, just the constitution. You’re unwilling to comment on the constitutionality or unconstitutionality of the death penalty. And the thing I’m worried about is it appears that your willingness to discuss the established principles of constitutional law may depend somewhat on whether your answer might solicit a favorable response from the committee.

Now, this is a touchy thing. I don’t think anybody’s going to vote against you, one way or the other, on this issue. At least I hope not, because I don’t think we should politicize the court. But it is important, for instance, the death penalty is in effect mentioned in the Fifth Amendment and the Fourteenth Amendment to the Constitution. The Fifth Amendment makes reference to a “capital” crime stating that no one could be held to answer for such a crime unless pursuant to a grand jury. And this presupposes the constitutionality of the death penalty. Now the Eighth Amendment’s bar on “cruel and unusual punishment” was adopted at the same time as the Fifth Amendment, as you know. And it obviously was intended to be read in conjunction with the Fifth Amendment’s expressed approval of the death penalty.

As well, the Supreme Court has affirmed the death penalty’s constitutionality, as you said as early as 1976 in the case of Gregg v. Georgia. And given the expressed constitutional provisions, presupposing the constitutionality of the death penalty and the body of case law, reaffirming its constitutionality. I think you ought to tell us where you really come down on this thing, because I’m not asking you to decide a future case. I’m just asking you, is it in the constitution? Is it constitutional or is there room to take the position that Brennan and Marshall did, that even though it’s expressly mentioned in at least the Fifth Amendment and the Fourteenth Amendment and probably six or seven places on the gas station, that they find it barred by the cruel and unusual punishment clause of the Eighth Amendment?

Senator Hatch, I have tried to be totally candid with this community-

You have, you have.

… When you ask a question… I was asked a lot about abortion yesterday. I can’t-

Right, and you were very forthright in talking about that.

… I have written about it, I have spoken about it as a teacher since the middle ’70s, you know that teaching and appellate judging are more alike than any two ways of working at the law. I tried to be scholarly in my approach to the question then, I have written about it in law review articles. I have a Dkt. decision in that area. The question you raised about age lines, I had a stated objection to drawing lines based on age, whether it’s for beer drinking, whether it’s for statutory rape, whether it’s for… The first time I encountered an age line, I think it was in your states, Senator Hatch, it was that parents had to support… Was it Utah? Well, it had to support a boy till 21, a girl only till 18. This case was Stanton against Stanton, and I don’t remember what state it came from, but that was… And I-

I remember the case, but I can’t remember whether it’s from Utah.

… And in any event, that’s the way it was. It was support a boy till 21, a girl until 18 and that age line was struck down. [crosstalk 01:59:22] That’s another area. Is it not from Utah?

Yeah, it is.

It is.

Yeah.

The death penalty is an area that I have never written about, I have-

But you’ve taught constitutional law in major law schools in this country.

I have.

It isn’t a tough question. I mean, I’m not-

You asked me what’s in the Fifth Amendment. The Fifth Amendment uses the word capital when you asked me what is the state of the precedent.

… Capital.

But if you want me to take a pledge that there is one position that I’m not going to take, that is what you must not ask a judge to do.

I don’t want you to. But that’s not what I asked you. I asked you, is it in the constitution? Is it constitutional?

I can tell you that the Fifth Amendment reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless…” And the rest. But I am not going to say to this committee that I will reject a position out of hand in a situation where I have never expressed an opinion, I have never had a death penalty case, I have never written about it, I have never spoken about it in the classroom. I can tell you that I have only one passion and it is to be a good judge and to judge fairly and not to tell in advance, not to give any hint about how I am going to decide a question that I have never spoken about.

Have you ever discussed it? Well, I’ll accept that, I’ll accept that. But I have to say yes that [crosstalk 02:01:00] Yes.

Male: (02:01:02)
As I recall, with all due respect, I believe that Clarence Thomas was-

Both Souter and Thomas answered that question [crosstalk 02:01:08].

Male: (02:01:08)
… was asked the question whether he had ever had a discussion about the case of Roe against Wade.

That’s [crosstalk 02:01:13]

Male: (02:01:13)
And was ridiculed by many members, and indeed the press at large, for saying he had never had a conversation.

No, he didn’t say that. What he said was… And the press, even as late as this morning, one of our eminent press people criticized bleakly Thomas for having never discussed abortion. What Thomas said was, and I’ll be honest with you, he did it to get off the subject. Senator Leahy was asking him a question. He said, “Yes, we did discuss it. But we were more interested in Griswold versus Connecticut.” That’s basically what he said.

And then Senator Leahy came back to him again, “But did you ever discuss Roe versus Wade?” And Thomas responded, I think very cleverly, and Senator Leahy, he did get off the subject. He said, “I never debated it.” Now that’s a far cry from saying, “I never discussed it.” Now, the reason I’m asking this question is there are very few… Give me a break. The fact of the matter gives Justice Thomas a break. Not you Judge, but the media out there. They’d been misquoting that for years ever since the hearings, but he was vilified all over this country and slandered and libeled and criticized because he had never discussed Roe versus Wade as though that’s the paramount prime issue in our society, and it is one of them. There’s no question about it, regardless of which side you’re on, or whether you’re not on any side.

[crosstalk 02:02:39] I cannot imagine any particular, and I’m not trying to [inaudible 02:02:42], but I can’t imagine any particular subject that has been more on the minds of the American people in criminal knots over the years than the death penalty. Now, let me just say this, I will take your answer the way it’s been given. There are some who believe that there has been an evolution of standards regarding what constitutes cruel and unusual punishment, but even this theory cannot escape the express references and the consultation to capital punishment. And it seems to me that any evolution of societal standards with respect to the death penalty cannot be divorced from the fact that the constitution mentions capital crimes and such an evolution of standards by society, which would deem the death penalty cruel and unusual punishment, or cruel and unusual, I think would have to be represented in the form of a constitutional amendment or by repeal of the existing death penalty statutes. But having said that, I just feel it’s an important issue and one that… I don’t want a political answer.

Could I respectfully point out to my colleague-

On your own time, you can.

I don’t wish to interrupt you, but this same issue was before us in 1987, when judge Kennedy was up for confirmation. And at that time, Judge Kennedy stated, “I have taking the position with your colleagues in the committee that the constitutionality of the death penalty has not come to my attention as an appellate judge. And that I will not take a position on it.” [crosstalk 02:04:13] If it was constitutional, I think it would be efficiently enforced.

At least I am.

So that this is not the first time that we’ve had a nominee who has declined to respond-

No, but as we defined further demanding of members of this committee during the Souter and Thomas hearings, they had to answer that question. That’s all I’m saying. Now I’m going to let it go because I respect the judge and I have a great deal of fondness and appreciation for her. But I don’t think that’s a tough question, is it in the constitution, is constitutional?

I have read that sentence. And there’s another reference to capital as well. I’m glad that you respect my view, that I’m not going to pledge not to take… That there is a position that I will not take. I have told you my view of judging. There are other people on this committee who would like to pin me down to what am I going to do in the next case?

Sure. I’m not one of them.

I mean, even Senator Metzenbaum wants me say whether I want to be with three or with two ones on some issues, and I wouldn’t answer him. I have really tried to be consistent in saying I believe in this process, I’ve written about it. And I’ve said how important I think the Senate role is. I also said, I hope that we come to this with mutual understanding. One of the things that Senator Metzenbaum said was that Congress should be more thoughtful, more deliberate about the role of a judge. So I’ve to be as forthcoming as I can while still preserving my full and independent judgment.

I understand, Judge. And I accept that. I do think, though, that some of the cheap shots in the media about Thomas ought to cease, and they had to read the doggone transcript before they make any more of them. As late as today, one of our learned members of the journalism community misrepresented again.

Let me move on to something else. I would like to follow up on some of the exchanges you had with Senator Simpson and Lahey regarding government funding. Now, you agree, as I understand it, that the First Amendment does not impose on government an affirmative duty to fund speech, is that right?

Yes. I think that it imposes on government a duty to be impartial. And so I said, if it chooses to fund political speech, it can’t choose between the Republicans and the Democrats.

Right. Rather, it prohibits from censoring or interfering with individual expression. And I believe that is your position, as you’ve said. For example, freedom of speech doesn’t mean that the government has to finance a lecture series for anyone who wants to speak his or her mind, or that the government must give people megaphones or loudspeakers. Likewise, freedom of the press does not mean that the government has to buy publishing equipment for aspiring journalists. But in a recent concurring opinion, you wrote the government taxing and spending decisions, “Are most troublesome and in greatest need of justification. When distinctions are drawn based on the point of view a speaker espouses or when a benefit is provided contingent in an individual’s relinquishing a civil right.” Now that was the case of FIC, the International Funding Institute, in 1992. Now, I would like to probe just one aspect of that statement, specifically your apparent view that government spending decisions are “Most troublesome and in greatest need of justification when distinctions are drawn based on the point of view a speaker espouses.” Now let’s assume that the government decides that not smoking is better than smoking, that it subsidizes an anti-smoking campaign through a grant program. May the government give grants only to those who adhere to the anti-smoking campaign or viewpoint, or does the constitution compel the government to also-

… viewpoint, or does the constitution compel the government to also subsidize pro-smoking campaigns by cigarette manufacturers?

