Topic: Moore v. East Cleveland
Senator: Biden
Date: SEPTEMBER 13, 2005
Contents
BIDEN: Well, let's try some things she didn't write about that she talked about. Let's see if you can talk about them.
One is she talked about Moore v. East Cleveland. You're much more familiar with the case than I am.
That's a case where the city came along -- and I'm going to do this shorthand in the interest of time -- and said a grandmom living in an apartment with her blood grandchildren who were cousins, but not brothers, violated the law.
And the chief said in the minority opinion -- your mentor -- he said, "The interest that grandmother may have in permanently sharing a single kitchen in the suite of contiguous rooms with some of her relatives simply does not rise to the level of a constitutional right."
BIDEN: "To equate this interest with fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Constitution beyond recognition."
Do you agree with his statement?
ROBERTS: You know, I have no quarrels with the majority's determination.
BIDEN: Not my question, Judge.
SPECTER: Let him finish his answer, Joe.
ROBERTS: I understand that.
And I'm concerned about ramifications in which the issue could come up. But I have no quarrel with the majority's determination.
BIDEN: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.
She went on to say that, and let me quote -- she said -- this is quoting Justice Ginsburg -- "He goes on to say, 'History, counsel caution and restrain,' and I agree with him." "He says, then" -- this is referring to the majority opinion -- "but it does not counsel abandonment, abandonment of the notion that people have a right to certain fundamental decisions about their lives without interference of the state.
And what he next says is, "History doesn't counsel abandonment nor does it require what the city is urging here, cutting off the family right at the first boundary, which is a nuclear family. He rejects that. I'm taking a position I have all the time."
And she goes on to say -- she says, "Uh-Uh." She thinks your old boss was dead wrong. She said so, and she said the majority was dead right.
Ginsburg rule: What do you think? She never wrote about it.
ROBERTS: Senator, I think nominees have to draw the line where they're comfortable.
(CROSSTALK)
BIDEN: You're not applying the Ginsburg rule.
SPECTER: Senator Biden, let him finish. .
BIDEN: I don't have much time but go ahead.
ROBERTS: It's a matter of great importance not only to potential justices but the judges. We're sensitive to the need to maintain the independence and integrity of the court.
I think it's vitally important that nominees, to use Justice Ginsburg's words, "no hints, no forecasts, no previews."
They go on the court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law.
ROBERTS: And the litigants before them have a right to expect that and to have the appearance of that as well.
That has been the approach that all of the justices have taken.
BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.
Did she, in fact, somehow compromise herself when she answered that question?
ROBERTS: She said no hints, no forecasts, no previews.
BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.
My question to you is: Do you agree with it or not?
ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript...
BIDEN: So did I.
ROBERTS: ... she took the position that she should not comment.
Justice O'Connor took the same position. She was asked about a particular case.
BIDEN: Oh, Judge...
(CROSSTALK)
ROBERTS: She said, "It's not correct for me to comment."
Now, there's a reason for that.
BIDEN: But you're going from the...
SPECTER: Wait a minute, Senator Biden. He's not finished his answer.
BIDEN: He's filibustering, Senator.
But OK, go ahead.
(LAUGHTER)
SPECTER: No, he's not. No, he's not.
(CROSSTALK)
ROBERTS: That's a bad word, Senator.
BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.
(LAUGHTER)
ROBERTS: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might...
BIDEN: I got that.
ROBERTS: ... come before the court.
BIDEN: Did Justice Ginsburg give a hint when she answered...
ROBERTS: I'm not going to comment...
BIDEN: ... on the specific question?
ROBERTS: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.
BIDEN: Well, let's make it clear: She did not. Let's stipulate: She did not adhere to the approach.
I don't have time, because we don't have as much time, but I could list you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.
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