MSNBC Hardball - Transcript

By:  Joe Biden, Jr.
Date: April 28, 2005
Location: Unknown


MSNBC Hardball - Transcript
4/28/2005

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MATTHEWS: Welcome back to HARDBALL.

This afternoon, Senate Majority leader Bill Frist offered Democrats 100 hours of debate on President Bush's judicial nominees, including those future nominees for the Supreme Court, if they agreed on an up-and-down vote on each nominee.

Democrats have so far not agreed to this proposal. And earlier today, I asked Democratic Senator Joe Biden of the Judiciary Committee what he makes of the offer.

(BEGIN VIDEOTAPE)

SEN. JOSEPH BIDEN (D), DELAWARE: It's ridiculous.

Look, this whole thing underscores they don't understand the Senate.

Up until 1947, there wasn't-you needed a unanimous consent. From the time of the Constitution to 1947, you needed unanimous consent in order to get a judge through. They changed the rule in 1917 to say you could have - three-fifths of the senators could vote to cut off debate on legislation, but they said but not for nominees, because the founders never intended that.

This is all about the independence of the judiciary. When you go to the point where you can have 51 senators make a decision on every single-imagine if that rule had been in place when Roosevelt tried to pack the court. What would have happened?

MATTHEWS: He would have done it.

(CROSSTALK)

BIDEN: You're darn right he would have done it. This is time for a couple people of little-as Hamilton said, a moral rectitude to stand up in the Senate and understand the institution. This is not the House of Representatives, as noble as it is.

It was intended to be a totally different institution. They're about to make this a parliament. They're about to make this the president, the prime minister. And these guys on his side act as if they work for him. They are independent equals.

MATTHEWS: Should the vice president have engaged himself in this debate?

BIDEN: Well, he's entitled to. I mean, I don't...

(CROSSTALK)

MATTHEWS: I mean as your sense of division of powers.

BIDEN: Yes. No, no, he's the president of the Senate. I think it is not inappropriate for him to talk about the rules of the Senate. No, I think that's fine. I mean, he's wrong. But I think it's fine.

MATTHEWS: How about the president getting involved? He's not a member of the legislature.

BIDEN: Well, the president getting involved, he has a right to, but it crosses, it trenches upon the powers of separation.

What everybody kind of forgets is, there was a specific reason why they said, let the Senate dispose of all nominees. The president can propose. The Senate disposes. During those debates on the Constitution, there was no one single time where more than, I think, three votes for allowing the president even in on the deal. The only reason it got to the end was, this is about, look, this is not about equality.

This is about every state, every state having the same power as every other state. If you go by majority vote up there, what people don't realize is, there are 54 Republican senators. We 46 Democrats represent more of people in America than the 54 of them. You want to do this by majority rule, popular will? That's not what the Senate is about.

MATTHEWS: So you're against this proposal of 100 hours?

BIDEN: Absolutely, positively.

MATTHEWS: And you answer is-why are you against 100 hours? Isn't that enough to debate?

BIDEN: I'm against the 100 hours because it is not enough for debate. If the Senate wants to block extreme-even if they're not extreme. If 40 senators want to block anybody for nomination, they have the right to do that. And the reason they have the right to do that, it's the one bulwark against pure majoritarianism.

MATTHEWS: I want to run through just a couple of these nominees.

BIDEN: Sure.

MATTHEWS: What is your objection to Bill Pryor?

BIDEN: Bill Pryor, as well as the senator-as the nominee from California and others, they believe in changing a thing called the Takings Clause of the Fifth Amendment. That means that, if you're going to have a zoning law, the only way can you prevent somebody from building a factory in your neighborhood is pay them, because you're depriving them of the property.

They believe in this thing called a nondelegation doctrine, meaning we, Congress, couldn't delegate to the EPA to set the standard for what constitutes clean water. We would have to set that standard. We couldn't delegate to the federal Drug Administration, what drugs could and could not be put on the market. We would have to cast literally 10,000 votes. And what this means is a giant shift of power from the people to the powerful.

You eliminate regulatory agencies. And if you think I'm exaggerating, pump up the Web site of the AEI. Pump up the Web site of the Cato Institute. Read the dissent of Justice Scalia in Morrison (ph). I mean, these guys mean it. They are for real. They are bright, very serious people. But they talk about this thing called a Constitution in exile.