I may get myself into difficulty with the senators from the tobacco states, and I am a reformed sinner in that respect myself, but this is a question of safety and health. I think the government can fund anti-smoking campaigns and it is not required equally to fund people who want to put their health and the health of others at risk. So my answer to that question is yes, the government can fund stop smoking campaigns and it doesn’t have to fund smoking is intoxicating and fun. And yes, the answer to that question is, in my view, is yes, the government can fund programs for the safety and health of the community.

Well, thank you. The Congress, as you know, has established a National Endowment for Democracy and people say is engaging in unlawful viewpoint discrimination, unless it also establishes a national endowment for the opposite side, say communism or fascism or something like that. And the point that I’m making is that I respectfully submit that your statement in your concurring opinion in the international funding case may be overbroad. Government funded programs are designed to serve certain policy goals. Those speakers who choose not to promote these goals will naturally be excluded from the funding. And to impose a theory, a viewpoint, neutrally on government funding programs simply because they happen to involve speech would be to revolutionize government as I view it and as I know it, and as we all know it.

And just as the taxpayers need not to subsidize the first amendment right of free speech, the issue then arises do they need to subsidize the abortions? Just as government programs may fund anti-smoking speech without funding pro smoking speech, the government Medicaid program may cover the expenses of childbirth without covering the expenses of abortion. The Supreme Court as you know settled this question and it’s 1977 ruling in Maher versus Roe, and then in its 1980 ruling in Harris vs. McRae. It ruled in those cases that the taxpayers do not have to federally subsidized abortion. And in some of your academic and advocacy writings, before you took the bench, you did criticize those Supreme Court cases. And as an advocate, that’s easy to understand. But in the international funding case, you cited Harris v. McRae favorably in support of a distinction you drew between funding restrictions that are permissible and those that are not. And irrespective of your views on the policy of abortion funding, do you agree that Maher and Harris, those two cases, were decided correctly?

I agree that those cases are the Supreme Court’s precedent. I have no agenda to displace them. And that’s about what I could say. I did express my views on the policy that’s represented. That is not something that anybody has elected me to vote on.

I understand, but yesterday you endorsed a so-called constitutional right to abortion. A right which many, including myself, think was created out of thin air by the Court.

But you asked me the question in relation to the Supreme Court’s precedent and you now ask me another question in relation to this Supreme Court’s precedent. The Supreme Court’s precedent is that access to abortion is part of the liberty guaranteed by the 14th Amendment.

That was just reaffirmed by a five to four decision just a year ago. And this issue is going to be before the Court for a long time in the future. But today, having open the door on specific issues such as abortion…

I think your microphone is off again, Senator.

Yeah. I’m sitting back in my chair.

Speaker 4: (02:12:33)
Thank you, Madam Chairman.

I’ve got to speak louder. I think when I sit back in my chair.

Speaker 4: (02:12:40)
It’s that or yell. It’s obvious professor, you have been a professor for a long time. I think it’s an endearing quality.

I think what the question is that I’m asking is do taxpayers, in your view, have a constitutional obligation or duty to fund abortions?

Taxpayers don’t have an obligation or a duty to do anything other than what Congress tells them that they have to do. I know that there’s a taxpayers’ protest movement, but people have to pay their taxes and then you vote what they should be spent on as you’re now engaged in doing.

I understand.

The only point that I tried to make is of all the distinctions in the speech area, the one that we’re most nervous about is distinctions based on viewpoint. As I said, the government decides how it wants to spend its money, but when the government, I think we would all agree that if the government is going to pay for Republican speech but not Democratic speech, that that’s not democratic.

Right. No, I would agree with that. Let me move on to another issue. In your response to the committee questionnaire on judicial activism, you stated, “It is a reality that individuals and groups reflecting virtually every position on the political spectrum have sometimes attacked the federal judiciary. Not because judges arrogated authority, but because particular decisions came out in the critic’s judgment the wrong way.” And Judge [inaudible 02:14:05] again in the 1857 case of Dred Scott v. Sanford, the Supreme Court ruled that the fifth amendment’s due process clause prevented Congress from outlawing slavery in the territories. In essence, in its first use of what we now call “substantive due process”, the Court invented out of thin air, a “right to own slaves in the territories.” Abraham Lincoln among others was highly critical of this holding and the Dred Scott Case. Now, do you think that the Supreme Court arrogated authority in this holding in the Dred Scott Case? And if so, why? And if not, why not?

I think it was an entirely wrong decision when it was rendered. It was the notion that one person could hold another person as his or her property is so just beyond the pale of the-

So they arrogated authority to themselves in that case.

I think they made a dreadfully wrong decision.

You and I agree. Same thing in the Lochner era with the Lochner v. New York case. The Court arrogated its own authority to decide that minimum and maximum minimum wage laws were really on the basis of “liberty of contract”, they invalidated state laws on minimum and maximum hours that bakery workers could work in a week.

I think the Court in the ’30s rejected the so-called Lochner line, which was the Court consistently overturning economic and social legislation passed by the states and even the federal government. That whole era of the Court attempting to control economic and social legislation, I think is over and there may be some voices for a return of that kind of judicial activism. I think it is generally recognized that our economic and social rights, that the guardian of those rights has got to be the legislatures, the state, and the federal.

I agree with you on that, but how do you distinguish as a matter of principle between the substantive due process right of privacy that the Supreme Court has developed in recent decades from the rights the Supreme Court developed on its own accord in Dred Scott v. Sanford and the Lochner v. New York case?

I don’t think, Senator Hatch, that it’s a recent development. I think it starts, as I tried to explain it in one of the briefs that you have, one of the briefs that I referred to yesterday, struck, it starts in the 19th century right of the individual. The Court then said, “no right is held more sacred or is more carefully guarded by the common law. It grows from our tradition and the right of every individual to the possession and control of his person.” It goes on through Skinner against Oklahoma, which was the right to have offspring recognized as a basic human right.

I have said to this committee that the finest expression of that idea of individual autonomy and personhood and the state leaving people alone to make basic decisions about their personal life is Poe v. Ullman, Justice Harlan’s position in that. After Poe v. Ullman I think the most eloquent statement of it, recognizing with all that it has difficulties and it certainly does, is by Justice Powell in Moore against City of East Cleveland, the one concerning the grandmother who wanted to live with her grandson. I think that those two cases more than any other, Poe v. Ullman Which was the forerunner of the Griswold case and Moore against City of East Cleveland, explain this concept far better than I can.

You’re doing a good job, but in my view, it’s impossible as a matter of principle to distinguish Dred Scott V. Sanford and the Lochner cases from the Court’s substantive due process privacy cases like Roe versus Wade. The methodology is the same, the difference is only in the results, which hinge on the personal subjective values of the judge deciding the case.

In one case, the Court was affirming the right of one man to hold another man in bondage. And the other line of cases, the Court is affirming the right of the individual to be free. So I do see that there’s a sharp distinction between the two lines.

I think substantively, there may be, but the fact of the matter is it’s the same type of judicial reasoning without the constitutional underpinnings. Now, one of the things I admired about your criticism of Roe versus Wade is at least you would put a constitutional underpinning under it by using the equal protection clause, rather than just conjure something out of thin air to justify what was done. And at least that would be a constitutional approach towards it.

See, one criticism of judicially invented rights like some call privacy is the inability in any principled fashion to determine their boundaries. In other words, whether or not such a right will be recognized in a particular context depends upon the predilection of the judge deciding the case. And some of the most vocal supporters of the right to privacy in the context of abortion would be the first to object if the Supreme Court employed the same methodology, looking outside the text of the constitution to protect economic rights, say to cut back on the liberal welfare state. There would be just as much objection to that. Now one can favor various privacy interests as a matter of policy and support legislation to protect them, and that is being done here, and still recognize the illegitimacy of judges making up rights that aren’t found in the constitution. Don’t you agree with that statement?

Senator Hatch, I agree with this statement because it is the most recent and is the Moore against City of East Cleveland statement of Justice Powell. He repeats the history that you did, the history of the Lochner era, and says that that demonstrates there is reason for concern, lest judicial intervention become the predilections of those who happen at the moment to be members of the Court. I know that’s what your concern is.

That’s what my concern is.

It goes to say that therefore history councils caution and restraint, and I agree with that. He then says, “But it does not council abandonment of the notion that people can make certain fundamental decisions about their lives without the interference of the state.” And what he says is, “It doesn’t counsel abandonment, nor does it require what the city is urging here, which is cutting off the family right at the first boundary, which is the nuclear family.”

He rejects that. And I think that in taking the position that I have in all of my writings on this subject, I have to associate myself with that position, otherwise I could not have written what I did.

You mean with the position the Justice Powell-

The position I have given you, if you asked me how do I justify saying that Roe has two underpinnings, the equal dignity of the woman, the personhood, the idea of individual autonomy and decision making. I point to those two decisions and say that I think that they supply the underpinnings for that-

I understand but at least I differ with you on using the 14th amendment to justify, but at least you found some constitutional underpinning. You would have written the opinion so that at least there was a constitutional argument for the right as you believe in it. And that I respect, even if I do disagree with you on it. But you know, some people would argue that the constitutional right to contract is a fundamental right as well. And that that right can be interfered with just as much through substantive due process as anything else. But in your view, does a generalized constitutional right to privacy encompass say the following activities, because judges could decide this on their own because of their own predilections if they use the theory of substantive due process. Whatever they want to decide, regardless of what the language says, regardless of what the constitution or the statutes or anything else enacted by those elected to enact them say.

