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Date: January 10, 2006

Senator: Biden

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 BIDEN: Thank you, Mr. Chairman.

I understand, Judge, I'm the only one standing between you and lunch, so I'll try to make this painless.

Judge, I'd like to say a few very brief things at the outset. I'm puzzled, and I suspect you may be puzzled, by some of the questions. I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent.

I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches.

They wonder, when you -- granted, it's back in '85 or '84 when you wrote, "I do not question the attorney general should have this immunity as absolute immunity but, for tactical reasons," et cetera.

So people are puzzled -- at least some are puzzled. And so I don't want you to read any of this as -- at least from my perspective, as I've read it so far -- that people think that this is a bad guy.

BIDEN: I mean, what people are puzzled about with the recusal issue was, under oath you said, "I will recuse myself on anything relating to...," and then a case comes up. So they're looking for an explanation.

So it's not about whether you are profiting or whether you are, you know, all of this malarkey about whether you broke judicial ethics. It's, you know, a simple kind of thing. You under oath said: I promise if this ever comes up, I'll recuse myself. And then you gave an explanation. It slipped, you forgot, it had been years earlier, et cetera.

So don't read it as this is one of these things where we know where you are. The people I've spoken to on your court -- and it's my circuit -- have a very high regard for you. And I think you're a man of integrity. The question is, sometimes some of the things you have said and done puzzle -- at least, puzzle me.

And one of the things -- this is not part of a line of questioning I wanted to ask -- but I did ask you when you were kind enough to come to my office about the Concerned Alumni of Princeton. Were you aware of some of the other things they were saying that had nothing to do with ROTC? Because there was a great deal of controversy.

I mean, I can remember -- I can remember this. My son was -- well, anyway, he ended up going to that other university, University of Pennsylvania.

But I remember at Princeton, I had spoken on campus in the early '70s. This was a big thing up at Princeton at the Woodrow Wilson School. And I remember -- I didn't remember Bill Frist, but I remember that there was this disavowing, that Bill Bradley, this great basketball star, and now United States senator, was disassociating himself with this outfit, that there was a magazine called Prospect. I remember the magazine.

And all I want to ask you is: Were you aware of the other things that this outfit was talking about? Were you aware of this controversy going on in...

ALITO: Senator, I don't believe that I was.

ALITO: And when it was mentioned that Senator Bradley had withdrawn from the magazine, that didn't ring any bells for me. I did not recall anything like that.

BIDEN: Well, it was a pretty outrageous group. I mean, I believe you that you were unaware of it. But here I was, University of Delaware graduate, a sitting United States senator, I was aware of it because I was up there on the campus. I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well.

And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus.

But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton...

(LAUGHTER)

I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had.

I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen.

But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time.

The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here.

BIDEN: The first one is individual qualifications and what their constitutional methodology, their views are, their philosophy.

But the other is -- and it always occurs -- whose spot they're taking and what impact that would have on the court.

Everybody wrote with Roberts after the fact that a lot of people voted for Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist. So Roberts for Rehnquist, you know, what's the worst that can happen, quote/unquote, or the best that can happen?

(LAUGHTER)

No, I'm not being facetious. What's the best or worst?

If you're conservative, the best that can happen is he's as good as Rehnquist. From the standpoint of a -- someone who's a liberal, the worst that can happen, he's as good as Rehnquist.

So, I mean -- but you're replacing -- I mean, we can't lose this and so people understand this. You are replacing someone who has been the fulcrum on an otherwise evenly divided court. And a woman who's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've used -- a real-world perspective. This was a former legislator, this was a former practitioner, this was someone who came to the bench and applied -- to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that -- what would happen to an individual.

So her focus on the impact on individuals was sometimes criticized and praised.

BIDEN: It's just important you understand, at least for my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance 5-4, 4-5, one way or another.

And that's the context in which, at least, I want to ask you my questions after trying to get some clarification, or getting some clarification from you on concern Princeton. Because, again, a lot of this just is puzzling; not not able to be answered, just puzzling.

Judge, you and I both know -- and clearly one of the hallmarks, at least in my view, of Justice O'Connor's position was, she fully understood the real world of discrimination. I mean, she felt it.

Graduated number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary.

And so she understood what I think everybody here from both ends of the spectrum understand: that discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago.

And employees don't say any more, you know, "We don't like blacks in this company," or, "We don't want women here."

BIDEN: They say things like, "Well, they wouldn't fit in," or, "You know, they tend to be too emotional" or "a little high-strung."

I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. We wrote these laws to try to get at what we observed in the real world.

What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.

And so I'd like to talk to you about a couple of anti- discrimination cases. One is the Bray case. In that case, a black woman said she was denied a promotion for a job that she was clearly qualified for. There was no doubt she was qualified. And she said, "I was denied that job because I'm a black woman."