They believe that the nondelegation doctrine, the 11th Amendment, the 10th Amendment, the Takings Clause, have been misread for last 50 years. If we read it the way they want to read it, we go back literally, not figuratively, to pre-'20. Go look at the Chicago School of Law and Economics, some of the brightest people in the country. They think that the whole Social Security system is unconstitutional. This is what these guys think.

MATTHEWS: But doesn't the Supreme Court have the opportunity to overrule these appellate judges? Why do you fear appellate judges?

BIDEN: Two reasons.

One, when I-when you and I first came to this town, the Supreme Court took four, five times as many cases as they now take. Now they take 80 cases or something like that. Guess what? The last stop on the constitutional trial on de novo issues of constitutional reconsideration happens to be the Circuit Court of Appeals. They are in a much different position.

MATTHEWS: Let me ask you how this could be the end game. And you're the expert on the institution. You have been there since '73 in the United States Senate. You love the place, obviously.

Is there a possibility that we might find ourselves with a decision made by the Senate 50-50, 50 Republicans for, 50 Democrats against, on the issue of the so-called nuclear option, getting rid of the filibuster rule with regard to court appointments, with the vice president being the tiebreaker? Do you think the Republicans are willing to cut it that narrowly?

BIDEN: I don't know. I hope they are wiser than that. I hope they don't listen to interest groups. I hope they have enough courage to do what they know-you know, Barry Goldwater used to always say, you know, in his heart, they know he's right.

MATTHEWS: Right.

BIDEN: In their heart, they know this is not the thing to do. This is a fundamental change in our constitutional system that exceeds the issue of judges. And it is dangerous. We are not a parliament. We were never intended to be. The states were intended to be equal. This will change that dynamic, not just for judges, but across the board.

MATTHEWS: Where is this coming from? Is it coming from the interest groups, from the Republicans in the Senate, this push to get rid of the filibuster, this-what you call this strong effort, or is it coming from the White House?
BIDEN: I think it's coming from the White House. I don't know. The honest answer is, I don't know.

But I think it's coming from, it appears, from a distance. Just the plain old politics in me says that the Faustian bargain made with the Christian right-and not all Christians are right and not all right Christians are Republicans.

MATTHEWS: Right.

BIDEN: But the Dobsons of the world was, we get to call the shots on judges.

MATTHEWS: Is this a preliminary to the fight over the Supreme Court if Rehnquist steps down?

BIDEN: Absolutely. Absolutely, positively, it is. And, again, you're talking about, read what they are saying. Read what these guys write. I remember being on your show three years ago. And we talked about the neoconservatives on foreign policy.

MATTHEWS: Right.

BIDEN: Bright, honorable, patriotic people. And I said they're talking about leveraging power. You had read what they wrote, but everybody else kind of wrote to me and said, you're kidding. These guys don't mean that.

Well, guess what? Read what the scholars on the right are writing.

They want to change the Constitution.

MATTHEWS: OK, the tough question for you. When this is all over, the people will still say, not just conservatives, it seems to me that the president of the United States goes and picks a person he wants to see, an appellate court judge, a federal court judge. You guys on the Hill take it upon yourself, the right, to say, not only will we not approve him. We won't bother doing anything with him. We will just sit on that nomination.

And you believe that's the constitutional right of the United States Senate, to do that?

BIDEN: Absolutely; 24 Supreme Court justices were rejected; 14 didn't get a vote. Hear me? Fourteen never even got a vote.

Guess who led the filibuster against Abe Fortas and defeated him by a filibuster? An honorable Republican named Griffin who became the minority leader from the state of Michigan. Look who stood up to Roosevelt. It was Democrats in the Senate who stood up and said, whoa.

This idea that the president gets, is entitled to who he wants on the court is the most bogus argument in American, modern American history. It was never, never, never intended that. The reason why the founders said
the president would dispose-and the Senate should dispose is-was, we all senators couldn't come together on a single person. A single man can pick a single person more easily. But then it's up to the senators to dispose of whether or not that person is the right person.

And this is just a bogus notion. And this president is not-look, 215 people he sent us, we passed through 205, and we are being obstructionists?

MATTHEWS: OK. Senator Joe Biden, thank you, sir.

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