Senator Hatch, you know that one, I feel that it’s wonderful for an academic or judge to be exposed to criticism. You know that my position, the position that I developed in this, I thought [inaudible 02:23:54] has been criticized from all sides. I’ve been criticized for saying that legislators have any role in this. I’ve been criticized for saying that the Court should not have solved it all in one fell swoop. So I appreciate that I am never going to please all of the people all of the time on this issue. I can only try to say what is my position and be as open about it as-

I agree. And you have been and I agree with that. And I, as you know, I admire you personally, but this is more important-

Sen. Carol Mosley-Braun: (02:24:28)
Mr. Chairman, Mr. Vice Chairman, I’d like a point of personal. This line of questioning, I find to be personally offensive, and I am very sorry to break the train of thought and the demeanor of this committee, but I find it very difficult to sit here as the only descendant of a slave in this committee, in this body, and hear a defense, even an intellectual argument, that would suggest that there is a rationale, an intellectual rationale, a legal rationale, for slavery that can be discussed in this chamber-

Senator, that is not what I said.

You just a moment ago said that some would say that there was a constitutional right to contract, which could not be impaired by judicial-

That has nothing to do with Dred Scott v. Sanford-

That was your statement though, sir. And I just submit, Senator Hatch, and we have had a very fine relationship.

Oh, we do.

Since I’ve been here and I have every respect for your intellect. I have every respect for your judgment. We may disagree on issues, but we’ve never had occasion to be disagreeable. And I think as a point of personal privilege it is very difficult for me to sit here and to even to quietly listen to a debate that would analogize Dred Scott and Roe V. Wade. It is very, very difficult.

Well, that’s not what I’m doing.

And just to give you my own sensitivity on this issue, that’s why I asked as a point of personal privilege that if there are questions going to the current state of the law that are not as offensive, that would elicit the same kind of responses, or if there’s some other way that you can probe the judge’s opinions on this area, I would very much on a personal level appreciate that you take another approach.

Well thank you. But just to make that clear, and then I would like to conclude, and I appreciate taking a little additional time. I have been attacking both of those cases and the line of cases, both the Dred Scott v. Sanford case. There’s no way that anybody, I don’t think anybody should misconstrue what I’m saying. I thought the Dred Scott case was the all time worst case in the history of the country. I think there are others that are bad, but nothing that even approaches the offensiveness of that case.

And if the Senator has misconstrued what I’m saying, and I think you have, I apologize. But that isn’t what I was saying. Also Lochner, I think that’s a ridiculous case. My whole point here is these are ridiculous cases and that they were conjured out of thin air by this rule of substantive due process. Now, whether I agree or disagree with Roe versus Wade, I still think that approach towards judging is wrong. There’s no question you could have found constitutional underpinnings to have righted both of those wrongs in those two cases, but nobody should misconstrue what I’m saying here into thinking that I’m trying to find some justification for slavery. My gosh, I wouldn’t do that under any circumstances.

So I certainly apologize if I haven’t made myself clear, but I’m attacking this whole area of substantive due process, which attacks Dred Scott v. Sanford where judges just conjure things out of thin air to justify their own predilections or their own ideas of what the law to be. So in that sense, I would certainly, I would never offend my dear friend, and we are good friends and we work closely together and I think we’re going to do a lot of things around here together. But I want to make that clear.

Thank you.

Nor do I support Lochner because I raised the issue of, and that was in the context of Lochner, raised the issue that there is a right of contract mentioned in the law that is very, very important that some people think is fundamental. Lochner went way beyond that by denying that the states had any rights to do what it was in the general welfare of the people. And I disagree with Lochner, and I decry both of those cases. But now let me just finish-

Senator Hatch, again, and I’m delighted with your statement, but let me just say that as part of the debate, as part of the intellectual argument, that you were engaging in with the judge, you would come back, you in fact did come back and say to her, “Well, there are some who would defend the right of contract in this situation.” I’m just saying to you, that even listening to this debate is very difficult to me. And on a point of personal privilege is there’s-

I understand.

Another way that you can approach the beauty and the criticism of judicial activism I would appreciate you’re taking it.

Well, if you construed that to mean, go back to Sanford, that’s wrong because that’s certainly wasn’t meant. And I apologize if I was inarticulate in what I was saying. But I don’t think I was. But let me just point out how important this is. When we have the right and judges to just do a substantive due process, to just decide cases based upon their own ideas of what is right and wrong rather than what is in the constitution or is in the statute, we run into these difficulties. And I would just, with regard to the generalized constitutional right to privacy, does it encompass the following activities or does it not?

Let me just give you one illustration. Some people believe in a right to privacy that would allow almost anything, say prostitution. Let me note that in 1974, in a report to the United States Civil Rights Commission, you wrote, judge, “Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions.” That’s in the legal status of women under federal law, in 1972 I believe. You were citing Griswold, Eisenstadt, and Roe V. Wade. You could push it further. How about marijuana use in one’s own home? Is that a right to privacy?

Arguably, I said it has-

You were making an academic point. I understand. I’m not trying to indicate that you were justifying prostitution. But the point is some people believe this right of privacy is so broad you can almost justify anything. Does it justify marijuana use in one’s own home? Does it justify physician assisted suicide? Does it justify euthanasia? Does it justify homosexual marriage that some people think should happen, shouldn’t happen? Does it justify infanticide of newborn children with birth defects? And I use these examples in this hearing not to offer my own views on any of these subjects on whether or not they should be protected conduct, but it’s my point that people who believe such conduct should be protected, must under the functioning of our system turn to the legislatures and not to the federal Courts to determine whether or not they should be protected. And the point is that under an amorphous constitutional right of privacy, whether or not conduct is protected does not depend on any neutral principle of adjudication, but on the subjective predilection of the judge deciding the case.

And that is not the rule of law, that’s government by judiciary. And let me just end by saying that with regard to the Chairman’s discussion yesterday or the day before of Dred Scott, the Chairman stated that he wishes that the Dred Scott Court had moved ahead of the times to engage in progressive judicial activism, at least that’s the way I interpret it, rather than the reactionary judicial activism that it did engage in. And I would simply like to point out that judicial restraint would have led the Court to uphold the Missouri Compromise. There was no need for and no justification for judicial activism of any stripe, and rather than moving head of the country, the Courtney had only have recognized that the validity of the law passed 37 years before its decision. And had it done so, we wouldn’t have had a substantive due process case of the disastrous resolve the Dred Scott v. Sanford really was.

And the broader lesson of course is that there is no principled basis for obtaining only the judicial activist results that one likes as a judge. And to approve a substantive due process, which is nothing more than a contradiction in terms to me, is to accept Dred Scott and the Lochner line of cases. And more generally, the constitution is suited to a changing society not because its provisions can be made to mean whatever activist judges want them to mean, but because it leaves to the state legislatures and the Congress primary authority to adopt law or to adapt laws, to changing circumstances.

Well, you could go on and on, but this is an important issue. And I know that you understand it, and I just want you to think about it because if we get to the point where judges just do whatever they want to do, and they ignore the statutes of the constitution and the laws as they’re written and as they were originally meant to be interpreted, then we wind up with no rule of law at all. And that’s the point that I’m making. And I admit there are some fine lines where it’s very difficult to draw the line between when a judge is actively trying to resolve a problem and when the judges just doing it on their own volition. Thank you, judge.

Joe Biden: (02:33:26)
Thank you, Senator. The Senator did, and I will accommodate other senators as well, did go close to 50 minutes. But there was a continuous line of questioning and hopefully it means the next round will be a lot shorter. And we’re about to have a vote, judge, but I’ll start my questioning. But we’ll probably end up with a break here anywhere from the next three to five minutes into the questioning and then I’ll resume it. But let me, before I do, we’re always, as you have had your statements read back to you, as you, and I thought it was nicely stated when you said something to the effect that the Madison lecture, which you never thought was going to be so widely discussed when you gave it.

Joe Biden: (02:34:08)
We sometimes make statements over our long careers in the Senate that we either wish we didn’t make, or having made them find ourselves, although proud to having made them, reminded of them at times which seem inappropriate. And I’m about to engage in that. Senator Hatch, when Judge Souter was before us, said, and this relates to the exchange I understand was had when I was out of the room on the telephone trying to set up the FBI hearing. Not your FBI hearing, the hearing on the FBI Director. Got to be precise around here.

Joe Biden: (02:34:45)
Said when Justice Souter was before us and some were pressing Justice Souter for a specific answer on an issue like the death penalty, said, “Judge Souter, I hope you will stand your ground when you sincerely believe you are being asked for answers which you clearly cannot provide and have the good faith to be able to act as a Supreme Court justice later. The Senate will not probe into the particular views of a nominee on a particular issue or public policy, let alone imposed direct or indirect litmus tests on specific issues or cases. If it does, the Senate impinges upon the independence of the judiciary, it politicizes the judging function. The confirmation process becomes a means of influencing outcome, et cetera.”

Joe Biden: (02:35:24)
And I’m sure with my having read that, and that was a quote, I’m sure having read that I will have statements that I made during the process read back to me. But I do think it’s appropriate to point out that, judge, you not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over your tenure on the Court. And so I just want to inject what we never do in politics, and I also violated, is consistency here. And what then again, if we were consistent, it would be very dull.

