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Date: January 11, 2006

Senator: Biden

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 SPECTER: And it is now Senator Biden's turn for his second round, for 20 minutes.

Senator Biden?

BIDEN: Thank you very much, Mr. Chairman.

Judge, good to see you. As I said to you, we happened to run into each other in the hallway coming in, what I'd like to do, if I may, is go back and revisit two areas that you were questioned on yesterday, and a little bit maybe even today. I don't recall actually. I think it was yesterday.

And one is the Casey case. And I want to make sure I understand because I'm still a little bit puzzled by your reasoning.

But let me start off and make it clear, from my perspective, the abortion issue is -- I'm trying to figure out how you arrived at interpreting a justice's -- a Supreme Court justice's standard that was being applied and how it came out differently than others.

Yesterday you said, when I think it was Senator Kohl asked you, that you agreed with Justice O'Connor, quote, "that you look at the group that's affected, not the group that's unaffected."

But when you wrote your dissent, you said, and I quote, "It seems safe to assume that some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering substantial ill effects, acknowledging some would suffer substantial effects."

Can you tell me -- rationalize yesterday's statement and your dissent for him? Tell me -- explain it to me.

ALITO: Well, I think what you look at is the group that is required to notify. You don't look at the group that's not required to notify. So unmarried women are not examined here because the notification requirement obviously does not apply to them.

Then, my understanding of Justice O'Connor's standard, which was the "more than some women" standard -- let me put it that way, although she didn't put it quite that strongly. She said that it is insufficient that some women are inhibited from having an abortion as a result of the requirements.

So you look at the people who are affected by -- who are within the scope of the provision.

ALITO: And then you would see how many of the people within the scope of the provision would be inhibited from having an abortion as a result of what was involved.

You don't look at people who aren't regulated at all, and you don't just look at the people who would be inhibited, because both of those would not be the right thing to look at.

So let's take the case of informed consent requirement. You'd look at everybody who was required to receive the information that was within the informed consent provision and then you ask how many of the people, how many of the women who are regulated by this, would be inhibited from having an abortion as a result of the requirement.

That was my understanding and that is my understanding of what she was talking about.

BIDEN: Now, you referenced in your dissent in Casey the Thornburg case. What was the issue in Thornburg?

ALITO: Thornburg concerned...

BIDEN: Excuse me. That prompted her to come up with the statement that you referenced, which was that, you know, it doesn't have to affect everyone.

ALITO: Well, she was setting out her understanding of what the standard was, of the undue burden standard.

Now, in Thornburg, there were several provisions of a previous version of the Pennsylvania statute at issue. There was an informed consent provision, as I recall. There was a provision relating to health insurance. There was a provision relating to notification of a minor's parents. There were a number of provisions involved.

ALITO: My recollection is that when she made this statement, she was talking about the undue burden standard itself. It was an explanation of what she meant by the undue burden standard.

BIDEN: As I look back and read it, my understanding was -- and I won't, in the interest of time, read her entire two paragraphs here -- but the part of Casey which she found to be a particular problem as being declared unconstitutional by her colleagues was where an obstetrician would have to read to a woman certain verbiage that would explain the pros and cons about an abortion, or at least the down sides of an abortion.

And she said the state has an interest in promoting life, and so even though some women might be offended by that, it was still OK. It was still constitutional.

And that language is the language that the discussion about, even though some women would be affected, you transposed in good conscience to a case where notification to a husband was required.

One of the things that I had some difficulty with is whether or not there really were comparable issues here.

In one case, it was about whether or not a woman would fear for her life, for example, an exception was given, if she informed her husband. In another case it was not about that, that O'Connor was referring to, she was referring to whether or not it put an undue burden on the woman to be told, by the way, this can happen when you have an abortion and this is the state the fetus is, et cetera.

That is the part that kind of disturbs me, or that perplexes me anyway, about the real world here.

Senator Specter referenced the Violence against Women Act. We did a lot of work on that. There is overwhelming evidence that there are women who would be fearful of going home and telling their husbands they are going to have an abortion. Not fearful physically; fearful that the husband had all the economic power, would say, "I'm divorcing you and I'm taking the kids and having a custody battle, and you do not have the money to hire a lawyer."