And it was, as I said, indisputable she was qualified. It was indisputable that the corporation failed to follow their usual internal hiring procedures. And the corporation gave conflicting explanations as to why they reached the decision to hire another woman who they asserted was more qualified than Ms. Bray.

Now the district court judge said, you know, Ms. Bray hadn't even made a prima facie case here, or she made -- but she hadn't made a sufficient showing to get to a jury; I'm finding for the corporation here.

And Ms. Bray's attorney appealed and it went up to the 3rd Circuit. And you and your colleagues disagreed. Two of your colleagues said, you know, Ms. Bray should have a jury trial here. And you said "No, I don't think she should," and you set out a standard, as best I can understand it. I want to talk to you about it.

And your colleagues said that if they applied your standard in Title VII cases, discrimination cases, that it would effectively -- their words -- eviscerate Title VII because, they went on to say, it ignores the realities of racial animus.

BIDEN: They went on to say that racial animus runs so deep in some people that they're incapable of acknowledging that a black woman is qualified for a job.

But, Judge, you dismissed that assertion. You said that the conflicting statements that the employer made were just loose language, and you expressed your concern about allowing disgruntled employees to impose cost of a trial on employers. And so your colleagues thought you set the bar, I think it's fair to say, pretty high in order to make the case that it should go to a jury.

Can you tell me what the difference is between a business judgment as to who's most qualified -- you said, "This comes down to subjective business judgment" -- and discrimination? You said, "Subjective business judgment should prevail unless the qualifications of the candidate are extremely disproportionate."

What's the difference between that in today's world and discrimination? I know you want to eliminate discrimination. Explain to me how that test is distinguishable from just plain old discrimination.

ALITO: Well, this case was one of quite a few that we get that are on the line. And when you think about the nature of the appellate system, it stands to reason that it's going to work out that way. The really strong cases tend to settle; the really weak cases are either dismissed and not appealed or they settle for a modest amount. So the ones that are hotly contested on appeal tend to be the ones that are close to the line, whatever the legal standard is.

ALITO: Now, four federal judges looked at the facts in this case. One was Judge Maryanne Trump Barry, who was then the district court judge and is now one of my colleagues on the 3rd Circuit. I was one. And we thought the evidence was not quite sufficient.

And then my colleague Theodore McKee and Judge Greene, a district court judge from Philadelphia, fine district court judge sitting by designation, thought that the evidence was sufficient.

And I think that division illustrates this was a factual case on which reasonable people would disagree. This was a case in which there was no direct evidence of discrimination. And I could not agree with you more that we can't stop there. There are subtle forms of discrimination and the judicial process has to be attentive to the fact that discrimination exists and, today, a lot of it's driven underground.

But all there was in this case were -- all that the plaintiff could point to, to show that there were facts from which you could infer discrimination, were a very -- what looked like a really minor violation of the company's internal practices.

They had a policy under which if somebody was being considered for a promotion, they would interview that person and they would decide, "We're going to promote or we're not going to promote." And if they decided we're not going to promote, then they were supposed to tell that person, "We've decide we're not going to promote you," before they go on to interviewing the next person.

And in this instance, it appeared that they interviewed Ms. Bray and they decided they weren't going to promote her, and then they interviewed the other candidate, Ms. Reel (ph), before they told Ms. Bray that they weren't going to promote her. They had nothing to gain by doing that. So it's a fact to be considered.

BIDEN: Judge, could I -- I don't mean to interrupt; I'm not sure I understand.

I think the reason for that policy is that that's the way people do discriminate. For example, you get somebody in -- a woman, a black, Hispanic, whomever -- who's qualified, but you do not want to hire them.

And if you say, in your mind, "OK, I'm going to keep looking until I find somebody's who more qualified so that I don't have to hire" -- I mean, just so we both understand, that's why that rule is there. It is not just a little deal, it's the real world. That's how people work.

People don't say anymore, "I'm not going to hire that man over there because he is black or he is Jewish or she is a woman." They don't do that anymore.

What they do is, they look around and they keep looking until they find someone -- "Ah-ha, I've got one here who's a Rhodes Scholar, I've got one here who's a white male who happened to have experience doing it." That's why they had that rule.

So again, I'm not questioning your commitment to civil rights. What I do wonder about is, whether or not -- it's presumptuous of me to say this -- whether you fully appreciate how discrimination does work today.

That's why the corporation set that rule up: "Interview the one inside the company, that was our practice to hire inside; tell them they had the job or not," so that the supervisor, who may not want to work with a black woman, doesn't get a chance to go, "I'm going to keep looking. Fine me somebody who has some experience somewhere else."

That's why they had the rule, right?

ALITO: I think you make a good point, Senator.

But in this instance, my recollection is -- in fact, I'm quite sure of this -- these were both people who were from the inside.