Part 3

Joe Biden: (00:05)
Welcome back, Judge. I see your grandson has joined the photographer’s corps. I could see him there. I tell you what, your family covers it all. As I indicated this morning, before I begin the first round, I have a very brief few comments to make about procedure as to how we’re going to proceed, not merely in terms of timing, but how procedurally this Supreme Court nomination will be handled slightly different than any that has been handled thus far, at least any of the others that I have handled. It’s somewhat of an outgrowth of some of the contentious fights that we’ve had, and hopefully to make the process a little better.

Joe Biden: (00:50)
First, all members of the committee, as I’ve indicated, although we’ll be limited in our rounds of questioning, our opportunities to question, to a certain amount of time, no senator who has a question will be denied the opportunity to ask that question, no matter how many rounds it may take them to do that. That’s always a dangerous thing, Judge, to say with Senator Specter here, because he always has a seventh, eighth or 20th round, but they’re always good questions. But we will not not cut anyone off.

Joe Biden: (01:24)
Judge, you referred in your statement to the nature of questions that you will answer. On this question, constitutional scholars and Senate precedents agree. A senator has not only the right, but the duty, to weigh carefully a nominee’s judicial philosophy, and even more importantly, the consequences of that philosophy for the country. As I’ve stated in past confirmation hearings, my questions about a nominee’s judicial philosophy are not aimed at getting answers about specific cases. You’ve said you would object, as in my view you should, to being asked to prejudge a case likely to come before the Supreme Court.

Joe Biden: (02:03)
I would find no real purpose, quite frankly, and even if you did answer the question, it wouldn’t, for me at least, tell me much about your judicial philosophy. I have said many times, and I want you to know, that I believe my duty obliges me to learn how nominees will decide. Not what they will decide, but how they will decide. This obligation for senators to inquire into and understand the judicial philosophies of a Supreme Court nominee is neither new nor disputed any longer, although it was, until recently, disputed.

Joe Biden: (02:39)
Now, Chief Justice William Rehnquist recognizes, as long ago as 1959, when he called in the Harvard Law Record for restoring what he referred to as the Senate’s practice of, quote, “Thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him.” Were he saying it today, he would say, “Her.” Judge Ginsburg, the other side of the coin is, you must decide, of course, how to reply to our questions. There’s nothing in the Constitution requiring you to reply. You can either give a full answer, a partial answer, no answer, or you can get up and you can walk out of here.

Joe Biden: (03:14)
Because to remind everyone, this is only a part of the process. Our function here as a… There’s nothing in the Constitution that talks about the Judiciary Committee. It talks about the Senate. The way in which the Senate has organized itself, it looks to the committee to give it information regarding the views of a nominee, but there is nothing in the Constitution that obliges you to answer any question in any particular way, or indeed answer at all. We must arrive at our judgment about your confirmation, though.

Joe Biden: (03:45)
Matter of fact, without mentioning the Justice, there was one Justice named, appointed, a former Senator and a former judge. The committee asked him to come before the committee. He said, “No. My record stands as a judge and a senator. I’m not going to take the time.” He refused to show up and they still confirmed him. I wouldn’t recommend that. But to make the point for everyone to understand, there is no constitutional obligation for you to respond. Now, I would hope, as I said to you very briefly, I hope that the way in which you outline the circumstances under which you would reply and not reply, that you will not make a blanket refusal to comment on things, because obviously everything we could ask you is bound to come before the court.

Joe Biden: (04:32)
There is not a controversial issue in this country that does not have a prospect of coming before the court some day. As we have said, because I think it was initiated by Senator DeConcini, I voted for a man who I have great respect for, but it’s the vote that I most regret of all probably 15,000 votes I’ve cast as a senator. I voted to confirm Judge Scalia. He’s a fine, honorable, decent man with whom I agree on nothing. I regret that vote. One of the reasons I voted for him, and where we changed our views, is that basically, he had not much of a track record.

Joe Biden: (05:09)
I mean, he was a brilliant scholar. I don’t mean to imply he did not have standing and background, but he basically refused to answer questions on anything at all. And I voted for him. And from that moment on, along with Senator DeConcini, I resolved that if a nominee, although it’s their right, does not answer questions that don’t go to what they would decide, but how they would decide, I will vote against that nominee regardless of whom it is. And you can think Justice Scalia for that.

Joe Biden: (05:35)
But with that object in mind, I’d like to very briefly describe in another three minutes here, the process by which these hearings will be conducted. All senators in the committee, as I said, will have as much time to ask questions as they feel they should, and you, Judge, will have as much time as you need to speak to anything, whether or not you are asked a question. I would hope, and at this point, it seems possible, that we could conclude these hearings by week’s end. If we do not conclude by Friday, it is my intention at this moment, but I will confer with the ranking member, to continue on Saturday with the hearings.

Joe Biden: (06:10)
Following the conclusion of the last confirmation hearing for the last Justice, I felt obliged to re-examine and attempt to reform the investigative procedures, which are another part of this important part of this confirmation process. I believe the committee had to better handle allegations of a personal nature, which are inevitably brought against Supreme Court nominees, and they’re brought against all nominees. None that I’m aware of with regard to you, but they’re specious allegations, and there are substantive allegations on occasion, and it’s hard at the outset to determine one from the other until we begin the investigative process, and so I’ve instituted a new procedure.

Joe Biden: (06:49)
As a result of that re-examination, I announced last summer, and again, last week, that this committee will hold a closed hearing for every Supreme Court nominee, while I’m the chairman, at least. Beginning with you, it will be a closed hearing. At one point, it will be this, and this case on Friday. This is a new procedure adopted for the first time in this hearing, and it does not imply the need to discuss any adverse information with regard to you, Judge, but it is now going to be a standard part of all hearings. Whether or not any allegation is raised, we will at some point, for every nominee from this point on, go into a closed session where only the senators on the committee and the nominee are there to discuss any investigative matter that has been raised.

Joe Biden: (07:36)
It’s called Rule 26 of the Senate. Under Rule 26 of the Senate, any information that could be potentially embarrassing allows us to go into closed session, and embarrassing information can be real or false. Nonetheless embarrassing under these Klieg lights, if they were raised. Under that Rule 26, which permits the committee to go into closed session to protect the privacy of a nominee in considering confidential information, there is also an important caveat. That is that every senator, under the rules, at such a hearing, closed session, is obliged, under Senate rules, with the potential sanction of expulsion from the Senate, to keep confidential any matter that is raised in that setting.

Joe Biden: (08:21)
The press has asked me since I announced this rule, “What about the public’s right to know?” The committee will decide at that point whether or not there’s any grounding to any allegation that has been raised. If there is grounding, then we will end up going public, and the public will have a right to know and make a determination. One other procedural role that’s changed is all investigative matters will be open to every single, solitary United States senator. Only senators, not their staffs, beyond this committee.

Joe Biden: (08:51)
Anyone who comes forward with an allegation, and I announced this last year, should know at the outset that every senator in the United States Senate, all 100, will be made aware, on the basis of Senate rules, confidential information being required to be protected, will be made aware of that allegation. So we do not go through a process whereby senators rightly or wrongly think they were not fully informed prior to the hearing, the vote being taken, and so that we do not go through the process where the only way they can be aware of such information is to make it public.

Joe Biden: (09:27)
So at some point, when this hearing closes down, the Senate Judiciary Committee Room will be closed off, just like the Intelligence Room is of the Intelligence Committee, investigative staff, five of whom… How many total investigative staff do we have, both minority and majority?? Nine staff members, majority and minority, will be in that room for a day period. Any United States senator can go into that room, get fully briefed by that staff, read any documents we have, so that they are fully informed.

Joe Biden: (09:55)
Again, I want to emphasize, Judge, this procedure has nothing to do with you. You are not only an honorable person, everything I’ve heard about you, every investigative matter that our committee has raised, everything is perfectly squeaky clean. And so I’m not suggesting that we’re going to institute… And it’s nice to start with you. It’s nice to start with someone we’re not going to have to spend a lot of time. But honorable people have had the most outrageous charges raised against them. Case in point being the Attorney General of the United States. When she was nominated, some of the most outrageous charges were drawn to the attention of me personally, and the investigative staff.

Joe Biden: (10:34)
We investigated them, found them without any foundation. It would have been extremely embarrassing and degrading, and I think damaging, had that taken place under the full glare of the Senate lights. It’s meant to avoid that, to separate the chaff from the wheat, and I just want to make that clear as we begin. Now, down to business. I asked the staff to kick off the clock. We’re going to have 30 minute rounds. Judge, at any time at all, I would ask someone from the White House who may be with you to indicate to me if it’s appropriate to take a break, because we’ll forget. We get to get up and walk out of here after we have our questions and go back and get coffee, or take a call or whatever, and you have to sit there the whole time.

Joe Biden: (11:17)
So if I trespass at all on your physical constitution, I want to be made aware of that. But I will say now, we will try to go for a total of up to two hours from this point on, try to get four senators in. We’ll break very briefly to give you a breather. Then we’ll come back and continue again until roughly the 6:30 hour. Is that agreeable with you, Judge?

That’s fine, Mr. Chairman.

Joe Biden: (11:42)
It must be an unusual role. For so many years, you sitting up here and having litigants down there. It’s one of the few times we get to do this, and one of the few times, my duties in the Senate, that I don’t particularly enjoy, although in your case, it’s been a pleasure thus far. Let me begin now with the questioning. I’d like to begin by asking you about how you will go about interpreting our Constitution, Judge. Judges, as you know better than I do, approach this job in many different ways, and these different approaches often lead to very different results.

