Date: January 12, 2006
Senator: Biden
Topic:
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SPECTER: Thank you very much, Senator Sessions.
Senator Biden?
BIDEN: Mr. Gerhardt, I'm just curious. Was that the case you cited about the Hoover administration? Was that when Senator Bora (ph) went down -- it's been said to -- it's a good answer, I think, to the chairman. Senator Bora (ph) went down. And when he was given a list of 10 people, looked at the list. To the president he said, "It's a great list, Mr. President, but you have it upside down." And that's how you get the message because when presidents actually consult, you do have an impact.
Let me ask a question, Mr. Gerhardt. And I understand if you don't want to answer it. But where do you think on the spectrum of the present court, if Judge Alito is confirmed, he will end up?
GERHARDT: It's a great...
BIDEN: That's guessing. But, I mean, what's your best judgment?
GERHARDT: It's a great question, Senator, and obviously I think it's one of the central questions in these hearings. I can tell you this much. I know how the president answers that. The president said he wanted to nominate somebody in the mold of Justice Scalia and Justice Thomas. And I think one of the questions in these hearings has been the extent to which, for instance, Judge Alito is going to be perhaps more like those justices or perhaps like some other justices, maybe Justice O'Connor or Justice Harlan, as he suggested.
And so, if he is going to fit that mold, then obviously the balance shifts in a number of important cases in a certain direction. But if he's not, then, of course, it's going to be harder to predict.
I might venture at least this much. I think that if he is truly going to be a bottom-up judge, as he suggests, then I think the shift is not going to be that great. In other words, the shift will be more modest. That's the critical thing.
The critical thing about being a bottom-up judge is that that is the essence of modesty. There's very little margin or error when you're a judge and you're a bottom-up judge. But if you turn out to be a top-down judge, there's a greater potential for a margin of error. And so, if he does turn out to be more like Justice Thomas and Justice Scalia, there's greater possibility for error.
BIDEN: Well, there'll be an awful lot of disappointed folks in Washington and in the nation if he turns out to be like Justice O'Connor. A lot of people will be very upset who are supporting him now.
But let me ask, if I may, anyone who'd like to respond on the panel. One of my greatest concerns is -- and I must tell you I have diminishing regard for the efficacy of hearings on judicial nominees in terms of getting at the truth. I'm not in any way implying...
(UNKNOWN): Based on the panel?
BIDEN: Yes. No, no, I'm not in any way implying -- across the board, Democratic nominees, Republican nominees. You know, it goes to this issue, in my view, of do the people have a right to know what they're about to put on the bench. And the part that concerned me the most, I must tell you, is the judge's comments on or failure to comment on the -- at least in my view a clear understanding of what he means by the unitary executive.
It seems very different than what others think unitary executive means and scholars that I'm aware of and his discussion about or failure to respond to what is now a very much animated debate about whether or not the president can wage war without the consent of or authority from the Congress and whether or not, as the administration argues, the war powers clause only gives the Congress the power to declare war if it wants to when the president doesn't want to go to war, which is the most extreme reading I have heard other than one occasion in the Bush one administration.
So does anyone here have any doubt that there's a need for the president absent in the danger to get the consent of the Congress before he were to invade Iraq or Syria tomorrow? Or does the president have the authority tomorrow, based on his judgment, to raid Iraq and Syria, to invade Iraq and Syria? Anybody want to venture an opinion on that?
ISSACHAROFF: I think, Senator Biden, that the lesson of the steel seizure case and including Judge Alito's invocation of Justice Jackson's opinion in that case, is that the president acts at tremendous constitutional peril when he acts contrary to the express wishes of Congress and acts at significant constitutional peril when he acts absent congressional authority unless there is true military exigency of the moment. I think that that's fairly well established.
That's been the history of the relationship between Congress and the executive. It's been a difficult history. And the question of how much authorization Congress has given is a repeated issue before the courts and has been since the Civil War cases. But I don't think that there's any doubt on this question constitutionally.
BIDEN: Thank you, Mr. Chairman. My time's up.
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