ALITO: They were both Marriott employees. And I think they were both being considered for the position at the time. So, it wasn't an instance in which they interviewed Ms. Bray and then they said, well, she's qualified but we really don't want to hire her; let's keep looking.

If there had been evidence to that effect, then I would certainly think, for the reasons that you have outlined, that you could draw a pretty substantial inference of an intent to discriminate from that.

But nothing like that was presented to us in that case as I remember it.

BIDEN: Weren't the facts in that case also that there was a Mr. Joston (ph) who had held the very job -- he was leaving the job -- that's the job being filled -- he said, in my opinion, which I let be known. I beg your pardon, it wasn't Mr. Joston (ph).

The person who was giving up the job said, in my opinion, I let it be known to the Mr. Joston (ph), the guy doing the hiring and which Mr. Joston (ph) was aware that (inaudible) was more than qualified to take over my positions as director of services of Park Ridge. To this day -- this is a quote -- "I cannot understand why she was not offered the position."

That was in the record. It was in the record that Joston (ph) had said in the deposition under oath, "She's not qualified," when she clearly was qualified.

I mean, I guess what I'm curious about is why, in a close case like this, wouldn't you let the jury decide it?

Why did you become essentially the trier of fact? I mean, what was your thinking?

ALITO: Well, my thinking was that the standard we were to apply was, could a reasonable jury find that discrimination was proven here. And it was my view and it was the view of the district judge that a reasonable jury couldn't find that.

When the district actually looked at the qualifications of the two candidates and said, this isn't even close. Ms. Reel (ph) is much better qualified than Ms. Bray.

ALITO: Now I didn't say that and I didn't think that. And I thought that they had somewhat different qualifications, and a reasonable person could view it either way. But it just wasn't anything that I saw that a reasonable person could point to as a basis for a reasonable inference of an intent to discriminate.

BIDEN: Well, again, I'm puzzled by this, just trying to understand your reasoning, because as you accurately point out, you didn't say the one was more qualified, you said they were equally qualified. And that's what puzzled me.

And what really got my attention in the case was you have a pretty collegial court, the 3rd Circuit. I mean, that's my observation. I don't follow it quite as closely as the man who's appointed about everybody on that court, our chairman, but I follow it very closely.

And I thought it's pretty strong language that a majority of your panel said that your standard would eviscerate the Ninth Amendment. That, in 3rd Circuit language, is a pretty strong statement.

But let me move on to another case, if I may: the Sheridan case, another discrimination case. Again, a little puzzling to me. This is a case where you were the only judge in this circumstance, out of the 11 judges on your circuit who heard the appeal, who ruled that a jury trial should have been overruled -- a jury verdict would have been overruled.

In this case, the woman alleged that she was constructively discharged; for the nonlawyers listening to this, it means she basically was demoted to the point where she was, as a practical matter, forced to quit.

And this woman alleged that she was constructively discharged. And she argued that it occurred after she had brought a discrimination claim, and where the records show that her employer said, "I'm going to hound you like a dog."

BIDEN: It was in the record -- "I'm going to hound you like a dog" for bringing this discrimination claim.

And there were more than one issue. One was whether this was an vindictive -- I forget the proper phrase -- or whether or not she should have been promoted. The third was whether she was constructively discharged.

And the jury heard the case and said we conclude she was constructively discharged -- i.e., she was basically forced out -- and she was forced out because she was being discriminated against. And 10 out of your colleagues reached that same conclusion.

But you said -- and this is what I want you to explain to me -- you said an employer may not wish to disclose his real reasons for taking punitive action against someone or not hiring someone or for his animosity toward someone. And you went on to say the reason for the animosity on the part of the employer might be based on sheer personal antipathy, which is OK.

Now, again, this is a matter of real world versus theoretically. Can you tell me how you can tell the difference when an employer is saying, "Ms. Feinstein, I am not going to hire you because the person seeking the job has a Rhodes scholarship and I like him better," and it turns out they weren't a Rhodes scholar? The real reason is, "I just don't like your glasses. I do not like the way you look." And I'm not being facetious...

(CROSSTALK)

(LAUGHTER)

BIDEN: For the record, I'm a fan of the woman from California.

BIDEN: But all kidding aside, I mean, that's how it read to me; that sheer personal antipathy is OK, even when the employer's reason for not hiring the person toward whom they showed sheer personal antipathy weren't true.

How do you distinguish that from discrimination, subtle discrimination? That's tough for me.

ALITO: Well, this case concerned an issue that had really divided the Courts of Appeals at the time when our court addressed it.

And the courts of appeals -- this gets into a fairly technical question involving a Supreme Court case called the McDonnell Douglas case.

But to put it in simple terms, the courts of appeals had divided into three camps on this. There was the pretext plus camp, which was the one that was the least hospitable to claims by employees. There was the pretext only camp, which was the camp that was most favorable to employees. And there was the middle camp.

