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 Topic: Footnote 5 in the Michael H. case.

 Senator: Biden

 Date: SEPTEMBER 14, 2005

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BIDEN: Let me conclude..

ROBERTS: Senator, could I...

BIDEN: I still have the floor -- and I'll yield to you, since you can speak after the clock's out. I can't, OK. I'm sure you understand that.

And I'm sure if I'm ever before the Supreme Court, you'll give me more time. You won't interrupt me.

(LAUGHTER)

Here's the point I want to make: I asked -- and I'm sure you're not going to answer it -- I asked Justice Ginsburg a question about Footnote 5 in the Michael H. case. And the whole issue there is, as you well know, whether or not you keep talking -- it sounds wonderful to the uneducated ear, the non-lawyer's ear, that I'm going to look at history and tradition.

You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.

So in determining whether or not there are any visitation rights, there's a famous footnote there.

BIDEN: And I'm going to do this quickly at two minutes and seven seconds.

The court said -- Scalia said in footnote six, "Look, you go back and look at the specific historical precedent." Short-circuiting it, "Have bastards ever been protected in the law?" And Brennan (ph) said, "No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?"

Now, Scalia said, "No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here."

And by the way, "You should never go back," he says, "and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?"

So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.

The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?

BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?

ROBERTS: Well, I get extra time you said...

BIDEN: I know. But I don't. I get to get it in now before the chairman...

SPECTER: Judge Roberts, when his red light goes on, you'll have as much time as you want.

ROBERTS: Thank you.

The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.

ROBERTS: And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.

So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain.

BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.

ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?

And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.

So you look at it at a broader level of generality.

Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, "We stand for election and we wouldn't be elected if we didn't tell people what we stand for."

Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that, "This judge should go on the bench because these are his or her positions and those are the positions they're going to apply."

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.

That's inconsistent with the independence and integrity of the Supreme Court.

BIDEN: No one's asking for a promise.

SPECTER: Thank you very much, Senator Biden.

BIDEN: Thank you.

Thank you, Judge.

ROBERTS: Thank you, Senator.

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