BIDEN: Are they comparable ill effects? That is, that kind of ill effect on a woman that, if she tells her husband, he is going to sue for divorce and seek custody of the children, knowing that he has all the economic horsepower and she has no ability to go out and hire a significant lawyer?

Is that comparable to the doctor saying: By the way, if you have an abortion, here is what happens?

ALITO: The informed consent provision presented an easier -- easier isn't even the right word -- a less difficult question than the spousal notification provision.

I don't think there is any question about that. They both involve the same standard, which was the undue burden standard. And, therefore, I thought, and I still think, that what was said in reference to one provision is relevant in determining what the standard was.

The big issue, when this case was before us, was whether the standard was undue burden or not. It's funny how cases look different after they have progressed through the Supreme Court than they do when they are first presented to the court of appeals.

That was the most hotly contested argument before us. Had there been any change in the Supreme Court's case law -- and the plaintiffs argued strenuously that there had not -- but our panel, after some effort, determined under the Marks standard for determining what the holding of a case is when there is no majority opinion, that the standard was the undue burden standard.

And there just was not a lot to go on. I think I said that yesterday. I look for whatever guidance I could find.

BIDEN: Well, again, I am not questioning the sincerity of your search.

Again, it gets down to the thing that keeps coming up with me is not that you don't care about the little guy and all of that, but that your reading of statutory language, Supreme Court precedent, the Constitution, seems to me to not reflect some of the genuine real life differences that exist.

BIDEN: The idea that you acknowledge that some women would suffer ill effects, substantial ill effects from informing their husbands, but because it was only a small percentage that met the undue burden test -- that didn't meet the undue burden test -- seems to me -- well, anyway, a majority disagreed with you. And I happen to disagree with you because I guess -- maybe it's because we've been so exposed to how so many women, within their relationships, can suffer significant consequences for challenging a position that their husband does not want to accept, whether it has to do with abortion or what school their child goes to, and it's pretty consequential.

But that's my problem with how you arrived at your reasoning -- your reasoning of how you arrive at your conclusion.

Let me move on to another area in the interest of time here. Yesterday there was discussion about Family Medical Leave Act. And you correctly stated there were two distinct parts of the act, and the Hibbs case dealt with one, and the case which you -- Chittister dealt with another. Can you explain that again for me?

ALITO: Yes. Hibbs concerned a provision that required employers to give employees leave to be out of work to take care of a family member.

ALITO: And there was a record that state employers had given more leave for this purpose to women than they had to men, and that was based on the stereotype that when somebody in the family gets sick and somebody has to leave work to take care of the family members, it's the woman and not the man.

And it reinforced the stereotype, of course, because having such a policy would encourage, would put pressure on women to leave work for this purpose as opposed to the man. If there was a woman and a man in the family and somebody had to leave work to take care of a sick family member, and you have a plan like this, this is going to pressure the woman to do that.

So the Hibbs court found that that was a sufficient record of gender discrimination to justify the passage of legislation under Section 5 of the 14th Amendment.

Chittister concerned a provision that related to leave for personal illness. And there is no reason to think that men or women get sick more often one than the other, or what was to the point, that state employers had given men more sick time than women or women more sick time than men.

And so with that record it was the conclusion of my court -- and I believe seven other circuits -- that this was a different issue, these cases were decided before and after Hibbs, and that that could not be justified if you accept the congruence and proportionality standard.

BIDEN: Well, on the congruence and proportionality standard, we in the Congress felt we were speaking to that. Were you aware or your colleagues -- well, speak for yourself, actually; I know you can't speak for them -- that one in four people taking sick leave under the act are women for pregnancy-related disabilities. We, when we wrote the law, said explicitly that we wanted the bill to protect working women from the dangers that pregnancy-based distinctions could be extended to limit their employment opportunities.

BIDEN: I mean, the practical world is that a fair number of women who are pregnant are told in the last -- and I yield to my doctor at the end of the dais on the other side -- but it's not unusual for a woman to be told that she needs the last month of pregnancy or two months of pregnancy have bed rest.

And that if that counts against her 12 weeks, you know, employers -- we did establish there's a record where employers say, "Hey, look, man, we're going to give men and women the same leave," notwithstanding the fact that women, in fact, in many circumstances -- and one in four of them are pregnancy-related -- need more time because of the pregnancy.

I mean, was that discussed by you guys or women?

