Hearing of the Senate Judicary Committee on Nomination of Judge Samuel Alito to the Supreme Court of the United States
Mr. BIDEN: Thank you, Mr. Chairman. Judge, welcome. Mrs. Alito and your family, welcome.
It's an incredible honor to be nominated by a president of the United States to be associate justice of the Supreme Court. And you're to be congratulated.
Judge, this may be one of the most significant or consequential nominations that the Senate will vote on since I've been here in the last three decades. And I think history has delivered you, fortunately or unfortunately, to a moment where Supreme Court historians far into the future are going to look back on this nomination and make a judgment whether or not with your nomination and if you are confirmed, whether the jurisprudence of the Supreme Court began to change from the consensus that existed the last 70 years or whether it continued on the same path it has over the past six or seven decades.
And that moment is right now. And lest we think -- it's kind of like we all go through this process, and I liked the phrase "minuet," that the chairman used -- we all act like there is not an elephant in the room.
The truth of the matter is there is significant debate among judicial scholars today as to whether or not we've gone off on the wrong path with regard to Supreme Court decisions.
There's a very significant dispute that's existed in 5-4 decisions over the past two decades in a court that's very closely divided on the critical central issues of the day.
And so just to make it clear, I'm puzzled by some of the things you said, and I'm sure you're going to get a chance to tell me what you meant by some of the things you wrote and said.
But in your job application you talked about being proud, as you should be, to be proud of your subscription to and adhering to notions put forward in the National Review; that you're a proud member of the Federalist Society; the National Conservative Political Action Committee; the American Spectator is something you look to, et cetera.
These are really very bright folks. They all have a very decided opinion on the issues of the day; very decided. And those very organizations I've named think, for example, we misread the Fifth Amendment and have been misreading it for the past three decades. Those same groups argue that we have, in fact - there is no right of privacy in the Constitution, et cetera.
So people aren't making this up. In a sense, this is not about you. You find yourself in the middle of one of the most significant national debates in modern constitutional history.
And so because you've been nominated to replace a woman, in addition, who has been the deciding vote on a significant number of these cases -- since 1995 there have been 193 5-4 decisions. And Justice O'Connor 77 percent of the time has been the deciding vote.
And for 70 years there's been a consensus among scholars and the American people on a reading to the Constitution that protects the right of privacy, the autonomy of individuals, while at the same time empowering the federal government to protect the less powerful.
Only recently has the debate come that states' rights are being trumped in a fundamental way, reading of the 10th Amendment and 11th Amendment. That's a legitimate debate, totally legitimate.
But anybody who pretends that how you read the 10th and 11th Amendment doesn't have a fundamental impact on the things we care about is kidding themselves. They're either uninformed or they're kidding themselves.
So, Judge, there's a genuine struggle going on well beyond you, well beyond the Congress, in America about how to read the Constitution.
And I believe at its core we have a Constitution, as our Supreme Court's first great justice, Marshall, said in 1819, and I quote, "intended to endure for the ages to come and consequently to be adapted to the various crises of human affairs."
That's the crux of the debate we're having now: whether it is an adaptable Constitution.
A lot of my friends make very powerful and convincing arguments, and they may be right that, "No, no, no, no, it is not adaptable. It is not adaptable."
And since our country's founding, we've tried to keep government's heavy hand out of our personal lives, while ensuring that we do the most important thing, which is to protect those who cannot protect themselves.
And the debate raging today is about whether we'll continue along that path or whether our courts will continue -- and whether our courts will continue to be one of the places where society puts the little guy -- and I know this is not something you're supposed to say -- the little guy on the same footing with the big guy. The one place that David is equal to Goliath is in the Supreme Court.
And it's also important to note that you're slated to replace the first woman ever nominated to the Supreme Court. We can pretend that's not the fact but it is. And through no fault of your own, we're cutting the number of women in half on the court.
And now, as I said, that's not your fault, but I think it means that have to take -- at least speaking for myself -- a closer look at your stands on issues that are important to women.
And moreover, Justice O'Connor brought critical qualities to the high court that not everybody thinks are qualities -- I happen to think they are -- her pragmatism and her state craft. Not that I've always agreed with what she said -- far from it -- but Justice O'Connor has been properly lauded, in my view, as a judge who approached her duties with open-mindedness and with a sensitivity that affects her decisions would have on everyday, ordinary people.
She, unlike, Judge Bork, did not think that being on the court would be an "intellectual feast," to quote Judge Bork.
Justice O'Connor also brought balance to our highest court; most recently, as been repeated many times, when she cautioned about how war doesn't give a blank check.
Her decisions reflect, in my view, that our society has worked very hard to improve the workaday world, to open doors to workers confronted by powerful employers and for women facing harassment and stereotypes.
Now, I acknowledge these are very tough jobs a judge has in determining whether or not there is an openness that is required under the Constitution. But I also acknowledge that prejudice runs very deep in our society. And, in the real world, discrimination rears its ugly head in the shadows, where it's very difficult to root it out. But Justice O'Connor was not afraid to go into the shadows.
The Constitution provides for one democratic moment, Judge, before a lifetime of judicial independence, when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids.
And, Judge, simply put: That is this moment, the one democratic moment in a lifetime of absolute judicial independence. And that's what these hearings are about, in my view.
In the coming days, we want to know about what you believe, Judge, how you view the Constitution, how you envision the role of the federal courts, what kind of justice you would seek to become.
As I said, this one democratic moment when the people, through their elected representatives, get to ask questions of a president's choice for the highest court. And I hope you'll be forthcoming.
I cannot imagine, notwithstanding what many of my colleagues who I have great respect for believe, I can't imagine the founders when they sat down and wrote the document and got to the appointments clause said: You know what? The American people are entitled know before we make him president, before we make her senator, before we make him congressman what they believe on the major issues of the day.
But judges, Supreme Court nominees, as long as they're smart and honest and decent, it really doesn't matter what they think. We don't have to know.
I can't fathom -- can't fathom that that was the intent of the founders. They intended the American people to know what their nominees thought.
And I might add -- and I'll end with this -- we just had two Supreme Court justices before our caucus, just as they were before, I think, the Republican Caucus. They ventured opinions on everything, on everything, things that were going to come before the court. It did not in any way jeopardize their judicial independence.
So, Judge, I really hope that this doesn't turn out to be a minuet. I hope it turns out to be conversation.
I believe we -- you and I and this committee -- owe it to the American people in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They're entitled to know what you think.
And I remind my colleagues, many of which are on this committee, they sure wanted to know what Harriet Miers thought about everything. They sure wanted to know in great detail. They were about ready to administer a blood test.
The good news is, no blood test here. The good news is, no blood test, just a conversation. And I hope you'll engage in it with us because I'm anxious to get a sense of how you're going to approach these big issues.
I thank you very much, Judge.