And my position was in the middle camp. And when the issue went to the Supreme Court -- and it did a couple of years later -- in Reeves v. Sanderson Plumbing, Justice O'Connor wrote the opinion for the Supreme Court and she agreed with my analysis of this legal issue; that, in most instances, pretext is sufficient.

In fact, in the vast majority of instances, if the plaintiff can show or create -- point to enough evidence to show that the reason given by the employer is a pretext is incorrect, then that's enough to go to the jury.

ALITO: In the vast majority of cases, that's sufficient, but not in every case. And that's what I said in Sheridan, and that's what Justice O'Connor said when she wrote the opinion for the Supreme Court in Reeves v. Sanderson Plumbing.

BIDEN: Well, I went back and read Reeves, and I looked at O'Connor's statements. And with all due respect, you could argue she used the same standard, but it's clear to me she would reached a different conclusion. She would have been with your 10 colleagues.

Here's what she said. She said in the Reeves case that she would not send a case to the jury if, and I'm quoting, "one, the record conclusively revealed some other nondiscriminatory reason for the employer's decision."

I fail to see how the record conclusively showed that, and I doubt whether she would have seen that.

"Or, two" -- continuing to quote -- "if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and" -- and -- "there was abundant uncontroverted evidence that no discrimination had occurred."

It seems to me she's much more prepared to give the benefit of the doubt to the employee in that situation and you're much more prepared to give the benefit of the doubt to the employer.

I mean, by her own language, I find it hard to figure how she would have reached the same substantive conclusion that you did, that a jury trial wasn't appropriate, notwithstanding the fact, I think you make a good point, that the test, she said, was more like the test, you said, but the real world outcome, I think, she would have been -- presumptuous of me to say it -- I think it would have been 11-1 and not 10-2 had she been on the court. But who knows?

ALITO: Well, Senator, I think the vote on my court was a reflection of the standard that they applied, and they did not apply the Reeves v. Sanderson Plumbing standard. Of course, Reeves hadn't been decided at that point.

But they applied the standard that said if the plaintiff can create a fact issue as to whether it was pretextual, then that alone is sufficient. So they didn't get into an evaluation of the sort of evidentiary points that you were mentioning.

BIDEN: Well, they kind of did talk -- you'd know better than I, Judge. I don't mean to suggest I'm correcting you. But as I read the case, they did get into the minutiae...

ALITO: They did.

BIDEN: ... the factual minutiae. And in the Reeves case, O'Connor, not that it's -- because there were two different cases we're talking about here. We're talking about a similar rule, two different cases. O'Connor reversed the 5th Circuit decision.

And here's what she said when she reversed it. She said reverse the lower court because, quote, "it proceeded from the assumption that a prima facie case of discrimination combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate nondiscriminatory reason for its decision is insufficient as a matter of law to sustain the jury finding of intentional discrimination."

It seems to me that's what you did. In my view, that's what you did. That's the conclusion you reached in the Sheridan case. She overruled in Reeves, as I read it. But at any rate, as someone once said, it's your day job, and we do this part time. We have other things like wars and foreign policy to deal with, so I'm not presuming to be as knowledgeable about this as you do.

Let me move on to a third case, very quickly. I only have two and a half minutes left. And it's the Casey case, Planned Parenthood. And I don't care what your position is on abortion. This is not about your abortion position. It's about your reasoning here.

As a matter of fact, with two minutes and 30 seconds, I probably can't get into the case. Maybe I should do it in a second round.

BIDEN: But I should tell you now, I want to talk to you about, again, the real world here and, kind of, the effects test.

And so for me, Judge, where I still remaining somewhat puzzled is on whether or not you, whether it's applying the unitary executive standard and what you mean by that or whether it is the assertions made relative to how to look at discrimination cases, which are difficult, you seem to come down -- I'm not associating myself with the studies done -- I don't know enough to know whether they're correct or not -- by Cass Sunstein and others; I don't disagree with them.

But as I've tried diligently to look at your record, you seem to come down more often and give the benefit of the doubt to the outfit against whom discrimination is being alleged. You seem to lean -- in close cases, you lean to the state versus the individual.

Now, again, a lot of constitutional scholars would argue that's perfectly correct. All I'm suggesting is if I'm right -- and we'll get a chance to do this again -- if I'm right, that would be a change that will occur, more than subtle, on the bench, on this court, on a closely divided court, which would take it in a direction that I am not as comfortable with as others may be.

But at any rate, you've been very gracious. I appreciate you being responsive.

And I thank the chair. And I want to note for maybe the first time in history, Biden's 40 seconds under his time.

(LAUGHTER)

SPECTER: Thank you very much, Senator Biden.

SPECTER: We greatly appreciate it.

We're going to stay in session for just 10 more minutes.

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