Joe Biden: (12:15)
You’ve made a great many statements about constitutional interpretation as a scholar and while as a judge in lectures that you’ve delivered, most recently in a talk you gave this year, which is referred to as the Madison Lecture. In that lecture, you said, and I’m quoting here, that, quote, “Our fundamental instrument of government is an evolving document.” End of quote. You also said you rejected the notion, quote, that, “The great clauses of the Constitution must be confined to the interpretation which the framers would have placed on them.” End of quote. I could not agree more. If the meaning of the Constitution did not evolve over time, we would not today have many of the individual rights all Americans now hold most dear, like the right to choose whomever we wish to marry.

Joe Biden: (13:11)
There’s nothing in the Constitution, as you know, that gives someone a constitutional right to marry whom they want. It’s not specifically enumerated. Were that not changed in Loving v. Virginia there could still be laws in the book saying blacks can’t marry whites and whites can’t marry blacks. Or the right to get a job, whoever you are, whether you’re white or black, male or female. But still, there are hard questions about precisely how the Constitution evolves, about when the courts should recognize a right not specifically mentioned in the Constitution or specifically contemplated by the authors of that document at that moment, whether it’s an amendment or the core of the Constitution.

Joe Biden: (13:55)
You spoke of these questions at some length in the Madison Lecture. You said that the history of the United States Constitution is in large part a story of, and I quote, “The extension of the constitutional rights and protections,” end of quote, including to, quote, “Once excluded groups.” End of quote. Judge, can you discuss with me for a moment, what allows courts to recognize rights, like the right to marry whomever you wish, like the right to be employed or not employed without there being a distinction between males and females, like the right that was mentioned here earlier by several of my colleagues in the opening statement for women to be included in… I thought the phrase that Eleanor Holmes Norton used was, “Within the embrace of the 14th Amendment,” or something to that effect, when in fact they were not contemplated to be part of that amendment when it was written?

Joe Biden: (14:51)
What is it that allows the court to recognize such rights the drafters of the Constitution or specific amendments did not specifically mention, or even contemplate at the time the amendment, in the case of the 14th Amendment, where the Constitution and the Bill of Rights were drafted?

That’s a large question, Mr. Chairman, and I’ll do my best to respond. First, I think the credit goes to the Founders. When I visited Senator [Thurmond 00:00:15:25], he was kind enough to give me a pocket Constitution.

Joe Biden: (15:29)
I think that was Sam Irvin’s. Did you give her Senator Irvin’s pocket-

But he gave me-

Sen. Thurmond: (15:35)
I gave [inaudible 00:15:36] Constitution. That’s the United States Constitution.

But this pocket Constitution contains another document, and it is our basic rights declaring document. It is the Declaration of Independence; the declaration that created the United States. I think the framers are short-changed if we view them as having a limited view of rights, because they wrote, Thomas Jefferson wrote, “We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness, and that government is formed to protect and secure those rights.”

Now, when the Constitution was written, as you know, there was much concern over a bill of rights. There were some who thought a bill of rights dangerous because one couldn’t enumerate all the rights of the people, one couldn’t compose a complete catalog. The thing to do was to limit the powers of government, and that would keep government from trampling on people’s rights, but there was a sufficient call for a bill of rights, and so the framers put down what was in the front of their minds, in the Bill of Rights. If we look at the way they are stated in the Bill of Rights, in contrast to the Declaration of Independence, let’s take liberty, as it appears in the Fifth Amendment. This statement in the Fifth Amendment, “Nor shall any person be deprived of life, liberty, or property without due process of law,” this is written as a restriction on the state. The right is already declared in the Declaration. It’s an unalienable right, and the government is warned to keep off, both in the structure of the Constitution, by limiting the powers of government, and in the Bill of Rights.

And then as you also know, Mr. Chairman, the framers were fearful that this limited catalog might be understood, even though it’s written as a restriction on government rather than in conferring of rights on people, it might be understood as skimpy, as not stating everything that is. And so we do have the Ninth Amendment stating that the Constitution shall not be construed to deny or disparage other rights obtained by the people. So the Constitution is written. We might contrast it with the great French Declaration of the Rights of Man, which does confer a right, the state confers a-

And of the rights of man, which does confer a right. The state confers a right to speak freely. But in our bill of rights, it doesn’t say the state gives one a right to speak. It says, “Congress shall make no law prohibiting the free exercise of religion or abridging the freedom of speech.” So that the whole thrust of it is people have rights and government must be kept from trampling on them. And the rights are stated with great breadth in the Declaration of Independence. Now it is true. And it’s a point I made in the Madison lecture that the immediate implementation in the days of the founding fathers in many respects was limited.

We, the people was not then what it is today. The most eloquent speaker on that subject was Justice Thurgood Marshall. When during the series of bicentennials, when songs of praise to the Constitution were sung, he reminded us that the Constitutions immediate implementation, even as text, had certain limitations, blind spots, blots on our record.

But he said that the beauty of this constitution is that through a combination of interpretation, constitutional amendment, laws passed by Congress. We, the people has grown ever larger. So now it includes people who were once held in bondage. It includes women who were left out of the political community at the start. So I hope that begins to answer your question that the view of the framers, their large view, I think, was expansive. Their immediate view was tied to the circumstances in which they lived.

Joe Biden: (21:32)
Well. It does answer the question and I’m delighted, to be very blunt about it, delighted with the answer. And as I’ve indicated to you, and I’ve said on numerous occasions over my 20 years in the Senate, that I do not expect a nominee nor demand a nominee to agree with me on substantive issues, but it does make a difference to me and give me at least me some insight into the view of the past history and the future of this nation that a nominee has, the vision they have.

Joe Biden: (22:04)
If I know from which they think, the place from which they believe our rights are derived, and you have made a fundamental distinction from other nominees that have been before this committee in the past decade, one of which was, not all, but one in particular. And that you’re emphasizing, first of all, you acknowledge there is a ninth amendment.

Joe Biden: (22:24)
That is, you have no idea what a milestone that is in this committee, and I’m being a bit facetious, but we had one nominee who said the ninth amendment was, “Nothing but an ink blot on the constitution.” But your emphasis and that there whereby we derive the courts over the years have derived, they expanded a concept, which at the time it was written, did not embrace a specific circumstance. You’ve indicated as I understand your answer, that you start off with the position I happen to share that this is a limited government.

Joe Biden: (23:03)
We do not derive our rights as human beings from a piece of paper called the Constitution. The government derives its rights from we, the people. We, the people got together back a couple hundred years ago and said, “This is the deal we’re going to make among ourselves and what power we’re going to allow government to have.” And I think the important word in the ninth amendment is deny or disparage others, referring to rights, retained by the people. And as you point out the distinction between how the great French declaration of rights or other great instruments proclaiming human rights and dignity, I’ve always proclaimed them in terms of granting them to the people.

Joe Biden: (23:47)
In this case, the way in which as you point out our Constitution is written, first amendment, the Congress shall make no law. Very different perspective from which we in this country have started. And secondly, you’re referencing the 15th amendment, the Declaration of Independence and the ninth amendment. And I expect possibly the 14th amendment as well. As a basis from which the courts have found over the last 200 years and in particular, over the last 50 years, a intellectually consistent and rational basis for being consistent with the Constitution, but nonetheless expanding individual rights in the sense that they recognize their existence in their guarantee of constitutional protection.

Joe Biden: (24:32)
Now, so it does answer the question for me, but I’d like to move from there if I may now, having established that the constitution has to be read by justices in light of its broadest and most fundamental commitments. Commitments to Liberty, commitments to individual dignity, equality of opportunity. And in my view, the framers were wise when they drafted the constitution with such broad language. And I think there’s ample, I think, historical evidence to indicate that they understood that at the time that they were going to be, that the document that they were drafting for this newborn nation was one that required concepts to be embodied more than specific guarantees that could change with time.

Joe Biden: (25:22)
And I believe it was precisely they did it in broad concepts, nonspecific, precisely to avoid freezing the rights and protections that were afforded Americans. Now, there are method permits the meaning of the document to progress as we progress and as the world changes. And as we better understand the full scope of our nation’s principle and ideals, the Constitution interpretation has changed. Now in the Madison lecture, though, you also noted, “Constraints on the ability of the courts to expand individual rights.”

Joe Biden: (25:56)
You recognized that that what has been done, that’s it’s constantly been an expansion, but that there was a, in a sense, a self imposed restraint. And you wrote that, “Movement in this direction of expansion by the courts should be measured.” Was your quote. “Measured and restrained.” You also wrote. “The courts generally should follow rather than lead changes taking place elsewhere in society.” And you characterize the court, excuse me, you criticize the court. As I read the lecture for too often, “stepping boldly in front of a political process.” I believe that was the quote.

Joe Biden: (26:40)
But judge, in your work as an advocate in the seventies, you spoke with a different voice. In the seventies, you pressed for immediate extension of the fullest constitutional protection for women under the 14th amendment. And you said the court should grant such protection, not withstanding what the rest of society, including the legislative branch thought about the matter. For example, in one brief, you wrote that, “The quality of the court’s review is not determined by the presence or absence of stierrings, S T I E R R I N G S, stierrings in the legislative branch.”