ALITO: I'm quite certain it never was. I would have made a reference to it in the opinion if that had been mentioned.

And I'm not aware of that coming up in the other circuit opinions on the issue.

We are, to a degree -- we can't know everything about the real world. And we are dependent on the arguments that are presented to us to a degree. I don't believe that argument was ever presented.

BIDEN: Well, Congress expressly stated that the purpose of the act was, quote, "to minimize the potential for employment discrimination by ensuring generally that leave is available for eligible medical reasons, including maternity-related disability."

And that's why the decision confuses me. I think all you probably have to do is turn to your wife and say, "Hey, you know, the real world, when you're pregnant, does that sometime inhibit the amount of time you're able to -- you're required to be away from your job?"

BIDEN: Fortunately, most women, like my wife and my daughters- in-law, my daughter-in-law, work up to the time, but a lot can't.

Let me suggest also, as I said to you in the hallway, I want to, kind of, set the record straight on Princeton. One of the reasons why I'm perplexed and many of us are perplexed by your answers regarding CAP, the organization, is that it doesn't fit with your background. It doesn't fit with your background.

As we both said in the hallway, I read your opening statement again, where you said that, "A generation earlier I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton." And I pointed out to you -- I'm about 10 years older than you -- that's how I felt. That's what I was referencing yesterday about my Irish Catholic kid from Claymont.

The thing that surprises -- or at least puzzles -- me is that it was, I thought, a pretty widely known debate that in the Ivys, the one, sort of, last holdout, fighting to not admit as many women and fighting not to admit as many minorities, was Princeton. And there was a whole battle over it, as you heard referenced in terms of the Wall Street Journal and mailings to alumni.

I noticed someone in the press saying -- I want to be able to continue to wear the hat given to me, by pointing out that the reason I can wear this hat proudly today, after being on campus as much as I have at Princeton, is today 28.7 percent of Princeton's undergraduate population is minority.

BIDEN: And today, the class of '05, 47 percent -- 47 percent -- are women. And so, that's what that battle was all about, a lot of us thought.

You know, I'd be proud of my daughter at Princeton Graduate School, instead of Penn now, although I am very proud she is at Penn. But that's what this debate was about, Judge, and that's why it still confuses me.

And I'm going to ask you a straightforward question and I hope it doesn't offend you.

When you listed CAP, was part of your rationale for listing that on the application that you thought that would appeal to the outfit you were applying to, the people looking at your resume?

ALITO: Well, Senator, as I've said, I don't have a recollection of having anything to do with CAP. So all I can say is that I put it down on the '85 form and, therefore, I must that been a member at around that time. And that's -- I can't even...

BIDEN: I'm not even suggesting about whether you were or were not remembering, but, was part of the reason -- I mean, one of the explanations -- I'm looking for a reason.

You know, I'm looking to be able to say -- because you don't impress me as someone -- especially from your background -- that would want to keep Princeton as -- I won't go back and read the quotes -- keep Princeton as, you know, "Imagine my father's 50th reunion, having 40 percent women. Isn't that awful?" You don't impress me to belong to that club.

ALITO: I wasn't.

BIDEN: And so, the only explanation I can think of -- and you're a very informed guy.

BIDEN: I mean, you're sitting up there in north Jersey as a U.S. attorney. As I said, it's in the Wall Street Journal. It's a debate going on. You're getting letters.

The only thing I can figure is you figure that, you know, a relatively conservative Reagan administration Justice Department would say: Hey, maybe that's the kind of guy I want.

I can't understand why else you'd put it down. But if that's not the reason and it's just you just listed the outfits you belonged to, that still perplexes me. But, anyway...

ALITO: Well, Senator, I wasn't a member of that club, as you referred to it.

By the time I entered Princeton, there were many minorities in my class. The practice of not including minorities had ended. My class was not coeducational when we were admitted. And as I said yesterday, I had never previously attended a non-coeducational school.

BIDEN: You had about 300 women, if I'm guessing right, when you got admitted roughly.

When were you admitted?

ALITO: I was admitted in 1968. It was not coeducational. It went coeducational while I was there.

BIDEN: '71 -- '70, '71, there were 300 women; now there is 2,100 in that same class.

Anyway, I thank you very much, Judge.

I yield the floor.

SPECTER: Thanks very much, Senator Biden.

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