Joe Biden: (27:26)
Now I believe that was in the Frontiera brief. I’m not certain of that, but I think that’s right. Now, how does that square with your statement in the Madison lecture that courts generally should follow rather than lead society and that court should move in measured motions and measured steps? Is my question clear?

Your referring to the Frontiera brief?

Joe Biden: (27:58)
Where you said, if I’m not mistaken, “The quality of the court’s review is not determined by the presence or absence of stierrings.” And that in the Madison lecture, you said that, “The court should be measured and restrained, follow rather than lead changes taking place elsewhere in society.” Can you square those for me? Or point out their consistency to me?

Yes.

Joe Biden: (28:31)
Good answer. Now we’ll go on to the next question. Yeah.

The Frontiera brief from which you read, was in fact, the third in a set of briefs, urging the Supreme court to recognize the equal stature of men and women before the law. As an advocate in those cases I gave the court initially two and later three choices for the rationale. One was that any classification based on gender should have the closest review.

Joe Biden: (29:23)
As would distinctions made on race.

Yes. And then at the opposite pole, I said, “But these classifications that Rid Law statute books couldn’t even pass the lowest level of review, which is the rational basis test.” And the first case in which those arguments presented, were presented was a very simple one. It was the case of Sally Reed, whose young son died under tragic circumstances. It’s a teenage boy, and she applied to be administrator of his estate. The boy’s father, parents were separated at that point, also applied to be administrator. The state of Idaho at that time had a rule for deciding such cases.

And the rule was as between persons equally entitled to administer a decedent’s estate males must be preferred to females. It’s maybe astonishing to some of the young people behind you, that laws like that were on the books in the States of the United States in the early 1970s. But they were, and they were many like them. There had never been in the history of the United States any instance in which any law that differentiated on the basis of sex had been declared unconstitutional up to Reed v. Reed.

Joe Biden: (31:12)
Matter of fact, some had been challenged and declared to be constitutional.

A number of them. But without reciting that entire history, as an advocate, I presented to the court different ways that they could reach the decision. In that case, which was as clear on its facts as any case could be. That was the position that I took as an advocate. My expectation, to be candid, was that I would repeat that kind of argument, maybe half a dozen times.

Joe Biden: (31:48)
Until they got it right?

Until the court would look at one classification after the other and say, “Well, this is irrational.” And then they would come to the point where they would say, “None of these lines make any sense. So we might as well recognize that drawing lines on the basis of gender is in almost all cases, impermissible and the presumption will be against rather than for that constitutionality.”

But I saw my role in those days as an advocate in part and as a teacher in part. Because one of the differences about gender discrimination and race discrimination is that race discrimination was immediately perceived as evil, as odious, as wrong, as intolerable. But the response that I was getting from the judges before whom I appeared, when I talked about originally sex-based discrimination, then I began to use the word gender.

I’ll explain that perhaps later. But what are you talking about? Women are treated ever so much better than men. I was talking to an audience that thought immediately that what I was saying was somehow critical about the way they treated their wives, the way they treated their daughters, their notion was far from treating them in an odious, evil, discriminatory way. Women were on a pedestal. Women were spared the messy, dirty, real world, and they were kept in this clean, bright home.

And so it was trying to educate the judges that there was something wrong with saying, “Sugar and spice and everything nice. And that’s what little girls are made of.” That that was limiting the opportunities, the aspirations of our daughters. So I expected that to be… one doesn’t learn that lesson in a day. I think generally in our society, a change is incremental and real change, enduring change, happens one step at a time.

I think this litigation may be illustrative because in that second case that you mentioned, Frontiera. Four justices came on board for the sex as a suspect classification. And why I was told that by one of the lawyers, with the ACLU women’s rights project, I think it may even been the executive director who came in and said, “You got four votes for sex as a suspect classification.” And I said, “It’s too soon. We’re not going to get the fifth.” The education process hadn’t gone on long enough.

So even though as an advocate, I was advancing sex as a suspect classification as the end point that I expected the court to reach after it dealt with a series of real life cases, cases like Sally Reed’s case, I didn’t expect it to happen in one fell swoop.

Joe Biden: (35:10)
Well, judge, I don’t mean to cut you off, but this inappropriate place to take the next step, then. I understand what your strategy was and I understand now how you view and perceive permanent important change to come about, how it does come about. And I think it’d be hard to argue from historical perspective that you’re wrong. And I don’t mean to do that. I’m trying to square though your… I understand your position as an advocate. Then you became an appellate court judge and you gave a lecture this year called the Madison lecture.

Joe Biden: (35:41)
Now as an appellate court judge you are required to follow Supreme court precedent. You are not able to go off on your own. A subject I’m going to come back to in my second round with you is your view of stare decisis, because we both know that in the court, you’re about to go to you are not bound by any previous Supreme court ruling. As a judge on the circuit court, you are honor bound to follow to the best of your ability, what you believe to be the consistent ruling consistent with what the Supreme court has ruled if it’s on all fours or as close as you can approximate it.

Joe Biden: (36:19)
Now you are going from, you’ve had three different roles, advocate where you were educating. And I know you mean that literally. And that’s exactly what has to be done where believe it or not some of us in the legislature think we have to do it that way as well. Like the violence against women’s legislation, which I’d like to talk to you about here as well, from a constitutional perspective, where there are laws on the books now that are outrageous, they don’t relate directly to equal protection considerations, but they start off with premises about women that are arcane and wrong.

Joe Biden: (36:51)
In my own state of Delaware, you can not be, you can be convicted of first degree rape if you rape a stranger. But if you rape someone with whom you’ve had an acquaintanceship, under the law you can not be convicted. It can be as brutal a rape, as terrible a rape, but its second degree rape because you are… what is it?

Joe Biden: (37:09)
A Social companion. Implicit in that is if your a social companion, somehow the woman is partially responsible for this. So there are still these outrageous laws on the books in other areas. But the point is you then moved into being an advocate. I mean, from advocate to being a judge on the circuit court of appeals and as a judge you indicated what I said that the court should move in a measured restrained way.

Joe Biden: (37:35)
You also noted though that the court in Brown vs the board of education was not timid. It was not fearful. It stepped out in front of society. And yet in another lecture you said that Brown, “Ended race segregation in our society, perhaps a generation before state legislators in our Southern States would have budged on the issue.” Again, seeming inconsistency. One, you say-

Joe Biden: (38:03)
… again, seeming inconsistency. One, you say the court should basically wait and not step out too far ahead of society. And the other, you indicated that in Brown, you acknowledged they did. They stepped out maybe an entire generation ahead of society, and they stopped an odious practice in Brown versus the Board. And so what I’d like to know is, as a Supreme Court justice, what will guide you? If you, as you may, and I’m not asking you this, but you may conclude that strict scrutiny is the measure that should be applied under the Equal Protection Clause of the 14th Amendment, relative to women, as it is with regard to race. If you, as a justice, concluded that is the proper test to be applied, not withstanding the fact society may not have gotten that far, would it be appropriate? Not will you, but would it be appropriate for you as a justice to move ahead of society like Brown did, the justices in Brown did, moved ahead of society? What did you mean in the Madison lectures that the court should not? Were you referring to the lower courts, the Supreme Court, all the courts?

Mr. Chairman, first may I say that the court has never rejected the application of the suspect classification doctrine to sex. Most recently, when it came up, the court said, “We don’t have to reach that question.”

Joe Biden: (39:38)
Oh, I understand.

It’s still open because even if we hold to a somewhat less exacting test, a heightened standard, but somewhat less exacting. This classification has to fall. In that particular case, it was keeping men out of a nursing school that the University of Mississippi maintained was a lovely opinion by Justice O’Connor, that carries an insight that opening the doors of a nursery school… A nursing school. I would say the same thing for nursery school teaching. Opening doors to men can only improve things for women because when a job remains a job that only women have, it tends to be paid lower. Men get into it, the pay tends to go up, but let me try to respond to your question about Brown. Moving ahead of what society and at what level. First, it has to be appreciated that Brown wasn’t born in a day. That Thurgood Marshall came to the courts showing it wasn’t equal, in case after case, in four cases at least, before he wanted to put that before the court.

Sweat versus Painter, McLaurin, Gaines, he set the building blocks, until it was obvious to everyone that separate couldn’t be equal. There was also something else that had happened, moving ahead of the people. One of the influences on Brown, I think, was that we had just come through a war where people were exterminated on the basis of what other people call their race. I don’t think that the notion of apartheid in the United States, that the court was moving ahead of most of the people. There was resistance, of course. There was massive resistance, but Brown itself, even Brown didn’t say. And racial segregation, which society has come to recognize, some parts was coming to recognize, is going to be ended root and branch by one decision. Brown was in 1954 and it wasn’t until Loving against Virginia in 1967, that the job was over. Even at the Supreme court level, even at the declaration of law level.

Joe Biden: (42:45)
So what did you mean when you said, Judge, in the Madison lecture, that it ended race discrimination in our country, perhaps a generation before state legislators in our Southern States would have budged on the issue. Are you saying that the nation itself may have been in sync with Brown and the court, not that far ahead of the nation and it was only that part of the country?

Well, the massive resistance was concentrated in some parts of the country. That there was discrimination throughout the country, I think it’s undoubtedly the case. But there was certainly a positive reaction in Congress, not immediately, but first the Voting Rights Legislation that started in the ’50s and then the great Civil Rights Legislation of 1964. The country was moving together.

Joe Biden: (43:48)
It was a decade later. My time’s up, Judge, and you’ve been very instructive about how things have moved, but you still haven’t, and I’ll come back to it, squared for me, the issue of whether or not the court can or should move ahead of society. A decade even, admittedly in the Brown case, it was at least a decade ahead of society. The Congress did not in fact react in any meaningful way until 10 years later, and so it moved ahead. And one of the things have been raised, the only question that I’m aware of that has been raised, not about you personally, but about your judicial philosophy in the popular press and among those who follow this is, how does this distinguished jurist distinguish between what she thinks the court is entitled to do under the constitution and what she thinks it’s wise for it to do?

Joe Biden: (44:55)
What is permitted is not always wise. And so I’m trying to get, and I will fish for it again when I come back, but I’m trying to get a clear distinction of whether or not you think, like in the case of Brown, where he clearly did step out ahead of where the nation, at least nation’s legislators were, whether that was appropriate. And if it was, what do you mean by, “It should not get too far out ahead of society,” when you talked about that in the Madison lectures? But I’ll give it another try, I think you not only make a great justice, you are good enough to be confirmed as Secretary of State because state department people never answer the questions fully directly, either. If you’d like to answer fully, I’m interested.

Now, I leave you, Mr. Chairman, just two thoughts that you can think about in between now and our next round, but one of them was prompted by Senator Moseley Braun, when she reminded us that the spirit of liberty must lie in the hearts of the women and men of this country. It would be really easy, wouldn’t it? To appoint platonic audience who would rule wisely for all of us, but then we wouldn’t have a democracy. Would we? We cherish living in a democracy. And we also know that this constitution did not create a tricameral system. Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as platonic guardians.

Joe Biden: (46:40)
Well, I would have been happier had the court in Dred Scott, decided to go ahead of society. I think America would have maybe had the same Civil War, but would have ahead more rapidly. Clearly, it would have been stepping out by a hundred years ahead of where the nation ultimately arrived. I’m not asking you to accept that. What I’m trying to get is, there’s no doubt that a court’s opinion cannot be sustained without ultimately, the support of the majority of the people. As someone said, relative to the Pope during world war II, “How many legions does it have?” You all have an allegiance. Ultimately, your judgments as the Supreme Court will depend upon the willingness of the American people to accept them as appropriate.

Joe Biden: (47:32)
I have no doubt about that. I understand that, but there does come a time in the course of human events when the court has in the past, and I suspect, may have to in the future, be a generation ahead of where the nation is. And I’m wondering whether or not, as a matter of judging, if you can include it should arrive at a decision, but look behind you and determine that the folks ain’t with you, that that would restrain you from saying and annunciating what you believe the constitution calls for, in terms of annunciating or write or striking down a prohibition, that the popular wisdom of the public is not prepared to strike down. That’s the essence of my question.

I think, Mr. Chairman, I can assure you on one thing. I will never, as long as I’m able to sit on any court, rule the way the home crowd wants because I’m worried about how it will play in the press if I rule the other way.

Joe Biden: (48:32)
I wasn’t implying play in the press. I know you’d never do that. That’s not even the question. My question is, again, and I will drop it now. My question is, whether or not, if you determined that it is appropriate in 1948, you were on the court, and you deemed Separate but Equal was inappropriate. Or in 1938, that it was not constitutionally permissible under the 14th amendment, whether or not withstanding the fact that you had reached that conclusion as a legal scholar and as a justice bound by no previous Supreme court ruling, that not withstanding the fact that in 1938, America said had not gone to war, did not understand genocide, did not have a notion of the value in the role that blacks would play in that war, that you would’ve been willing to say, if you believed it at that moment, “We should strike down the law that the vast majority of Americans thinks is appropriate.”

I think I can give you a clear case. It was the great Justice Marshall when he ruled in a way that the state of Georgia found exceedingly incorrect. And I think the case was Worcester against Georgia in 1832. He ruled the right way, even though he knew that the people of that state and the rulers of that state, the people in power in that state, would be down on his head for that ruling, but it was the right ruling and so he came out with it. I would also like to say that Dred Scott was the wrong decision for its time. There was no reason for it. At the time it was rendered, that it should never have been decided the way it was. And it was incorrect then and it was incorrect ever after. I don’t think that that was a decision that the court had to make at the time that it made it.

Joe Biden: (50:29)
I thank you very much, Judge. I’ve exceeded my time and I thank you for your cooperation. I yield to the Senator from Utah.

Sen. Orrin Hatch: (50:36)
Well, Judge, I thought your answers were pretty good because a matter of fact, Dred Scott was the first illustration of substantive due process, where the judge has just decided they wanted it done this way and Justice Taney thought he was really saving the countries for doing that. So he did that, which really was not ahead of society. Society, at least in the North, was ahead of him. And in the case of Brown versus Board of Education, Mr. Justice Harlan in 1896 said that Separate but Equal was wrong. And so in all honesty, the court was not ahead of society. The society really was ready for that type of a decision. Now, there are many criticized Brown versus Board of Education for the rationale of the decision.

But frankly, all Brown versus Board of Education did, was what Justice Harlan suggested, and that is treat equality as equality, and under the 14th amendment. So it isn’t a question of whether you’re ahead of society or not, it’s a question of whether you’re actually interpreting the laws in accordance with the original meaning, which of course, under the 14th amendment meant equal protection, equal rights, equality, but let me just move on to something else. I would like to ask you whether you agree with the following statements about the role of a judge, including Supreme Court justice. The first statement is this, the judge’s authority derives entirely from the fact that he or she is applying the law and not his or her personal values. Do you agree? Do you agree or disagree with that?

No judge is appointed to apply his or her personal values, but a judge will apply the values that come from the constitution, its history, its structure, history of our country, the traditions of our people.

I agree. Then you agree with that basic statement, then. You shouldn’t be applying your own personal values.

I think I made a statement quoting Holmes to that effect, in my opening remarks.

You did. What about this statement? The only legitimate way for a judge to go about finding the law is by attempting to discern what those who made the law intended.

I think all people could agree with that, but as I tried to say in response to the chairman’s question, knowing what people tried to divine, what the framers long dead intended, at least I have to look at that two ways. One is what they might’ve had intended, immediately for their day. And one is their larger expectation that the constitution was meant to govern, not for the passing hour, but for the expanding future. And I know no better illustration of that. And to take the great man who wrote the Declaration of Independence, who also said, “Were our state of pure democracy, they would still be excluded from our deliberations, women who to prevent deprivation of morals and ambiguity of issues should not mix promiscuously in gatherings of men.” Now I do believe that Thomas Jefferson, were he alive today, would say that women are equal citizens.

Or else he wouldn’t be president.

But what was his understanding of all men are created equal, for his day and for his time, it was that the breasts of women were not made for political convulsion. So I see an immediate intent about how an ideal is going to be recognized at a given time and place, but a larger aspiration, as society improves. I think the framers were intending to create a more perfect union that would become ever more perfect over time.

I think that’s a good way of putting it. I think reasonable jurists can disagree about what the original meaning of a provision is or how to apply it under certain circumstances. I don’t think there’s any question about that or as to how to apply it to a given set of facts, but so long as the judges or justices starting point is the original meaning of the text, then it seems to me that judge is seeking to fulfill his or her constitutional duty. But let me ask you about this statement, if a judge abandons the intention of the lawmakers as his or her guide, there is no law available to the judge and the judge begins to legislate a social agenda for the American people. That goes well beyond his or her legitimate power.

The judge has a law, whether it’s a statute that Congress passes or a highest law of the constitution, to construe, to interpret and must try to be faithful to the provision, but it’s no secret that some of these provisions are not self-defining. Some of the laws that you write are not self-defining. There’s nothing a judge would like better than to be able to look at a text and say, “This text is clear and certain. I do not have to go beyond it to comprehend its meaning.” But often, that is not the case. And so a judge must do more than read the specific words. The judge will read on to see what else is in the law and read back to see what was there earlier. The judge will look at precedent. How are the words in this provision or in a similar provision construed?

… provision construed. The effort is always to relate to the intent of the lawgiver and the lawmaker, but sometimes that intent is obscure.

I like your statement that the judge has an obligation to be faithful to the provisions of the law. And you’ve explained that, I think, very well. Let me move to another subject that’s very important to my folks out in Utah, and that is the Second Amendment. I would like to address the Second Amendment, the right to keep and bear arms, a right that many of us from and across the country believe sometimes gets short shrift.

For instance, for most of our country’s history, the Bill of Rights limited only the powers of the Federal Government, not the states, but through the process of so-called selective incorporation. The Supreme Court in recent decades ruled that most of the provisions of the Bill of Rights apply via the 14th Amendment against the states. One right, however, that has not yet been held to be protected for an infringement by the states, of course, is the Second Amendment right of law abiding citizens to own firearms. Now, do you believe that there is a principle basis for applying almost all of the other provisions of the Bill of Rights against the states, but not the Second Amendment?

The Second Amendment shares with at least to other provisions of the Bill of Rights that status. They are significant provisions, but they have not been held to be incorporated. And one is the grand jury indictment provision-

In article five.

In article five. Grand juries are not obligatory for the states. And another, a right that many people think is very important, the Seventh Amendment. The right to a trial by jury in a civil case has not been held applicable to the states. I know that the Second Amendment shares that. It certainly doesn’t stand alone. Grand juries and civil juries fall in that same category. You know, Senator, that there’s much debate about what the Second Amendment means. I think the last time the Supreme Court spoke to it was something like 1939, was it? In Miller case. I’m not prepared to expound on it beyond making the obvious point that it has been variously interpreted.

Well, I think what I’m saying is I would agree with Justice Black that if we’re going to have incorporation against the states of any portion of the Bill of Rights, all eight amendments conferring rights should apply, because all eight of them do confer rights, should apply against the states. I don’t think judges should be picking and choosing which rights they prefer. Now, in the two cases you’ve mentioned, the amendments still apply other than most of those features. But it’s just one I wanted to raise with you just for whatever purpose I could. Now, Judge Ginsburg, I’m concerned about the reverse discrimination case decided in the DC Circuit that you sought to overturn. Now, that-

To have the remedy worked out among the people involved in the case, and only when nothing else works, will the judge then have to step in and fulfill as best as she or he can. The judge has constitutional responsibility.

Strom Thurmond: (01:00:54)
As I mentioned earlier, my legislation would alter the Jenkins decision to preclude the Federal code from using taxation as part of a judicial remedy. This bill does not affect the subject matter jurisdiction as a court, but limits their remedial discretion. Now we’ll move on to another subject.

Judge Ginsburg, in Shaw v. Reno, which was handed down by the Supreme Court last month, they called remainder to the district court the appellant’s claim under the equal protection clause, which had alleged that the North Carolina reapportionment plan was so irrational on its face it could be understood only as an effort to segregate voters and to separate districts on the basis of race, and that the separation lacks sufficient justification. One vocal critic of this decision said that the Supreme Court has now created an entirely new constitutional right for white people. Judge Ginsburg, do you believe this to be an accurate assessment of the Shaw decision? And if confirmed, how will you approach challenges to reinforcement plans under the equal protection clause?

Senator Thurmond, the Shaw case to which you referred was returned to a lower court. The chance that it will return again to a higher court is hardly remote. It’s hardly remote for that very case. It’s almost certain for other cases like it. These are very taxing questions. I think that the Supreme Court has redistricting cases already on its docket for next year. This is the very kind of question that … it would be injudicious for me to address.

Thank you. Judge Ginsburg, as you may know, the Congress has before they proposed amendment to the Constitution, which would mandate the Federal Government to achieve and maintain a balanced budget. I am a strong supporter of the balanced budget amendment. I worked on this for over 20 years. Should the amendment become part of our Constitution, you believe that individual taxpayers would have standing to bring suit in Federal court to force the Congress to adhere to its mandate.

You have described a measure that you support, and therefore hope and expect may someday pass. That being the case, you were describing a future controversy that may very well come before the court.

Well, you don’t have to answer then if you feel you shouldn’t.

Yes.

Judge Ginsburg, there are hundreds upon hundreds of inmates currently under death sentences across the country. Here in the Congress, I have been advocating habeas corpus reform to bring about finality of judgment in capital cases. Please tell this committee your views on the validity of placing some reasonable limitations on post-trial appeal to the inmates under death sentences to avoid execution for years after commission of their crimes. Some of these cases … One in my state went for 10, 11 years. One I believe in the state of Utah, Senator Hatch’s state, went for 16 years, and the man hadn’t gone to the chair yet.

I know, Senator Thurmond, that there is in this area a great tension between two important principles. And the one you’ve been talking about is finality. All things must come to an end, and that’s important in the law. Controversies must be decided, and people must go on about their business. Finality is important, but fairness is also important. And unfortunately, we don’t live in an ideal world where people get the best representation the first time they come to court.

Suppose they do have good representation?

Yeah. Well, these concerns, finality and fairness, are intention, and they must be balanced in the particular case. I have to say that unlike Federal judges in many other places, judges in the DC Circuit do not have experience with the kind of habeas petitions you’re talking about. Because Congress, when it created the District of Columbia courts, set them up as courts with judges appointed by the President, gave them a very fine post-conviction remedy that’s identical to 2255 of title 28, the Federal post-conviction remedy. And then said you go from the DC courts to the Supreme Court, and the Supreme Court will take your case. And there is no habeas review when you get through with the DC courts to go into the Federal court. We don’t get kind of habeas corpus business that fourth circuit gets, that the other regional circuits get. I appreciate the tension between finality and fairness. I have not had the experience that some of my colleagues on the Federal bench have had with the habeas jurisdiction.

I might just say that the public loses respect for the courts when the case is tried and the sentence is given, and is 10 years later or 15 years later before the sentence takes effect. We’ve got to do something to bring for now to these matters. If you remember, Justice Rehnquist appointed a commission with Justice Powell, and that’s a very good provision or something similar. And I would like for her just to think over it.

Yes. I understand that Congress has and will continue to give consideration to the Powell report.

I welcome your statement and your committee questionnaire responses that judges must avoid capitulating to a result or any criticism. I especially welcome your approving reference to Professor Gerald Gunther’s discussion of Chief Justice Marshall’s 1832 opinion in Worcester v. Georgia. As Professor Gunther explains, when John Marshall and his fellow Justices voted in that case, they generally believed that the decision might well mean the end of effective court authority. But they also thought that it was legally. And unflinchingly, they did their duty. They decided the case on merits even though their immediate prospects were anxiety-producing, even though the survival of the court was truly at stake.

If a decision is right on the merits, it should be handed down despite fears about consequences. This approach, which you soundly praise, contrasts sharply with the approach taken by a five Justices of the Supreme Court last year, and the Casey [inaudible 00:01:08:26]. In the past, Chief Justice Marshall did what he believed was right regardless of the possible effect on the court’s public standing. By contrast, five Justices relied on concerns over the court’s perceived legitimacy in the public’s eyes in deciding not to overrule the constitutional error made in Roe v. Wade. As Justice Scalia pointed out in dissent, instead of engaging in the hopeless task of predicting public perception, a job not for lawyers but for political campaign managers, the Justice should do what is legally right. I am pleased to see that you are with Chief Justice Marshall and Justice Scalia on this principle. Would you care to make any further comment?

I think that every Justice of the Supreme Court and every Federal judge would subscribe to the principle that a judge must do what he or she determines to be legally right.

Joe Biden: (01:09:39)
You’re good. Judge. You’re real good.

Judge Ginsburg, in 1975 at a meeting of ACLU board of directors that you attended, the board adopted a policy statement that declared the ACLU opposed limitations on the custody and visitation rights of parents where such limitations are based solely on the parent’s sexual preference. However, that statement did not claim that such limitations are unconstitutional. My question for you is this: Putting aside your views on the wisdom of any such limitations, do you have any doubt that a state is free if it wishes under the Constitution to take into account a parent’s sexual preference in awarding custody and visitation rights, and to limit those rights solely because of that preference? Similarly, could a state, in your view if it’s so desired, limit adoption rights to heterosexuals, or you feel that it might come before the Supreme Court?

I think from the announcements that we’ve seen in the paper today, yes. That certainly could come … The questions that you’ve outlined.

I won’t ask you to answer then if you feel it’s inappropriate.

Thank you.

Judge Ginsburg, one very important area of the law is a question of whether courts exceed their authority by creating rights of action for private litigants under Federal statutes where Congress did not expressly provide such rights of action. And Justice Powell put it this way. On article three, Congress alone has responsibility for determining the jurisdiction of the lower Federal courts. As the legislative branch, Congress should also determine when private parties ought to be given causes of action under the legislation it adopts as countless statutes demonstrate, including titles of the Civil Rights Act of 1964. Congress recognizes that the creation of private actions is a legislative function and frequently excise it. When Congress chooses not to provide a private civil remedy, Federal courts should not assume the legislative role of creating such a remedy, and thereby enlarge that jurisdiction. As a general matter, what you think of Justice Powell’s argument?

I think that Congress should express itself plainly on the question of private rights of action. I think that judges would welcome that with great enthusiasm. Judges do not lightly imply private rights of actions. In some areas of the law … securities law, for example, where private rights of action have been understood by the courts to be the legislature’s intent, and that’s always what the court is trying to divine. It appears that the legislature has been content with those implications. It’s left them alone now for … Oh, in some cases, even decades. But I think the judges have said often enough in opinions, “We’re going to try to find out and to try to determine as best we can whether Congress intended there to be a private right of action.” We wish Congress would speak clearly to this question. Because as you said, Senator, the existence of a private right of action or not is for Congress to say.

Judge, I believe my time is up. And thank you for your presence here on this occasion. Thank you, Mr. Chairman.

Joe Biden: (01:13:10)
Thank you, Senator. Judge, you’re obviously doing very well. You know how I know that? Three quarters of the press has left. The print media has left. Not the important ones, but three quarters of the press has left, which means that they assume you’ve been confirmed. We will, as I indicated, take a break now for 10 minutes. And when we return, we’ll go at least through Senator Metzenbaum and possibly through Senator Simpson. We have a little conflict here. I said we’d end by 6:30. If we get both, we’re going to go until 7:15 or so. We’re going to check with my colleagues what is the most appropriate. If you have a preference, you can let your staff know in the break, and we’ll take that in consideration. But we’ll now recess until a quarter after. If we start sharp at a quarter after, we can get a lot done.

Justice Ruth Bader Ginsburg Confirmation Hearing Transcript 1993

Part 1

Part 2

Part 3

Other Related Transcripts

Stay updated.